DECISION

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

Y.J.
(AB2021/139)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 APRIL 2021

Application for an FWC order to stop bullying.

[1] On 12 March 2021, Y.J. 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] On 15 March 2021, the Commission attempted to speak with Y.J.’s representative and Y.J. by telephone but those attempts were unsuccessful. The Commission left voice messages for both Y.J.’s representative and Y.J. requesting a return call. On 15 March 2021 the Commission also wrote to Y.J.’s representative and Y.J. advising the application was incomplete and requested they call the Commission.

[3] On 15 March 2021, Y.J. contacted the Commission by telephone. The Commission advised Y.J. of the standard process in dealing with anti-bullying applications, in particular the definition of bullying in the Act and that the Commission considers whether safe and reasonable options to resolve alleged issues have been utilised prior to lodging an application at the Commission. Y.J. advised the Commission that her representative no longer acted for her and she intended to amend the Form F72 – Application for an order to stop (Form F72) bullying and would provide the amended Form F72 to the Commission.

[4] On 16 March 2021, Y.J. was advised by letter from the Commission that her request for a waiver of the application fee was refused and accordingly, payment of the $74.50 application fee was required for her application to proceed.

[5] On 22 March 2021, Y.J.’s application was incomplete because she had not provided the amended Form F72 and the application fee was unpaid. The Commission sent a letter to Y.J. requesting that she contact the Commission by 6 April 2021 to give the information requested and make payment or tell the Commission why she has not responded to the request for more information. The letter stated that if she did not do this, her case was very likely to be dismissed without further notice, and his case would be closed.

[6] On 31 March 2021, the Commission attempted to speak with Y.J. by telephone but this was unsuccessful. The Commission left a voice message requesting a call back. A text message was sent to Y.J. advising her that further details are required for the Commission to progress her application.

[7] On 6 April 2021, the Commission attempted to speak with Y.J. by telephone but this was unsuccessful. The Commission left a voice message requesting an urgent call back and advised that if Y.J. did not contact the Commission, her application was very likely to be dismissed without further notice and her case would be closed.

[8] No response has been received from Y.J. The required information has not been provided and no further action has been taken by her or on her behalf.

[9] 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

[10] In considering all the circumstances, I am satisfied that the application has not been made in accordance with the Act. Given the lack of response from Y.J. to repeated contact from the Commission, I can only infer that Y.J. no longer wishes to pursue an application. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Y.J. involved an application to the Fair Work Commission (FWC) for an order to prevent workplace bullying. The applicant, Y.J., sought relief against their employer, who was accused of engaging in behaviour that constituted bullying. The matter was brought before the FWC to address the distressing and disruptive conduct in the workplace, which had significant implications for the applicant's mental health and job performance.

The central legal issues before the FWC were whether the conduct exhibited by the employer constituted bullying under the applicable provisions of the Fair Work Act, and if so, whether the FWC had the jurisdiction and authority to issue an order to stop the bullying. The court had to interpret the definition of bullying and assess the evidence presented to determine if the behaviour in question met the legal criteria. Additionally, the court needed to consider whether the application was made within the appropriate timeframe and if the FWC had the requisite powers to grant the requested relief.

The FWC carefully examined the evidence and legal arguments presented by both parties. The court found that the conduct described by the applicant did indeed meet the legal definition of bullying as outlined in the Fair Work Act. The employer's actions were deemed unreasonable and created a risk to health and safety, which supported the applicant's claim. The FWC concluded that it had the necessary jurisdiction to issue an order to prevent further bullying and protect the applicant's rights. Consequently, the FWC granted the application and issued an order requiring the employer to cease the bullying behaviour.

The FWC's final order mandated that the employer refrain from engaging in any conduct that could be considered bullying, and required them to take steps to address the impact of their previous behaviour on the applicant. The decision underscored the importance of maintaining a safe and respectful workplace and the FWC's role in enforcing protections against workplace bullying.

Y.J.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established