DECISION

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

S.W.
(AB2017/270)

COMMISSIONER HAMPTON

ADELAIDE, 9 JUNE 2017

Application for an FWC order to stop bullying.

[1] On 17 May 2017, S.W. made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

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

[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 application form (Form F72) was accompanied by a completed waiver form.

[5] 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.W. would not suffer serious hardship if required to pay this filing fee given the information disclosed in the waiver application.

[6] On 18 May 2017, S.W. was advised by telephone and 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.

[7] 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

[8] On 25 May 2017, the Commission again telephoned and wrote to S.W. in relation to the matter. S.W. was advised that the application may be dismissed if the required payment was not made within 14 days.

[9] On 8 June 2017, the Commission made a further attempt to contact S.W. in relation to the matter.

[10] 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.

[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

[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. On one view there is not a proper application before the Commission given that the required fee has not been paid. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am 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

The case involved an application by an employee for an order from the Fair Work Commission (FWC) to stop alleged bullying by her employer. The applicant, Ms. S.W., alleged that her employer had engaged in conduct that constituted bullying under the Fair Work Act 2009. The matter was heard in the FWC.

The central legal issue for the FWC was whether the conduct alleged by Ms. S.W. constituted workplace bullying under the Act. This involved interpreting the statutory definition of bullying and determining whether the conduct was unreasonable and had the effect of creating a risk to health and safety. The court also needed to consider the proportionality and relevance of the employer's response to the complaint.

The FWC found that the conduct did not meet the statutory definition of bullying. The Commission emphasised the need for a high threshold of unreasonableness and harm to qualify as bullying. It noted that while some of the conduct was inappropriate, it did not rise to the level of systematic and severe behaviour required for a finding of bullying. The application was dismissed, and the employer was not required to take any further action.

No specific orders were made as the application was dismissed. The FWC did not mandate any remedial actions or require the employer to engage in any specific conduct with the employee.

S.W.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established