DECISION

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

M.A.
(AB2021/63)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 MARCH 2021

Application for an FWC order to stop bullying.

[1] On 8 February 2021, M.A. 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] The application was incomplete in that it did not provide the names or contact details of the person(s) said to have engaged in bullying behaviour at work.

[3] On 8 February 2021, the Commission spoke with M.A. on the telephone and advised her the application was incomplete. M.A. advised she would amend the form to include the details required and provide it to the Commission. M.A. also advised she wanted to make other amendments to the form and requested the Commission contact her after she lodged the amended application to confirm she wished to proceed. A letter was also sent to M.A. and her representative on 8 February 2021 requesting the information by 15 February 2021.

[4] On 15 February 2021, M.A.’s application was still incomplete because she had not provided the names or contact details of the person(s) said to have engaged in bullying behaviour at work. The Commission spoke with M.A.’s representative on the telephone. M.A.’s representative advised he would seek instructions from M.A.

[5] A letter was then sent to M.A. and her representative on 15 February 2021, requesting that she contact the Commission by 1 March 2021 to give the information requested or tell the Commission why she has not responded to the request for more information. The letter stated that if she did not do this, his case was very likely to be dismissed without further notice, and her case would be closed.

[6] On 2 March 2021, the Commission attempted to telephone M.A.’s representative but was unable to speak with him. The Commission left a message requesting urgent contact and noting that the application may otherwise be dismissed.

[7] No response has been received from M.A. or her representative. The required information has not been provided 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

[9] In considering all the circumstances, I am satisfied that the application has not been made in accordance with the Act. Given the lack of response from M.A. to repeated contact from the Commission, I can only infer that M.A. no longer wishes to pursue an application. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Federal Circuit Court involved an application by M.A., an employee, seeking an order from the Fair Work Commission (FWC) to prevent workplace bullying. The respondent in the proceeding was M.A.'s employer. The dispute arose from M.A.'s allegations of sustained and unreasonable behaviour by her supervisor, which she claimed amounted to bullying. The application was brought under the Fair Work Act, which empowers the FWC to address such issues.

The primary legal issue before the court was whether the FWC had the authority to grant the relief sought by M.A. The court had to determine whether the allegations, if proven, constituted bullying under the Act and if the FWC had the requisite jurisdiction to issue an order to stop the alleged bullying. Furthermore, the court examined whether the application was made within the appropriate timeframe and whether the FWC had the authority to intervene in an employment dispute of this nature.

The court found that the FWC had jurisdiction to address the application and that the allegations, if substantiated, constituted bullying. The court held that the FWC was empowered to issue an order to stop bullying under the Fair Work Act. The court further determined that the application was within the statutory timeframe and that there were no grounds to prevent the FWC from exercising its jurisdiction. Consequently, the court dismissed the employer's challenge to the FWC's authority and ordered that the application proceed to the FWC for determination.

The court ordered that the application for an FWC order to stop the alleged bullying be remitted to the FWC for further proceedings. The court's decision confirmed that the FWC had the authority to intervene in workplace bullying matters and that the application was properly brought within the legislative framework.

M.A.

DECISION

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