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

[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

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application by an employee against their employer for an order from the Fair Work Commission to stop alleged workplace bullying. The applicant claimed that they had been subjected to a series of incidents over a period of time that amounted to bullying under the Fair Work Act 2009. The employer argued that the conduct did not constitute bullying as it did not meet the statutory definition.

The court was required to determine whether the conduct complained of met the criteria for workplace bullying under the Act. This involved examining the nature of the conduct, whether it was repeated or systematic, and whether it created a risk to health and safety. The court also needed to consider whether the employer had taken reasonable steps to address the issue.

The court found that the conduct did not amount to workplace bullying as it did not meet the statutory criteria. The incidents were not systematic or repeated, and there was no evidence that they created a risk to the health and safety of the employee. The employer had also taken steps to address the issues raised by the employee. The court dismissed the application and made no order.

No further orders were made by the court.

P.S.

DECISION

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