E.S.

[2020] FWC 5568

[2020] FWC 5568

FAIR WORK COMMISSION

DECISION

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

E.S.
(AB2020/639)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 OCTOBER 2020

Application for an FWC order to stop bullying.

[1] On 23 September 2020, E.S. 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 not accompanied by the required filing fee nor was it accompanied by an application seeking a waiver for the payment of the required fee.

[3] On 25 September 2020, after multiple attempts to contact E.S., the Commission conducted a preliminary discussion with her via telephone during which she agreed to amend her application and call back at a later time to make payment of the required filing fee. The Commission advised correspondence would be issued following the conversation.

[4] Shortly after this, the Commission emailed correspondence to E.S. confirming that she wished to change something on her application form and to pay her application fee. The correspondence warned that she must complete these tasks by 2 October 2020 and that if she did not, her application may be dismissed.

[5] As no response was received from E.S. by 2 October 2020, the Commission attempted to telephone her and left a voicemail message advising her to check her email and to contact the Commission. Further correspondence was issued advising E.S. that she was required to contact the Commission by 16 October 2020 to provide payment of the filing fee and her amended application, or to advise why she had not done so, and that failure to do either would very likely result in the application being dismissed without further notice.

[6] Also on 2 October 2020, an amended application was received from E.S. In her covering email, she advised that she had attempted to call the Commission to make payment of the filing fee but that the line was disconnected each time. She sought a return call from the Commission.

[7] On 5 October 2020, the Commission attempted to telephone E.S. to obtain payment and left a voicemail message.

[8] On 16 October 2020, the Commission attempted to telephone E.S. on two occasions and left a voicemail message on each occasion seeking an urgent return call.

[9] Since 2 October 2020, no payment of the filing fee has been made by E.S. and no further action has been taken by her or on her behalf. In the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

[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] It is not clear what the intentions of E.S. are because she has not responded to repeated contact from the Commission. I can only infer she no longer wishes to pursue an application. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission 1 and no further action is required. 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.

[12] Accordingly, the application is dismissed pursuant to s.587(1) of the Act. Of course should E.S. wish to file a new application, there is nothing to prevent her from doing so.

DEPUTY PRESIDENT

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 1   Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].