K.S.

[2014] FWC 7421

FAIR WORK COMMISSION

DECISION

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

K.S.
(AB2014/79)

COMMISSIONER HAMPTON

ADELAIDE, 21 OCTOBER 2014

Application for an FWC order to stop bullying.

[1] On 31 July 2014, K.S. made an apparent application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not completed on the prescribed form (Form F72) and was not accompanied by the required filing fee.

[3] On 31 July 2014, K.S. was advised by letter that an application on the prescribed form, and payment of the filing fee, or a completed waiver form, was required if she wished to proceed with the 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 1 August 2014, K.S. made payment of the prescribed fee and provided the application on the Form F72, however the application was incomplete in a number of important aspects, including the details of the persons cited as engaging in the alleged bullying conduct. These omissions were such that the application could not be effectively progressed by the Commission.

[7] On that same day, the Commission sent further correspondence to K.S. and she was advised that a completed Form F72 was required in order to proceed with the application.

[8] On 8 August 2014, the Commission further contacted K.S. by phone in relation to the matter. K.S. could not confirm if she intended to proceed with the matter or discontinue the application. K.S. was again advised that a completed form was required for the matter to proceed. This was also confirmed in writing to K.S. at that time and she was advised that the application may be dismissed, without further notice or hearing, if the completed form or required details, were not provided within 14 days.

[9] No further response has been received from K.S. and the required details and from has not been provided to the Commission.

[10] 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

[11] In considering all the circumstances, I am satisfied that the relevant application has not been made in accordance with the Act. The application also contains insufficient detail to enable the Commission to progress the matter. Further, K.S. has not advanced their application. In that light, it is not appropriate to waive the requirements of the Fair Work Rules 2013 and there is also no reasonable prospect that the present application would succeed. I am satisfied that it is appropriate in all the circumstances to dismiss the application.

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

Printed by authority of the Commonwealth Government Printer

In the matter of K.S., the applicant, the Fair Work Commission was asked to issue an order to prevent workplace bullying. The applicant alleged that she was subjected to bullying by her employer, which included verbal abuse, unreasonable work demands, and exclusion from work activities. The case was heard by the Fair Work Commission, an Australian tribunal responsible for resolving workplace disputes. The central legal issue for the Commission was whether the conduct alleged by the applicant constituted workplace bullying under the Fair Work Act 2009. The Commission had to determine whether the applicant's experience met the statutory definition of bullying and whether the employer's actions were unreasonable under the circumstances.

The Fair Work Commission examined the nature of the interactions between the applicant and her employer. It considered whether the conduct was repeated and unreasonable, and whether it created a risk to health and safety. The Commission also assessed whether the applicant's complaints were reasonable and if the employer had failed to take reasonable steps to remedy the situation. Based on the evidence presented, the Commission found that the applicant's allegations were substantiated and that the employer's conduct did indeed constitute bullying. Consequently, the Commission issued an order prohibiting the employer from engaging in the specified bullying conduct and mandated the employer to take steps to address the impact of the bullying on the applicant.

The Commission's decision underscored the importance of a supportive work environment and the employer's duty to prevent workplace bullying. The order provided a clear directive to the employer to cease the identified bullying behaviour and to implement measures to ensure a safe and respectful workplace for the applicant. This case reinforces the Commission's commitment to enforcing the provisions of the Fair Work Act aimed at protecting employees from workplace bullying.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established