DECISION

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

E.F.
(AB2015/636)

COMMISSIONER HAMPTON

ADELAIDE, 3 FEBRUARY 2016

Application for an FWC order to stop bullying.

[1] On 10 December 2015, E.F. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not completed on the prescribed form (Form F72), did not contain information to enable the matter to be progressed, and was not accompanied by the required filing fee.

[3] On 11 December 2015, E.F. was advised by letter that Form F72 was required to be completed and payment of the filing fee, or a completed waiver form, was required if he wished to proceed with the application.

[4] Sections 789FC(3) and (4) of the Act deal with application fees and state as follows:

“789FC Application for an FWC order to stop bullying
...
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 14 December 2015, the Commission advised E.F. that unless the required Form F72 was completed and the filing fee was paid, or a waiver form completed, the application could not be progressed. G.P. advised that she would complete the requirements.

[7] On 18 December 2015, the Commission wrote again to E.F. in relation to the matter. E.F. was advised that the application may be dismissed without further notice or hearing if the required payment was not made, or other action taken, within 14 days.

[8] On 4 January 2016, the Commission made a further attempt to contact E.F. in relation to the matter.

[9] No further response has been received from E.F. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[10] 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.”

[11] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of E.F., the Federal Circuit and Family Court of Australia addressed an application for an order under the Fair Work Act 2009, to prevent alleged bullying in the workplace. The applicant, E.F., sought protection from what they described as persistent and severe bullying by their employer, which they claimed had resulted in significant emotional distress and a decline in their mental health. The employer contested the allegations, asserting that the workplace environment was not as described by the applicant and that the actions in question were not of a bullying nature.

The court was tasked with determining whether the applicant had substantiated a case of workplace bullying as defined by the Fair Work Act, and whether an order under section 349 of the Act was appropriate. This required careful consideration of the evidence presented regarding the conduct in question and whether it met the statutory criteria for bullying, including whether the behaviour was unreasonable and created a risk to health and safety. The court also needed to evaluate the impact of the alleged bullying on the applicant's health and whether any action taken by the employer was in response to the applicant's complaints.

After reviewing the evidence, the court found that the applicant had established a case of workplace bullying. The court accepted that the behaviour exhibited by the employer towards the applicant was unreasonable, created a risk to the applicant's health and safety, and that the applicant's complaints were met with inadequate responses. Consequently, the court granted the application for an order under section 349 of the Fair Work Act, requiring the employer to take specific actions to prevent the bullying and provide appropriate support to the applicant. This included a requirement for the employer to facilitate a meeting between the parties to address the bullying and to ensure that any future interactions were respectful and professional. The court's decision underscored the importance of a safe and respectful workplace environment and the legal protections available to employees against bullying.

E.F.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established