T.M.

[2020] FWC 5948

[2020] FWC 5948

FAIR WORK COMMISSION

DECISION

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

T.M.
(AB2020/669)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 NOVEMBER 2020

Application for an FWC order to stop bullying.

[1] On 9 October 2020, T.M. made an application to the Fair Work Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (the Act).

[2] The application form was initially incomplete, with no fields completed. The Commission sent correspondence to T.M. seeking a completed application form. An amended application form was subsequently provided to the Commission later on 9 October 2020.

[3] On 12 October 2020, the Commission conducted a preliminary discussion with T.M. The Commission noted that T.M. had been dismissed and explained the anti-bullying jurisdiction. T.M. advised that she wished to pursue her application and would provide a further amended application with the correct details for the Employer/Principal.

[4] Following the telephone conversation, the Commission sent T.M. an email seeking an amended application containing the correct current Employer/Principal details.

[5] On 16 October 2020, the Commission attempted to telephone T.M. and left a voicemail message seeking her completed application form. Correspondence was then emailed to T.M. advising that her completed application form has not been received and further advising that as she is no longer employed, she may find it difficult to satisfy the jurisdictional requirement to demonstrate ongoing risk to her health and safety in circumstances where she is no longer in the relationship where the bullying allegedly occurred. The correspondence further noted that the Commission can only make an order to stop bullying if there is a risk that she will continue to be bullied at work. T.M. was requested to contact the Commission by 30 October 2020 to provide the information requested or to advise as to why she has not responded to the request for further information. The correspondence warned T.M. that if she did not do this, her case was very likely to be dismissed without further notice and that the case will be closed.

[6] As no response was received from T.M. by 30 October 2020, the Commission attempted two final phone calls to her. On both occasions, a voicemail message was left seeking her return call.

[7] To date, the completed application has not been provided to the Commission and no further action has been taken by T.M. or on her behalf. In the circumstances, the application has not been served upon any apparent respondent parties.

[8] 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.”

[9] Whilst T.M. has advised the Commission of her intention to pursue the application, I can only infer from her lack of action in providing a completed application form despite multiple requests from the Commission and her lack of contact since 12 October 2020, that she no longer wishes to pursue the application. I am also satisfied that the relevant application form has not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

[10] Having regard to these matters, I am satisfied that it appropriate in all the circumstances to dismiss the purported application. Accordingly, the application is dismissed pursuant to s.587 of the Act.

DEPUTY PRESIDENT

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