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

Application for an FWC order to stop bullying - Applicant resigned - application dismissed under s.587(1)(c) of the Act

• [1] Ms Brittany Stafford-Kendall (the Applicant) made an applications to the Fair Work Commission (the Commission) on 22 October 2025, for orders to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). The application relates to alleged bullying while the Applicant was employed by ATPAC Group Pty Ltd (the Employer). The Applicant named the Operations Manager of ATPAC Group Pty Ltd, Mr Trevor Hodges (the person named) in her application.

• [2] On 11 November 2025, the Employer's human resources manager forwarded an email to the Commission in which the Applicant resigned. The Applicant states in that email that she is formally resigning from her position, effective 16 November 2025.

• [3] On 12 November 2025, my Chambers emailed the parties explaining that an order to stop bullying requires continuing risk that the Applicant will be bullied at work. The email noted that the Commission cannot make a stop order if there is no continuing risk and that if the Commission cannot make an order, the application may be dismissed for no reasonable prospects of success under s.587(1)(c) of the Act. The Applicant was asked to respond by Friday, 14 November 2025 explaining whether the Applicant believes there is a future risk of bullying at work by the person named, and if so, the reasons why the Applicant holds that belief.

• [4] On 12 November 2025, an email was received from the Applicant directly to my Chambers, although it appears it was sent before the Applicant reviewed the email from my Chambers. In that email, the Applicant confirms that she has resigned. The Applicant stated:

I want to confirm that I stand by everything stated in my claim, and I remain committed to having the matter properly addressed. I can also provide statements from other current and former employees who have experienced or witnessed similar bullying from the same individual.

1. What happens next with my case now that I have resigned; and
2. What options may be available to seek compensation for the period I have been off work on stress leave as a result of the bullying.

• [5] On Wednesday, 19 November 2025, my Chambers sent a further email to the parties. The email explains that I am considering dismissing the application under s.587(1)(c) of the Act. The email states, in response to the matters raised in the Applicant's email:

An application to stop bullying can only succeed if there is a future risk of bullying against the Applicant at work. The Deputy President cannot make an order to stop bullying against any other employees, as they have not applied to the Commission.

• [6] The Applicant was given until close of business, 21 November 2025 to say why the application should not be dismissed. My Chambers has not received a reply to that email.

• [7] Section 587 of the Act provides:

(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

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under s527F that does not consist solely of an application for a stop sexual harassment order on the ground that the application:

• [8] The Full Bench decision of Greenan v BBV Legal Pty Ltd [2025] FWCFB 61 (Greenan) summarises the principles that apply to the consideration of whether to dismiss an application for a stop bullying order for under s.587(1)(c) of the Act:

[68] The following principles can be distilled from the cases. First, the decision of a Member of the Commission as to whether an application for a stop bullying order should be dismissed on the ground in s. 587(1)(c), is a discretionary decision. The fact that the employment of an applicant for a stop bullying order has been terminated, triggers the discretion. The Commission is then required to weigh relevant facts and circumstances to decide whether the discretion to dismiss the application should be exercised or the matter should be adjourned or held in abeyance, pending the outcome of any proceedings in which the applicant seeks reinstatement or re-employment. The Commission may consider whether the discretion in s. 587(1)(c) to dismiss the application for a stop bullying order should be exercised, on the application of any of the parties, or on the Member's own motion.

[69] Second, while the Commission has a wide discretion in terms of matters that may be included in a stop bullying order, the order must be directed at preventing identified bullying conduct from continuing. This is a limitation on an order, in the sense that the only remedy the Commission can impose on parties to an application under s. 789FC must be directed at maintaining a working relationship between them by removing future risk of bullying. When the relevant working relationship has ceased because the employment of the applicant for a stop bullying order has been terminated, an order will have no effect on the applicant unless and until the applicant is reinstated or otherwise returns to the workplace.

[70] Third, in circumstances the employment of an applicant for a stop bullying has been terminated before that application has been heard and determined, the Commission does not necessarily cease to have jurisdiction to continue to deal with the application. The jurisdictional prerequisites in s. 789FF(1) relate to the making of an order to stop bullying and not to other steps the Commission may take in dealing with an application such as informing itself of the matter under s. 590, or conducting a conference.

[71] Fourth, a decision to exercise discretion to dismiss an application for an order to stop bullying on the ground in s. 587(1)(c), is based on the Commission finding that it has no jurisdiction to make an order to stop bullying at that time because there is no present risk that bullying will continue, and that those circumstances will not change in the foreseeable future.

[72] Fifth, deciding whether to dismiss an application for a stop bullying order on the grounds in s. 587(1)(c), in circumstances where the applicant's employment has been terminated, does not require the Commission to undertake an assessment of the merits of an application that may have been made for a remedy for the dismissal. Issues relevant to whether the discretion to dismiss an application for a stop bullying order should be exercised in circumstances where the applicant's employment has ended, may include:

• whether an order can have efficacy in a practical sense, when an applicant is no longer employed in the workplace at which the bullying occurred or in proximity with the alleged bullies;
• the likelihood of those circumstances changing in the future;
• whether the applicant is actively pursuing a remedy for the dismissal which includes reinstatement as a possible outcome;
• whether, objectively, reinstatement is likely or merely speculative;
• the likely time frame that would be required for the applicant to pursue and achieve reinstatement having regard for steps the applicant has taken in this respect;
• the likely time that the stop bullying application would be adjourned if it was not dismissed;
• the effect on the applicant if the application for an order to stop bullying is dismissed;
• the effect of any adjournment on the employer and persons named;
• the possibility that there will be changes in the workplace in the period an application seeking reinstatement is being heard and determined, which may mitigate or remove a risk of future bullying conduct if the applicant is reinstated; and
• the ability of the applicant to bring a further application if the applicant is reinstated.

[73] Sixth, an important consideration in assessing the likely impact on an applicant is that the fact an application for a stop bullying order has been dismissed under s. 587(1)(c) in circumstances where the applicant's employment has been terminated, is not a bar to a future application for an order to stop bullying to be made, referring to the same circumstances. Accordingly, deciding to dismiss an application where the employment of an applicant has been terminated, does not remove or diminish the applicant's future rights to pursue an application for a stop bullying order on the facts as they existed when the earlier application was dismissed.

[74] Seventh, where the employment of an applicant for an order to stop bullying has been terminated prior to the substantive merits of the stop bullying application being heard and determined, a decision to dismiss the application under s. 587(1)(c), on the grounds that it has no reasonable prospects of success, is not based on any finding about the merits of the application. Rather, the decision is based on weighing the facts and circumstances existing at that time, including that the Commission cannot be satisfied that there is a risk that the applicant will continue to be bullied at work by the individual or group, because the applicant's employment has been terminated, and he or she is no longer in the workplace. As a result, an application for a stop bullying order that has every appearance of having reasonable prospects of success on substantive merit, may be dismissed under s. 587(1)(c) because the only remedy the Commission is permitted to grant by way of an order, is not available at that time or in the reasonably foreseeable future.

[75] Eighth, while it will not always be appropriate for the Commission to dismiss an application for a stop bullying order where the employment of the applicant is terminated and the applicant is seeking reinstatement, there are indications in the statutory provisions dealing with such orders, that deciding to hold a stop bullying application in abeyance in such circumstances, should be the exception rather than the rule. As the Full Bench in Re McInnes explained, the operation of an order to stop bullying is prospective, notwithstanding that it is based on past behaviour. Section 789FE requires that the Commission deal promptly with applications for stop bullying orders and by virtue of s. 789FE(2), that the Commission commence to deal with a stop bullying application within 14 days after the application is made. The note to that section makes clear that within the 14 days the Commission may start to inform itself under s. 590, conduct a conference under s. 592 or conduct a hearing under s. 593. Accepting that the term "start" applies to each of these courses of action, where the Commission decides to conduct a hearing, the timeframes for the parties to take preparatory steps such as filing and service of materials, would necessarily be short.

• [9] I note that the Applicant alleged that other current or former employees had been bullied. If that is correct, then current employees may make an application to the Commission under s.789FC of the Act. The Commission does not have investigatory powers and cannot make orders to stop bullying against someone other than the Applicant under s.789FC application.

• [10] I am satisfied as the Applicant has resigned effective from 16 November 2025, there is no continuing risk that the Applicant will be bullied at work by the person named. Accordingly, I cannot make an order to stop bullying. Therefore, the application has no reasonable prospects of success under s.587(1)(c). It is appropriate to exercise my discretion to dismiss the application.

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