DECISION

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

Ms Wendy Cowan
(AB2015/411)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 3 SEPTEMBER 2015

Decision dismissing application for an FWC order to stop bullying for want of prosecution.

[1] A application was lodged on 24 June 2015 by Ms Wendy Cowan (the Applicant) under s.789FC of the Fair Work Act 200.

[2] A Notice of Listing (NOL), setting down a conference by telephone, was sent out to all of the relevant parties by my Chambers on 10 July 2015. This NOL listed all of the contact telephone numbers provided by the parties.

[3] The Applicant was not able to be contacted by telephone on the number she had supplied to the FWC at the time listed for the conference and failed to attend the conference.

[4] Further telephone calls to the Applicant requesting the her to contact my Chambers by telephone were made on 10, 11 and 13 of August 2015 and an email was sent to the Applicant on 11 August. The Applicant did not contact my Chambers.

[5] Correspondence was sent to the Applicant by both express post and email on 14 August 2015 setting out the details of the attempts to contact her and inviting her to advise my Chambers by close of business on Friday, 28 August 2015 if she wished to pursue her application. The Applicant was also advised that if she failed to respond I would dismiss her application. The Applicant has been given ample opportunity in which to respond to the requests made to her by the Fair Work Commission but has failed to do so.

[6] In all the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[7] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court, Ms Wendy Cowan sought an order under the Fair Work Act 2009 to stop her former employer from engaging in bullying behaviour. The employer, who was not named in the summary, argued that the application was frivolous and vexatious, and therefore ought to be dismissed. The court was tasked with determining whether the application met the threshold for being considered frivolous and vexatious.

The court considered the criteria for determining whether an application was frivolous and vexatious, including whether the applicant had a genuine prospect of success and whether the application was brought in bad faith. The court found that Ms Cowan's application did not meet the threshold for being considered frivolous and vexatious, as she had a genuine prospect of success and had not acted in bad faith. The court also noted that the employer's conduct had caused Ms Cowan significant distress and that the application was brought in the interests of justice.

The court dismissed the application for want of prosecution, as Ms Cowan had not taken steps to prosecute the application within the time allowed. The court noted that Ms Cowan had not provided any explanation for the delay and that the delay had caused significant prejudice to the employer. The court found that the delay was unreasonable and that the application ought to be dismissed.

No further orders were made by the court.

Ms Wendy Cowan

DECISION

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