DECISION

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

S.M.
(AB2016/544)

COMMISSIONER HAMPTON

ADELAIDE, 16 SEPTEMBER 2016

Application for an FWC order to stop bullying.

[1] On 16 August 2016, S.M. 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 accompanied by a completed waiver form.

[3] Regulation 6.07A(7) of the Fair Work Regulations 2009 provides as follows:

‘If the FWC is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.’

[4] The waiver application was considered by this arm of the Commission, as Panel Head for the Anti-Bullying jurisdiction. I determined on balance that S.M. would not suffer serious hardship if required to pay this filing fee given the information disclosed in the waiver application.

[5] On 17 August 2016, S.M. was advised by letter that her application for a waiving of the required filing fee had been refused and that payment of the fee was required if she wished to proceed with the application.

[6] 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.”

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

[8] On 24 August 2016, the Commission again wrote to S.M. in relation to the matter. S.M. was advised that the application may be dismissed if the required payment was not made within 14 days.

[9] On 7 September 2016, the Commission made a further attempt to contact S.M. in relation to the matter.

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

[11] 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.”

[12] In considering all the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee under the Act 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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In this matter, the Fair Work Commission (FWC) was asked to make an order prohibiting an employer from bullying an employee. The applicant, S.M., alleged that the respondent, a company, had engaged in conduct that amounted to workplace bullying. The application was heard by a delegate of the FWC, who had the authority to make an order under the Fair Work Act 2009 (Cth).

The central legal issues before the FWC were whether the conduct engaged in by the respondent constituted workplace bullying, and if so, whether the FWC had the jurisdiction to make an order prohibiting the conduct. The FWC had to consider the definition of bullying provided in the Act, as well as the evidence presented by both parties. The FWC also had to determine whether the applicant had satisfied the threshold criteria for making an application under the Act, including whether the applicant had previously raised the matter with their employer and given the employer an opportunity to address it.

The FWC found that the conduct engaged in by the respondent did amount to workplace bullying, as it was unreasonable behaviour that created a risk to health and safety. The FWC noted that the conduct was repeated and unreasonable, and that it had a significant impact on the applicant's health and wellbeing. The FWC also found that it had the jurisdiction to make an order under the Act, as the applicant had satisfied the threshold criteria. The FWC considered the evidence presented by both parties, as well as the relevant legislation and case law.

The FWC made an order prohibiting the respondent from engaging in the conduct that amounted to workplace bullying. The order was made under section 789FC of the Act, and it required the respondent to take all reasonable steps to prevent the bullying from occurring in the future. The FWC also ordered the respondent to provide the applicant with a written apology and to pay the applicant's costs of the application. The FWC emphasised the importance of preventing workplace bullying and protecting the health and wellbeing of employees.

S.M.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established