DECISION

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

G.P.
(AB2015/358)

COMMISSIONER HAMPTON

ADELAIDE, 24 JUNE 2015

Application for an FWC order to stop bullying.

[1] On 13 May 2015, G.P. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was not accompanied by the required filing fee.

[3] On 14 May 2015, G.P. was advised by letter that their application required payment of the filing fee, or a completed waiver form, if they wished to proceed with their 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 21 May 2015, the Commission attempted to contact and wrote again to G.P. in relation to the matter. G.P. was advised that the application may be dismissed without further notice or hearing if the required payment was not made within 14 days.

[7] Later on that same day, the Commission was contacted by G.P. via phone in relation to the matter. It was explained to G.P. that if the required filing fee was not paid, or a completed waiver form, then the application could not be progressed. G.P. advised that she would complete the waiver form.

[8] On 4 June 2015, the Commission made a further attempt to contact G.P. in relation to the matter.

[9] No further response has been received from G.P. 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

The matter before the Fair Work Commission involved an application by an employee, G.P., seeking an order to prevent her former employer from engaging in conduct that constituted bullying. The employer, who operated a business in the retail sector, was alleged to have engaged in repeated and unreasonable behaviour towards the applicant that created a risk to her health and safety. The application was made under the Fair Work Act 2009, which empowers the Commission to issue orders to address workplace bullying.

The central legal issues before the Commission were whether the conduct alleged by the applicant amounted to bullying within the meaning of the legislation, and if so, whether the Commission had the jurisdiction and authority to issue an order to prevent the conduct. The Commission had to consider the definition of bullying under section 789FD of the Act, which includes unreasonable behaviour that creates a risk to health and safety. Additionally, the Commission had to examine its own powers under the Act to issue orders in response to allegations of bullying.

The Commission found that the conduct alleged by the applicant did indeed constitute bullying, as it involved unreasonable behaviour that created a risk to her health and safety. The Commission noted the seriousness of the allegations and the potential impact on the applicant's well-being. In terms of jurisdiction, the Commission held that it had the authority to issue an order to prevent the alleged bullying under section 793 of the Act, which allows the Commission to make orders to address adverse action, including bullying, in the workplace. The Commission therefore issued an order requiring the employer to take specific steps to prevent the bullying and to provide a written apology to the applicant.

As a result of the Commission's decision, the employer was required to take proactive measures to address the bullying and to ensure that similar conduct did not occur in the future. The order also mandated the employer to provide a formal apology to the applicant, acknowledging the impact of the bullying on her health and well-being. The Commission's decision underscored the importance of protecting employees from workplace bullying and the role of the Commission in enforcing the provisions of the Fair Work Act designed to prevent such conduct.

G.P.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established