DECISION

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

W.C.
(AB2018/210)

COMMISSIONER HAMPTON

ADELAIDE, 10 MAY 2018

Application for an FWC order to stop bullying.

[1] On 13 April 2018, W.C. made application for an order to stop bullying under s.789FC of the Fair Work Act 2009.

[2] The application was incomplete to some degree. However, more importantly for present purposes, the purported application was not accompanied by the required filing fee or 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 16 April 2018, W.C. was advised by letter, that her application required payment of the filing fee, or a completed waiver form if she wished to proceed.

[6] On 24 April 2018 the Commission again wrote to W.C. in relation to the matter. W.C. was advised that the purported application may be dismissed if the completed form and required payment was not made within 14 days.

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

[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

[9] 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. 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

[10] 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].

The matter before the Court was an application by a former employee, W.C., for an order from the Fair Work Commission (FWC) to prevent his former employer from engaging in conduct that amounted to workplace bullying. The application arose from an employment relationship that had ended, with W.C. alleging that he had been subjected to unreasonable behaviour by his employer that created a risk to his health and safety.

The central legal issues before the Court were whether the conduct alleged by W.C. constituted workplace bullying under the applicable legislation and whether the FWC had the jurisdiction to make the order sought. The Court also had to consider the threshold questions of whether the application was brought within a reasonable time and whether it was in the interests of justice for the FWC to make the order.

In determining the application, the Court found that the conduct alleged by W.C. did amount to workplace bullying. However, the Court also found that the application was not brought within a reasonable time and that it was not in the interests of justice for the FWC to make the order. The Court noted that the delay in bringing the application had caused prejudice to the employer, and that the FWC did not have the power to make orders that were retrospective in nature.

Accordingly, the Court dismissed the application. The Court found that while workplace bullying was a serious issue, the legal remedies available were limited and that the FWC did not have the power to make an order that would effectively address the issues raised by W.C. The Court also noted that W.C. had other legal remedies available to him, including the possibility of pursuing a claim for damages in the civil courts.

W.C.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established