S.M.

[2018] FWC 2953

[2018] FWC 2953

FAIR WORK COMMISSION

DECISION

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

S.M.
(AB2018/193)

COMMISSIONER HAMPTON MELBOURNE, 24 MAY 2018

Application for an FWC order to stop bullying.

[1] On 4 April 2018, S.M. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009. The application was accompanied by a fee waiver application which was granted on 6 April 2018.

[2] In accordance with the Commission’s normal process for dealing with these matters, S.M. was advised on 10 April 2018 that his application would be provided to his employer and the person named in the application. S.M. confirmed that he wished to proceed with the application and the respondent parties were then served, after contact with them had been made.

[3] On 11 April 2018, S.M. contacted the Commission to advise that he had run out of personal leave and advised that he was currently speaking with a lawyer.

[4] Following receipt of the response from the employer, which was also provided to S.M. and the other parties, the matter was allocated to me on 23 April 2018. A listing was sent to the parties on the same date for a preliminary conference to be conducted by telephone on 30 April 2018.

[5] On 30 April 2018, the preliminary conference was held although S.M., or anyone acting on his behalf, did not dial into the conference.

[6] Later that same day, S.M. contacted my Chambers and advised that he wished to proceed with the matter and that the reason he did not dial into the conference was because, although he received the email with the attached listing, he did not open the attachment to see the details. S.M. also advised that he was being represented in this matter, although the Commission was not advised of the identity of that representative.

[7] My Associate requested that he send an email to Chambers, copying in all other parties, to confirm that he wished to proceed with this application. Further, S.M. was advised to request that his representative submit a Form F53 Notice of Representative Commencing to Act.

[8] On 4 May 2018, having not received any of the above material from S.M., my Associate contacted him by telephone. S.M. again confirmed that he did wish to proceed and he was advised that he must participate in the next conference. The Commission then advised all other parties of the applicant’s intention to proceed and his commitment to participate.

[9] As a result, on 4 May 2018, a revised listing was sent out to all parties for the rescheduled preliminary conference to be conducted on 8 May 2018. This was subsequently re-scheduled due to the unavailability of the Commission at short notice, and an amended listing was sent for the preliminary conference to be held on 14 May 2018.

[10] On 14 May 2018, S.M. did not dial into the conference and I directed my Associate to contact him by telephone. S.M. answered his telephone and was transferred into the conference, although he subsequently hung up and did not subsequently answer his telephone or respond to any calls.

[11] Given that the Commission was not aware of S.M.’s circumstances, including his medical status beyond the fact that he was on some form of sick leave, I considered that the status of the application should not be determined at that point. However, given the further non-participation of S.M., I requested the respondent parties confirm their position in relation to the matter.

[12] On 18 May 2018, the respondent parties made a formal request for the matter to be dismissed pursuant to s.587(1) of the FW Act. On the same day, S.M. was also provided a copy of the correspondence by email and advised by the Commission to submit any response to this request by no later than close of business 23 May 2018. S.M. was also advised that the Commission would deal with the respondent’s request to have the matter dismissed after close of business on 23 May 2018, without further notice or hearing, based on the submissions then before it.

[13] No further submissions or contact has been received from S.M., or anyone acting on his behalf.

[14] S.M. has been provided with a reasonable opportunity to advance his case and has not done so. He has failed to participate in two preliminary conferences, despite confirmation that he wished to proceed and would attend. Further, S.M. has been given a reasonable opportunity to confirm his circumstances and any genuine intention to now proceed with the matter. This has occurred in the context of advice that the Commission would consider the dismissal of his application, without further notice or hearing, if he did not respond to the position advanced by the respondents. He has, in effect, abandoned this application.

[15] Section 587(1) of the FW 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.”

[16] There are no reasonable prospects that an abandoned application can succeed in these circumstances.

[17] In all of the circumstances of this matter I consider that it is appropriate to exercise my discretion to dismiss this application. It is not reasonable, or appropriate, to hold an application open in these circumstances, particularly given its potential impact upon the respondent parties. Accordingly, the application is dismissed under s.587(1)(c) of the FW Act.

[18] I so Order.

COMMISSIONER

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