Fair Work Act 2009

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

Application by Harvey Shore; Application by Rodney John David Buddle

Application for an FWC order to stop bullying - volunteers - where the Applicants have been disenrolled from the organisation - whether there is a risk that workers will continue to be bullied at work - whether there are reasonable prospects of success - no future risk of bullying at work - applications dismissed.

• [1] Mr Harvey Shore and Mr Rodney Buddle (together, the Applicants) made applications to the Fair Work Commission (the Commission) on 28 August 2024 and 24 February 2025, respectively, for orders to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). The circumstances of both applications are similar and interrelated.

• [2] The Applicants were both volunteers with the Australian Volunteer Coast Guard Association (the Coast Guard). Mr Shore has been a Coast Guard volunteer since 2007. Mr Shore's application to the Commission alleges that he has been bullied by the Deputy Flotilla Commander, Mr David Purcell, the Squadron Commodore, Ms Kerri Williams, the Deputy Squadron Commodore, Mr Brian Higgins and the Advisor to the National Commodore, Mr Allan Tennant (the Persons Named).

• [3] The matter has a somewhat tortured history. In summary, there was a private Facebook group called "Manly Roster Mates - Members Uncensored" created in July 2022, of which Mr Shore was an administrator. Mr Shore states that he stepped down from his position as administrator in mid July 2024. On 16 July 2024, an anonymous person posted a Courier Mail article in the group about toxic culture in the Coast Guard. Following that article being posted, various comments were posted in the group, most of which were posted anonymously, about Ms Kerri Williams, the Squadron Commodore. The comments are sexist and vitriolic and need not be repeated publicly. The people who made the comments should be ashamed of themselves. Mr Shore states that he was not involved in the comments and had stepped down as administrator by the time the comments were made.

• [4] On 26 July 2024, Mr Shore was stood down from duties pending an investigation into the Facebook group. The stand down letter notes: "The reason for this decision is that preliminary evidence shows that there are breaches of many AVCGA policies but also including possible offences under State and Commonwealth Crimes Acts and Criminal codes." Mr Shore strongly denies the allegations and notes that he has previously received accolades as a journalist. I wish to note that I have made no findings in relation to the investigation.

• [5] Mr Shore sought legal advice from Mr Buddle, who is a solicitor as well as a former Coast Guard volunteer in the same flotilla as Mr Shore.

• [6] By the time of Mr Shore's application to the Commission, the investigation was still pending. I note that both Mr Shore and Mr Buddle were overseas from September to October 2024. My Chambers listed the matter for conference at the end of October 2024. Mr Shore argued that the continuing investigation was itself a form of bullying or harassment. No resolution was reached in conference in October 2024.

• [7] My Chambers sought an update from the Respondent in November 2024. The Respondent advised that the Respondent's National Board would be meeting to consider the allegations against Mr Shore. The Respondent noted that Mr Shore would be given an opportunity to respond at that meeting. The Board meeting was scheduled for 8 January 2025. I gather there is some difficulty in scheduling Board meetings within the Respondent's organisation due to it being a volunteer organisation. Upon receiving correspondence from the Applicant and requests for assistance, the matter was listed for a further conference on 29 November 2024. Mr Shore indicated that he was considering resigning but ultimately did not do so.

• [8] Mr Shore was provided with a notice of the National Board Proceedings on 4 December 2024, for a meeting on 8 January 2025. Mr Buddle provided submissions to the Board on Mr Shore's behalf.

• [9] The Board resolved to disenroll Mr Shore with effect from 8 February 2025. The notice of the decision was sent on 10 January 2025, noting that Mr Shore had a right to appeal within one month of the decision, that is, by 8 February 2025. Mr Buddle requested an extension of time to appeal by six weeks, due to Mr Shore being unwell and because his wife had recently had a fall resulting in serious injury and was undergoing surgical treatment. Mr Shore further supplied a medical certificate from a nurse practitioner stating he was unfit for any contact with the Coast Guard until 14 April 2025. It appears that no appeal was lodged on Mr Shore's behalf.

• [10] In February 2025, my Chambers listed the matter for a hearing on Mr Shore's stop bullying application, to bring the matter to a resolution. Around the same time, on 24 February 2025, Mr Buddle lodged his own stop bullying application, as he had also been issued a stand down notice. The reasons for Mr Buddle's stand down were stated to be because he allegedly disseminated confidential information relating to Mr Shore's bullying complaint. There is some suggestion, in the stand down letter, that Mr Buddle had a conflict of interest while acting in his role as solicitor for Mr Shore as well, and that he harmed victims of cyber bullying. On 13 March 2025, the Respondent filed its response to Mr Buddle's stop bullying application and noted that the National Board had convened on 12 March 2025 and had resolved to disenroll Mr Buddle. The internal rules of the organisation provide for a right to appeal within one month. Mr Buddle was travelling overseas from 26 February 2025 until 2 April 2025.

• [11] On 25 February 2025, Mr Shore was asked by my Chambers to respond as to whether a stop order could be made, as he had been disenrolled from the organisation and whether the application should be dismissed. Mr Shore requested that he granted be an extension to provide a response in April 2025 once Mr Buddle returned from overseas, so that he could have the benefit of legal advice. I granted this request, as Mr Shore is not legally trained and may benefit from legal advice in addressing legal and jurisdictional issues. Further, the same question would have to be posed to Mr Buddle anyway, as he was also disenrolled.

• [12] Mr Shore provided a response which mostly reiterated the circumstances of his disenrollment and alleged errors of procedural fairness. Mr Buddle did not provide a response to this question; however it emerged later that he had been in hospital following his return from overseas and was not able to advise Mr Shore or respond. On 28 April 2025, the Applicants and Respondent were directed to provide submissions specifically addressing whether the applications have reasonable prospects of success noting that a stop bullying order requires that there be a future risk that the worker will continue to be "bullied at work" within the meaning of s.789FD of the Act. The matter was listed for hearing on 8 May 2025 to determine this point. I received written submissions from both parties addressing the question of whether there is a future risk and therefore whether the applications have reasonable prospects of success.

• [13] Mr Shore and Mr Buddle were entitled to lodge an application to the Commission under s.789FC, as the anti-bullying regime in Part 6-4B of the Act uses the wider term "worker" instead of the term "employee". Section 789FC(2) of the Act uses the definition of "worker" from the Work Health and Safety Act 2011 (Cth), which, in turn, specifically contemplates that a worker is anyone who carries out work for a person conducting business, including a volunteer.[1] They are, however, no longer volunteers within the Respondent's organisation as they have been disenrolled.

(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:

• [15] The recent 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.

• [16] In contending that the applications have reasonable prospects of success and should proceed, the Applicants argue as follows:

"It conceded that normally once a person has ceased to be an employee, a claim against an employer for bullying will fail for lack of jurisdiction

However, where a claim has commenced before the employer terminates the employee, that claim should be able to be considered on all the facts, pertaining at the time of the complaint, notwithstanding the employer has tried to defeat the claim of the complainant, by removing the employee As a servant.

To do otherwise denies complainant natural justice. It is noted and volunteer has no right to maintain a complaint for wrongful dismissal under the legislation against and employer as the volunteer is not in paid employment."

• [17] The Applicants argue that the same rights applying to an employee under the Fair Work Act apply to them and that by allegedly terminating their enrolment in violation of those rights, the decision of the Board is void and without effect. They say their rights were violated in essence because a lack of procedural fairness. For example, the decision to disenroll Mr Shore occurred while he was sick and for Mr Buddle, it was while he was overseas. Mr Buddle says he had limited opportunity to respond to emails or attend the board meeting while overseas. Therefore, the Applicants say they can be reinstated.

• [18] This is an interesting argument, however, it proceeds on the assumption that the Commission has the power to examine the decision-making process of a volunteer organisation and substitute its disenrollment decision for the Commission's own decision. It is properly conceded by the Applicants that as volunteers, they would likely fail for want of jurisdiction in an unfair dismissal application or other dismissal-related application. An unfair dismissal application is only available to national system employees. A general protections application involving dismissal requires that a person's employment was terminated or they resigned from their employment.[2] It would be difficult for the Applicants, as volunteers, to establish that there is an employment contract with an intention to create legal relations and consideration. It is unclear how the Commission would gain the power to intervene and reinstate the Applicants. The Respondent has not agreed to reinstate the Applicants. The anti-bullying provisions do not contemplate an independent power of reinstatement. I understand that the Applicants want to ventilate their concerns regarding the disenrollment process in a hearing, but that alone is not a good enough reason to justify progressing the matter if there is no ability to make an order.

• [19] The Respondent argues that the decision to disenroll is dispositive of the issue as to whether there is a future risk of bullying at work. The Respondent noted that neither Applicant used the internal appeal process, and the decision of the Board is thus final. The Respondent confirmed that any application to rejoin the organisation in the future would be subject to the internal rules but did not give an indication as to whether any such application would be successful.

• [20] I rely on the principles distilled by the Full Bench in Greenan, although I note this matter is slightly different as there has been a disenrollment rather than a termination of an employment relationship.

• [21] There is in my view no real likelihood that the Applicants will be reinstated to their former volunteer positions in the near future, and reinstatement would be beyond the power of the Commission. At this point in time, and in the foreseeable future, there is no risk that the Applicants will continue to be bullied at work.

• [22] I note the Full Bench's comments that a lack of jurisdictional basis to make an order does not prevent the Commission from utilising its other powers, such as the power to hold a conference. However, I have already made attempts to conciliate the matter unsuccessfully and in my view, further conciliation is likely to be unsuccessful. During the hearing a further offer of settlement was made and was rejected by the Respondent. I have no powers to compel or direct the Respondent to accept such an offer.

• [23] I have also taken into consideration the fact that these matters have been open for some time, and a further adjournment or hearing may be counterintuitive to the goal of assisting the parties.

• [24] Finally, I note that if the Applicants are successful in either appealing the Board decision, after the time period to appeal has expired, or in making a new application to rejoin the organisation in the future, and if there is a risk of bullying at that point in time, then they could seek a stop bullying order at that point in time.

• [25] For the reasons stated above, it is appropriate to dismiss both applications under s.587(1)(c) as neither application has reasonable prospects of success. I Order accordingly.

[1] s 7(1)(h) Work Health and Safety Act 2011 (Cth)

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