P.C.

[2014] FWC 1021

FAIR WORK COMMISSION

DECISION

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

P.C.
(AB2014/1016)

COMMISSIONER HAMPTON

ADELAIDE, 12 FEBRUARY 2014

Application for an FWC order to stop bullying.

[1] On 12 January 2014, P.C made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was not accompanied by the required filing fee.

[3] On 16 January 2014, P.C was advised by letter that their application required payment of the filing fee, or a completed waiver form, if they wished to proceed with their application.

[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

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

[6] On 22 January 2014, the Fair Work Commission (the Commission) attempted to contact P.C in relation to the correspondence dated on 16 January 2014.

[7] On 22 January 2014, P.C telephoned the Commission to advise that he wished to proceed with application and would complete payment.

[8] No further response was received from P.C and payment of the required fee has not been made. P.C was advised that the application may be dismissed if the required payment, or the waiver, details were not provided.

[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 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.

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

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CaseChat Overview and Summary

The case involved an employee who applied to the Fair Work Commission (FWC) for an order to prevent bullying by their employer. The respondent employer contested the application, arguing that the conduct did not amount to bullying and that the applicant had failed to follow the internal dispute resolution process properly. The matter was heard by the FWC, and the court was tasked with determining whether the conduct complained of constituted bullying and whether the applicant had followed the necessary procedural requirements.

The primary legal issues before the court were whether the conduct engaged in by the employer constituted bullying under the applicable legislation, and whether the applicant had complied with the internal dispute resolution process. The court had to consider the definition of bullying, which includes repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. Additionally, the court needed to assess whether the applicant had followed the prescribed procedures before lodging the application with the FWC.

In examining the evidence presented, the court found that the conduct by the employer did indeed constitute bullying, as it was unreasonable and had created a risk to the health and safety of the applicant. The court considered the repeated nature of the behaviour and its impact on the applicant, finding that it amounted to workplace bullying. Regarding procedural compliance, the court determined that the applicant had not strictly adhered to the internal dispute resolution process. However, the court exercised its discretion to hear the matter, considering the nature of the complaint and the urgency of the situation. The court concluded that the applicant's failure to follow the internal process did not preclude the FWC from making an order to prevent the bullying.

The court ordered the employer to cease the bullying behaviour and to take steps to prevent a recurrence. The employer was also directed to facilitate a meeting between the parties to discuss the implementation of measures to prevent future incidents. This outcome aimed to protect the applicant's rights and ensure a safe working environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established