1 Fair Work Act 2009 s.789FC - Application for an order to stop bullying Amy Schleeman (AB2023/175) COMMISSIONER SCHNEIDER PERTH, 16 OCTOBER 2023 Application for an FWC order to stop bullying [1] This matter involves an application made by Ms Amy Schleeman (the Applicant) under section 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying. Background – Non-Compliance [2] The Applicant was initially represented by the Australian Services Union (ASU) in this matter. [3] In August 2023, the Applicant’s representative informed the Commission that the parties had reached an in-principal agreement to settle the matter. [4] The Commission then vacated the listing in the matter to allow time for the parties to finalise discussions. [5] In September 2023, the Commission emailed the parties requesting an update on the status of negotiations. The Commission did not receive a response to this email as the Applicant’s representative was on leave. [6] Chambers then attempted to contact the Applicant’s representative and was notified of the Applicant’s representative’s leave and referred to a colleague. This colleague noted that they would attempt to contact the Applicant and would ensure that the Applicant’s representative was notified of the Commission’s update request upon his return. [7] The Applicant’s representative contacted the Commission, on 13 September 2023, upon his return and notified that he had facilitated the settlement discussions and left instructions for the Applicant to finalise the settlement and discontinuance of the matter in his absence. [8] The Applicant’s representative noted that he had been unable to contact the Applicant despite repeated attempts. [2023] FWC 2701 DECISION [2023] FWC 2701 2 [9] On 15 September 2023, the Applicant’s representative notified the Commission that his attempts to contact the Applicant remained unfruitful and informed that he was ceasing to act on her behalf. [10] My Chambers then issued a Notice of Listing, on 27 September 2023, notifying the parties of a conference listed on 6 October 2023. The Notice of Listing instructed the parties to join the conference 10 minutes prior to commencement. [11] The Applicant did not join the conference as directed and my associate attempted to call the Applicant to ascertain why she had not yet joined. My associate noted that the Applicant was upset on the phone call and notified that she was unwell and unable to join. [12] The conference was then adjourned and relisted at 3:30PM on 16 October 2023. [13] The Notice of Listing for the rescheduled conference, sent on 6 October 2023, noted the below, in bold red font, on the front: “IF THE APPLICANT DOES NOT ATTEND THE ABOVE CONFERENCE (WITHOUT CAUSE) THE COMMISSIONER WILL MOVE TO DISMISS THE MATTER” [14] Prior to the conference on 16 October 2023, at around 1:00PM, the parties were sent an email reminder with links to the online conference rooms. [15] The Applicant did not join the conference as instructed and the associate attempted to contact her by phone. [16] The associate attempted two calls, at 3:26PM, and was unable to reach the Applicant or leave a voicemail. [17] The associate then sent an email to the Applicant, at 3:28PM, which noted the below: “Please urgently join the conference on the link below. The Commissioner has advised that, if you do not join by 3:40PM (AWST), the conference will be adjourned, and the matter will be dismissed.” [18] The associate tried to call the Applicant again, at 3:34PM, and left a voicemail. A further email was sent to the Applicant, noting the below: “Please join the conference within the next 5 minutes. If you do not join, the Commissioner has instructed us that he will draft and issue a decision dismissing the matter, and the file will be closed.” [19] The Applicant did not join the conference despite the additional time afforded. [20] Shortly after 3:40PM, I adjourned the conference. [2023] FWC 2701 3 [21] Chambers has not been contacted by the Applicant regarding her further non-attendance as of the time of this decision. Legislation [22] Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations. [23] Further, section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant Part of the Act. [24] Section 587(3) of the Act empowers the Commission to dismiss an application on its own initiative. [25] Section 587 of the Act reads as follows: “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. (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application.” Consideration [26] The Applicant decided to make an application under section 789FC of the Act seeking an order to stop bulling. The Applicant however did not attend the conference as directed by the Commission. [27] My associates tried, on numerous occasions, to contact the Applicant on the day of the relisted conference, via both telephone and email. The Applicant has not returned any of the missed calls or email communication between the Commission and the Applicant. [2023] FWC 2701 4 [28] As the Applicant is not communicating with the Commission in relation to the application, the Commission is unable to progress the matter or form any viewpoint about the validity of the claims or the counter claims made by the Respondent. [29] In this case, the Applicant has failed to comply with the Commission’s directions and was on notice that non-attendance would be grounds for the application to be dismissed. [30] The Applicant has been provided several opportunities, and has been reminded repeatedly, to comply with the directions of the Commission. The Applicant has not attempted to contact my Chambers or comply with the directions to attend. [31] The Applicant, in the circumstances here, has been given a fair go. The Respondent is also entitled to a fair go, including having the claim made against them determined within a reasonable time. [32] The Commission has afforded the Applicant several opportunities to advance her position in this matter despite her repeated non-compliance. [33] Unfortunately, the Applicant has repeatedly failed to comply with directions of the Commission. The Applicant has never sought or requested an extension from the Commission nor provided defensible explanation for the continued non-attendance. [34] Accordingly, as the Applicant is not communicating or participating in the process, I am satisfied that under section 587(1)(c) of the Act that the application has no reasonable prospect of success as the Applicant has failed to advance her case. Conclusion [35] Consequently, my decision is that this application for an order to stop bullying should now be dismissed by the Commission under section 587 of the Act. An Order to this effect will be issued in conjunction with this decision.1 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR767305> 1 [PR767306].