DECISION

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

H.R.
(AB2019/704)

COMMISSIONER HAMPTON

ADELAIDE, 7 JANUARY 2020

Application for an FWC order to stop bullying.

[1] On 9 December 2019, H.R. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was incomplete in a number of important respects and did not contain sufficient relevant information to enable the Commission to progress the matter. Further, the application was not accompanied by the required filing fee or a completed waiver application.

[3] On 11 December 2019, H.R. was advised by telephone and letter that her application was incomplete and required further information and payment (or a fee waiver application), if she wished to proceed.

[4] On 18 December 2019, the Commission attempted to telephone and again wrote to H.R. in relation to the matter. H.R. was advised that the application could not be advanced and may be dismissed if the required information and payment was not provided within 14 days. On 2 January 2020, the Commission made a further attempt to contact H.R..

[5] No response has been received from H.R., the required information and payment has not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[6] 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

[7] 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.

[8] Further, given the absence of the details required to progress the purported application and the fact that it has, in effect, been abandoned by the applicant, there is also no reasonable prospects of its success.

[9] Accordingly, the application is dismissed under s.587(1)(a) and (c) 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].

The applicant, H.R., sought an order from the Fair Work Commission (FWC) to prevent the respondent, their employer, from engaging in conduct that constituted workplace bullying. The matter was heard and determined by the Commission in Australia. The applicant alleged that the respondent had engaged in repeated and unreasonable behaviour that created a risk to their health and safety. This included verbal abuse, threats, and undermining the applicant's work performance, which had caused significant psychological distress.

The primary legal issue before the Commission was whether the respondent's conduct met the statutory definition of "workplace bullying" under the Fair Work Act 2009 (Cth). The Commission considered whether the behaviour was repeated and unreasonable, and whether it created a risk to health and safety. Additionally, the Commission needed to determine if the applicant's claims were substantiated and whether the respondent had engaged in a pattern of behaviour that met the criteria for workplace bullying.

The Commission found that the respondent's conduct was indeed repeated and unreasonable, and it created a risk to the applicant's health and safety. The evidence presented indicated that the respondent had engaged in a pattern of behaviour that included verbal abuse, threats, and actions designed to undermine the applicant's work performance. These behaviours met the statutory definition of workplace bullying. Consequently, the Commission ordered the respondent to cease the bullying behaviour and take steps to prevent a recurrence. The Commission also directed the parties to engage in mediation to address the broader issues in the workplace.

H.R.

DECISION

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Background to the litigation

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Legal Principle Established