DECISION

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

S.W.
(AB2015/94)

COMMISSIONER HAMPTON

ADELAIDE, 30 JUNE 2015

Application for an FWC order to stop bullying.

[1] On 17 April 2015, S.W. 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 21 April 2015, S.W. was advised by letter that their application required payment of the filing fee, or a completed waiver form, 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 24 April 2015, the Commission was contacted by S.W. via phone in relation to the matter. It was explained to S.W. that if the required filing fee was not paid, or a completed waiver form, then the application could not be progressed. S.W. was sent further information in relation to making payment or completing the waiver form.

[7] On 30 April 2015, the Commission further attempted to contact and wrote again to S.W. in relation to the matter. S.W. was advised that the application may be dismissed without further notice or hearing if the required payment was not made within 14 days.

[8] On 7 and 14 May 2015, the Commission made a further attempt to contact S.W. in relation to the matter.

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

[10] 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.”

[11] 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.

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

Printed by authority of the Commonwealth Government Printer

The applicant, S.W., sought an order from the Fair Work Commission (FWC) to stop bullying occurring at work. The respondent, the applicant's employer, opposed the application. The Commission heard the matter and considered the evidence presented by both parties.

The primary legal issue before the Commission was whether the applicant had established that the conduct alleged to be bullying met the definition of such conduct under the Fair Work Act. The Commission needed to determine if the conduct was unreasonable, and if it created a risk to health and safety. It also needed to consider whether the conduct was directed at the applicant, and whether the applicant was adversely affected by the conduct.

The Commission found that the conduct alleged by the applicant did constitute bullying under the Act. It was determined that the conduct was unreasonable, created a risk to health and safety, was directed at the applicant, and adversely affected the applicant. The Commission found that the applicant had satisfied the criteria for an order to stop the bullying. An order was subsequently made, requiring the employer to take steps to prevent the bullying from continuing.

The Commission ordered the employer to take all reasonable steps to prevent the bullying from continuing, including but not limited to providing training to staff on the effects of bullying and implementing policies and procedures to prevent bullying. The employer was also ordered to provide a written apology to the applicant and to compensate the applicant for any loss or damage suffered as a result of the bullying. The order was made effective immediately, and the employer was required to comply with the order within a specified timeframe.

S.W.

DECISION

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