Dr Stephen Littlefair

[2019] FWC 2673

[2019] FWC 2673

FAIR WORK COMMISSION

DECISION

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

Dr Stephen Littlefair
(AB2019/51)

COMMISSIONER JOHNS SYDNEY, 17 APRIL 2019

Application for an FWC order to stop bullying.

[1] On 4 February 2019 Dr Stephen Littlefair made application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (FW Act). The Applicant is an Academic Fellow at the University of Sydney (University).

[2] The application form (Form F72) was incomplete in a number of important respects and did not contain sufficient relevant information to enable the Commission to progress the matter.

[3] On 5 February 2019 Dr Littlefair was contacted by telephone to discuss his application. He was also written to that day notifying him that his application was incomplete and required further information if he wished to proceed.

[4] On 6 February 2019 Dr Littlefair submitted an amended application. Dr Littlefair alleged that 3 co-workers had engaged/were engaging in bullying behaviours in respect of a warning issued, or to be issued to him, in respect of his teaching and teaching resources.

[5] On 13 February 2019 the University filed an employer’s response. It denied the allegations made against Dr Littlefair’s co-workers. The University raised a jurisdictional objection to the application on the basis that, it contended, the alleged bullying activity was reasonable management action, carried out in a reasonable manner. The University advised that the Applicant was the subject of an ongoing misconduct process concerning allegations that he showed inappropriate material to students that was of a sexual nature or otherwise offensive.

[6] On 15 February 2019 the matter was allocated to me. On 26 February 2019 I conducted a conciliation conference. That did not resolve the matter. The following day the Applicant was directed to either file a Notice of Discontinuance or notify my chambers that he wanted the matter programmed for Hearing. The Applicant was required to notify my chambers of his decision by 8 March 2019. The Applicant did not comply with that Direction.

[7] On 13 March 2019, the Applicant was directed to advise my Chambers of his intentions in relation to the application by Friday, 15 March 2019. On that day the Applicant wrote to my Chambers that he would “like this case to go to arbitration.”

[8] Consequently, on Monday, 18 March 2019, Directions were issued programming the matter for Hearing on 1 May 2019. The first Direction required the Applicant to file and serve the material he intended to rely upon by 1 April 2019. The Applicant failed to comply with that Direction.

[9] On 2 April 2019 my Chambers wrote to the Applicant asking him to explain his failure to comply with the Directions. He was asked to reply by 4 April 2019. He did not do so.

[10] On 8 April 2019 the University made an application to the Commission to dismiss Dr Littlefield’s anti-bullying application on the grounds that it has no reasonable prospects of success (s.587 FW Act).

[11] On 9 April 2019, my Chambers wrote to the Applicant about the University’s s.587 application. The Applicant was advised that,

“You having failed to comply with the Directions and not having responded to the email of 2 April 2019 the Commissioner is minded to grant the University’s application and dismiss your application.

However, as a matter of procedural fairness he wants to provide you with an opportunity to explain your non-compliance and make any submissions you want to make about why your anti-bullying application should not be dismissed for non-compliance.”

[12] The Applicant was given until 11 April 2019 to reply. He did not do so.

[13] On 12 April 2019 my Associate telephoned the Applicant. There was no answer. My Associate left a message about the various correspondences sent to the Applicant and invited him to contact Chambers. He did not do so.

[14] As is apparent from the chronology above the Applicant did not:

a) comply with the Directions of 18 March 2019,

b) respond to the email of 2 April 2019,

c) respond to the University’s s.587 application,

d) respond to the email of 9 April 2019, nor

d) return my Associate’s call of 12 April 2019.

[15] 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.”

[16] In considering all the circumstances, I am satisfied that by reason of the Applicant not having filed any submissions, evidence or documents in support of his anti-bullying application the Applicant has, in effect, abandoned his application. Consequently, there is also no reasonable prospects of its success. Further, I am satisfied that it is appropriate in all of the circumstances to dismiss the application.

[17] Accordingly, the application is dismissed under s.587(1)(c) of the FW Act.

[18] An Order giving effect to this Decision will be issued.

COMMISSIONER

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