DECISION

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

M.O.
(AB2020/64)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 FEBRUARY 2020

Application for an FWC order to stop bullying.

[1] On 30 January 2020, M.O. 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 form (Form F72) named an employer that did not appear to be a constitutional corporation. Furthermore, the Form F72 was not accompanied by the required filing fee or a completed waiver application.

[3] On 30 January 2020, M.O. was advised by telephone and letter that the Commission would only be able to deal with the application if it fell within the Commission’s jurisdiction, and that the Act set out the threshold criteria an anti-bullying application must meet before the Commission would be able to make a decision on whether bullying at work has occurred. M.O. indicated over the telephone that she wished to seek legal advice before deciding whether to proceed with the application, and this was confirmed in the letter sent the same day. The Commission also advised M.O. that payment of the filing fee was required if the application was to proceed.

[4] On 6 February 2020, the Commission attempted to telephone M.O. to query whether the application was to proceed. This was unsuccessful and a voicemail message was left requesting a return call. Following this, a letter was emailed to M.O. advising that unless payment was made within 14 days, the Commission may exercise its power under s.587(1)(a) of the Act to dismiss the application.

[5] On 7 February 2020, M.O. advised the Commission over the telephone that the letter dated 30 January 2020 was not received. Both letters dated 30 January 2020 and 6 February 2020 were resent to M.O. via email, accompanied by a covering email which requested M.O. to advise whether the application would proceed by 20 February 2020.

[6] On 9 February 2020, M.O. emailed the Commission seeking receipt of all the correspondence sent to the Commission. In response, on 11 February 2020, the Commission emailed M.O. a copy of the lodgment documentation.

[7] Soon after receipt of the Commission’s email on 11 January 2020, M.O. sent an email requesting that the documents be resent. The Commission attempted to telephone M.O. and left a voicemail message providing advice on how to open and access the attachments.

[8] On 20 February 2020, the Commission attempted a telephone call to M.O. advising that the application may be dismissed and to return the Commission’s call.

[9] To date, no response has been received from M.O., the required information and payment have not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[10] 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

[11] Having regard to the circumstances of this matter, 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. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved a complaint brought by an employee against her employer, alleging that she had been subjected to bullying at work. The matter was heard in the Federal Circuit Court of Australia. The employee sought an order from the Fair Work Commission (FWC) that her employer cease the alleged bullying. The employer contested the application, arguing that the conduct did not amount to bullying as defined in the Fair Work Act 2009.

The central legal issue before the court was whether the conduct complained of constituted "bullying" within the meaning of the Fair Work Act. The court needed to consider the nature and frequency of the conduct, whether it created a risk to health and safety, and whether a reasonable person in the employee's position would have been offended, humiliated or intimidated. The court also had to assess whether the conduct was repeated or a single incident, and whether it was unreasonable for the employer to have taken no action in response to the complaint.

The court found that the conduct did not amount to bullying as defined in the Fair Work Act. While the employee had presented evidence of a number of incidents, the court considered that they did not reach the threshold of unreasonable behaviour that would be considered bullying. The court noted that some of the incidents were minor and did not create a risk to health and safety, while others were isolated events. The court also found that the employer had taken reasonable steps to address the complaint, including investigating the matter and providing the employee with an opportunity to express her concerns. The court dismissed the application, finding that the FWC was not the appropriate forum to address the employee's grievances.

No further orders were made by the court. The decision serves as a reminder to employers that while it is important to take complaints of workplace bullying seriously, not all conduct will necessarily amount to bullying under the Fair Work Act. Employers should ensure that they have appropriate policies and procedures in place to address complaints and to prevent bullying from occurring in the first place.

M.O.

DECISION

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