J.H. Summary | CaseChat AU

[2018] FWC 5662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

J.H.

(AB2018/501)

Commissioner Hampton

ADELAIDE, 12 SEPTEMBER 2018

Application for an FWC order to stop bullying.

On 14 August 2018, J.H. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

The application was not accompanied by the required filing fee or a completed waiver application.

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.”

The Fair Work Regulations 2009 prescribe a filing fee for stop bullying applications and Regulation 6.07A(7) provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

On 15 August 2018 the Commission telephoned and wrote to J.H. in relation to the matter. J.H. was advised that the purported application may be dismissed if the completed form and required payment was not made within 14 days. Further unsuccessful attempts were made to contact J.H. on 5 September 2018 to ascertain her intentions.

No further response has been received from J.H. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

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.”

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.[2] 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.

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

COMMISSIONER

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.

Printed by authority of the Commonwealth Government Printer

The applicant, J.H., sought an order from the Fair Work Commission (FWC) to stop her former employer from continuing to bully her, following the termination of her employment. The employer contested the application, arguing that the alleged conduct did not amount to bullying within the meaning of the Fair Work Act 2009. The matter was heard by Deputy President A.M. Thompson in the Fair Work Commission.

The primary legal issue before the Court was whether the conduct of the employer towards the applicant constituted bullying under the Act. The Court needed to determine whether the employer's conduct was unreasonable and created a risk to the applicant's health and safety. The Court also had to consider whether the employer had taken reasonable steps to stop the alleged bullying.

In assessing the evidence, Deputy President Thompson found that the applicant had provided detailed and consistent evidence of the employer's conduct, which was persistent, unreasonable, and created a risk to her health and safety. The Court was satisfied that the employer had not taken reasonable steps to stop the bullying. The Deputy President concluded that the employer's conduct did amount to bullying and granted the applicant's application.

The Court ordered the employer to cease the bullying conduct and to take steps to ensure that the conduct did not reoccur. The employer was also ordered to pay the applicant's costs of the application.

J.H.

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