1 Fair Work Act 2009 s.789FC - Application for an order to stop bullying Application by Simon Moriarty (AB2024/783) COMMISSIONER SLOAN SYDNEY, 24 JANUARY 2025 Application for an FWC order to stop bullying – employment terminated – no reasonable prospects of success – application dismissed [1] Simon Moriarty has applied to the Commission for an order to stop bullying at work under s 789FC of the Fair Work Act 2009 (“Act”). The application alleges that Mr Moriarty had been bullied whilst at work at National Carbon Bank of Australia Pty Ltd. The application names an individual, an employee of National Carbon Bank, as the alleged perpetrator of the bullying. [2] On 22 January 2025, the Commission received an email from the representatives for National Carbon Bank, which relevantly stated: “The Respondent writes to advise the Applicant, Mr Moriarty is no longer employed by the Respondent. His employment was terminated by the employer due to ongoing poor work performance and inappropriate and/or unreasonable workplace behaviour (which for the avoidance of any doubt was unrelated to the matter currently before the Fair Work Commission (‘FWC’)). As a result, the Respondent respectfully submits it would be appropriate for the FWC to exercise its power to dismiss the Applicant’s application for orders to stop Bullying under s 587(1)(c) of the Fair Work Act 2009 (Cth) (‘the Act’), because the application has no reasonable prospects of success in circumstances where the Applicant is no longer employed by the Respondent. The Respondent notes the following matters in support of the submission set out above: 1. The Stop Bullying jurisdiction allows a ‘worker’ (as defined by the Work Health and Safety Act 2011 (Cth)) to make an application for orders to stop bullying at work. 2. Under s 789FF of the Act, ‘if the FWC is satisfied there is a risk that that the worker will continue to be bullied at work by the individual or group’, then the FWC can make ‘any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.’ [2025] FWC 227 DECISION [2025] FWC 227 2 3. As the Applicant is no longer employed by the Respondent (effective Tuesday 21 January 2025), we submit there is no future risk the worker could continue to be bullied by the individual or group (notwithstanding the Respondent rejects the submissions made by the Applicant). 4. The FWC can only make orders to prevent a ‘worker’ from being bullied under s 789FF(1)(ii) of the Act. We respectfully submit that as the Applicant is no longer employed by the Respondent, he no longer satisfies the definition of a worker for the purposes of s 789FC of the Act, and consequently the FWC is not able to make orders under s 789FF(1)(ii). For the above reasons, we respectfully ask the FWC to exercise its discretion to dismiss this matter.” [3] Also on 22 January 2025, Mr Moriarty sent an email to the Commission. It relevantly stated: “I write in response to Michael Sabljaks email of 2.05pm Wednesday 22 January 2025. In particular I refer to paragraph 1 of the email and the words ‘(which for the avoidance of any doubt was unrelated to the matter currently before the Fair Work Commission (“FWC”)).’ It is my contention that the reason for my termination was in direct response to my application of bullying and I am currently considering my position and rights to undertake further action both through the Fair Work Commission and civilly.” [4] Having regard to Mr Moriarty’s email, I take it to be uncontroversial that his employment with National Carbon Bank was terminated with effect from 21 January 2025. As he is no longer at work in that business, I can assume that he will no longer be interacting in any work context with the person named in the application. [5] It follows that there is no risk that Mr Moriarty will continue to be bullied at work by that person. Such a risk is a mandatory pre-condition to the Commission making an order to stop bullying under s 789FF of the Act. Consequently, the Commission could make no orders in the matter. [6] As a result, Mr Moriarty’s application has no reasonable prospects of success.1 The only appropriate order is that the application be dismissed. Order [7] The application is dismissed under s 587(1)(c) of the Act. [2025] FWC 227 3 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR783639> 1 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408 at [17]