Mr Alvin Sicat

[2021] FWC 5089

[2021] FWC 5089

FAIR WORK COMMISSION

DECISION

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

Mr Alvin Sicat
(AB2021/206)

COMMISSIONER RIORDAN SYDNEY, 20 AUGUST 2021

s.789FC - Application for an order to stop bullying – application dismissed s.587.

[1] On 14 April 2021, Mr Alvin Sicat, made an application for an order to stop bullying under section 789FC of the Fair Work Act 2009 (the Act).

[2] I conducted a telephone conference in this matter on 14 May 2021. The Applicant and the Respondent were in attendance. Further to this telephone conference, the Applicant was to seek advice from his union regarding his application.

[3] On 31 May 2021, my Associate had a telephone conversation with Mr Sicat during which he advised he had not sought advice from the Union but that he still wished to proceed with his application, however, he was too unwell to participate in a further conference at that time.

[4] On 13 July 2021, my Associate wrote to Mr Sicat via email requesting an update on his application and how he would like to proceed. This response was sought by 20 July 2021. Mr Sicat failed to provide a response.

[5] Two telephone calls were made to Mr Sicat on 3 and 10 August 2021. Voice messages were left on both occasions requesting a return call or email to Chambers. No return call or correspondence was received from Mr Sicat.

[6] On 10 August 2021, I requested my Associate again write to Mr Sicat requesting an update on his application. Correspondence was sent requesting this update by 17 August 2021, and provided that in the event no response was received Mr Sicat’s application may be dismissed pursuant to section 587 of the Act.

[7] To date, no response or telephone contact has been received from Mr Sicat.

Relevant legislation

[8] At ss. 789FC and 789FD, the Act sets out the circumstances in which a worker can make an application for an order from the Commission to stop bullying.

[9] Section 789FF of the Act sets out what must be considered if the Commission is to make orders to stop bullying:

“Section 789FF – FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and

(d) any matters that the FWC considers relevant.”

[10] Section 587 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

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[11] The power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various correspondence from Chambers and has not filed any material in the matter beyond his initial Form F72. In failing to respond to correspondence and voice messages left by my Chambers, the Applicant has shown no willingness to prosecute his case and taken no steps to do so.

[13] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[14] While Mr Sicat advised on 31 May 2021 that he wished to pursue his application, he has failed to take any action or respond to any attempted contact by Chambers since that date. In the circumstances, I can only infer from the lack of action that the Applicant no longer wishes to pursue his application.

[15] After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Mr Sicat’s application for failure to prosecute his case.

[16] Accordingly, the application is dismissed pursuant to section 587 of the Act. It is noted that if the Applicant wishes to file a new application, there is nothing to prevent him from doing so.

[17] I so Order.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association[2019] FWC 4399 at [12].

 3   [2011] FWAFB 7498 at [19].