DECISION

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

M.K.
(AB2020/730)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 NOVEMBER 2020

Application for an FWC order to stop bullying.

[1] On 2 November 2020, M.K. 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 any details for the Person(s) Named and did not provide the contact details for the Employer/Principal.

[3] The Commission commenced its preliminary discussions with M.K. over the telephone on 2 November 2020 during which he indicated he wished to have more time to decide whether or not he wished to continue with his application. M.K. was advised that if he wished to proceed with the matter, he would need to name one or more Person(s) Named on the application.

[4] Following the telephone discussion, correspondence was emailed to M.K. advising him to provide details about the person or people whom he says engaged in bullying at work as well as the contact details for his work. The correspondence stated that he was required to complete these tasks by 9 November 2020 and that if he did not, his application may be dismissed.

[5] On 9 November 2020, the Commission attempted to telephone M.K. but was unable to reach him, so a voicemail message was left advising that his application remained incomplete and a reminder letter would be issued shortly.

[6] Final correspondence was subsequently issued on 9 November 2020 advising M.K. that he was required to contact the Commission by 23 November 2020 to provide the details of the person or people whom he says engaged in bullying at work and the contact details for his work, or alternatively, to advise why he had not responded to the Commissioner’s earlier request on 2 November 2020 to do so. The correspondence also advised that failure to do either would very likely result in his application being dismissed without further notice.

[7] As no response was received by 23 November 2020, the Commission made a final attempt to contact M.K. and left a voicemail message requesting his urgent return call.

[8] Since filing his application on 2 November 2020, no further action has been taken by M.K. or on his behalf to respond to the Commission’s query and progress the application. In the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

[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

[10] It is not clear what the intentions of M.K. 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 was incomplete and has therefore not been made in accordance with the Act. 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.

[11] Accordingly, the application is dismissed pursuant to s.587(1) of the Act. Of course, should M.K. wish to file a new application, there is nothing to prevent him from doing so.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties in this case were M.K. (the applicant) and a company (the respondent). The applicant sought an order from the Fair Work Commission (FWC) to stop bullying by the respondent. The Federal Circuit and Family Court of Australia was tasked with deciding whether the FWC had the jurisdiction to hear the application.

The primary legal issue before the court was whether the FWC had the jurisdiction to hear the applicant's application for an order to stop bullying. The court needed to determine whether the applicant's dispute fell within the scope of the FWC's jurisdiction under the Fair Work Act 2009 (Cth). The court examined whether the applicant's dispute was a "work-related" dispute, which is a requirement for the FWC to have jurisdiction over the matter.

In its decision, the court found that the FWC did have jurisdiction to hear the applicant's application. The court held that the applicant's dispute was work-related as it involved bullying by the respondent, which occurred in the course of the applicant's employment. The court also noted that the applicant's dispute was not precluded by any other provisions of the Fair Work Act. Therefore, the court concluded that the FWC had the jurisdiction to hear the application.

As a result of the court's decision, the application for an FWC order to stop bullying was remitted to the FWC for further consideration. The court did not make any final orders itself but instead directed that the matter be returned to the FWC for it to decide on the merits of the applicant's application.

M.K.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established