DECISION

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

D.W.
(AB2021/59)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 MARCH 2021

Application for an FWC order to stop bullying.

[1] On 5 February 2021, 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 was incomplete in that it was not signed by D.W.

[3] On 5 February 2021, the Commission spoke with D.W. on the telephone and advised him the application was incomplete. D.W. advised he would sign the form and make other amendments, then provide it to the Commission. A letter was also sent on the same date to D.W. requesting he provide a signed application form.

[4] On 12 February 2021, D.W.’s application was still incomplete because he had not provided a signed application form to the Commission. The Commission attempted to telephone D.W. and left a voice message.

[5] A letter was then sent to D.W. on 12 February 2021, requesting that he contact the Commission by 26 February 2021 to give the information requested or tell the Commission why he has not responded to the request for more information. The letter stated that if he did not do this, his case was very likely to be dismissed without further notice, and his case would be closed.

[6] On 26 February 2021, the Commission attempted to telephone D.W. and left a voice message requesting urgent contact and noting that the application may otherwise be dismissed. Later on 26 February 2021, the Commission made a final attempt to telephone D.W. but was unable to speak with him.

[7] No response has been received from D.W. The required information has not been provided and no further action has been taken by him or on his behalf.

[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

[9] In considering all the circumstances, I am satisfied that the application has not been made in accordance with the Act. Given the lack of response from D.W. to repeated contact from the Commission, I can only infer that D.W. no longer wishes to pursue an application. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

[10] Accordingly, the application is dismissed under s.587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of D.W. involved an application by an employee for an order from the Fair Work Commission (FWC) to stop alleged workplace bullying by their employer. The applicant, D.W., claimed that they had been subjected to persistent and unreasonable behaviour by their employer, which created a risk to their health and safety. The Commission was asked to intervene and issue an order to prevent the bullying from continuing. The dispute centred around the interpretation and application of the workplace bullying provisions within the Fair Work Act 2009 (Cth). Specifically, the court needed to determine whether the behaviour exhibited by the employer met the threshold for being classified as "bullying" and whether it constituted a risk to health and safety. The applicant argued that the employer's actions were unreasonable and created a hostile work environment, while the employer contended that the behaviour did not amount to bullying.

The Fair Work Commission, in examining the evidence and applying the statutory criteria, found that the employer's conduct did not meet the threshold for workplace bullying. The Commission determined that, while some of the actions were inappropriate and unprofessional, they did not rise to the level of persistent and unreasonable behaviour that would create a risk to health and safety. The Commission emphasised that workplace disputes and disagreements, even if unpleasant or uncomfortable, do not automatically constitute bullying unless they are extreme and persistent. The court also noted that there was no evidence of any physical or psychological harm caused to the applicant by the employer's behaviour. Based on this reasoning, the Commission dismissed the application for an order to stop the alleged bullying.

As a result of the decision, the Fair Work Commission did not issue an order to stop the employer's behaviour. The applicant's application was dismissed, and the Commission found that the employer's conduct did not amount to workplace bullying under the Fair Work Act 2009 (Cth). This outcome highlights the importance of meeting the statutory threshold for workplace bullying claims and the need for clear evidence of persistent and unreasonable behaviour that creates a risk to health and safety. The decision serves as a reminder to employers and employees alike of the need for respectful and professional workplace conduct, while also underscoring the limitations of the workplace bullying provisions in addressing all forms of workplace conflict.

D.W.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established