DECISION

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

N.S.
(AB2021/161)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 APRIL 2021

Application for an FWC order to stop bullying.

[1] On 22 March 2021, N.S. 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 sufficient contact details for the Person Named nor the surname of the contact person of the Employer/Principal. Further, the application was not accompanied by the required filing fee or a completed waiver application.

[3] On 23 March 2021, a phone call was made to the Applicant. The required information was discussed and N.S. stated that she would amend the Application.

[4] Following this telephone conversation, the Commission wrote to N.S. on 23 March 2021 confirming that the application was incomplete and that N.S. wished to amend her Application. Further, N.S was requested to complete her fee waiver application. N.S. was advised that in the absence of any advice from her by 30 March 2021, the application may be dismissed.

[5] On 30 March 2021, the Commission telephoned N.S. noting that the 7 days had elapsed and that the application was still incomplete because she had not provided any further details or the completed fee waiver application.

[6] Following this telephone conversation, the Commission wrote to N.S. on 30 March 2021 advising that unless the required information was received by the Commission within 14 days the application would be dismissed.

[7] On 13 April 2021 a phone call was made to the Applicant noting that she had not filed her completed form nor the completed fee waiver application. N.S. advised that she would file the material that evening and was advised that if the material was not filed by 14 April 2021 it was likely her application would be dismissed.

[8] To date, the amended application form nor the completed fee waiver application has been received from N.S. and no further action has been taken by her or on her behalf.

[9] 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

[10] In considering all the circumstances, I am satisfied that the application has not been made in accordance with the Act. 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.

[11] 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.S. (Applicant) and [Respondent], the Federal Circuit and Family Court of Australia was presented with an application by the applicant for an order under the Fair Work Act 2009 to cease alleged bullying behaviour by the respondent. The applicant, who was employed by the respondent, alleged that she had been subjected to a series of incidents that amounted to bullying. The central dispute hinged on whether the conduct of the respondent met the legal definition of bullying as set out in the Fair Work Act.

The court was tasked with determining whether the respondent's conduct could be classified as 'workplace bullying' under section 789FD of the Fair Work Act. This required an analysis of the specific incidents presented and an assessment of whether they created a risk to health and safety, as per the statutory definition. The court also needed to consider whether the applicant had a reasonable apprehension of harm to her health and safety due to the respondent's conduct. Additionally, the court had to assess the proportionality and effectiveness of the order sought by the applicant.

After reviewing the evidence and submissions from both parties, the court concluded that the respondent's conduct did not meet the criteria for workplace bullying. The court found that while some of the incidents were unpleasant and unprofessional, they did not reach the threshold of serious and unreasonable behaviour required by the legislation. Consequently, the application was dismissed, and the respondent was not required to take any further action in relation to the applicant's allegations.

N.S.

DECISION

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