1 Fair Work Act 2009 s.789FC - Application for an order to stop bullying Jade Bonney (AB2025/3) COMMISSIONER JOHNS MELBOURNE, 21 FEBRUARY 2025 Application for an FWC order to stop bullying - application dismissed [1] On 2 January 2025, Ms Jade Bonney (Applicant) made an application pursuant to s.789FC of the Fair Work Act 2009 (Cth) (FW Act) for an order to stop bullying. [2] On 14 January 2025, Northern SEQ Distributor – Retailer Authority T/A Unitywater (Employer) filed a Form F73 – Response from Employer/Principal to an Application for an Order to Stop Bullying (Form F73) and a Form F74 – Response from a Person Named as having engaged in bullying at work (Form F74). The covering email noted that the Form F74 was filed on behalf of the named person in the application. [3] In the Form F73, the Employer denied the allegations that were made against the named person and raised jurisdictional objections, contending that: a) the alleged bullying did not occur while the Applicant was at work, and b) the alleged conduct constituted reasonable management action carried out in a reasonable manner. [4] The matter was allocated to my Chambers on 16 January 2025. On 29 January 2025, I conducted a mentions and directions hearing, during which I gave the Employer permission (for the reasons given in transcript) to be represented by Mr Patrick Lawyer of Ashurst. I also issued directions, a) requiring the Applicant to provide a chronological account of the alleged bullying behaviours by 4:00 pm (Melbourne time) 21 February 2025, b) requiring the Named Person to respond to each alleged bulling behaviour by 4:00 pm (Melbourne time) on 14 March 2025, and c) listing the matter for a report back mentions and directions at 4:00 pm (Melbourne time) on 19 March 2025. [5] On 5 February 2025, Mr Lawler emailed my Chambers informing that the Applicant had resigned from her employment and that the employment relationship ceased to exist from 30 January 2025. In the circumstances, the Employer made an application pursuant to s.587 of the FW Act requesting that the Commission dismiss the application. [2025] FWC 536 DECISION [2025] FWC 536 2 [6] On 7 February 2025, my Chambers wrote to the Applicant seeking an update on whether she wished to proceed with her application given that she had resigned from her employment. The Applicant was advised to inform my Chambers of her intentions by 10 February 2025. However, no response was received. [7] On 11 February 2025, my Chambers attempted to contact the Applicant by telephone. However, the Applicant did not respond but did send a subsequent email to my Chambers informing that she wished that all correspondence with her be by way of email. [8] On 12 February 2025, my Chambers wrote to the Applicant informing her that an application had been made pursuant to s.587 of the FW Act: “Noting that you have not discontinued your application, the Respondent has made an application pursuant to s.587 of the Fair Work Act 2009 (Cth) (FW Act), which provides, s.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…” In light of the above, and as a matter of procedural fairness, Commissioner Johns has directed that you lodge with the Commission and serve on the employer and named individual your reasons why your application should not be dismissed. Given that the Commission cannot make an order to stop bullying where there is no ongoing risk of bullying at work, your application appears to have no reasonable prospects of success. You are required to comply with this direction by no later than 12:00 pm (Melbourne time) on 26 February 2025.” [9] On 19 February 2025, the Applicant emailed my Chambers noting that while she is “no longer exposed to Unitywater’s actions”, she wished to proceed with her application. Consideration [10] In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines,1 (Shaw) Deputy President Gostencnik observed: [2025] FWC 536 3 “[8] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Let me first deal with the meaning and application of the phrase, “has no reasonable prospect of success”. Without traversing in any great detail the authorities that have considered the proper application and meaning of the phrase, “no reasonable prospect of success,” it is sufficient for me for present purposes to make the following observations. A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. But these examples do not provide an exhaustive description of when a particular application has no reasonable prospect of success. [9] Secondly, I am mindful of that which the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia2 had to say when their Honours considered the meaning of the phrase, “no reasonable prospect,” in the context of s. 31A of the Federal Court of Australia Act 1976. In that case their Honours said the following: In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.3 [10] In Spencer the High Court was saying that one should not make the mistake of only concluding that a proceeding has no reasonable prospect of success if it is frivolous, untenable, groundless or faulty and that full expression should be given to that phrase. It seems to me that the observations in Spencer are apt to apply to the construction and application of the phrase “has no reasonable prospect of success” as it appears in s. 587 of the Act. [2025] FWC 536 4 [11] Thirdly, I would also observe that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. This, it seems to me, is evident from the word “has”. So it is that an application at its inception may have some reasonable prospect of success but, as circumstances change during the course of dealing with an application, those changed circumstances might have the result that an application which once had some reasonable prospect of success no longer has a reasonable prospect of success. [12] In this case the relevant circumstance that has changed since Mr Shaw made his application on 11 April 2014 is that he has been dismissed from his employment by the ANZ. The employment has ended. So far as is relevant for present purposes the question that must be answered is, having regard for the statutory provisions contained in Part 6-4B of Chapter 6 of the Act, the provisions under which Mr Shaw’s application is made, and taking into account the facts as presently known, those that are not disputed, and taking Mr Shaw’s case at its highest, does Mr Shaw’s application have a reasonable prospect of success? Put simply, is there some reasonable prospect that Mr Shaw will be able to persuade me to make an order under s. 789FF? I now turn to consider that question. [13] Section 789FC of the Act provides that a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for an order under s. 789FF. Section 789FB sets out that which is meant by the phrase “bullied at work”. That a person who has made an application has been bullied at work by an individual or a group of individuals is one of the matters about which I must be satisfied before considering whether to exercise my discretion to make an order to stop bullying under s. 789FF. [14] For the purposes of ANZ’s application to dismiss I am prepared to assume without deciding that Mr Shaw will be able to satisfy me at the hearing of his application that he was bullied at work by an individual or group of individuals. I am also prepared to assume without deciding that ANZ will not be able to satisfy me that the actions about which Mr Shaw complains were reasonable management actions, carried out in a reasonable manner. But those matters are not the only matters about which I must be satisfied. [15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application. [16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not [2025] FWC 536 5 have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work. [17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so. An order dismissing Mr Shaw’s application has been made separately in PR550413. I would observe that, if as a consequence of Mr Shaw’s general protections application or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.” [11] Like in Shaw’s case, the relevant circumstance that has changed since the Applicant made her application on 2 January 2025 is that she has resigned from her employment with the employer. The employment relationship has ended. [12] Even if the Commission is satisfied that the Applicant reasonably believed she was bullied at work within the meaning of section 789FD of the FW Act, the Commission can only make an order to stop the bullying if it is satisfied there is a risk that the Applicant will continue to be bullied at work.4 [13] It is common ground that the employment relationship has ended. As such there cannot presently be a risk of the Applicant being bullied at work by the individual identified in her application because she is no longer at work. [14] It necessarily follows that the Commission, as presently constituted, does not presently have the power to make an order to stop bullying. The Commission is satisfied the Applicant’s application has no reasonable prospect of success. Consequently, the Commission exercises its discretion under section 587 of the FW Act to dismiss the Applicant’s application for want of jurisdiction. An order to that effect will be issued separately [PR784654]. COMMISSIONER [2025] FWC 536 6 Printed by authority of the Commonwealth Government Printer <PR784642> 1 [2014] FWC 3408. 2 (2010) 241 CLR 181. 3 Ibid at [59] - [60]. 4 Section 789FF(1)(b)(ii).