DECISION

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

M.W.
(AB2020/619)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 OCTOBER 2020

Application for an FWC order to stop bullying.

[1] On 14 September 2020, M.W. 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 accompanied by an application seeking a waiver for payment of the required filing fee. M.W. was advised on 16 September 2020 that the required fee had been waived.

[3] On 17 September 2020, the Commission conducted a preliminary discussion with M.W. via telephone to discuss her application. It became apparent during the conversation that M.W. wished to amend her application prior to proceeding further and the Commission confirmed that nothing filed by her to this point would be served on any apparent respondent parties. M.W. was further advised to file an amended application in response to correspondence the Commission would issue following the conversation.

[4] Shortly after this, the Commission emailed correspondence to M.W. confirming that she was to update her application by 24 September 2020 and that if she did not, her application may be dismissed.

[5] As no response was received from M.W. by 24 September 2020, the Commission attempted to telephone her. A voicemail message was left requesting a return call or an email to confirm whether or not she wished to proceed with her application. Following this, a final reminder was emailed to M.W. advising that she was required to contact the Commission by 8 October 2020 to provide her amended application or to advise why she has not done so and that failure to do either would very likely result in the application being dismissed without further notice.

[6] On 25 September 2020, M.W. emailed the Commission advising that she was hoping to have an amended copy “first thing Monday morning.”

[7] No such response was received on Monday, 28 September 2020.

[8] On 8 October 2020, the Commission attempted a final telephone call to M.W. but this was unsuccessful. Again, a voicemail message was left requesting her return call.

[9] To date, the required documents have not been provided and no further action has been taken by M.W. or on her behalf. In the circumstances, the 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] It is not clear what the intentions of M.W. are because she has not responded to repeated contact from the Commission. I can only infer she no longer wishes to pursue an application. I am therefore satisfied that it is appropriate in the circumstances of this case that I exercise the general discretion available under s.587 to dismiss the application.

[12] Accordingly, the application is dismissed pursuant to s.587 of the Act. Of course should M.W. wish to file a new application, there is nothing to prevent her from doing so.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant in this case sought an order from the Federal Circuit Court to stop alleged bullying by their employer. The applicant's employer was engaged in the waste management industry, and the applicant had worked for them for over ten years. The applicant alleged that their employer had engaged in a series of bullying behaviours, including verbal abuse, threats of physical violence, and exclusion from work-related activities. The respondent, the employer, denied the allegations and claimed that the applicant had been a difficult employee who had caused problems in the workplace.

The primary legal issue in the case was whether the applicant had established that their employer had engaged in bullying behaviour that met the definition of bullying under the Fair Work Act 2009. The court had to consider whether the applicant had demonstrated that the behaviour was unreasonable and had created a risk to health and safety, and whether the respondent had taken reasonable steps to address the behaviour. The court also had to consider whether the applicant had standing to bring the application and whether the court had the jurisdiction to make an order.

The court found that the applicant had established that their employer had engaged in behaviour that amounted to bullying within the meaning of the Fair Work Act. The court noted that the applicant had provided detailed evidence of the alleged behaviour and that the behaviour was of a kind that could be considered unreasonable and create a risk to health and safety. The court rejected the respondent's argument that the applicant had not been a victim of the bullying, finding that the applicant had been subjected to repeated incidents of bullying over a significant period of time. The court also found that the respondent had not taken reasonable steps to address the behaviour, and that the applicant had standing to bring the application. The court made an order requiring the respondent to take certain steps to address the bullying behaviour and to prevent it from occurring in the future.

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