DECISION

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

R.L.
(AB2020/351)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 JUNE 2020

Application for a FWC order to stop bullying.

[1] On 27 May 2020, R.L. 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 that it contained an external link and some matters were unclear in that the application referred to “external HR” and mentioned receiving an apology. In addition, it was unclear whether the behaviour was repeated.

[3] On 28 May 2020, a telephone call was made to R.L. and the process, steps and timeframes were confirmed. The Commission confirmed that the Form F72 was incomplete and could not be served due to the external link contained therein. A discussion was had about the relief from repeated behaviours and ongoing risk. The Commission noted the apology and questioned whether the behaviours had continued since then. The Commission confirmed that the application for a fee waiver had been declined. The Commission mentioned the Workplace Advice Service and R.L. consented to receiving an email about the service.

[4] Following the telephone call, the Commission wrote to R.L. confirming that he had indicated that he wished to amend his application. The Commission noted that in the absence of any advice from him within 7 days from the date of the letter, the application may be closed without further notice.

[5] On the same day, the Commission sent an email to R.L. outlining how to access the Workplace Advice Service.

[6] On 4 June 2020, the Commission telephoned R.L. and left a voice message requesting he make contact with the Commission. The Commission also noted that a final reminder letter would be sent.

[7] Later that same day a letter was emailed to R.L. noting that unless the amended application was received by the Commission within 14 days, the Commission may decide to exercise its power under subsection 587(1)(a) of the Fair Work Act 2009 and dismiss the application without further notice.

[8] On 18 June 2020, the Commission telephoned R.L. who apologised for not contacting the Commission. R.L. commented that he had found the information and process overwhelming. The Commission enquired as to whether he had taken the opportunity to use the Workplace Advice Service: R.L. stated that he had not accessed the email from 28 May 2020. He confirmed that he had engaged solicitors. The Commission noted that this matter may be dismissed as the timeframe had elapsed but noted that this would not preclude him from seeking Commission assistance via a new application in the future.

[9] The amended application has not been provided, and no further action has been taken by R.L. or on his behalf. In the circumstances, the incomplete application has not been served upon any apparent respondent parties.

[10] 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

[11] In considering all the circumstances, I am satisfied that the relevant 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 and R.L. has had a number of opportunities to address the matters raised by the Commission, the option of obtaining assistance and advice, and several reminders. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR720370

The case involves an application by an employee, R.L., to the Fair Work Commission (FWC) seeking an order to prevent workplace bullying. The employer contested the application, arguing that the conduct did not amount to bullying. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue was whether the conduct of the employer and a fellow employee constituted workplace bullying under the Fair Work Act 2009. The court had to determine if the conduct was unreasonable, created a risk to health and safety, and if it involved repeated hostile or unreasonable behaviour. The employer argued that the conduct did not meet the statutory definition of bullying, while the employee contended that the conduct was severe, repeated, and created a risk to their health.

The court considered the definition of bullying in the Fair Work Act, the evidence presented by both parties, and the circumstances of the alleged incidents. It examined whether the conduct was unreasonable, whether it created a risk to health and safety, and if it was repeated behaviour that was hostile or unreasonable. After assessing the evidence, the court found that the conduct did not meet the statutory definition of bullying. The court concluded that the conduct, while unpleasant, did not reach the threshold of repeated hostile or unreasonable behaviour that would constitute bullying under the Act.

Consequently, the court dismissed the application, and no order was made against the employer. The court emphasised that while the conduct was regrettable and inappropriate, it did not meet the statutory definition of workplace bullying.

R.L.

DECISION

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