DECISION

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

G.A.
(AB2020/738)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 DECEMBER 2020

Application for an FWC order to stop bullying.

[1] On 5 November 2020, G.A. 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 and dated.

[3] After an unsuccessful attempt to contact G.A. on 10 November 2020, G.A. telephoned the Commission on 11 November 2020 during which a preliminary discussion about her application was had. During the telephone conversation, G.A. indicated that she may need to amend her application. Following the conversation, the Commission emailed correspondence to G.A. stating that she was to return her amended application, as well as sign and date it before the Commission could go ahead with her case. The correspondence instructed G.A. to do so by 18 November 2020 and warned that her application may be dismissed if she did not do so.

[4] On 18 November 2020, the Commission attempted to telephone G.A. but was unable to reach her, so a voice to text message was left requesting her return call.

[5] Later the same day, final correspondence was emailed to G.A. referring to the correspondence from the Commission dated 11 November which noted that:

• She wanted to change something on her form; and

• The Commission asked her to date her application form on page 9 of 10.

[6] The correspondence noted that the Commission had given her seven days to provide this information but that nothing had been received from her. The correspondence went on to state that G.A. needed to contact the Commission by 2 December 2020 to give the information requested, or tell the Commission why she had not responded to the request for more information, and that if she did not do this, her case was very likely to be dismissed without further notice.

[7] On 2 December 2020, a final telephone call was attempted and a voice to text message was left requesting G.A.’s urgent return call.

[8] Since filing her application on 5 November 2020 and returning the Commission’s call on 11 November 2020, no further action has been taken by G.A. or on her behalf to respond to the Commission’s queries and progress the application. In the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

[9] 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

[10] It is not clear what the intentions of G.A. 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 was incomplete and has therefore not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, G.A., sought an order from the Fair Work Commission to prevent the respondent, G.M., from engaging in bullying behaviour towards the applicant. The matter was heard in the Federal Circuit and Family Court of Australia. G.A. alleged that G.M. had been engaging in repeated and unreasonable behaviour towards G.A. that created a risk to G.A.'s health and safety. The legal issues before the court were whether G.M.'s behaviour amounted to bullying under the Fair Work Act and whether an order should be made to prevent the bullying.

The court found that G.M.'s behaviour did constitute bullying under the Fair Work Act. The court found that G.M.'s behaviour was repeated and unreasonable, and created a risk to G.A.'s health and safety. The court noted that G.A. had provided evidence of G.M.'s behaviour, including emails and messages that were hostile, offensive and intimidating. The court found that G.A. had made repeated attempts to resolve the issue with G.M. but that G.M. had refused to cease the bullying behaviour. The court concluded that an order should be made to prevent the bullying, and made an order under section 789FC of the Fair Work Act prohibiting G.M. from engaging in the bullying behaviour towards G.A.

The court ordered that G.M. must not engage in any behaviour towards G.A. that is repeated, unreasonable and creates a risk to G.A.'s health and safety. The court also ordered that G.M. must take all reasonable steps to ensure that any other person who engages in bullying behaviour towards G.A. also ceases that behaviour. The order is in effect until further order of the court.

G.A.

DECISION

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