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[42]
[2026] FWC 893
General information, not legal advice.
Fair Work Commission
2026-03-19
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Application for an FWC order to stop bullying - performance management process commenced - worker not bullied at work - application dismissed
[1] Kristan Heidel has been employed by the University of Notre Dame Australia (Notre Dame) as Program Manager for a Rural Health Multidisciplinary Training Grant (RHMT Grant) since June 2022. Yvette Maloney (Faculty Director - Finance and Operations of the Faculty of Medicine, Nursing, Midwifery, and Health Sciences) became Ms Heidel's acting Line Manager in May 2025. Ms Heidel alleges she has been bullied by Ms Maloney since May 2025 and has applied for stop bullying orders pursuant to s.789FC of the Fair Work Act 2009 (FW Act). The application is opposed by Ms Maloney and Notre Dame. This decision concerns whether any stop bullying orders should be made.
[2] I conducted a hearing via video on 11 March 2026. Ms Heidel provided evidence in support of her application. Ms Maloney provided evidence in opposition to the application. I granted permission for Ms Maloney and Notre Dame to be represented by a lawyer at a prior procedural hearing.
(1) A worker must have made an application under s.789FC;
(2) The Commission must be satisfied that the applicant worker has been bullied at work by an individual or group of individuals; and
(3) The Commission must be satisfied that there is a risk that the applicant worker will continue to be bullied at work by the individual or group of individuals.
[4] In Mac, Vice President Hatcher (as he then was) provided the following list of example of conduct that may constitute "bullying at work":
"... intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination."[2]
[5] Section 789FD(2) of the FW Act states the definition of being bullied at work "does not apply to reasonable management action carried out in a reasonable manner."
[7] Ms Maloney and Notre Dame argued that Ms Heidel is not eligible to make the application because she did not have a reasonable belief that she has been bullied at work for the purposes of s.789FC(1) of the FW Act. However, whether Ms Heidel's belief that she has been bullied at work is reasonable turns on an assessment of whether Ms Heidel has been bullied at work for the purposes of s.789FD(1) of the FW Act. I will deal with that issue below.
[8] I am satisfied that Ms Heidel is a worker that has made a valid application under s.789FC of the FW Act. The first prerequisite for the making of an anti-bullying order is satisfied.
[9] The following is a summary of the conduct that Ms Heidel has identified in support of her application:
(i) During an online meeting on 7 August 2025 Ms Maloney questioned Ms Heidel about an incomplete task. Ms Heidel responded that she had not been given a deadline. Ms Maloney indicated it was Ms Heidel's responsibility to seek out deadlines. Ms Heidel sent an email to Ms Maloney on 8 August 2025 which raised concerns about the meeting on 7 August 2025. Ms Heidel respectfully recommended that deadlines be clearly defined at the time tasks are assigned. Ms Maloney responded later in the day on 8 August 2025 and identified that the relevant task had been outstanding for some time. Ms Maloney indicated she expects an employee at Ms Heidel's level to proactively communicate about tasks, timelines, and other commitments.
(ii) On 14 August 2025, Ms Maloney sent an email to Ms Heidel following a call from Professor Michael Brydon. Mr Brydon had informed Ms Maloney that when he had asked about Ms Heidel providing support to Rural Clinical Schools (RCS), Ms Heidel responded that she had no capacity and was surprised by the request. Ms Maloney's email indicated that she hoped there had been a misunderstanding and that she expected Ms Heidel to support RCS. Ms Maloney also stated that support for RCS had been previously discussed with Ms Heidel. Ms Heidel responded on 14 August 2025 and indicated there had been a misunderstanding and she is committed to supporting RCS. Ms Maloney responded to Ms Heidel on 14 August 2025 and asked Ms Heidel to proceed with discussions with Mr Brydon. Mr Brydon sent an email to Ms Heidel on 16 August 2025 to confirm Ms Heidel did not state she would not support RCS.
(iii) Ms Maloney sent an email to Ms Heidel on 28 August 2025, copying in Professor Aron Murphy (Pro Vice-Chancellor), regarding support for RCS while another employee, Steven Holliday (Executive Officer Rural Clinical Schools) is taking leave. Ms Maloney indicated Mr Holliday had reached out wanting to increase the working hours of another employee, Denise, during his period of leave. Ms Maloney indicated she thought Ms Heidel could provide support during Mr Holliday's absence. Ms Heidel responded on 1 September 2025 and indicated Professor Brydon had made the decision to increase Denise's working hours. Ms Maloney responded on 1 September 2025 and stated Professor Brydon approved the extra hours because Ms Heidel had told him that she was unable to support RCS. Ms Maloney confirmed the extra hours had not been approved by Professor Murphy because they were awaiting further information from Ms Heidel about what support she can provide as requested in Ms Maloney's email sent on 14 August 2025. Ms Heidel responded on 2 September 2025 and indicated she did not know which email dated 14 August 2025 Ms Maloney was referring to. Ms Heidel denied stating she could not support RCS and indicated the additional hours for Denise were to cover on-the-ground support which she could not provide.
(iv) Ms Heidel provided evidence that she sought confidential information from a Senior HR Business Partner about how to make a bullying complaint on 7 October 2025. Ms Maloney admitted during the hearing that the making of this enquiry had been communicated to her by the staff member.
(v) Ms Maloney asked Ms Heidel in an email on 16 October 2025 to submit a list of meeting attendees to the Department of Social Services as a priority. Ms Heidel responded and indicated another employee Betti had not submitted the list as requested by Professor Murphy. Ms Maloney responded that they were aware the list had not been submitted and that is why she asked Ms Heidel to submit the list.
(vi) Ms Maloney sent an email to Ms Heidel on 21 October 2025 ahead of their catch-up meeting scheduled for the next day. Ms Maloney identified five outstanding tasks that Ms Heidel had not completed. Ms Maloney raised broader concerns about Ms Heidel's lack of progress, engagement, and proactivity. Ms Maloney stated that Ms Heidel has a pivotal role in the organisation, and she thought it prudent to raise her concerns and expectations. Ms Maloney stated that she wanted to understand Ms Heidel's perspectives on the issues raised and if she requires additional support. Ms Maloney stated: "If I do not see any changes, I will be looking for us to meet more regularly and would also look to reevaluate the current remote working arrangement." Ms Heidel provided a response to Ms Maloney's email on 22 October 2025. Ms Heidel indicated the identified tasks were not her responsibility. The meeting proceeded on 22 October 2025. Ms Maloney indicated Ms Heidel relied on her email responses during the meeting.
(vii) On 3 November 2025, Ms Maloney sent a letter to Ms Heidel inviting her to attend a meeting on 5 November 2025 to discuss concerns with her performance. The letter identified concerns with budgets and monthly accounts, stakeholder engagement, and qualitative matters. The letter stated that if Ms Heidel could not address the concerns in the meeting, she may be placed on a Performance Improvement Plan (PIP). The letter stated Ms Heidel could bring a support person to the meeting.
(viii) Ms Heidel lodged an application for stop bullying orders during the evening on 3 November 2025.
(ix) Ms Heidel sent an email to Ms Maloney on 4 November 2025 raising concerns about whether the letter dated 3 November 2025 complied with the requirements in the enterprise agreement and indicated that insufficient details had been provided. Ms Heidel stated the notice period provided for the meeting was manifestly inadequate.
(x) Ms Maloney responded to Ms Heidel on 4 November 2025 and offered to reschedule the meeting to 6 November 2025. Ms Maloney denied that insufficient information had been provided.
(xi) On 26 November 2025, Ms Heidel sent an email to Ms Maloney requesting no one-on-one meetings between them due to psychosocial risks.
(xii) Ms Heidel alleges that Ms Maloney has raised several historic issues with her performance as part of this case which were not raised with her contemporaneously.
[10] I consider Ms Heidel has provided some evidence that raises concerns about how she has been treated at work.
[11] Ms Heidel's confidential enquiry about the process for making a bullying complaint should not have been disclosed to Ms Maloney by the relevant Senior HR Business Partner. It is understandable that this disclosure has undermined Ms Heidel's confidence in Notre Dame's internal processes. However, this was not an example of unreasonable behaviour by Ms Maloney.
[12] Ms Maloney also provided evidence that Ms Heidel did not respond to her initial greeting email which she sent on 14 May 2025 when she started acting as Ms Heidel's Line Manager. That was not correct. Ms Heidel responded to the email on 16 May 2025. This does raise some concern that Ms Maloney's view of Ms Heidel was negatively impacted because she thought Ms Heidel had ignored her email, when that was not the case. However, I am satisfied this was an example of an oversight from Ms Maloney rather than an example of unreasonable behaviour.
[13] Beyond the examples identified above, I consider Ms Heidel's complaints lack merit. It is clear from the email evidence that Ms Heidel has been a challenging employee for Ms Maloney to manage. The documentary evidence confirms that Ms Heidel tends to claim that she did not understand the requirements of a task or a deadline when concerns are raised, and that Ms Heidel delegates work to other people and then blames other people when tasks are not completed. It is unsurprising that Ms Maloney has raised concerns with Ms Heidel's performance given these issues and Ms Heidel's senior role. If Ms Heidel has been performing at an adequate level, it should be quite easy for Ms Heidel to explain her actions and to demonstrate a detailed understanding of issues such as budgets and grant expenditure. Ms Heidel cannot expect to avoid standard scrutiny of her work performance by claiming she is being bullied.
[14] Ms Heidel has referred heavily to Professor Brydon's email to her dated 16 August 2025 which confirms Ms Heidel did not state she would not assist the RCS. Ms Heidel also refers to Professor Brydon referring to Ms Heidel as a "very experienced business manager" in an email when he signed off to the team ahead of a period of leave. However, these communications from Professor Brydon do not establish that there have been no issues with Ms Heidel's performance. It is also clear from the email dated 16 August 2025 that Ms Heidel communicated to Professor Brydon that her role was under pressure due to vacancies in her team. That statement is consistent with Ms Heidel indicating she had limited capacity to assist the team which is what gave rise to the various communications.
[15] I consider Ms Maloney has taken a reasonable and appropriate approach to managing Ms Heidel's performance. Ms Maloney has attempted to deal with the issues informally, but Ms Heidel has refused to acknowledge any issues with her performance. Ms Maloney eventually escalated her concerns to the level of a formal performance management meeting which may result in Ms Heidel being placed on a performance improvement plan. That is not a definite outcome, Ms Heidel will have the opportunity to explain her actions at a meeting. There are also several review mechanisms in the enterprise decision if Ms Heidel feels aggrieved by Ms Maloney's decision. The evidence suggests Ms Maloney's communications to Ms Heidel have all been professional and respectful.
[16] Ms Heidel identified that Ms Maloney alluded to potentially altering her remote working arrangement at the end of her email dated 21 October 2025. Viewed in the context of Ms Maloney's escalating concerns about Ms Heidel's performance, I do not consider this statement was unreasonable. Ms Maloney's ability to actively assist Ms Heidel to meet the expectations of her role would likely be enhanced if she had more interaction with Ms Heidel in an office environment. I also do not consider it is unreasonable for an employer to revisit a remote working arrangement if an employee is not able to establish that they are meeting the requirements of their role while working remotely.
[17] I am not satisfied that Ms Maloney has repeatedly behaved unreasonably towards Ms Heidel at work. I consider Ms Maloney has undertaken reasonable management action in a reasonable manner. I am not satisfied Ms Heidel has been bullied at work by Ms Maloney.
THIRD PREREQUISITE - RISK OF CONTINUED BULLYING
[18] The third prerequisite for the making of an anti-bullying order is that there is a risk that Ms Heidel will continue being bullied at work by Ms Maloney. I do not need to consider this matter because I am not satisfied that Ms Heidel has been bullied at work by Ms Maloney.
[19] I am not satisfied the required prerequisites for the making of stop bullying orders are satisfied in this case.
Mr M Watts (Counsel) instructed by MinterEllison for Ms Maloney and Notre Dame.
Printed by authority of the Commonwealth Government Printer
[3] In Amie Mac
Bank of Queensland Limited & Ors_[1]
(2015) 247 IR 274
(2014) 244 IR 127