DECISION

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

J.S.
(AB2020/266)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 MAY 2020

Application for an FWC order to stop bullying.

[1] On 14 April 2020, J.S. made 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 or a completed waiver application.

[3] 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

[4] 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.”

[5] On 21 April 2020, phone calls were made to both the Applicant’s mobile phone and landline, neither of which were answered. Voicemails were left requesting the Applicant return the call.

[6] On 21 April 2020 an email was sent to the Applicant requesting she make contact with the Commission.

[7] On 22 April 2020 the Commission telephoned the Applicant on her mobile phone and she advised that she was not available to talk at that moment and would call later in the day.

[8] J.S. telephoned the Commission on the afternoon of 22 April 2020, expressed concerns about proceeding with the Application and confirmed her understanding that a letter would be sent by the Commission noting that the Application was incomplete on the basis of it being unpaid. She stated that she may contact the Commission the next day.

[9] On 22 April 2020 the Commission sent a letter noting that the application was not accompanied by the lodgement fee and requested that she either seek a fee waiver or make payment. A form for applying for the fee waiver was provided with the letter. The letter also noted that in the absence of advice from the Applicant within 7 days the application may be closed without notice

[10] On 29 April 2020 the Commission telephoned the Applicant and left a voicemail advising that the application was still incomplete and requesting her to call back to either discontinue the matter or make payment.

[11] On 29 April 2020, a final reminder letter was sent by the Commission advising J.S. 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.

[12] On 13 May 2020 a voicemail was left for the Applicant advising that the application was still incomplete and noting that the matter may be dismissed on this basis. The Commission requested that she make contact by close of business that day.

[13] No response has been received from J.S., the required 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.

[14] 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

[15] 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.

[16] 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].

The applicant, J.S., sought an order from the Fair Work Commission (FWC) to address bullying at work. The respondent, the company, contested the application. The dispute arose from alleged ongoing bullying and harassment by the applicant's colleague. The case was heard by the Fair Work Commission, which has jurisdiction over workplace disputes in Australia.

The primary legal issue was whether the applicant had established that the behaviour of the colleague amounted to workplace bullying. This required an examination of the definition of bullying under the Fair Work Act and the application of this definition to the facts of the case. The court also needed to determine if the company had taken reasonable steps to address the bullying, as required by the legislation.

In considering the evidence, the Commission assessed the nature and frequency of the alleged bullying incidents, the impact on the applicant, and the company's response. The Commission concluded that the behaviour did indeed amount to bullying and that the company had not taken sufficient action to prevent it. The Commission found that the applicant had established the necessary grounds for an order to be made. As a result, the Commission made an order requiring the company to take specific steps to address the bullying and to provide support to the applicant.

The order included measures for the company to implement anti-bullying policies, conduct training, and monitor the workplace environment. The company was also required to provide the applicant with access to support services. These measures aimed to prevent future incidents of bullying and to support the applicant in returning to work.

J.S.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established