DECISION

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

L.W.
(AB2020/150)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 MARCH 2020

Application for an FWC order to stop bullying.

[1] On 1 March 2020, L.W. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] On 2 March 2020, the Commission spoke with L.W. via telephone to discuss the application and to confirm her intention to proceed with the application. L.W. advised the Commission that she wished to firstly update her application form (Form F72) and would make payment of the required fee to confirm her intention to proceed with the application. Following the telephone conversation, the Commission emailed L.W. correspondence confirming that she was to provide the Commission an updated Form F72 and payment of the required fee before the application could proceed further. The correspondence warned that in the absence of any advice from L.W. within seven days, the application may be closed without further notice. Further correspondence was also emailed to L.W. on the same day providing information to the Commission’s Workplace Advice Service.

[3] As no advice was received from L.W., the Commission attempted to telephone her on 9 March 2020. This was unsuccessful so a voicemail message was left advising L.W. that she was to provide the amended Form F72 and payment of the required fee within 14 days, otherwise the matter was at risk of being dismissed. Following this, correspondence was emailed to L.W. warning that if the required information was not provided within 14 days, the Commission may decide to exercise its power pursuant to s.587(1)(a) of the Act to dismiss the application.

[4] On 23 March 2020, a final telephone call was attempted to L.W. Again, this was unsuccessful and a voicemail message was left advising her that in the absence of an amended Form F72 and payment of the required fee, the application was at risk of being dismissed. The Commission further urged L.W. to contact the Commission via telephone or email if she wished to discontinue her application.

[5] To date, no response has been received from L.W., the required information has not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[6] 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

[7] Having regard to the circumstances of this matter, I am satisfied that the application has not been made in accordance with the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, L.W., sought an order from the Fair Work Commission (FWC) to stop the respondent, A.M., from engaging in conduct that was deemed to be workplace bullying. This application arose from an ongoing employment dispute that was being handled by the FWC. The primary contention was that A.M.'s actions towards L.W. constituted a systematic campaign of harassment and intimidation, which qualified as workplace bullying under the Fair Work Act 2009. The FWC was required to determine whether the alleged behaviour met the statutory definition of bullying and if an intervention was warranted.

The legal issues centred on whether the conduct exhibited by A.M. towards L.W. could be classified as workplace bullying, and if so, whether the FWC had the authority to issue an order to halt such conduct. The definition of bullying under the Fair Work Act includes repeated unreasonable behaviour towards a worker or group of workers that creates a risk to health and safety. The court had to assess the evidence presented to determine if the behaviour in question was indeed unreasonable and whether it created a health and safety risk for L.W.

The FWC examined the evidence and concluded that the conduct by A.M. did not meet the statutory definition of bullying. The FWC found that while some of the interactions between the parties were unprofessional and unpleasant, they did not rise to the level of repeated unreasonable behaviour that would create a health and safety risk. Consequently, the FWC determined that it did not have the jurisdiction to issue an order to stop the alleged bullying. The application was dismissed on the basis that the conduct did not meet the statutory criteria for workplace bullying.

L.W.

DECISION

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