M.B.

[2021] FWC 3515

[2021] FWC 3515

FAIR WORK COMMISSION

DECISION

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

M.B.
(AB2021/263)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 JUNE 2021

Application for an FWC order to stop bullying.

[1] On 14 May 2021, the Commission received an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 from M.B.

[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 14 May 2021 the Commission attempted to telephone M.B. and left a voice message through a message to text service requesting that M.B. call the Commission. An email was also sent to M.B. on this date requesting that he call the Commission.

[6] On 17 May 2021, the Commission again attempted to telephone M.B. and left a voice message requesting that he return the call. An email was also sent to M.B. on this date, as well as a text message, requesting that he call the Commission.

[7] On 18 May 2021, the Commission attempted again to telephone M.B. and a message was left requesting that he call the Commission. An email was also sent on this date, requesting that M.B. call the Commission.

[8] On 18 May 2021 an email was received from M.B. saying that he had tried to call but did not leave a message. He gave his phone number and noted that his contract was terminated shortly after making the application. M.B. was unsure if mediation or reconciliation was possible.

[9] In response, the Commission attempted to telephone M.B. again but was unable to leave a message. A recording stated, “unable to take incoming calls”. An email was then sent to M.B. noting that his phone recording had indicated that he was unable to take incoming calls, and requesting that he call the Commission.

[10] On 19 May 2021, an email was received from M.B. stating that he would call at 11:30am or wait for a return call after that. At 11:46am, the Commission attempted to telephone M.B. but was unsuccessful. An email was then sent to M.B. noting that the Commission had been unable to get through on his mobile phone number. The email noted that the anti-bullying jurisdiction may no longer be applicable now that he had been terminated. The email requested that M.B. advise the Commission whether he still wished to proceed with his anti-bullying application.

[11] M.B. telephoned the Commission at 5:16pm on 19 May 2021. The process, steps and timeframes were confirmed with him. M.B. disclosed that he had been terminated and articulated his awareness that orders could not be made. A discussion of how the trajectory may change when the employment relationship is severed was had, including options for discontinuing or proceeding. M.B. did not wish to decide on the day and the Commission offered to call him the next day. M.B. asked that it be recorded that he wished to have until 22 May 2021 to decide whether he would proceed with his application.

[12] On 20 May 2021, the Commission attempted to telephone M.B. and left a message through the message to text service requesting that he call the Commission. An email was also sent to M.B. noting that the Commission could hold his matter until Monday 24 May 2021. The Commission advised M.B. that as the application had not yet been paid for it was therefore incomplete, in which case the Commission could hold the matter for 7 days until he made payment. The Commission requested that M.B. either call the Commission or respond via email.

[13] On 21 May 2021, the Commission attempted to telephone M.B. and left a message via the message to text service requesting that M.B. telephone the Commission to discuss the email that had been sent on 20 May 2021.

[14] On 24 May 2021, the Commission again attempted to telephone M.B. and left a message via the message to text service requesting that M.B. telephone the Commission.

[15] On 24 May 2021, the Commission sent correspondence by email to M.B. requesting that he pay the application fee and noting that he must do this by 31 May 2021. The letter noted that if M.B. did not pay the application fee, his application may be dismissed. A link to the Form F80 Waiver of application fee was included in the letter as well as the link to the Workplace Advice Service

[16] On 31 May 2021, the Commission attempted to telephone M.B. and left a message via the message to text service requesting that he telephone the Commission.

[17] On 31 May 2021, final correspondence was sent to M.B. via email, noting that his application would be dismissed in 14 days if he did not respond. The letter noted that he needed to pay the application fee or apply to have the application fee waived so that his application could continue.

[18] On 14 June 2021, the Commission attempted to telephone M.B. A message was left noting that the application was still incomplete and if M.B. did not contact the Commission the application would be dismissed. An email was sent to M.B. the same day noting that payment was due and if contact with the Commission was not made that day the application would be dismissed.

[19] No response has been received from M.B. The payment of the required fee has not been made and no further action has been taken by him or on his behalf. In the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

[20] 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.”

[21] It is not clear what the intentions of M.B. are because he has not responded to repeated contact from the Commission. I can only infer he no longer wishes to pursue an application. 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. Given the absence of the fee payment, it is likely that there is no valid application before the Commission 1 and no further action is required. 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].