S.H.

[2021] FWC 270

[2021] FWC 270

FAIR WORK COMMISSION

DECISION

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

S.H.
(AB2020/847)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 JANUARY 2021

Application for an FWC order to stop bullying.

[1] On 23 December 2020, S.H. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application was incomplete in that it did not provide contact details for the Employer/Principal, listed S.H. himself as the Person Named and did not provide sufficient detail about the person or people whom he says engaged in bullying at work.

[3] On 23 December 2020, the Commission conducted a preliminary discussion with S.H. over the telephone to discuss the jurisdiction and the deficiencies of his application. S.H. indicated that he would complete and amend his application and consented to the Commission serving the Employer/Principal the amended application when they reopened on 4 January 2021. Following the telephone conversation, the Commission emailed correspondence to S.H. stating that he was to complete and return the amended application by 4 January 2021. The correspondence warned that if he did not do so, his application may be dismissed.

[4] On 4 January 2021, the Commission attempted to telephone S.H. on his nominated telephone number but was unable to reach him. A voicemail message was left advising that his application remained incomplete and that further correspondence would be issued shortly.

[5] Later the same day, final correspondence was emailed to S.H. referring to the correspondence from the Commission dated 23 December 2020 which noted that:

•  He wanted to change something on his application form;

•  He was required to provide more details about his employer and their contact details; and

•  He was required to provide details about the person or people whom he says engaged in bullying at work.

[6] The correspondence noted that the Commission had given S.H. seven days to provide this information but that nothing had been received from him. The correspondence went on to state that S.H. needed to contact the Commission by 18 January 2021 to provide the information requested, or tell the Commission why he had not responded to the request for more information, and that if he did not do this, his case was very likely to be dismissed without further notice.

[7] On 18 January 2021, a final telephone call was attempted to S.H. and a voicemail message was left requesting his urgent return call.

[8] Since filing his application on 23 December 2020, no further has been taken by S.H. or on his behalf to respond to the Commission’s queries and progress the application. In the circumstances, the 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

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

[10] It is not clear what the intentions of S.H. are because he has not responded to repeated contact from the Commission. I can only infer he no longer wishes to pursue an application. in considering all the circumstances, I am satisfied that the relevant application was incomplete and has therefore not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

[11] Accordingly, the application is dismissed pursuant to s.587(1) of the Act. Of course, should S.H. wish to file a new application, there is nothing to prevent him from doing so.

DEPUTY PRESIDENT

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