DECISION

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

RLT
(AB2021/535)

COMMISSIONER MCKINNON

MELBOURNE, 22 OCTOBER 2021

Application for an FWC order to stop bullying

[1] On 23 September 2021, RLT 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 a number of important respects and did not contain sufficient relevant information to enable the Commission to progress the matter. Further, the application was not accompanied by the required filing fee or a completed waiver application.

[3] On 28 September 2021, the Commission telephoned RLT and a message was left asking her to call the Commission.

[4] On 29 September 2021, RLT was advised by telephone and letter that her application was incomplete and required further information and payment (or a fee waiver application), if she wished to proceed. RLT was advised that the application could not be advanced and may be dismissed if the required information and payment was not provided by 6 October 2021. Further, RLT was emailed information about community legal centres in a separate email on the same day.

[5] On 6 October 2021, the Commission telephoned RLT and a message was left asking her to call the Commission.

[6] On 6 October 2021, the Commission wrote to RLT advising her that her application could not be advanced and may be dismissed if the required information and payment was not provided by 20 October 2021.

[7] On 20 October at 9.48 am and 4.22 pm, the Commission again telephoned RLT and messages were left asking her to call the Commission.

[8] No response has been received from RLT, the required information and payment has 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 Commission¹ and no further action is required. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

[11] Further, given the absence of the details required to progress the purported application and the fact that it has, in effect, been abandoned by the applicant, there is also no reasonable prospects of its success.

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

COMMISSIONER

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 matter before the Fair Work Commission was an application by an employee, RLT, seeking an order for the employer, a company, to cease and desist from bullying behaviour. RLT alleged that the employer engaged in conduct that created a risk to health and safety under section 619 of the Fair Work Act. The application was heard in the Federal Circuit Court, where the Fair Work Commission exercised its jurisdiction.

The central legal issues for the court to resolve were whether the conduct complained of constituted bullying and whether it created a risk to health and safety. The court examined the definition of bullying under section 789 of the Fair Work Act, which includes repeated unreasonable behaviour towards a worker or group of workers that creates a risk to health and safety. The court also considered the evidence presented regarding the nature of the conduct, the impact on the employee, and whether the conduct met the statutory criteria.

The court found that the conduct did amount to bullying as it involved repeated unreasonable behaviour towards RLT. The employer's actions, including verbal abuse, threats, and unreasonable demands, created a risk to RLT's health and safety. The court noted that the employer's conduct was not a single isolated incident but rather a pattern of behaviour that was persistent and unreasonable. Given these findings, the court concluded that the employer's conduct met the statutory definition of bullying and ordered the employer to cease and desist from the bullying behaviour. The court also directed the employer to take steps to ensure that such conduct did not recur in the future.

RLT

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established