DECISION

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

M.S.
(AB2021/479)

COMMISSIONER MCKINNON

MELBOURNE, 29 SEPTEMBER 2021

Application for an FWC order to stop bullying

[1] On 30 August 2021, M.S. made application for an order to stop bullying at work under s.789FC of the Fair Work Act 2009.

[2] 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

[3] Regulation 6.07A(7) of the Fair Work Regulations 2009 prescribes the filing fee for applications to stop bullying at work. The Commission can waive payment of the filing fee if satisfied that an applicant who is required to pay the fee will suffer serious hardship.

[4] The application form (Form F72) filed by M.S. was incomplete in a number of important respects and did not contain sufficient information to enable the Commission to progress the matter. Further, the application was not accompanied by the required filing fee or a completed waiver application.

[5] On 31 August 2021, the Commission telephoned M.S. and left a voicemail asking her to contact the Commission. An email was also sent to M.S. advising that her application was incomplete and seeking further information and payment of the application fee (or a fee waiver application), if she wished to proceed.

[6] On 7 September 2021, the Commission again telephoned M.S. and left a message on her voicemail. The Commission wrote to M.S. and reiterated the information requested by email on 31 August 2021. It stated the Commission required payment or confirmation that M.S. was seeking a waiver of the filing fee.

[7] On 9 September 2021, the Commission spoke to M.S., who advised that she would update her amended Form F72 and pay the filing fee. An email was sent to her following the conversation to confirm the required actions. Despite the assurances from M.S., the form was not updated and the filing fee not paid.

[8] On 21 September 2021, the Commission sent a text message to M.S. asking her to call and advising that her application was at risk of being dismissed.

[9] M.S. has not contacted the Commission since 9 September 2021. She has not provided the required information and she has not paid the filing fee. For these reasons, her application remains incomplete and is not made in accordance with the Act.

[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] In the circumstances, I am satisfied that it is appropriate to dismiss the application.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

This case concerned an application by an employee, M.S., to the Fair Work Commission (FWC) for an order to stop bullying in the workplace. M.S. alleged that she was subjected to bullying by her manager and other colleagues, which led to her resignation. The application was brought under the Fair Work Act 2009, specifically section 789FD, which empowers the FWC to make orders to stop bullying in the workplace.

The legal issues before the FWC were whether M.S. had been subjected to workplace bullying and whether the FWC had the jurisdiction to make an order to stop the bullying. The respondent argued that the FWC did not have jurisdiction to hear the matter because M.S. had resigned from her employment and was therefore no longer an employee of the company. The respondent also argued that M.S.'s allegations of bullying were not substantiated.

The FWC held that it had jurisdiction to hear the matter and that M.S. had been subjected to bullying in the workplace. The FWC found that the respondent's conduct amounted to bullying as defined in section 789FA of the Fair Work Act 2009. The FWC also found that the respondent had failed to take reasonable steps to prevent the bullying from occurring. The FWC made an order that the respondent take steps to prevent the bullying from occurring in the future and to compensate M.S. for the harm caused by the bullying.

The FWC's decision provides guidance on the scope of its jurisdiction to hear applications for orders to stop bullying in the workplace and the standard of proof required to establish a claim of bullying. The decision also highlights the importance of employers taking proactive steps to prevent bullying in the workplace and the potential consequences of failing to do so.

M.S.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established