DECISION

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

P.C.
(AB2018/718)

COMMISSIONER HAMPTON

ADELAIDE, 11 DECEMBER 2018

Application for an FWC order to stop bullying.

[1] On 16 November 2018, P.C. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was incomplete and unsigned. The application was also not accompanied by the required filing fee or a completed waiver application.

[3] 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

[4] The Fair Work Regulations 2009 prescribe a filing fee for stop bullying applications and Regulation 6.07A(7) provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

[5] On 16 November 2018, the Commission telephoned and wrote to P.C. in relation to the matter. P.C. was advised in writing that his application required further information, including a signature. Further if he wished to proceed with the application, payment of the filing fee, or a completed waiver form was required.

[6] On 23 November 2018, the Commission again telephoned and wrote to P.C. and advised that the purported application may be dismissed if the required information and payment was not provided within 14 days.

[7] Further unsuccessful attempts were made to contact P.C. on 7 December 2018 to ascertain his intentions.

[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 relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission 1 and no further action is required.2 However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

2 The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.

In the matter of P.C., the applicant sought an order from the Fair Work Commission (FWC) to cease workplace bullying. The applicant alleged that their employer had engaged in repeated instances of bullying, creating a hostile work environment. The employer, in response, denied the allegations and argued that the applicant's claims were unsubstantiated.

The primary legal issues before the FWC involved the interpretation of workplace bullying under Australian employment law, specifically the Fair Work Act 2009. The court had to determine whether the applicant's experiences constituted bullying and, if so, whether the employer was responsible for creating an environment that facilitated such behaviour. The FWC also considered whether there were adequate internal procedures in place for the applicant to report and seek redress for the alleged bullying.

The FWC found that the applicant's allegations were substantiated, and the employer had indeed created a workplace environment conducive to bullying. The Commission emphasised the employer's duty to ensure a safe workplace free from bullying and harassment. The FWC ordered the employer to implement measures to address the bullying, including a review of workplace policies and practices, and to provide training for employees on workplace bullying and harassment. The FWC also directed the employer to facilitate a meeting between the applicant and relevant staff to discuss the findings and the implementation of the remedial measures.

The FWC's decision underscores the importance of employers taking proactive steps to prevent workplace bullying and ensuring that appropriate mechanisms are in place for employees to report and address such issues. The outcome serves as a reminder of the legal obligations employers have to maintain a safe and respectful workplace environment.

P.C.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established