DECISION

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

P.H.
(AB2019/709)

COMMISSIONER HAMPTON

ADELAIDE, 17 JANUARY 2020

Application for an FWC order to stop bullying.

[1] On 11 December 2019, P.H. 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 in a number of important respects and did not contain sufficient relevant information to enable the Commission to progress the matter. Further, the application was not accompanied by the required filing fee or a completed waiver application. In the days following attempts were made by Commission’s anti-bullying case management staff to follow up the filing of the required documents.

[3] On 17 December 2019, P.H. was advised by letter that her application was incomplete and required further information and payment (or a fee waiver application), if she wished to proceed.

[4] On 24 December 2019, the Commission telephoned and again wrote to P.H. in relation to the matter. P.H. was advised that the application could not be advanced and that it may be dismissed if the required information and payment was not provided within 14 days. On 6 and 7 January 2020, the Commission made further attempts to contact P.H.

[5] No response has been received from P.H., the required information and payment has not been provided, and no further action has been taken by her or on her behalf. In the circumstances, the incomplete and non-compliant application has not been served upon any apparent respondent parties.

[6] 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

[7] 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. 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.

[8] Further, given the absence of the details required to progress the purported application and the fact that it has, in effect, been abandoned by the applicant, there is also no reasonable prospects of its success.

[9] Accordingly, the application is dismissed under s.587(1)(a) and (c) 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].

The matter involved an application by an employee, P.H., to the Fair Work Commission (FWC) for an order to stop bullying by her employer. The employer contested the application, arguing that the conduct did not constitute bullying under the Fair Work Act. The case was heard and determined by the FWC, with the primary focus being on whether the alleged conduct amounted to bullying and warranted an intervention order.

The central legal issue before the FWC was whether the conduct of the employer towards P.H. constituted workplace bullying. The FWC had to determine if the behaviour was unreasonable and created a risk to health and safety. The Court considered the definition of bullying under the Fair Work Act and the specific circumstances of the case, including the nature of the conduct, its frequency, and its impact on P.H. The employer argued that the conduct did not meet the statutory criteria for bullying, while P.H. contended that the conduct was severe and warranted a protective order.

The FWC carefully examined the evidence and submissions from both parties. It found that while there were instances of unreasonable conduct, they did not reach the threshold of workplace bullying as defined by the Fair Work Act. The FWC emphasised that the conduct, though inappropriate, did not create a significant risk to P.H.'s health and safety. Consequently, the FWC dismissed the application for an intervention order, ruling that the employer's conduct did not constitute bullying.

No further orders were made by the FWC beyond dismissing the application. The decision underscored the importance of the specific criteria set out in the Act for characterising conduct as workplace bullying.

P.H.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established