D.W.

[2020] FWC 5694

[2020] FWC 5694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

D.W.
(AB2020/655)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 OCTOBER 2020

Application for an FWC order to stop bullying.

[1] On 1 October 2020, D.W. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application form was substantially incomplete whereby the Employer/Principal as not listed, multiple questions remained unanswered, and the contact details for the Person Named was either illegible or incomplete.

[3] Also on 1 October 2020, the Commission conducted a preliminary discussion with D.W. and advised that the application form would need to be properly completed before the matter could proceed any further. D.W. advised the Commission that he will complete a new version of the application.

[4] Following the telephone conversation, the Commission emailed correspondence to D.W. confirming that there was missing or incorrect information in his application that required fixing. The correspondence warned that if he did not do this by 8 October 2020, his application may be dismissed.

[5] As no response was received by 8 October 2020, the Commission telephoned D.W., who advised he had been busy and had not had the opportunity to file a completed application but noted that he still wished to proceed with the matter. The Commission advised D.W. a final reminder would be sent and shortly after the conversation ended, final correspondence was issued requiring him to contact the Commission by 22 October 2020 to provide the requested information, or to advise why he had not done so. The correspondence further warned that failure to do either would very likely result in the application being dismissed without further notice.

[6] On 22 October 2020, the Commission attempted a final telephone call to D.W. but this was unsuccessful. A voicemail message was left referring him to the Commission’s previous discussions with him about his incomplete application form and warning that without a completed application form, his matter may be dismissed. The Commission also invited a return call from D.W.

[7] To date, the completed application form has not been provided to the Commission and no further action has been taken by D.W. or on his behalf. In the circumstances, the application has not been served upon any apparent respondent parties.

[8] Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[9] Whilst D.W. has advised the Commission of his intentions to pursue his application, I can only infer from his lack of action in providing a completed application form despite multiple requests from the Commission that he no longer wishes to pursue the application. In the circumstances, I am also satisfied that the relevant application form has not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it appropriate in all the circumstances to dismiss the purported application.

[10] Accordingly, the application is dismissed pursuant to s.587 of the Act. Of course, should D.W. wish to file a new application, there is nothing to prevent him from doing so.

DEPUTY PRESIDENT

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