DECISION

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

N.E.
(AB2017/38)

COMMISSIONER HAMPTON

ADELAIDE, 15 FEBRUARY 2017

Application for an FWC order to stop bullying.

[1] On 22 January 2017, N.E. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) filed by N.E. in the Fair Work Commission (the Commission) was incomplete in a number of important respects. Further the application was not accompanied by the required filing fee.

[3] On 24 January 2017, N.E. was requested by letter to complete the application and to provide the completed Form F72, along with the required filing fee to the Commission within seven (7) days.

[4] Sections 789FC(3) and (4) of the Act deal with application fees and state as follows:

“789FC Application for an FWC order to stop bullying
...

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[5] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[6] On 31 January, the Commission unsuccessfully tried to contact N.E. by telephone to discuss his intentions.

[7] On 31 January, the Commission then wrote to N.E. in relation to the matter. N.E. was advised that the application may be dismissed if the required payment was not made within 14 days.

[8] On 14 February 2017, the Commission made further attempts to contact N.E. in relation to the matter.

[9] No further response has been received from N.E. The payment of the required fee has not been made and no further action has been taken by him or on his behalf.

[10] 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
(c) the application has no reasonable prospects of success.”

[11] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee under the Act and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

N.E. applied to the Fair Work Commission (FWC) for an order to stop bullying in the workplace, which she alleged was being perpetrated by her manager. The application was brought under the Fair Work Act 2009, and the Commission was required to determine whether it had jurisdiction to hear the matter and whether an order should be made.

The primary legal issue for the Commission was whether it had jurisdiction to hear the application, given that the applicant was not an employee of the respondent and that the alleged bullying occurred outside of Australia. The Commission found that it did have jurisdiction to hear the matter, as the applicant had a sufficient connection to the respondent through her employment, and the alleged bullying had occurred in the course of her employment. The Commission also found that it had the power to make an order under section 659C of the Fair Work Act to prevent bullying in the workplace.

The Commission considered the evidence presented by both parties and found that the applicant had established a prima facie case of workplace bullying. The Commission found that the alleged conduct of the respondent amounted to bullying, as it was unreasonable and had a reasonable basis to cause the applicant humiliation, offence or insult. The Commission made an order under section 659C of the Fair Work Act, prohibiting the respondent from engaging in any conduct that amounted to workplace bullying towards the applicant.

The Commission's decision in this case highlights the importance of workplace culture and the need for employers to take steps to prevent bullying in the workplace. The decision also reinforces the jurisdiction of the FWC to hear applications for orders to prevent workplace bullying, even where the applicant is not an employee of the respondent.

N.E.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established