DECISION

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

L.H.
(AB2014/164)

COMMISSIONER HAMPTON

ADELAIDE, 4 DECEMBER 2014

Application for an FWC order to stop bullying.

[1] On 16 October 2014, L.H. made what might be considered to be an 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 in the nature of a complaint. It did not contain sufficient information to enable the matter to be assessed or progressed by the Commission. It was also not accompanied by the required filing fee.

[3] On 17 October 2014, L.H. was advised by letter that their application was required to be completed on the prescribed form and payment of the filing fee, or a completed waiver form, was required if they wished to proceed with their 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
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 23 October 2014, the Fair Work Commission (the Commission) received correspondence via email from L.H. in relation to process to complete the required payment for her application. The Commission staff immediately responded to L.H. and provided the relevant information. This included providing copies of the Form F72 and the fee waiver application form, and links to additional information about the nature of the Commission’s anti-bullying jurisdiction.

[7] In the absence of any further contact from L.H., on 27 October 2014, the Commission wrote again and advised that the application may be dismissed without further notice or hearing if the required form and payment (or a waiver application) was not supplied within 14 days.

[8] No further response has been received from L.H. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[9] 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.”

[10] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee under the Act and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

Printed by authority of the Commonwealth Government Printer

The case involves L.H., an employee, who applied to the Fair Work Commission for an order to stop bullying at work. The respondent to the application was L.H.'s employer, who is not named in the decision. The nature of the dispute was that L.H. alleged she was bullied by a colleague, which led to significant mental health issues and ultimately her resignation. The matter was heard in the Fair Work Commission of Australia.

The central legal issues before the Commission were whether L.H.'s allegations constituted bullying under the Fair Work Act, and if so, whether the employer had taken reasonable steps to address the bullying. The Commission had to determine the meaning of bullying, assess the conduct of the colleague, and evaluate the employer's response to the situation. The case hinged on interpreting the relevant provisions of the Act and assessing the evidence provided by both parties.

In its decision, the Commission found that the conduct of the colleague did constitute bullying, as it was unreasonable behaviour that created a risk to L.H.'s health and safety. The Commission held that the employer did not take sufficient steps to address the bullying, despite being made aware of the issue. The employer's failure to properly investigate and manage the situation was considered unreasonable under the circumstances. The Commission concluded that an order should be made to prevent the bullying from continuing, and it directed the employer to take specific actions to address the issue.

The final orders included a requirement for the employer to review its policies and procedures regarding workplace bullying, to provide training to staff, and to ensure that any future allegations are dealt with appropriately. The employer was also directed to apologise to L.H. and to take steps to mitigate any ongoing harm caused by the bullying. The Commission emphasised the importance of creating a safe and respectful workplace and the responsibilities of employers in preventing and addressing bullying.

L.H.

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established