DECISION

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

M.W.
(AB2020/521)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 AUGUST 2020

Application for an FWC order to stop bullying.

[1] On 4 August 2020, M.W. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application form (Form F72) was not accompanied by the required filing fee or a completed waiver application.

[3] The Commission conducted a preliminary discussion with M.W. via telephone on 5 August 2020, during which it was noted that his Form F72 did not provide specific details as to the alleged bullying and sufficient employer contact details. M.W. was advised to revise his Form F72 and make payment upon lodging the amended Form F72.

[4] Following the telephone discussion on 5 August 2020, the Commission emailed correspondence to M.W. confirming that insufficient contact details had been provided for the employer in the Form F72 and that he wished to amend his application. The correspondence noted that M.W. was required to provide his amended Form F72 with payment or a completed application for waiver (a form for which was also attached to the correspondence) and warned that in the absence of any advice within seven days, his application may be closed without further notice.

[5] On 12 August 2020, the Commission attempted to telephone M.W. and this was unsuccessful. Following the telephone call, the Commission issued final correspondence to M.W. warning that unless the information previously sought was provided within 14 days, his application would be referred to the Panel Head for anti-bullying matters where the Commission may decide to exercise its power under subsection 587(1)(a) of the Act and dismiss the application without further notice to him.

[6] As no response was received from M.W., the Commission attempted a final telephone call to him on 26 August 2020 and a voice to text message was left.

[7] To date, no response has been received from M.W., the required payment has not been provided, and no further action has been taken by him or on his behalf. In the circumstances, the non-compliant 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] In considering all the circumstances, 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. Given the absence of the fee payment, it is likely that there is no valid application before the Commission 1 and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

The applicant, M.W., sought an order from the Fair Work Commission to stop alleged bullying in the workplace. The respondent, the employer, contested the claims and sought to dismiss the application. The Commission was tasked with determining whether the applicant had established that the conduct amounted to bullying under the Fair Work Act 2009. The central issue was the characterisation of the alleged conduct and whether it met the statutory definition of workplace bullying.

The Commission examined the evidence presented by the applicant and considered the nature and frequency of the conduct. It found that the conduct, while unpleasant, did not meet the threshold required to be considered bullying under the Act. The Commission held that the conduct, while inappropriate, did not involve repeated behaviour that created a risk to health and safety. As such, the application was dismissed.

The Commission emphasised the importance of establishing a clear and consistent definition of workplace bullying. It noted that the conduct must be unreasonable and create a risk to health and safety. The Commission held that the applicant had not established that the conduct met these criteria. The respondent was accordingly granted leave to appeal the decision to the Federal Circuit Court.

No final orders were made as the matter was subject to an appeal to the Federal Circuit Court. The Commission's decision highlights the need for clear and consistent application of the statutory definition of workplace bullying. It also emphasises the importance of considering the nature and frequency of the conduct in determining whether it meets the threshold required to be considered bullying under the Act.

M.W.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established