V.B.

[2020] FWC 6221

[2020] FWC 6221

FAIR WORK COMMISSION

DECISION

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

V.B.
(AB2020/703)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 NOVEMBER 2020

Application for an FWC order to stop bullying.

[1] On 22 October 2020, V.B. 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 was not accompanied by the required filing fee and further, indicated that V.B. was to be represented by a solicitor. However, in a conversation with the Commission on 26 October 2020, the nominated solicitor advised that he would not be representing V.B. in this matter and was only representing her in a separate matter.

[3] Also on 26 October 2020, the Commission discussed the application with V.B. and confirmed with her that her solicitor was not representing her in it. V.B. advised that she was not certain as to whether she wished to pursue her application. On that basis, the Commission advised V.B that she would be sent correspondence requiring certain action in response within seven days.

[4] Following the telephone call, the Commission issued correspondence to V.B. advising that her application contained missing or incorrect information that required fixing, and that she would also need to pay the required filing fee before the Commission could proceed further with her case. The correspondence stated that she was required to complete these tasks by 2 November 2020 and that if she did not, her application may be dismissed.

[5] Early in the morning on 2 November 2020, V.B. emailed the Commission advising that she intended to complete her application by the following night.

[6] Later on 2 November 2020, the Commission attempted to telephone V.B. but was unable to reach her. No opportunity was available to leave a voicemail message. The Commission then emailed further correspondence to V.B. advising that she was required to contact the Commission by 16 November 2020 to provide her amended application form and make payment of the filing fee, or to advise why she had not responded to the Commission’s earlier request to do so. The correspondence also advised that failure to do either would very likely result in her application being dismissed without further notice.

[7] On 4 November 2020, V.B. provided an amended application with two nominated representatives.

[8] On 5 November 2020, the Commission telephoned V.B. and obtained payment of the filing fee. The Commission also ascertained that one of the nominated representatives was V.B.’s partner and that the other nominated representative had not yet consented to being V.B.’s representative in the matter. The Commission advised V.B. that the matter would not be able to progress until either this second nominated representative confirmed she was willing to represent V.B. in the matter, or an amended application was filed removing the purported representative’s details.

[9] On 16 November 2020, the Commission attempted to telephone V.B. to query whether the second nominated representative was able to represent her in the matter. A voicemail message was left requesting her urgent return call and further advising that the matter was at risk of dismissal if she did not do so.

[10] On 19 November 2020, the Commission made a final attempt to telephone V.B. A voicemail to text message was left seeking her urgent return call before 12:00PM and further advising that the matter was at risk of dismissal.

[11] Since 5 November 2020, no action has been taken by V.B. or on her behalf to respond to the Commission’s query and progress the application. In the circumstances, the non-compliant application has not been served upon any apparent respondent parties.

[12] 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.”

[13] Whilst V.B. eventually made payment of the filing fee, her lack of action in confirming whether or not the second nominated representative is able to represent her and failure to provide an amended application removing the purported representative’s details, suggests she no longer wishes to pursue an application.. I am also satisfied that the latest 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.

[14] I am satisfied that it appropriate in all the circumstances to dismiss the purported application. Accordingly, the application is dismissed pursuant to s.587(1) of the Act. Of course, should V.B. wish to file a new application, there is nothing to prevent her from doing so.

DEPUTY PRESIDENT

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