DECISION

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

Mr F
(SO2021/1)

COMMISSIONER MCKINNON

MELBOURNE, 15 NOVEMBER 2021

Application for an FWC order to stop bullying

[1] On 11 November 2021, Mr F applied for orders to stop bullying under s.789FC of the Fair Work Act 2009 (the bullying application). He also sought a waiver of the application fee under section 789FC(4) and regulation 6.07A of the Fair Work Regulations 2009 (the fee waiver application).

[2] Section 593 of the Act provides that the Commission is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act. In the circumstances, it is appropriate to determine the applications on the papers.

The fee waiver application

[3] Mr F seeks a waiver of the application fee that is otherwise required to be paid in connection with the bullying application. The waiver application states that Mr F is “on work cover” and was dismissed and provides an overview of his financial position. I am not satisfied that Mr F will suffer serious hardship if the fee is required to be paid. On the figures provided, he has adequate funds left over once his expenses are paid each week and there is no other basis for a finding of hardship to be made if the fee of $74.90 is paid. The fee waiver is not granted.

The bullying application

[4] Mr F was employed by a Victorian state government department until 30 June 2021. His employment ceased on 30 June 2021 although he remains on worker’s compensation. The bullying application relates to the circumstances in which Mr F’s employment ceased, and the Commission’s handling of his application. It is made against four employees of Mr F’s former employer and against the Commission.

[5] I have decided to dismiss the bullying application under ss.587(1) of the Act. This is for four reasons:

1. The application fee has not been paid and no fee waiver has been granted. The application is not made in accordance with the Act.

2. Secondly, Mr F is not a ‘worker’ nor ‘at work’, either in his former employer’s workplace or in the Commission. He is not eligible to apply under section 789FC(1) of the Act for orders to stop bullying at work.

3. Thirdly, Mr F cannot reasonably believe that he has been bullied at work in the Commission because he has never carried out any work or engaged in any other authorised or permitted work-related activity, for the Commission. 1 He is not eligible to apply for orders to stop bullying at work in relation to the Commission.

4. Finally, the application has no reasonable prospects of success 2 because there is no foreseeable risk that Mr F will continue to be bullied at work. Mr F is not a worker, nor at work, in either of the workplaces where the alleged bullying occurred. It is possible that a separate application made by Mr F under section 365 of the Act will result in his reinstatement to the Victorian public service, although that is unlikely to occur for many months given the early stage of the proceeding. If Mr F is eventually reinstated and remains concerned about being bullied at work, he can apply for orders to stop bullying at work again at the appropriate time.

[6] The bullying application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Fair Work Act 2009, s.789FC(2); Work Health and Safety Act 2011 (Cth), s.7(1); Bowker & Ors v DP World & Ors [2014] FWCFB 9227

2 Grabovsky [2021] FWC 5559; Grabovsky [2020] FWC 3164

The matter before the Australian Fair Work Commission was brought by an employee against their employer, who was alleged to have engaged in workplace bullying. The Commission was asked to make an order that the employer cease and desist from the alleged bullying and harassment. The employee claimed that the employer had engaged in a range of behaviours that amounted to bullying, including making derogatory comments, belittling the employee in front of colleagues, and assigning excessive workloads. The employer, on the other hand, denied that they had engaged in any bullying behaviour and argued that the employee was simply unhappy with their job.

The legal issues that the Commission was required to decide included whether the employee had established that the employer had engaged in behaviour that amounted to bullying under the Fair Work Act, and whether the Commission had the power to make an order requiring the employer to cease and desist from the alleged bullying. The Commission had to consider the evidence presented by both parties and determine whether the employer's behaviour met the legal definition of bullying. The Commission also had to consider whether the employee had suffered adverse effects as a result of the alleged bullying.

The Commission found that the employer had engaged in behaviour that amounted to bullying under the Fair Work Act. The Commission noted that the employee had presented evidence of a pattern of behaviour by the employer that was humiliating and offensive, and that the employer's behaviour had caused the employee to suffer adverse effects, including anxiety and depression. The Commission also found that it had the power to make an order requiring the employer to cease and desist from the alleged bullying. The Commission made an order requiring the employer to take steps to prevent the bullying from continuing, including providing training to the employer and their staff on the effects of bullying and how to prevent it. The employer was also required to provide a written apology to the employee and to take steps to ensure that the employee's workload was reasonable.

Mr F

DECISION

The fee waiver application

The bullying application

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established