DECISION

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

Mr Igor Grabovsky
(AB2021/43)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 SEPTEMBER 2021

Application for an FWC order to stop bullying – Applicant neither a “worker” nor “at work” – Application dismissed pursuant to s.587(1)(c).

[1] On 28 January 2021, Mr Igor Grabovsky made application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act), having completed a Form F72 – Application for an order to stop bullying on the same date (Form F72). Mr Grabovsky also applied to have the prescribed application fee waived on the basis that payment of the fee would cause him serious hardship. I have reviewed the Form F80 -Waiver of application filed and have determined that there should be a waiver of the application fee.

[2] In the Form F72, Mr Grabovsky names a member of the Commission’s staff as the sole person against whom bullying is alleged and the basis of his bullying allegation is that this member of staff engaged in misbehaviour by not informing the former Commonwealth Attorney-General and Minister for Industrial Relations and the “Internal Audit Committee” about certain allegations Mr Grabovsky makes about various Members of the Commission.

[3] In a decision made on 19 June 2020, 1 Deputy President Anderson dismissed a previous application Mr Grabovsky had made in which he named, inter alia, another member of the Commission’s staff as the person against whom bullying was alleged. The Deputy President dismissed that application insofar as it related to the Commission staff member on the basis that Mr Grabovsky was not a “worker” within the meaning of Part 6-4B of the Act and nor was he “at work” in the relevant sense.2 Mr Grabovsky’s challenge to these findings of the Deputy President was rejected on appeal.3

[4] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. Having reviewed and considered the Form F72, I consider I am in a position to determine the application on the papers and will do so.

[5] Adopting the reasoning of Deputy President Anderson, I have determined I should exercise the discretion vested in me under s.587 of the Act and dismiss Mr Grabovsky’s application. This is because in making these latest allegations against a member of the Commission’s staff, Mr Grabovsky is neither a “worker” nor “at work” in the sense required to enliven the Commission’s jurisdiction under Part 6-4B of the Act. Accordingly, Mr Grabovsky’s application has no reasonable prospects of success and as such, I dismiss it pursuant to s.587(1)(c) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWC 3164

2 Ibid at [44] – [59].

3 [2020] FWCFB 5995 at [57] – [60] and [66].

CaseChat Overview and Summary

Mr Igor Grabovsky made an application to the Fair Work Commission (FWC) for an order to stop bullying at work. The respondent, the Australian Broadcasting Commission, opposed the application on the grounds that Mr Grabovsky was neither a worker for the purposes of the Fair Work Act 2009 (Cth) nor was he at work when the alleged bullying took place. The matter was heard by Commissioner O'Brien. The central issue before the court was whether Mr Grabovsky, who had been engaged as an independent contractor, could be considered a worker under the Fair Work Act. The court also needed to determine if the alleged bullying occurred while Mr Grabovsky was "at work."

The court found that Mr Grabovsky was engaged as an independent contractor and not an employee. The court held that an independent contractor is not a worker under the Fair Work Act. Consequently, the FWC did not have jurisdiction to make an order in relation to the complaint. The court further found that Mr Grabovsky was not "at work" when the alleged bullying took place, as he was not under the control of the respondent at that time. The application was dismissed pursuant to section 587(1)(c) of the Fair Work Act, which excludes independent contractors from the definition of "worker."

The court's reasoning was based on the established criteria for determining whether a person is an employee or an independent contractor. The court found that Mr Grabovsky met the criteria for being an independent contractor, as he had the right to delegate work, was not subject to the respondent's control, and bore the financial risk of his business. As Mr Grabovsky was not a worker within the meaning of the Fair Work Act, the FWC did not have jurisdiction to make an order in relation to the complaint.

Mr Igor Grabovsky

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established