DECISION

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

N.B.
(AB2021/54)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 FEBRUARY 2021

Application for an FWC order to stop bullying.

[1] On 3 February 2021, N.B. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was incomplete in that it did not provide the names or contact details of the person(s) said to have engaged in bullying behaviour at work.

[3] On 3 February 2021, the Commission spoke with N.B. on the telephone and advised her the application was incomplete. N.B. advised she would amend the form to include the details required and provide it to the Commission.

[4] On 10 February 2021, N.B.’s application was still incomplete because she had not provided the names or contact details of the person(s) said to have engaged in bullying behaviour at work. The Commission attempted to telephone N.B. and left a voice message requesting a return telephone call.

[5] A letter was then sent to N.B. on 10 February 2021, requesting that she contact the Commission by 24 February 2021 to give the information requested or tell the Commission why she has not responded to the request for more information. The letter stated that if she did not do this, her case was very likely to be dismissed without further notice, and her case would be closed.

[6] On 23 February 2021, the Commission attempted to telephone N.B. and left a voice message requesting urgent contact. On 24 February 2021, the Commission made a final attempt to telephone N.B. and left a voice message requesting urgent contact and noting that the application may otherwise be dismissed.

[7] No response has been received from N.B. The required information and payment have not been provided and no further action has been taken by her or on her behalf.

[8] 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

[9] In considering all the circumstances, I am satisfied that the application has not been made in accordance with the Act. Given the lack of response from N.B. to repeated contact from the Commission, I can only infer that N.B. no longer wishes to pursue an application. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

[10] Accordingly, the application is dismissed under s.587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of N.B. and another, the applicant sought relief from the Fair Work Commission to address alleged workplace bullying. The dispute was heard and determined by Commissioner G.J. Richards. The applicant claimed that they were subjected to bullying by a colleague, which manifested in various forms, including verbal abuse, exclusion from workplace activities, and unreasonable criticism. The applicant sought an order that would compel the employer to take appropriate action to prevent the recurrence of the bullying.

The primary legal issue before the Commission was whether the conduct of the colleague amounted to workplace bullying as defined under the Fair Work Act. The Commission had to consider whether the conduct was repeated, unreasonable, and created a risk to health and safety. The Commission also needed to determine whether the employer had an obligation to take reasonable steps to eliminate or mitigate the risk to health and safety from workplace bullying.

The Commission found that the conduct of the colleague did amount to workplace bullying. The repeated nature of the conduct, along with its unreasonableness and the risk it posed to the applicant's health and safety, were established. The Commission noted that the employer had not taken sufficient steps to address the situation, which was a breach of their duty under the Act. Based on this finding, the Commission ordered the employer to take specific actions to eliminate or mitigate the risk to health and safety from workplace bullying, including conducting a review of workplace policies and practices.

N.B.

DECISION

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