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[2018] FWC 6906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

S.C.

(AB2018/604)

Commissioner Hampton

ADELAIDE, 16 NOVEMBER 2018

Application for an FWC order to stop bullying.

On 2 October 2018, S.C. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

The application form (Form F72) did not contain sufficient relevant information to enable the Commission to progress the matter in that there was little detail of the respondent parties including that there were no Persons Named as having engaged in the alleged conduct or contact details for them. Further the application indicated that S.C. had been terminated from her employment prior to lodging the application.

In the days immediately following lodgement, correspondence was exchanged between the Commission and the applicant concerning the potential jurisdictional issue arising from her employment status.[1] S.C. indicated that she was considering her position and would advise the Commission after taking legal advice regarding her intentions including whether she would proceed with an amended stop-bullying application and/or file an unfair dismissal or general protections application.

Given the obligation[2] on the Commission to deal with applications of this nature promptly, on 16 October 2018, S.C. was advised by letter that if she did not contact the Commission to advise of her intentions, or file an amended application, the matter may be closed.

On 23 October 2018, the Commission again wrote to S.C. in relation to the matter and advised that the application may be dismissed if an amended application was not filed or she failed to contact the Commission within 14 days. The Commission made a further attempt to contact S.C. in relation to the matter on 8 November 2018.

No further response or amended application has been received from S.C. and no further action has been taken by her or on her behalf. [3]

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.”

In considering all the circumstances, I am satisfied that the relevant application has not been made in accordance with the Act. Given the absence of the details required to progress the application and the fact that it has, in effect, been abandoned by the applicant, there is also no reasonable prospects of its success. Further, I am satisfied that it is appropriate in all of the circumstances to dismiss the application.

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

COMMISSIONER

[1] Section 789FF of the Act.

[2] Section 789FE of the Fair Work Act 2009.

[3] The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.

Printed by authority of the Commonwealth Government Printer

The case before the court involved an application for an order from the Fair Work Commission (FWC) to cease bullying in the workplace. The applicant, who was an employee, sought relief against their employer on the basis of sustained and unreasonable behaviour by the employer that created a risk to health and safety. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the conduct alleged by the applicant constituted bullying within the meaning of the Fair Work Act 2009 (Cth), and if so, whether the court had the jurisdiction to order the employer to cease the conduct. The court needed to determine if the FWC's jurisdiction was limited to certain types of workplace disputes and whether the court's role was to independently assess the merits of the complaint or to simply determine if the FWC had jurisdiction.

The court found that the conduct alleged by the applicant did indeed constitute bullying under the Act. However, the court held that it did not have the jurisdiction to order the employer to cease the bullying conduct. Instead, the court's role was limited to determining whether the FWC had jurisdiction to hear the complaint and make a corresponding order. The court emphasised that the FWC was the specialised body with the expertise to handle such disputes and that the court's function was to ensure that the FWC's jurisdiction was properly invoked. The application was dismissed.

The court did not make any further orders in the case. The applicant was advised to pursue the matter with the FWC, which had the appropriate jurisdiction to hear and determine the complaint of workplace bullying.

S.C.

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