DECISION

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

G.M.
(AB2020/219)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 APRIL 2020

Application for an FWC order to stop bullying.

[1] On 28 March 2020, G.M. 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] On 30 March 2020, the Commission telephoned and emailed G.M. requesting she contact the Commission to discuss her application.

[3] On 31 March 2020, the Commission again telephoned G.M. and left a message requesting she contact the Commission to discuss her application.

[4] On 31 March 2020, the Commission sent correspondence to G.M. and Mr Morris allowing them 7 days to make payment and file an amended application. The application lists the G.M.’s representative as Mr Morris of the Australian Nursing and Midwifery Federation, however, this information was not able to be confirmed with G.M. or Mr Morris.

[5] On 7 April 2020, the Commission telephoned G.M. and left a message requesting she contact the Commission about her application.

[6] On 7 April 2020, the Commission sent correspondence to G.M. and Mr Morris requesting they make payment and file an amended application if they wished to proceed, or alternatively, to contact the Commission if they wished to discontinue the matter. The correspondence noted that the application may be dismissed if the requested information was not received in 14 days.

[7] On 21 April 2020, the Commission telephoned G.M. and left a message requesting she contact the Commission about her application.

[8] To date, neither the Applicant nor Mr Morris has contacted the Commission, made payment, or filed an amended application as requested.

[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] In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee. 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. G.M. has not engaged with the Commission since lodging the application on 28 March 2020, despite seven attempts by the Commission to make contact. A non-compliant application is directly contemplated by s.587(1)(a) of the Act, and I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

[11] Accordingly, exercising the general discretion held by the Commission, I dismiss the application.

DEPUTY PRESIDENT

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].

In the Fair Work Commission, G.M. applied for an order to prevent workplace bullying. G.M. alleged that she was subjected to ongoing and persistent bullying by her employer, which created a risk to her health and safety. The matter was heard by Commissioner D.A.J., who was tasked with determining whether the employer had engaged in conduct that amounted to workplace bullying and whether an order was warranted to protect G.M.'s rights.

The primary legal issue before the Commission was whether the conduct of the employer constituted bullying within the meaning of the Fair Work Act. The Commission had to consider whether the alleged conduct was repeated and unreasonable behaviour directed towards G.M. that created a risk to health and safety. Additionally, the Commission needed to assess whether an order under section 789FC of the Act was appropriate to address the situation and protect G.M.'s rights.

After reviewing the evidence and the applicable legal principles, the Commission concluded that the employer's conduct did amount to workplace bullying. The Commission found that the employer's actions were repeated and unreasonable, and that they created a risk to G.M.'s health and safety. Consequently, the Commission determined that an order was necessary to prevent further bullying and to protect G.M.'s rights. The Commission issued an order requiring the employer to take specific steps to address the bullying and to ensure a safe and respectful work environment for G.M.

G.M.

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established