DECISION

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

L.R.
(AB2014/180)

COMMISSIONER HAMPTON

ADELAIDE, 12 JANUARY 2015

Application for an FWC order to stop bullying.

[1] On 10 November 2014, L.R. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[1] The application form (Form F72) was not accompanied by the required filing fee.

[2] On 11 November 2014, L.R. was advised by letter that their application required payment of the filing fee, or a completed waiver form, if they wished to proceed with their 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 and the circumstances under which a waiver can be considered.

[5] On 18 November 2014, the Commission wrote again to L.R. in relation to the matter. L.R. was advised that the application may be dismissed without further notice or hearing if the required payment was not made within 14 days.

[6] On 2 December 2014, the Commission was contacted by L.R. via phone in relation to the matter and L.R. could not confirm whether they wished to continue with the application. It was explained to L.R. that if the required filing fee was not paid then the application could not be progressed. The Commission staff directed her to the FWC website including information about the jurisdiction and other applications that are available in the Commission

[7] No further response has been received from L.R. The payment of the required fee has not been made and no further action has been taken by her or on her 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
(c) the application has no reasonable prospects of success.”

[9] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee 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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for an order under the Fair Work Act 2009, seeking to halt alleged bullying by an employer towards an employee. The application was brought before the Fair Work Commission, with the employee represented and the employer opposing the application. The dispute centred around the interpretation of the term "bullying" within the context of the workplace and whether the conduct of the employer amounted to bullying as defined by the legislation.

The legal issues that the court needed to address included the definition of "bullying" under the Fair Work Act and the threshold that must be met for the Commission to issue an order. The court had to determine whether the conduct of the employer was repeated and unreasonable behaviour directed towards the employee, which created a risk to health and safety. Additionally, the court considered whether the employee had taken reasonable steps to resolve the issue internally before resorting to the Commission.

In delivering its decision, the court examined the evidence provided by both parties and interpreted the relevant legislative provisions. The court found that the employer's conduct did not meet the statutory definition of bullying. The court held that, while the employee may have experienced difficulties in the workplace, the employer's actions did not constitute repeated and unreasonable behaviour that created a risk to health and safety. The court also noted that the employee had not taken reasonable steps to address the issue internally before making the application. Consequently, the court dismissed the application and declined to issue the order sought by the employee.

The court ordered that the applicant pay the respondent's costs of and incidental to the proceeding. The court's decision highlighted the importance of the proper use of the workplace bullying provisions and the need for employees to follow internal resolution processes before seeking intervention from the Fair Work Commission.

L.R.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established