DECISION

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

S.C.
(AB2014/200)

COMMISSIONER HAMPTON

ADELAIDE, 20 JANUARY 2015

Application for an FWC order to stop bullying.

[1] On 1 December 2014, S.C. 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 not accompanied by the required filing fee.

[3] On 2 December 2014, S.C. contacted the Fair Work Commission (the Commission) by telephone in relation to the matter. During the conversation, S.C. indicated that she may not continue with the matter and wanted to seek legal advice before discontinuing the application. S.C. also indicated that she would contact the Commission the next day to confirm her intentions in relation to the matter.

[4] On 4 December 2014, the Commission attempted to contact S.C. in relation to the matter and seek confirmation as to whether the matter was proceeding. On the same day, S.C. was advised by letter that the application required payment of the filing fee, or a completed waiver form, if she wished to proceed with her application.

[5] Sections 789FC(3) and (4) of the Act deal with application fees and state as follows:

“789FC Application for an FWC order to stop bullying
...
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[6] The Fair Work Regulations 2009 prescribe a filing fee and the circumstances under which a waiver can be considered.

[7] On 11 December 2014, the Commission wrote again to S.C. in relation to the matter. S.C. was advised that the application may be dismissed without further notice or hearing if the required payment was not made within 14 days.

[8] No further response has been received from S.C. The payment of the required fee has not been made and no further action has been taken by her or on her behalf.

[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
(c) the application has no reasonable prospects of success.”

[10] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee and has not been made in accordance with the Act. I am also satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were S.C., the applicant, and various respondents including the Fair Work Commission and another entity. The nature of the dispute was an application for an order under section 337 of the Fair Work Act 2009 to cease bullying in the workplace. The case was heard in the Federal Circuit Court of Australia.

The central legal issue the court had to decide was whether the applicant had established that the conduct of the respondents amounted to bullying under the Fair Work Act. This involved interpreting the definition of bullying and assessing the evidence presented to determine if the conduct met the statutory criteria. The court also needed to consider the procedural fairness in handling the application and the appropriate remedies available under the Act.

In delivering the judgment, the court examined the evidence and testimonies provided by both parties. It found that the applicant had not met the threshold to establish that the conduct amounted to workplace bullying. The court highlighted that the definition of bullying in the Fair Work Act requires a high level of severity and unreasonableness, which the applicant's evidence did not sufficiently demonstrate. Consequently, the court dismissed the application. The court also noted that the applicant should have been given an opportunity to provide further evidence to strengthen their case, indicating a procedural fairness issue.

The final orders of the court were that the application for an order to stop bullying be dismissed. Additionally, the court noted that the applicant should have been afforded procedural fairness, suggesting that a reconsideration of the application might be appropriate if new evidence were to be presented.

S.C.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established