T.P.

[2020] FWC 3057

[2020] FWC 3057

FAIR WORK COMMISSION

DECISION

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

T.P.
(AB2020/289)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JUNE 2020

Application for a FWC order to stop bullying.

[1] On 1 May 2020, T.P. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application form (Form F72) was incomplete in that insufficient contact details had been provided for the Persons Named. The list of Persons Named in some cases contained only a first name and, in addition, the list included the term “and others”.

[3] On 4 May 2020, a telephone call was made to T.P. during which the process, timeframes and jurisdiction were explained. It was further explained that it was not possible for the Commission to identify who the other persons named were based on what was provided in the Application. After it was indicated that a copy of the Application would be served on the Persons Named, T.P. stated that he did not want the medical certificates he supplied sent to the Persons Named and that he would attempt to remove them. T.P. was advised that he could have 7 days to amend his application. T.P. stated that he would file an amended application removing “and others” from his list of Persons Named and that he would remove his medical certificates and reports.

[1] Following the telephone call, the Commission wrote to T.P. confirming that he wished to amend his Application to the Commission and noting that in the absence of any advice from him within 7 days from the date of the letter, the application may be closed without further notice.

[2] On 11 May 2020, the Commission telephoned T.P. and advised him that the amended application was due. T.P stated that was unable to talk and would call back. T.P. was advised that he would receive a letter advising that he has a further 14 days to submit his amended application otherwise the application may be dismissed.

[3] Subsequently, a letter was emailed to T.P. noting that unless the amended application was received by the Commission within 14 days, the Commission may decide to exercise its power under subsection 587(1)(a) of the Fair Work Act 2009 and dismiss the application without further notice.

[4] Later the same day, T.P. left a voicemail with the Commission. When the Commission returned the call, there was no answer and a message was left for T.P.

[5] On 12 May 2020, T.P. called the Commission to confirm that he still wanted to proceed with his Application but that he was having trouble accessing a library to amend his application. He noted that he was hoping to borrow a personal computer that week to complete the paperwork.

[6] On 18 May 2020, T.P. telephoned the Commission and left a message advising that he wanted to proceed and requested a return call.

[7] On 19 May 2020, another voice message was received from T.P. again advising that he wanted to proceed. He requested a return call.

[8] The Commission called T.P. later that day and T.P. enquired whether the Commission was open so that he could submit documents over the counter. It was explained that the Commission was not open. He was encouraged to seek assistance from family or a friend or an office support store and reminded that he would need to file the amended documents by 25 May 2020.

[9] On 20 May 2020, the Commission emailed T.P. and suggested he contact a Community Legal Centre for assistance.

[10] On 25 May 2020, two voicemails were left for T.P. requesting he contact the Commission.

[11] Later that day, T.P. telephoned the Commission advising that he had obtained contact details for a local community legal centre. He had attempted to speak with them however they were not available. T.P. confirmed that he would be happy to use a local library to file the amended application once they opened. He requested an additional week to file the amended application.

[12] On 26 May 2020, the Commission sent an email to T.P. advising him that the National Practice Lead for the Anti-Bullying jurisdiction had granted a further 14 days to submit his amended application. The Commission requested T.P. ensure he submitted the forms before 9 June 2020. It was noted that, should the forms not be submitted by the final due date, the Commission might decide to exercise its power under subsection 587(1)(a) of the Fair Work Act 2009 and dismiss the application without further notice. It was also noted that T.P. could still lodge a new application at any time, even if the initial application was dismissed.

[13] On 9 June 2020 a voice message was left for the Applicant noting that the 14 days had passed, and the matter would be referred to the National Practice Lead who may dismiss the matter. A return phone call was requested.

[14] No response has been received from T.P., the amended application has not been provided, and no further action has been taken by him or on his behalf. In the circumstances, the incomplete application has not been served upon any apparent respondent parties.

[15] 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.”

[16] In considering all the circumstances, I am satisfied that the relevant application has not been made in accordance with the Act despite there having been ample opportunity for T.P. to do so. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. The Commission has spent 5 weeks corresponding with T.P. in an attempt to get certain matters addressed, to no avail. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

[17] Accordingly, the application is dismissed under s.587(1)(a) of the Act. Of course, should T.P. wish at some stage to file a new application that is made in accordance with the Act, he is not precluded from doing so.

DEPUTY PRESIDENT

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