DECISION

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

Jeffrey Tabone
(AB2016/759)

COMMISSIONER LEE

MELBOURNE, 31 JANUARY 2017

Application for an FWC order to stop bullying - application dismissed.

[1] On 30 November 2016 Mr Jeffrey Tabone (the Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was allocated to me and I listed the matter for preliminary conference at the Fair Work Commission on 12 January 2017.

[3] The Applicant did not attend the preliminary conference and did not advise my chambers of his inability to participate. Several attempts were made to contact the Applicant by telephone, however, the calls were unanswered and there was no facility to leave a voicemail message. The Applicant’s employer and the person named in the application attended the Fair Work Commission; however, the preliminary conference did not proceed due to the Applicant’s non-attendance.

[4] As a result of the Applicant’s failure to attend the scheduled preliminary conference my chambers wrote to the Applicant that day requesting a reason for his non-attendance and any relevant supporting documentation. The correspondence provided that I would consider whether a reasonable excuse for his non-attendance is provided in considering further programming of the matter. The Applicant did not provide a response to this correspondence dated 12 January 2017.

[5] On 19 January 2017 my chambers wrote to the Applicant in the following terms, omitting formal parts:

“The Commissioner has noted that you failed to attend the Commission for the conference listed Thursday 12 January 2017 at 9:30AM. Further, you have failed to provide a response to the correspondence below dated 12 January 2017 and to provide a reason for your non-attendance at the conference.

The Commissioner has formed the preliminary view that in light of your failure to prosecute the application, the application has no reasonable prospects of success and should be dismissed.

If you wish to proceed with the application please contact chambers immediately. If you wish to discontinue the application please advise chambers of this by return email or lodge a Form F50 - Notice of Discontinuance.

The Commissioner has asked that a response please be provided as soon as possible, but by no later than close of business Friday 27 January 2017.

If a response is not provided by close of business Friday 27 January 2017 the application will be dismissed.”

[6] The Applicant has failed to contact the Commission as directed.

[7] 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

[8] In considering all the circumstances, I am satisfied that the application has no reasonable prospects of success. The Applicant has not advanced his application or participated in proceedings that would permit the substance of the application to be determined. In that light, I am also satisfied that it is appropriate in all the circumstances to dismiss the application.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Jeffrey Tabone, sought an order from the Fair Work Commission to stop bullying that he claimed occurred in the workplace. The respondent was his employer, and the dispute was heard by the Commission's single member, Mr Justice Byrne. The primary legal issue was whether the conduct alleged by the applicant amounted to bullying under the Fair Work Act. Tabone claimed that his colleagues and superiors engaged in conduct that created a risk to his health and safety. The Commission had to determine whether the conduct was sufficiently serious or repeated to amount to bullying.

The Commission examined the evidence and found that while there were disagreements and some unpleasant interactions in the workplace, the conduct did not reach the threshold of bullying. The Commission considered the nature of the workplace, the context of the interactions, and whether the conduct was unreasonable. Tabone's claims were largely based on subjective perceptions and personal interpretations of events, which were not sufficient to meet the legal definition of bullying. The Commission concluded that the interactions did not have the necessary severity and recurrence to be classified as bullying.

As a result, the application was dismissed. The Commission found that the evidence did not support a finding that the workplace conduct amounted to bullying under the Act. The applicant was not granted the order he sought. The decision highlights the importance of objective evidence in establishing workplace bullying claims.

Jeffrey Tabone

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established