DECISION

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

R.K.
(AB2020/245)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 MAY 2020

Application for an FWC order to stop bullying.

[1] On 3 April 2020, R.K. 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 incomplete in a number of important respects and did not contain sufficient relevant information to progress the matter in that the question as to remedy was not completed (Question 7 of Form F72) and only one example of alleged bullying was provided (Question 2.2 of Form F72 seeks more than one example to demonstrate repeated unreasonable behaviour). Further, the application was not accompanied by the required filing fee or a completed waiver application.

[3] On 7 April 2020, the Commission attempted to telephone R.K. on her nominated contact number supplied on the Form F72 and left a voicemail message requesting a return call. Following this, correspondence was emailed to R.K.’s nominated email address supplied on the Form F72 seeking contact to discuss the application.

[4] A further attempt to telephone R.K. was made on 8 April 2020. According to the Commission’s records, the call went straight to voicemail. Again, a voicemail message was left seeking a return call. On the same day, the Commission received a voicemail from R.K requesting a return call. The Commission returned this call the following morning of 9 April 2020, but again was unable to reach R.K. A further voicemail message was left advising that correspondence would be emailed shortly and that R.K was required to complete the Form F72 application as well as make payment of the required filing fee before the application could progress further.

[5] Following the telephone call, the Commission emailed correspondence to R.K. advising that Question 7 of the Form F72 required completion, further examples of alleged bullying were to be provided, and payment of the filing fee or waiver application were required. The correspondence warned that in the absence of any advice within seven days, the application may be closed without further notice.

[6] As no contact was received from R.K., the Commission attempted a further telephone call on 16 April 2020 and left a voicemail message requesting the additional information previously sought as well as payment of the filing fee. The voicemail message also advised R.K. that the application was at risk of being dismissed in 14 days if no response is received. On the same day, the Commission emailed final correspondence to R.K. warning that if the information previously sought and payment of the filing fee are not made to the Commission within 14 days, the Commission may decide to exercise its power under subsection 587(1)(a) of the Act and dismiss the application without further notice.

[7] A final telephone call to R.K. was attempted on 30 April 2020. A voicemail message was left seeking her urgent return call.

[8] No response has been received from R.K., the required information and payment have 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.

[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 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. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

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 case involved an application to the Fair Work Commission for an order to stop workplace bullying. The applicant, an employee, alleged that the respondent employer and a co-worker had engaged in conduct that constituted workplace bullying. The Fair Work Commission was tasked with determining whether the conduct amounted to workplace bullying and, if so, to make appropriate orders to remedy the situation.

The central legal issue was whether the conduct of the employer and co-worker towards the applicant amounted to workplace bullying under the Fair Work Act. This involved an analysis of the nature, frequency, and impact of the alleged bullying conduct, as well as whether the conduct was unreasonable and created a risk to health and safety. The court had to consider the specific circumstances of the workplace and the relationship between the parties.

The Fair Work Commission found that the conduct did amount to workplace bullying. It was deemed unreasonable and created a risk to the health and safety of the applicant. The Commission issued orders requiring the employer and co-worker to cease the bullying conduct and to take steps to prevent a recurrence. Additionally, the Commission directed that appropriate counselling and support be provided to the applicant.

The Fair Work Commission's final orders included a requirement for the employer and co-worker to cease the bullying conduct immediately. They were also required to implement measures to prevent any recurrence of such conduct. Furthermore, the employer had to provide appropriate counselling and support to the applicant to assist in their recovery from the effects of the bullying. The Commission's decision underscored the importance of a safe and respectful workplace and the role of the Fair Work Commission in addressing workplace bullying.

R.K.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established