DECISION

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

T.S.
(AB2018/551)

COMMISSIONER HAMPTON

ADELAIDE, 8 OCTOBER 2018

Application for an FWC order to stop bullying.

[1] On 10 September 2018, T.S. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was not accompanied by the required filing fee or a completed waiver application.

[3] 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

[4] The Fair Work Regulations 2009 prescribe a filing fee for stop bullying applications and Regulation 6.07A(7) 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.’

[5] On 13 September 2018 the Commission telephoned and wrote to T.S. in relation to the matter. T.S. was advised that the purported application may be dismissed if the completed form and required payment was not made within seven days. This was subsequently followed up with T.S. by the Commission on 20 September and 4 October 2018.

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

[7] 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

[8] In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission 1 and no further action is required.2 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 purported application.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

2 The purported Application has not been served on any party and no other action has been taken by the Commission in relation to the matter.

In the Federal Circuit Court of Australia, T.S. sought an order against their employer to stop alleged bullying. The applicant claimed that the employer's conduct amounted to workplace bullying under the Fair Work Act 2009. The court was tasked with determining whether the applicant's claims were substantiated and if the employer's conduct constituted workplace bullying. The court examined the evidence presented, including the applicant's testimony and any supporting documentation, to assess the nature of the interactions between the applicant and their employer. It considered whether the conduct was unreasonable and created a risk to health and safety, as required by the legislation.

The court found that the applicant's claims were not substantiated, as there was insufficient evidence to support the allegations of workplace bullying. The interactions between the applicant and their employer were considered to be part of the normal course of employment and did not rise to the level of bullying. The court emphasised the need for a high threshold to be met in claims of workplace bullying, requiring conduct that is unreasonable and creates a risk to health and safety. The court concluded that the applicant had not met this threshold, and therefore dismissed the application.

As a result of the court's decision, no orders were made against the employer. The court's judgment provided clarity on the legal standards for workplace bullying claims and reinforced the importance of substantiating such allegations with sufficient evidence. The dismissal of the application served as a reminder to those considering similar claims to ensure that their allegations are well-founded and supported by appropriate evidence.

T.S.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established