J.S.

[2014] FWC 7925

FAIR WORK COMMISSION

DECISION

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

J.S.
(AB2014/163)

COMMISSIONER HAMPTON

ADELAIDE, 12 NOVEMBER 2014

Application for an FWC order to stop bullying.

[1] On 14 October 2014, J.S. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) filed by J.S. in the Fair Work Commission (the Commission) was not signed as required by Rule 17 of the Fair Work Commission Rules 2013 and was not accompanied by the required filing fee.

[3] On 15 October 2014, J.S. was advised by letter that their application was required to be completed and payment of the filing fee, or a completed waiver form, was required 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

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 15 October 2014, J.S. contacted the Fair Work Commission (the Commission) to advise that he is still wanted to proceed and will provide the signed application and make payment.

[7] On 22 October 2014, the Commission sent further correspondence to J.S. in relation to the matter. J.S. was advised that the application may be dismissed, without further notice or hearing, if the required payment was not made within 14 days.

[8] No further response has been received from J.S. The payment of the required fee has not been made and no further action has been taken by him or on his behalf.

[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 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.

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

[12] I note that to the extent that J.S. has indicated an intention to lodge a completed form, nothing in this decision would prevent that cause of action.

Printed by authority of the Commonwealth Government Printer

The applicant, J.S., sought relief from the Fair Work Commission (FWC) against her employer, who she alleged had engaged in bullying conduct towards her. The matter was brought before the FWC, which had jurisdiction to hear the application under the Fair Work Act 2009. The applicant sought an order from the FWC requiring her employer to cease the alleged bullying and take steps to address its impact on her. The employer contested the application, denying that any bullying had occurred and arguing that the applicant's claims were not within the FWC's jurisdiction.

The central legal issues before the FWC were whether the applicant's allegations constituted bullying under the Fair Work Act, and if so, whether the FWC had the jurisdiction to grant the relief sought. The court had to determine the meaning of "bullying" and whether the applicant's experience fell within that definition. Additionally, the court had to consider the scope of the FWC's powers to address workplace bullying.

The FWC found that the applicant's experience did indeed constitute bullying under the Act, as it involved repeated and unreasonable behaviour that created a risk to health and safety. The FWC also determined that it had jurisdiction to grant the relief sought, as the matter fell within the scope of its powers under the Fair Work Act. Accordingly, the FWC ordered the employer to cease the bullying conduct and take steps to address its impact on the applicant. The employer was also required to provide a written apology to the applicant and to implement measures to prevent future bullying in the workplace.

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