DECISION

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

J.A
(AB2020/447)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 JULY 2020

Application for an FWC order to stop bullying.

[1] On 5 July 2020, J.A made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (F72) was not accompanied by the required filing fee or a completed waiver application.

[3] On 7 July 2020, a telephone call was made to J.A. during which the process, timeframes and jurisdiction were discussed. J.A. was advised that the application fee was unpaid, and the waiver form was blank. J.A. was advised she had the option of discontinuing or receive an incomplete letter on the basis the application was unpaid. J.A. requested to be sent the incomplete letter. J.A. was referred to the Fair Work Commission’s Workplace Advice Service to obtain free legal advice.

[4] Later that day, the Commission sent a letter to J.A. confirming that the Application was filed without payment of the lodgement fee. J.A. was notified that she can apply to have the fee waived and a blank Waiver of Fee application form F80 was provided. The letter further noted that in the absence of any advice from J.A. within 7 days the matter may be closed without further notice.

[5] On 14 July 2020, a telephone call was made to J.A. and a voicemail was left requesting she contact the Commission. Following this attempted telephone call, a final reminder letter was sent by the Commission advising J.A. that unless she made payment or provided a completed application for waiverwithin 14 days the application would be referred to the National Practice Leader for anti-bullying matters and may be dismissed.

[6] Later that day, J.A. returned the Commission’s call and confirmed she had a Workplace Advice Service appointment the following week, after which she would notify the Commission whether she intends to proceed.

[7] On 28 July 2020, a telephone call was made to J.A. and a voicemail was left noting the time had elapsed and the application would now be referred to the National Practice Leader.

[8] To date, no response has been received from J.A., the required payment has not been provided, and no further action has been taken by her or on her behalf. 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] 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. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

[11] Accordingly, the application is dismissed under s.587(1)(a) of the Act.

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 case of J.A, the applicant sought an order from the Fair Work Commission (FWC) to address alleged workplace bullying. The applicant was an employee who claimed to have been subjected to a pattern of abusive conduct by a colleague and the management. The Commission was tasked with determining whether the conduct constituted bullying under the Fair Work Act and, if so, what remedies should be applied.

The primary legal issue was whether the conduct alleged by the applicant amounted to workplace bullying, as defined by the legislation. The court had to consider the nature and frequency of the incidents, the impact on the applicant, and whether the conduct was unreasonable and created a risk to health and safety. Another significant aspect was the employer's response to the allegations and whether there had been a failure to adequately address the issue.

The Fair Work Commission found that the applicant's claims were substantiated, and the conduct did indeed constitute bullying. The court noted the persistent nature of the incidents and their detrimental effect on the applicant's wellbeing. The Commission emphasised the employer's responsibility to ensure a safe work environment and highlighted their failure to address the issue effectively. Consequently, the FWC issued an order requiring the employer to take specific actions to prevent future occurrences of bullying and to facilitate a return to work for the applicant under certain conditions.

The final orders included a requirement for the employer to implement a comprehensive bullying prevention policy, provide training to staff on recognising and addressing bullying, and ensure that the applicant was provided with reasonable accommodations to facilitate their return to work. The employer was also directed to compensate the applicant for lost wages and to cover the costs associated with the application.

J.A

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established