M.B.

[2015] FWC 5540

[2015] FWC 5540

FAIR WORK COMMISSION

DECISION

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

M.B.
(AB2015/246)

COMMISSIONER LEE HOBART, 13 AUGUST 2015

Application for an FWC order to stop bullying – non-attendance - application dismissed.

[1] On 6 May 2015, M.B. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was allocated to Commissioner Lewin, who listed the matter for preliminary conference in person at the Fair Work Commission (the Commission) in Melbourne on 13 July 2015.

[3] On 8 July 2015, the Applicant wrote to the Commission seeking an adjournment of the preliminary conference until after 15 August 2015.

[4] On 10 July 2015, the associate to Commissioner Lewin advised the parties by email that the preliminary conference date would be vacated and the matter would be referred to the Panel Head for re-allocation.

[5] On 13 July 2015, the representative of the Employer/Principal wrote to the Commission outlining their concerns as to the adjournment being granted until 15 August 2015. The representative sought the matter be re-listed for conference as soon as possible.

[6] The matter was listed for preliminary conference by telephone before the Panel Head, Commissioner Hampton on 23 July 2015.

[7] The Applicant did not attend the preliminary conference on 23 July and could not be contacted by telephone. A voicemail message was left, however the Applicant did not contact the chambers of Commissioner Hampton in response.

[8] The application was then referred to me to conduct a conference face to face in Melbourne. The conference was listed for 30 July and a notice of listing was provided to the Applicant by email and express post.

[9] On 29 July 2015, my associate attempted to contact the Applicant by telephone. My associate left a voicemail message stating that she was calling to confirm the matter was listed for conference on 30 July and that it was expected that all parties would attend.

[10] The Applicant did not attend the conference on 30 July and could not be contacted by telephone. My associate left several voicemail messages for the Applicant at this time, however chambers was not contacted by the Applicant in response.

[11] As a result of the Applicant’s failure to attend the scheduled conferences, or to contact the Commission at all, I wrote to the Applicant in the following terms;

“I refer to the above mentioned matter.

This matter was listed for conference before me on Thursday 30 June 2015.

The Commission notified you by post and email regarding the conference date.

You failed to attend the conference in person and we were unable to contact you by telephone.

I now direct as follows;

1. You are asked to confirm with me in writing by no later than 4:00pm Monday 10 August whether you intend to proceed with this application.

2. If you intend to proceed, you are to explain why you failed to participate in the conference or contact the Fair Work Commission prior to the conference to advise of your non-attendance.

3. You must ensure that any response sent to the Fair Work Commission is provided to the representative of the Employer and the Person Named in the application, Ms Natalie Perrin [email address removed].

4. If you provide a response, the representative for the Employer and the Person Named in the application is provided the opportunity to provide a response to be received by no later than 4:00pm Thursday 13 August 2015.

If you do not provide a response (as directed above) this application will be dismissed without further notice or hearing.”

[12] The Applicant has not subsequently contacted the Commission as directed.

[13] 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.”

[14] In considering all the circumstances, I am satisfied that the application has no reasonable prospects of success. The Applicant has not advanced his application or participated in proceedings that would permit the substance of the application to be determined. In that light, I am also satisfied that it is appropriate in all the circumstances to dismiss the application.

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

COMMISSIONER

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