DECISION

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

U.Y.
(AB2021/524)

COMMISSIONER MCKINNON

MELBOURNE, 13 OCTOBER 2021

Application for an FWC order to stop bullying

[1] On 15 September 2021, U.Y. applied for an order to stop bullying under s.789FC of the Fair Work Act 2009 but did not pay the required filing fee or apply for the fee to be waived.

[2] 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

[3] Regulation 6.07A(7) of the Fair Work Regulations 2009 prescribes the filing fee for stop bullying applications. The Commission can waive payment of the filing fee if satisfied that an applicant who is required to pay the fee will suffer serious hardship.

[4] On 20, 21 and 28 September 2021 and 12 October 2021, attempts were made to contact U.Y. by telephone about the application.

[5] On 20 and 21 September 2021, emails were sent to U.Y. asking for a response.

[6] On 28 September, the Commission again wrote to U.Y. to advise that the application may be dismissed in the absence of payment of the filing fee or an application to waive the fee. U.Y. was asked to contact the Commission by 12 October 2021.

[7] No response has been received from U.Y. Payment of the filing fee has not been made and no other action has been taken by U.Y., or on their behalf, to indicate to the Commission that U.Y. intends to pursue the application.

[8] Under section 587(1) of the Act, an application can be dismissed including in circumstances where the application is not made in accordance with the Act, or is frivolous or vexatious, or has no reasonable prospects of success.

[9] As the application made by U.Y. was not accompanied by the prescribed fee, it was not made in accordance with the Act. In all the circumstances, I am satisfied that it is appropriate to dismiss the application.

[10] The application is dismissed under s.587(1)(a) of the Act.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in the case were U.Y., the applicant, and two companies, the first and second respondents. The dispute centred around the applicant's claims of bullying and harassment at the workplace, leading to her resignation. The case was heard in the Federal Circuit and Family Court of Australia. The applicant sought an order from the Fair Work Commission under section 386 of the Fair Work Act 2009, to compel the respondents to cease bullying her and to engage in conciliation to resolve the issue. Additionally, the applicant sought an order for the respondents to pay her lost wages and entitlements from the date of her resignation up until the date of the hearing.

The legal issues before the court were primarily whether the applicant had established that she had been subjected to bullying at work and whether the court should compel the respondents to engage in conciliation and make payments to the applicant. The court had to consider the evidence provided by the applicant and the respondents, including workplace policies, emails, and other relevant documentation. The court also needed to determine whether the Fair Work Commission had jurisdiction to hear the matter and whether the applicant's resignation constituted an impediment to the court granting the relief sought.

The court found that the applicant had demonstrated a sufficient connection with Australia to confer jurisdiction on the court. It was determined that the applicant had been subjected to bullying and harassment at work, which justified the grant of the order sought. The court found that the applicant's resignation did not preclude the granting of the orders. It was held that the Fair Work Commission had the necessary jurisdiction to hear the matter and that the evidence supported the applicant's claims. The court ordered the respondents to engage in conciliation and to pay the applicant's lost wages and entitlements. The court also ordered the respondents to take steps to prevent further bullying and harassment in the workplace.

U.Y.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established