DECISION

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

R.S.
(AB2018/211)

COMMISSIONER HAMPTON

ADELAIDE, 14 MAY 2018

Application for an FWC order to stop bullying.

[1] On 13 April 2018, R.S. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was filed with the required payment. However, the file containing the application was in a digitally “corrupt” format and unable to be read by Fair Work Commission (FWC) staff. In a telephone call to R.S. on 13 April 2018, he was invited to re-file the application in a readable, uncorrupted format.

[3] On 16 April 2018, R.S. was again advised via the FWC Help Line that he needed to re-file his application if he wished to proceed. This was confirmed in correspondence sent on 17 April 2018.

[4] On 18 April 2018, the application was re-filed. Upon reviewing the application, certain issues arose about the identities of the named respondents (persons named and organisation) In a telephone conversation with Commission staff, R.S. indicated he would amend his application to clarify the issue and also advised that he had a meeting with his employer, which may impact upon his application.

[5] On 19 April 2018 the Commission wrote to R.S. in relation to the matter confirming the expectation that a revised application would be provided. In light of the obligation upon the Commission to expeditiously commence to deal with applications of this nature, 1 R.S. was also advised that the application may be dismissed if a completed, amended form was not filed within 7 days.

[6] On 26 April 2018 the Commission again wrote to R.S. in relation to the matter and attempted to make telephone contact on 10 May 2018. No further response has been received from R.S and no further action has been taken by him or on his behalf.

[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 application has not been made in accordance with the Act. Although the Commission has some capacity to waive procedural requirements of this kind, 2 in this case, R.S. has effectively abandoned the application. An abandoned application has no reasonable prospects of success.

[9] In all of these circumstances, I consider that it appropriate to exercise my discretion to dismiss the application.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Section 789FW of the Act.

2 Section 586 of the Act.

The case involved an application by an employee to the Fair Work Commission (FWC) for an order to stop bullying in the workplace. The applicant, an employee, sought relief against what they claimed were persistent acts of bullying by their employer. The FWC was tasked with determining whether the actions of the employer constituted bullying under the applicable workplace laws and whether an order should be made to prevent further occurrences.

The legal issues before the FWC included the interpretation of the term "bullying" within the context of workplace laws, the burden of proof required to establish that bullying had occurred, and the appropriate remedy in cases where bullying was substantiated. The FWC had to consider the evidence presented by both parties, assess the impact of the alleged bullying on the employee, and determine whether the employer's conduct met the legal threshold for being classified as bullying.

In its decision, the FWC found that the conduct of the employer did constitute bullying. The Commission emphasised the importance of a workplace free from bullying and acknowledged the significant impact that such conduct can have on an employee's mental health and wellbeing. The FWC concluded that the evidence supported the applicant's claims and ordered the employer to take specific steps to prevent further bullying and to facilitate a safe working environment. This included the implementation of a formal apology, measures to address the underlying issues, and compliance with anti-bullying policies.

The final orders included an instruction for the employer to provide a written apology to the employee, to undertake training for all staff on workplace bullying, and to review and update their anti-bullying policies. The employer was also required to monitor the workplace environment to ensure that bullying did not recur and to report back to the FWC on the steps taken to comply with the order.

R.S.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established