K.L.

[2020] FWC 4871

[2020] FWC 4871

FAIR WORK COMMISSION

DECISION

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

K.L.
(AB2020/548)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 SEPTEMBER 2020

Application for an FWC order to stop bullying.

[1] On 15 August 2020, K.L. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application form (Form F72) was incomplete as it was not signed or dated nor was it accompanied by the required filing fee or a completed waiver application.

[3] The Commission telephoned K.L. on 17 August 2020 and left a voice message requesting that K.L. contact the Commission by telephone.

[4] On the same day an email was sent to K.L. requesting that she call the Commission.

[5] A voice message was received later that day from K.L. requesting the Commission return her call.

[6] The Commission conducted a preliminary discussion with K.L. via telephone on 18 August 2020, outlining the process, timeframes and jurisdiction. K.L. advised that she would like her nominated person to represent her so it was suggested that that she confirm with him that he intends on representing her. It was noted that the employer appeared to be a local government and therefore may not be considered a constitutionally-covered business. It was suggested that K.L. discuss this with her representative. It was further noted that there may be a jurisdictional issue as K.L. had mentioned that she did not intend on returning to the workplace. It was suggested that K.L. consider whether to pursue the application if she didn’t intend to return to the workplace. K.L. confirmed that she would update the employer contact person to the Human Resources manager. K.L. further confirmed that she would resend a signed and dated amended Form F72 and would resend the waiver application form. It was explained that K.L. would need to file the amended Form F72 or advise of discontinuance within 7 days.

[7] Following the telephone discussion on 18 August 2020, the Commission emailed correspondence to K.L. confirming that K.L. was required to provide the signed and dated amended Form F72 and her completed Form F80 waiver form and warned that in the absence of any advice within seven days, the application may be closed without further notice.

[8] On 25 August 2020, the Commission spoke with the person K.L. had nominated as her representative. He advised that he does not represent K.L. for the application for an order to stop bullying. He advised that he would speak to K.L. and clarify this with her. He also advised that he cannot provide K.L. advice on this application and will need to direct her to other organisations for advice.

[9] On 26 August 2020, the Commission telephoned K.L. and explained that the updated Form F72 and Form F80 had not been received. K.L. advised that she had spent the previous week looking after her ill mother. K.L. advised that she did intend on submitting updated forms. It was reiterated that K.L. should seek legal advice before lodging as the employer may not be a constitutionally-covered business. It was also advised that the current representative had advised that he was not representing K.L. in this matter. K.L. confirmed that she was aware that she had until 8 September 2020 to provide the documents.

[10] Following the telephone discussion on 26 August 2020, the Commission issued final correspondence to K.L. warning that unless the information previously sought was provided within 14 days, her application would be referred to the Panel Head for anti-bullying matters at which time the Commission may decide to exercise its power under subsection 587(1)(a) of the Act and dismiss the application without further notice to her.

[11] As no response was received from K.L., the Commission attempted a final telephone call to her on 8 September 2020 and a voice to text message was left requesting that K.L. call the Commission.

[12] To date, no response has been received from K.L., the required documents have not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

[13] 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.”

[14] 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR722690

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