DECISION

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

M.D.
(AB2016/458)

(AB2016/459)

COMMISSIONER HAMPTON

ADELAIDE, 20 JULY 2016

Applications for an FWC order to stop bullying Application for an FWC order to stop bullying.

[1] On 15 June 2016, M.D. made two applications for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The applications were not accompanied by the required filing fee.

[3] On 16 June 2016, M.D. was advised by letter that payment of the filing fees, or completed waiver form, was required if she wished to proceed with the applications.

[4] 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.”

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 24 June 2016, the Commission wrote again to M.D. in relation to the matter. M.D. was advised that the applications may be dismissed without further notice or hearing if the required payment was not made within 14 days.

[7] On 8 and 12 July 2016, the Commission made a further attempt to contact M.D. in relation to the matters.

[8] No further response has been received from M.D. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[9] 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.”

[10] In considering all the circumstances, I am satisfied that the relevant applications were not accompanied by the prescribed fee and have not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the applications.

[11] Accordingly, the applications are dismissed under s.587(1)(a) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of M.D., the applicant sought an order from the Fair Work Commission to address instances of bullying at the workplace. The application was brought before the Commission to protect the applicant from continued harassment by a colleague. The nature of the dispute involved allegations of persistent bullying and harassment which the applicant claimed had created an unsafe working environment.

The court was tasked with determining whether the behaviour exhibited by the colleague constituted workplace bullying under the Fair Work Act 2009. The legal issues included whether the behaviour was repeated and unreasonable, and whether it created a risk to health and safety. The court had to weigh the evidence presented by both parties to ascertain whether the threshold for workplace bullying was met.

The Fair Work Commission found that the evidence demonstrated a pattern of behaviour that was both repeated and unreasonable, creating a risk to the applicant's health and safety. The Commission determined that the behaviour met the statutory definition of bullying. Consequently, the Commission issued an order prohibiting the colleague from engaging in the identified bullying behaviour. The order was designed to protect the applicant and to promote a safe working environment.

M.D.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established