P.S.

[2020] FWC 3920

[2020] FWC 3920

FAIR WORK COMMISSION

DECISION

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

P.S.
(AB2020/443)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 JULY 2020

Application for an FWC order to stop bullying.

[1] On 2 July 2020, P.S. made an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009.

[2] On 3 July 2020, the Commission had a telephone discussion with P.S. with respect to the Commission’s jurisdiction and the possibility that the nominated Employer/Principal is not a constitutionally-covered business. P.S. was also requested to provide the contact details for the Person Named as well as to confirm whether or not he intended to proceed with his application within the next seven days.

[3] Following the telephone discussion, a letter was emailed to P.S. confirming the deficiencies identified above and seeking advice as to whether he intended to proceed with his application within seven days, warning that the absence of such advice may result in his application being closed without further notice.

[4] On 10 July 2020, the Commission attempted to telephone P.S. and left a voicemail message referring to the previous conversation on 3 July 2020, as well as noting that a further reminder letter would be sent. A reminder letter was subsequently emailed, warning P.S. that if the information previously requested was not received by the Commission within 14 days, the application would be referred to the Panel Head for anti-bullying matters and the Commission may exercise its power under subsection 587(1)(a) of the Act to dismiss the application without further notice to him.

[5] A final telephone call to P.S. was attempted on 24 July 2020. A voicemail message was left advising that 21 days have elapsed since P.S. was requested to provide the requested advice and seeking a return call.

[6] No further response has been received from P.S., no contact details for the Person Named has been provided, and no further action has been taken by him or on his behalf. In the circumstances, the incomplete application has not been served upon any apparent respondent parties.

[7] 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.”

[8] In considering all the circumstances, I am satisfied that the relevant application form was incomplete, and therefore 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. Further, I note that despite five separate emails or telephone calls sent and made by the Commission after the initial telephone discussion on 3 July 2020, P.S. has not responded or engaged with the Commission. I am therefore satisfied that it is appropriate in all the circumstances to dismiss the purported application.

[9] Accordingly, the application is dismissed under s.587 of the Act. Of course, should P.S. wish to file a new application that is made in accordance with the Act in the future, he is not precluded from doing so.

DEPUTY PRESIDENT

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