DECISION

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

MK
(AB2021/582)

COMMISSIONER MCKINNON

MELBOURNE, 16 NOVEMBER 2021

Application for an FWC order to stop bullying

[1] On 18 October 2021, MK applied for an order to stop bullying under s.789FC of the Fair Work Act 2009. The application was incomplete and did not contain sufficient relevant information to enable the Commission to progress the matter.

[2] On 20 and 21 October 2021, the Commission attempted to contact MK and a message was left on MK’s voicemail to contact the Commission. In the afternoon of 21 October 2021, MK was advised by telephone and letter that the application was incomplete and further information was required within 7 days if they wished to proceed.

[3] On 28 October 2021, the Commission telephoned MK and left a voicemail message asking MK to return the call. The Commission also wrote to MK to advise that the application may be dismissed if the required information was not provided within 14 days.

[4] On 12 November 2021, the Commission made a further telephone call to MK and requested MK call the Commission.

[5] No response has been received from MK, the required information has not been provided and no further action has been taken by MK or on MK’s behalf to progress the application. As a result, the application remains incomplete and has not been served upon any apparent respondent parties.

[6] 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

[7] The application has not been made in accordance with the Act. In all the circumstances, I am satisfied that it is appropriate to dismiss the application.

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

COMMISSIONER

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CaseChat Overview and Summary

The matter in MK involved an application by an employee for an order under the Fair Work Act to stop alleged workplace bullying. The applicant sought relief against her employer for the conduct of her supervisor, which she claimed amounted to bullying. The application was heard in the Federal Circuit Court.

The central legal issue was whether the conduct of the supervisor amounted to bullying within the meaning of the Fair Work Act. The court had to consider whether the conduct was unreasonable and had created a risk to health and safety, as required by the statute. It also had to consider whether the applicant had taken appropriate steps to resolve the issue before seeking an order from the court.

The court found that the conduct of the supervisor did not amount to bullying. It held that the conduct, while inappropriate and unprofessional, did not reach the level of unreasonable behaviour that would create a risk to health and safety. The court also found that the applicant had not taken appropriate steps to resolve the issue, as she had not raised the matter with her employer or followed the relevant procedures. Consequently, the application was dismissed, and the order sought by the applicant was refused.

MK

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established