L.H.

[2020] FWC 3321

[2020] FWC 3321

FAIR WORK COMMISSION

DECISION

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

L.H.
(AB2020/364)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 JUNE 2020

Application for a FWC order to stop bullying.

[1] On 2 June 2020, L.H. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not accompanied by the required filing fee or a 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

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[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 2 June 2020 the Commission telephoned L.H. regarding her application. The Commission enquired whether L.H. would like to apply for a waiver of the application fee however she submitted that she would pay the fee as she did not want to fill in the waiver form. L.H. asked if she could do so the following day. L.H. accepted a Workplace Advice Service (WAS) referral and the Commission confirmed that a letter noting the incomplete application and an email referral to WAS would be sent to her. L.H. confirmed her email address. The Commission further confirmed that she would receive a telephone call the following day to make payment.

[6] On 2 June 2020 the Commission emailed a letter to L.H. confirming that her application was made without payment of the lodgement fee of $73.20 and attaching a form to apply to have the fee waived. The letter noted that in the absence of any advice from L.H. within 7 days from the date of this letter, the application may be closed without further notice.

[7] An email was also sent on 2 June 2020 explaining how to apply for legal advice through the Workplace Advice Service.

[8] On 3 June 2020 the Commission telephoned L.H. and left a voice message requesting a call back as payment was due. The Commission further noted that as the correspondence sent the previous day had gone to a Hotmail account L.H. may need to check the junk mail folder.

[9] On 9 June 2020 the Commission telephoned L.H. and left a voice message noting that the application was incomplete, and a reminder letter would be sent to her Hotmail account. The Commission requested that she call back, and that she review her junk mail folder.

[10] The Commission then emailed a letter to L.H. that same day in relation to the matter advising that the purported application may be dismissed if the required payment was not made within 14 days.

[11] On 23 June 2020, the Commission telephoned L.H. and confirmed that she needed to advise the Commission what she would like to do with the application that day. L.H. mentioned that she may not be returning to the workplace and asked for more time. The Commission staff member noted that he could not allocate further time and that the matter would be referred to the National Practice Leader by close of business to consider whether the application is to be dismissed. The Commission noted that she could always lodge another application if the matter is discontinued or dismissed. L.H. stated she may advise the Commission by close of business of her intentions.

[12] No further response has been received from L.H., payment or a few waiver application have not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the incomplete 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. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

[15] Accordingly, the application is dismissed under s.587(1)(a) of the Act. Of course, should L.H. wish to file a new application that is made in accordance with the Act in the future, she is not precluded from doing so.

DEPUTY PRESIDENT

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