Sandra J Verhaegh

[2019] FWC 54

[2019] FWC 54

FAIR WORK COMMISSION

DECISION

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

Sandra J Verhaegh
(AB2016/741)

COMMISSIONER CRIBB MELBOURNE, 7 JANUARY 2019

Application for an FWC order to stop bullying - no contact from applicant - application taken to be abandoned - application dismissed.

[1] On 21 November 2016, Mrs Verhaegh (the Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] After allocation of the matter to the Commission as presently constituted, the Commission was made aware that, due to personal reasons, the Applicant would not be in a position to attend any conference scheduled in this matter, in the short term.

[3] On 14 March 2017, the Commission wrote to the Applicant explaining the usual process in these types of matters and to inquire as to whether the applicant would be comfortable participating in a preliminary conference or mediation process. After receiving no response, a follow up email was sent to the Applicant on 23 March 2017, asking her to respond to the earlier email, or to call my Chambers, to discuss how she wants to progress her matter.

[4] On 13 April 2017, my Chambers unsuccessfully attempted to speak to Mrs Verhaegh by calling her mobile phone. A voicemail message was left providing the contact details for my Chambers and requesting that she contact the Commission in regard to her application.

[5] On 15 May 2017, my Chambers called Mr Burns of the Employer to explain our unsuccessful attempts to contact the Applicant, and was advised that the Applicant had not been at work for over six months, and that the person named in the application was no longer employed at the Company.

[6] On 21 November 2018, after several voicemail messages had been left for Mr Burns seeking an update as to whether the Applicant was back at work or not and requesting a return phone call, my Chambers was advised by the Employer that Mr Burns had left the organisation. His replacement was unable to assist in regard to the current employment status of the Applicant. Later that same day my Chambers wrote to the Applicant in relation to the matter, asking her to advise the Commission as to whether she wanted to continue with her application.

[7] On 20 December 2018, my Chambers again wrote to Mrs Verhaegh, noting that Chambers had not received a response to the correspondence of 21 November 2018, and requesting she advise whether she wished to proceed with her application. Mrs Verhaegh was advised that if she did not contact the Commission by close of business, Thursday 3 January 2019, her application would be taken to be abandoned and would be dismissed without further notice or hearing. In the circumstances, the correspondence was sent by both email, and in hard copy to Mrs Verhaegh’s postal address.

[8] There has been no contact made with the Commission by Mrs Verhaegh, or anyone on her behalf, including in the period of time that has lapsed since the due date for some contact to be made. I note also the various earlier unsuccessful attempts to have Mrs Verhaegh engage with her application.

[9] Section 587 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

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

[11] In all of the circumstances of this matter, I consider it appropriate to dismiss the s.789FC application. Accordingly, the application is dismissed pursuant to s.587(1)(c) of the Act. An order 1 to this effect will be issued separately.

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