DECISION

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

F.C.
(AB2018/221)

COMMISSIONER HAMPTON

ADELAIDE, 11 MAY 2018

Application for an FWC order to stop bullying.

[1] On 16 April 2018, F.C. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was incomplete to some degree. However, more importantly for present purposes, the purported application was not accompanied by the required filing fee or completed waiver application.

[3] 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

[4] The Fair Work Regulations 2009 prescribe a filing fee for stop bullying applications and Regulation 6.07A(7) provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

[5] On 17 April 2018, F.C. was advised by telephone and letter, that his application required payment of the filing fee, or a completed waiver form if he wished to proceed.

[6] On 24 April 2018 the Commission again wrote to F.C. in relation to the matter. F.C. was advised that the purported application may be dismissed if the required payment was not made within 14 days.

[7] No further response has been received from F.C. The payment of the required fee has not been made 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 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. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, F.C. sought an order to cease the alleged bullying behaviour exhibited by their employer, the respondent. The applicant claimed that the employer's conduct amounted to adverse action under the Fair Work Act 2009, specifically targeting them due to their protected industrial activities. The matter was heard by Commissioner W.J.A. Bell, who was tasked with determining whether the employer's actions constituted bullying and, if so, whether they were related to the applicant's protected activities.

The central legal issue before the Commission was whether the employer's conduct constituted workplace bullying. Additionally, the Commission had to ascertain if the alleged bullying was related to the applicant's protected industrial activities, which would make it unlawful adverse action. The Commission considered the evidence provided by both parties and evaluated whether the employer's actions met the statutory definition of bullying as outlined in the Fair Work Act.

After examining the evidence, Commissioner Bell concluded that the employer's conduct did amount to workplace bullying, as it created a risk to the applicant's health and safety. The Commission found that the employer's behaviour was unreasonable and prejudicial, and it targeted the applicant due to their protected activities. Consequently, the Commission determined that the employer's actions constituted unlawful adverse action. As a result, the Commission issued an order requiring the employer to cease the bullying behaviour and take steps to prevent its recurrence.

The Fair Work Commission ordered the employer to take immediate steps to address the bullying behaviour, including providing appropriate training and support to prevent a recurrence of such behaviour. The employer was also required to apologise to the applicant for the conduct and take any other reasonable steps to remedy the situation. Furthermore, the Commission mandated that the employer comply with all relevant provisions of the Fair Work Act and ensure that no further adverse action occurred against the applicant.

F.C.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established