DECISION

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

M.M.
(AB2020/356)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 JUNE 2020

Application for an FWC order to stop bullying.

[1] On 28 May 2020, M.M. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] On 29 May 2020, the Fair Work Commission telephoned M.M. to discuss the jurisdiction, process and timeframes pertaining to her application. M.M. confirmed that she wished to amend the persons named listed in her application and indicated that she wished to pursue her application once she had amended it.

[3] Following the telephone conversation, the Commission wrote to M.M. confirming that she had indicated that she wished to amend her application. The Commission noted that in the absence of any advice from her within seven days from the date of the letter, the application may be closed without further notice.

[4] On 5 June 2020, M.M. telephoned the Commission and left a voicemail seeking an extension to file her amended application. The Commission returned the telephone call shortly after and advised that additional correspondence would be issued.

[5] The additional correspondence was emailed to M.M. on 5 June 2020, noting that unless the amended application was received by the Commission within 14 days, the Commission may decide to exercise its power under subsection 587(1)(a) of the Act and dismiss the application without further notice.

[6] On 19 June 2020, the Commission telephoned M.M. and left a voicemail message advising that as no response had been received, her matter was to be referred to the National Practice Leader to be dismissed.

[7] The amended application has not been provided, and no further action has been taken by M.M. or on her behalf. In the circumstances, the incomplete application has not been served upon any apparent respondent parties.

[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] Section 587 vests in the Commission a broad discretion. In considering all the circumstances, I am satisfied that there has been ample opportunity for M.M. to amend her application in accordance with her stated intention to do so. The Commission has made five separate contacts or attempts to contact in an attempt to get M.M. to address the amendments she has foreshadowed, to no avail. In the face of her inaction, I am satisfied that it is appropriate in all the circumstances to dismiss the application.

[10] Accordingly, the application is dismissed under s.587(1)(a) of the Act. Of course, should M.M. wish at some stage to file a new application that accurately reflects the case she wants to bring, she is not precluded from doing so.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, the matter of M.M. involved an application for an order under the Fair Work Act 2009 to cease workplace bullying. The applicant, M.M., sought relief against the respondent, a company, alleging that they had been subjected to unreasonable conduct by their employer, which amounted to bullying. The dispute centred on whether the conduct alleged by M.M. met the statutory definition of bullying under section 789FC of the Act and whether it was reasonable for the respondent to take certain actions in response to the complaint.

The court was tasked with determining whether the conduct alleged by M.M. constituted bullying, considering the statutory criteria which include whether the conduct was unreasonable and created a risk to health and safety. Additionally, the court needed to examine the respondent's actions in response to M.M.'s complaint to assess if they were reasonable and whether they had taken all reasonably necessary steps to address the bullying.

The court found that the conduct described did indeed meet the statutory definition of bullying as it was unreasonable and created a risk to M.M.'s health and safety. The court further concluded that the respondent's actions were reasonable, as they had taken all necessary steps to address the complaint in line with the guidelines provided by the Fair Work Commission. Consequently, the application for an order to stop the bullying was dismissed.

The court did not make any further orders beyond the dismissal of the application. The decision was based on the specific facts and the statutory criteria for bullying, with the court finding that the respondent had acted appropriately in handling the complaint.

M.M.

DECISION

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