[2014] FWC 3852



Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Mr M T



Application for an FWC order to stop bullying.

[1] On 16 January 2014 Mr T (Applicant) made an application under section 789FC of the Fair Work Act 2009 (Act) for an order to stop bullying.

[2] On 22 January 2014, the employer filed a Form F73 - Response from Employer/Principal to an Application for an Order to Stop Bullying (Form F73). The covering email noted that the Form F73 was filed on behalf of each of the persons named in the application as individual respondents. The Form F73 also noted that one of the individual respondents was no longer employed by the respondent employer.

[3] The matter was listed for a conference on 5 February 2014. The Applicant was accompanied by a union support person. The employer was represented by its Employee Relations Manager. The conference on 5 February 2014 was also attended by each of the individual respondents named in the application (other than the former employee).

[4] During the conference on 5 February 2014 it became apparent to the Commission, as presently constituted, that there existed some conduct issues the employer wanted to discuss with the Applicant, but which it had not previously been able to discuss with the Applicant. It was further apparent that the conduct issues the employer wanted to discuss with the Applicant were relevant to how the employer might respond to proposals to settle the anti-bullying application.

[5] In order to facilitate a meeting between the employer and the Applicant in a safe environment for the Applicant to respond to the conduct issues the employer wanted to discuss with the Applicant, the Commission made its premises available to the parties on 20 February 2014. At this meeting only the employee relations representatives of the employer, the Applicant and his union support person were in attendance.

[6] On 13 February 2014, at the direction of the Commission, the employer filed a chronology of events.

[7] Following the meeting on 20 February 2014 the matter remained unresolved. Therefore, the employer was directed to provide an update on the status of the matter within 7 days.

[8] On 28 February 2014, the employer provided the Commission with copies of correspondence it had sent to the Applicant. Relevantly there was a letter dated 26 February 2014. It outlined a summary of findings and concerns the employer had about the Applicant’s conduct. It advised the Applicant he was required to attend a meeting at 11.00am on 3 March 2013. It stated “At this meeting you will be required to provide me with reasons as to why your employment should not be terminated as a result of the above concerns.”

[9] On 4 March 2014 the Applicant wrote to the Commission requesting the anti-bullying matter be relisted. It was subsequently relisted for conference on 14 March 2014.

[10] On 6 March 2014 the employer forwarded to the Commission a copy of a letter addressed to the Applicant terminating his employment with effect from 6 March 2014.

[11] Consequently, the conference listed for 14 March was cancelled.

[12] On 7 March 2014 the Commission wrote to the Applicant requesting that, in light of the termination letter, he file a Notice of Discontinuance in respect of his anti-bullying application.

[13] On 14 March 2014 the Applicant commenced proceedings pursuant to section 394 of the Act.

[14] On 17 April 2014 the Commission left a voice to text message on the Applicant’s mobile telephone number.

[15] On 2 May 2014 the Commission left a further voice to text message with the Applicant. On the same day the Applicant called the Commission and was requested to file a Notice of Discontinuance. A blank Notice of Discontinuance was sent to the Applicant by email.

[16] On 8 and 13 May 2014 the Commission left two further voice to text messages with the Applicant. Also on 13 May 2014 the Commission sent a further email to the Applicant attaching a Notice of Discontinuance and advising him that if he did not file a Notice of Discontinuance the Commission may issue a decision in his matter.

[17] On 14 May 2014 the Applicant was sent a Notice of Discontinuance by post.

[18] To date the Commission has not received a Notice of Discontinuance from the Applicant.

[19] In a recent decision of this Commission, Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines, 1 (Shaw) Deputy President Gostencnik observed:

[20] Like in Shaw’s case, the relevant circumstance that has changed since the Applicant made his application on 16 January 2014 is that he has been dismissed from his employment with the employer. The employment relationship has ended.

[21] Even if the Commission is satisfied that the Applicant reasonably believed he was bullied at work within the meaning of section 789FD of the 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

[22] It is common ground that the employment relationship has ended. As such there cannot be a risk of the Applicant being bullied at work by the individuals identified in his application because he is no longer at work.

[23] In necessarily follows that the Commission, as presently constituted, does not 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 Act to dismiss the Applicant’s application for want of jurisdiction.

[24] An order dismissing the application will be issued concurrently with this decision.


 1   [2014] FWC 3408

 2   (2010) 241 CLR 181

 3   Ibid at [59] - [60]

 4   Section 789FF(1)(b)(ii)

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