John Krstev

[2019] FWC 57

[2019] FWC 57

FAIR WORK COMMISSION

DECISION

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

John Krstev
(AB2018/743)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 7 JANUARY 2019

Application for an FWC order to stop bullying.

[1] Mr John Krstev has made an application under s.789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying conduct he alleges has taken, and may in the future take place, within his workplace. At the time of lodging his application Mr Krstev was employed by Monash University (Monash).

[2] On 19 December 2018, Monash lodged a Form F1 Application advising that Mr Krstev’s employment had been terminated and seeking to have Mr Krstev’s application dismissed on the basis that it has no reasonable prospects of success.

[3] On 20 December 2018, the parties were advised that the listed conference would be vacated. Mr Krstev was directed to confirm if he wished to proceed with the application and advised that if he did, directions would be issued for the filing of submissions addressing Monash’s Form F1. Mr Krstev did not respond to this correspondence.

[4] On 2 January 2019, correspondence was sent to Mr Krstev seeking a response by midday 4 January 2019 as to whether he wished to proceed with his application. Mr Krstev was advised that, in the absence of a response, his application may be dismissed. Mr Krstev did not respond to this correspondence.

Consideration

[5] Monash submitted that Mr Krstev’s application has no reasonable prospects of success because his employment was terminated as of 18 December 2018.

[6] Section 789FF of the Act provides as follows:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.”

[7] Monash submitted that as Mr Krstev’s employment has terminated there is no risk that he will continue to be bullied at work. Monash relied on a number of decisions of the Commission in support of their application. 1

[8] Section 587 of the Act provides as follows:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[9] Mr Krstev did not make or seek to make any submissions in relation to Monash’s Form F1.

[10] I am satisfied that, as Mr Krstev’s employment has terminated, there is no longer a risk that Mr Krstev will continue to be bullied at work and the application has no reasonable prospects of success. Accordingly I have decided to dismiss Mr Krstev’s application pursuant to s.587(1)(c) of the Act.

[11] An order 2 to that effect will be published separately to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR703623>

 1  Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank [2014] FWC 3408, Re G.C. [2014] FWA 6988, Re M T [2014] FWC 3852 and Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm; Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Michael Palm [2015] FWCFB 6503

 2   PR703624