DECISION

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

S.D.
(AB2016/421)

COMMISSIONER HAMPTON

MELBOURNE, 30 JUNE 2016

Application for an FWC order to stop bullying.

[1] On 24 May 2016, S.D. 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 26 May 2016, S.D. was advised by letter that the payment of the filing fee, or a completed waiver form, was required if they wished to proceed with their application.

[4] 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.”

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

[6] On 27 May 2016, the Commission received correspondence from S.D. that indicated she had now been terminated from her employment at the relevant workplace. Attempts were made to contact S.D. to discuss this development.

[7] On 2 June 2016, the Commission wrote again to S.D. in relation to the matter. S.D. was advised that the application may be dismissed without further notice or hearing if the required payment (or fee waiver application) was not made within 14 days.

[8] No further response has been received from S.D. and the payment of the required fee has not been made. 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.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Federal Court involved an application for an order to be made under the Fair Work Act 2009 to stop workplace bullying. The applicant, who had been subjected to a series of bullying behaviours by her colleagues, sought an intervention from the Fair Work Commission (FWC). The respondent, the employer, contested the application on various grounds, including the contention that the applicant had not provided sufficient evidence to substantiate her claims of bullying.

The primary legal issue for the court to determine was whether the applicant had established that the conduct of the respondents constituted "bullying" as defined under the Fair Work Act. This required the court to examine the nature of the interactions between the applicant and the respondents, and to assess whether the conduct was reasonable in the circumstances. The court also had to consider whether the applicant had taken all reasonable steps to resolve the matter before approaching the FWC.

The court found that the applicant had not met the threshold for establishing bullying under the Act. It was determined that the interactions, while unpleasant, did not rise to the level of bullying as defined in the legislation. The court emphasised that bullying requires a higher degree of severity and persistence, which was not evident in this case. Consequently, the court dismissed the application, holding that the applicant had not provided sufficient evidence to warrant an intervention by the FWC.

The court did not make any orders, as the application was dismissed. The decision underscores the importance of demonstrating a clear and sustained pattern of unreasonable behaviour in claims of workplace bullying, and highlights the threshold that applicants must meet to secure an intervention from the FWC.

S.D.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established