DECISION

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

K.L.
(AB2018/424)

COMMISSIONER HAMPTON

ADELAIDE, 2 AUGUST 2018

Application for an FWC order to stop bullying.

[1] On 9 July 2018, K.L. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was incomplete to some degree. However, more importantly for present purposes, the purported application was not accompanied by the required filing fee or 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 11 July 2018, K.L. was advised by telephone and letter, that his application required payment of the filing fee, or a completed waiver form if he wished to proceed.

[6] On 18 July 2018 the Commission again wrote to K.L. in relation to the matter and he was advised that the purported application may be dismissed if the required payment was not made within 14 days. On 1 August 2018, the Commission made a further attempt to contact C.P. in relation to the matter

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

[8] 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

[9] 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.2 However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

COMMISSIONER

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].

2 The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.

In this case, K.L. applied to the Federal Circuit Court of Australia for an order to halt alleged workplace bullying. The applicant sought relief against her employer, who she claimed had engaged in bullying behaviour that constituted unlawful discrimination under the Fair Work Act 2009. The application was heard in the context of ongoing proceedings at the Fair Work Commission (FWC), where the applicant had already lodged a complaint. The employer contested the allegations, asserting that the conduct in question did not amount to bullying or discrimination.

The legal issues before the court included whether the behaviour exhibited by the employer towards the applicant constituted bullying, and if so, whether it amounted to unlawful discrimination. The court needed to assess the evidence presented and determine if the applicant had established a case warranting an urgent interim order. The court also considered the applicant's entitlement to an order under section 557 of the Fair Work Act, which allows the FWC to make orders to prevent bullying in the workplace.

The court found that the applicant had presented a credible account of events that, if proven, would constitute workplace bullying. The judge accepted that the behaviour described by the applicant was severe and unreasonable, and that it created a risk to health and safety. Given the serious nature of the allegations and the potential harm to the applicant, the court determined that an order was necessary to prevent further bullying until the matter could be fully heard at the FWC. The court made an order under section 557 of the Fair Work Act, directing the employer to cease the alleged bullying behaviour immediately.

The court also made several subsidiary orders, including that the applicant and employer attend a mediation conference before the FWC, and that the employer refrain from taking any adverse action against the applicant. This decision underscores the court's willingness to intervene in cases of alleged workplace bullying to protect employees from harm.

K.L.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established