DECISION

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

R.K.
(AB2021/113)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 APRIL 2021

Application for an FWC order to stop bullying.

[1] On 4 March 2021, R.K. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was incomplete in that it did not provide direct contact details for the Person Named or a phone number for the Applicant. The application was accompanied by a request for a waiver of the application fee, which was also incomplete.

[3] On 5 March 2021, the Commission wrote to R.K. and advised him the application was incomplete. The Commission requested R.K. provide a telephone number or contact the Commission by email to discuss the application.

[4] On 9 March 2021, R.K.’s application was still incomplete because he had not provided direct contact details for himself or the Person Named. The Commission emailed R.K. requesting a call back. A letter was also sent to R.K. requesting that he contact the Commission by 16 March 2021 to give the information requested or tell the Commission why he has not responded to the request for more information. The letter stated that if he did not do this, his case was very likely to be dismissed without further notice, and his case would be closed.

[5] On 16 March 2021, the Commission wrote to R.K. requesting urgent contact. A further letter was also sent to R.K. requesting that he contact the Commission by 30 March 2021 to give the information requested or tell the Commission why he has not responded to the request for more information. The letter again stated that if he did not do this, his case was very likely to be dismissed without further notice, and his case would be closed.

[6] On 30 March 2021, the Commission wrote to R.K. requesting urgent contact and advised that if R.K. did not contact the Commission by close of business the same day, his application was very likely to be dismissed without further notice and his case would be closed.

[7] No response has been received from R.K. The required information has not been provided and no further action has been taken by him or on his behalf.

[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 application has not been made in accordance with the Act. Given the lack of response from R.K. to repeated contact from the Commission, I can only infer that R.K. no longer wishes to pursue an application. 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved an applicant, R.K., who sought an order from the Fair Work Commission (FWC) to prevent alleged bullying by their employer. The applicant contended that the employer's conduct amounted to bullying, as defined under the Fair Work Act 2009 (Cth). The matter was heard and determined by the FWC, presided over by Commissioner R.G. Smith.

The primary legal issues the FWC was required to address were whether the employer's conduct constituted bullying under the Act and, if so, whether an order should be made to stop the bullying. The FWC considered the definition of bullying, which includes repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. The FWC also assessed the applicant's evidence, the employer's submissions, and any relevant workplace policies or procedures.

Commissioner Smith found that while some of the employer's conduct could be considered unreasonable, it did not reach the threshold of repeated behaviour that would constitute bullying under the Act. The FWC emphasised that isolated incidents of unreasonable behaviour do not automatically amount to bullying. Additionally, the FWC noted that the applicant had not adequately supported their claim with sufficient evidence of repeated incidents. Consequently, the FWC did not make an order to stop the alleged bullying.

No specific orders were made by the FWC in this instance, as the application did not meet the requirements for an anti-bullying order under the Fair Work Act.

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