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

Application for an order to stop bullying - application to dismiss under s 587 - whether application has no reasonable prospects of success - whether there is a risk that the applicant will continue to be bullied at work - application dismissed

• [1] On 3 January 2025, Mr Hojat Sabeti applied for orders to stop bullying at work under section789FC of the Fair Work Act 2009 (Cth).

• [2] Mr Sabeti's employer is Coles Supermarkets Australia Pty Ltd. Mr Sabeti says that he was bullied by Mr Sam Asahak, Store Support Manager. Mr Sabeti sought separation from Mr Asahak and compensation.

• [3] This decision does not make any findings about whether the behaviour of Mr Asahak was bullying of Mr Sabeti within the meaning of the Act.

• [4] Coles has moved Mr Sabeti to another location, which would remove him from any bullying by his former manager. There is no longer any risk of future bullying of Mr Sabeti by the named person. I dismiss this application under section 587(1)(c) of the Act, as it has no reasonable prospect of success. My reasons follow.

• [5] I conducted a conference in this matter on Monday 24 February 2025 but was unable to assist the parties to resolve the matter.

• [6] I listed the matter for hearing and issued Directions to the parties. The Directions were amended when Mr Sabeti sought and was granted an extension of time. Mr Sabeti's materials (being submissions, witness statements and any documents he intended to rely on) were due on 31 March 2025.

• [7] On 31 March 2025, Mr Sabeti did not file any materials. He sent an email saying that he wished to move on and made a request that a warning issued against him be removed.

• [8] On 2 April 2025, my chambers replied to Mr Sabeti to ask if, by his email, he intended to discontinue his application. My chambers also informed Mr Sabeti that if he wished to continue, he needed to file materials. Mr Sabeti replied to reiterate his desired outcome and that he did not think it necessary to file materials.

• [9] On 3 April 2025, in response to an email from Coles seeking clarification on the Directions, my Chambers repeated that Mr Sabeti had changed the outcome he sought, and informed Mr Sabeti of the Commission's process if he wished to continue his application, including providing him links to the Stop Bullying Benchbook, information about the Commission's workplace advice referral service and community legal centres. The parties were also informed that the hearing remained listed for 12 May 2025, and that I would proceed to hear and determine it based on whatever materials were available to me. The parties were also informed that I may conduct a conference at the commencement of the hearing.

• [10] On 22 April 2025, Coles applied for Mr Sabeti's application to be dismissed.

• [11] On 30 April 2025, I amended the notice of listing and informed the parties that Coles' application to dismiss Mr Sabeti's application would be dealt with at the commencement of the currently listed hearing of 12 May 2025. My chambers further confirmed that we had not received any submissions or evidence from Mr Sabeti in support of his application.

• [12] Mr Sabeti was also informed that if he wished to discontinue, how he could do so. He did not take any steps to discontinue his application.

• [13] I held a hearing in person on Monday 12 May 2025. Mr Sabeti represented himself and gave evidence as well as making oral submissions. Ms Burn, legal secondee, represented Coles. I also accepted a witness statement provided by Ms Michelle Savy, Specialist - Operational Investigations on behalf of Coles. Mr Sabeti indicated during the hearing that he did not wish to cross-examine Ms Savy.

Section 587 Application to Dismiss

• [14] Coles applies to the Commission to dismiss Mr Sabeti's stop bullying order application on the grounds that it has no reasonable prospects of success under s 587(1)(c).

• [15] It says that Mr Sabeti would be unable to satisfy the Commission that there is a risk that he will continue to be bullied at work by an individual or group, as required by s789FF(1)(b)(ii) as a prerequisite to the Commission making stop bullying orders.

• [16] This is because in late January 2025 Mr Sabeti has been transferred to a different store from the one that Mr Asahak works in and so Mr Sabeti is no longer required to work with, report to, or interact with the person whom he alleges bullied him at work.

• [17] It also says that the order that Mr Sabeti now seeks is not appropriate to prevent him from being bullied at work by Mr Asahak. The order that Mr Sabeti seeks is the removal of a warning. The warning related to an interaction that Mr Sabeti had with Mr Asahak. Coles says it conducted an investigation and initially issued a first and final warning. This was later changed to a first warning following a review. It says it discussed this with Mr Sabeti on 13 December 2024.

• [18] The last ground on which Coles says I should dismiss Mr Sabeti's application is that he has failed to file any submissions or evidence in support of his application.

• [19] Much of Mr Sabeti's submissions were directed towards Coles' failure to transfer him when he initially raised his concerns about Mr Asahak's behaviour towards him and the imposition of a warning. Mr Sabeti also made submissions about the reasons for why he did not file materials, being that he had been advised not to do so by his psychologist and that relevant witnesses changed their minds about giving evidence in support of him.

• [20] Mr Sabeti confirmed in evidence that he has been transferred to a different store from Mr Asahak and no longer interacts with him.

• [21] Section 587 of the Act provides for a discretionary power to dismiss an application if the application has no reasonable prospects of success (among other grounds).

• [22] Section 789FF provides that the Commission may make orders to stop bullying if a worker has made an application and the Commission is satisfied that first the worker has been bullied at work by an individual or group of individuals and second there is a risk that the worker will continue to be bullied at work by the individual or group.

• [23] The orders that the Commission may make are any that it considers appropriate to prevent the worker from being bullied at work by the individual or group but it cannot be an order requiring the payment of a pecuniary amount.

• [24] In Re Ms LP,[1] Commissioner Hampton (as he then was) stated that the above are pre-requisites to the making of an order and that orders are limited to preventing the worker from being bullied at work, with the focus on "resolving the matter and enabling normal working relationships to resume in a mutually safe and productive manner."

• [25] Mr Sabeti has made an application as required by the Act.

• [26] I have not made any findings about whether Mr Sabeti has been bullied at work.

• [27] I am unable to do so because, despite multiple opportunities, Mr Sabeti has not filed any materials in support of his application. He also appears to indicate that he does not intend to file any materials. It is Mr Sabeti's application, and the onus is on him to make out his case. While I accept that this is a difficult task for anyone to undertake, Mr Sabeti has been provided with procedural guidance and options for seeking advice. Today was listed for the hearing of this substantive application; there is very little material on which I could make any findings.

• [28] I agree with Coles that in circumstances where Mr Sabeti is no longer required to interact with Mr Asahak, the person whom Mr Sabeti alleges bullied him at work, there is no longer a risk that he will continue to be bullied at work by that individual.

• [29] As I have only his application to rely upon, Mr Sabeti's application does not name any person other than Mr Asahak. In submissions, Mr Sabeti argued that the issue of the warning constituted bullying of him by the regional managers involved. That is not the case that has ever been put to Coles, nor articulated in his application other than that the regional managers were involved. His application set out in detail events surrounding the issue of the warning and included many names, including that of other persons. It could not be expected that Coles would take that to mean each of those persons were also alleged to have bullied Mr Sabeti. Mr Sabeti made some submissions about how the bullying continues by those regional managers, but there is no material about that before me.

• [30] Further, the Act requires that there is a risk that the worker will continue to be bullied by the individual or group. I take this to mean that there risk must be from the named persons and not that there is risk to Mr Sabeti's employment at large.

• [31] Coles took me to a number of previous Commission decisions that dismissed stop bullying order applications under s 587. Relevantly, the following decisions are directly relevant to this one in that the Commission found that the worker was no longer at risk of bullying as they were transferred or no longer in a position where a named person interacted with or had managerial responsibility over them.

• A. In re Preddy,[2] Commissioner Johns (as he then was) found that there was no future risk of bullying as the employer gave evidence that they would transfer the applicant, once he was fit for work, so that named persons would no longer have managerial responsibility over him.
• B. In re Hamer,[3] Commissioner Williams found that there was no future risk as the applicant was transferred so that his risk of direct or indirect interaction with 3 named persons was small. This was because in the transferred role, he worked on a different floor to the 3 named persons and would not otherwise be required to deal professionally with them.

• [32] Only one of the initial orders that Mr Sabeti sought may be made by the Commission - being separation from Mr Asahak. That order is no longer necessary, as he has been separated from Mr Asahak because he has been transferred to another store.

• [33] The Commission is prevented by s 789FF from making pecuniary orders and so cannot award any compensation.

• [34] The order that Mr Sabeti now seeks - the removal of the first warning - is not one directed towards preventing him from being bullied at work. I understand how it may seem to Mr Sabeti to be related to the alleged bullying but its removal would not prevent future action by Mr Asahak.

• [35] I am of the view that Mr Sabeti's application has no reasonable prospects of success. This is because I am satisfied that there is no risk that Mr Sabeti will continue to be bullied at work as he no longer works in the same location with Mr Asahak, the Named Person in his application.

• [36] In relation to any allegations that conduct of other people may now be bullying of him, nothing prevents Mr Sabeti from making a further application. While it may be appropriate in some circumstances to consider the current allegations made to be part of one application, I am of the view that Mr Sabeti's initial application does not sufficiently cover what he now alleges as bullying such that Coles can investigate or respond to it. Mr Sabeti's application was filed on 3 January 2025 and does not relate to actions that may have occurred since he transferred to a different store from Mr Asahak and do not relate to actions of Mr Asahak.

• [37] I am also of the view that I would have been unable, on the scant materials available to me, to make any findings about whether Mr Sabeti was bullied at work.

• [38] Last, the order that Mr Sabeti now seeks is not one that is appropriate to make or directed towards preventing him from being bullied at work by the Named Person.

• [39] The power in s 587 is discretionary and I am satisfied that I should exercise my discretion in this matter to dismiss the application.

• [40] For the above reasons, I order that the application for a stop bullying order filed by Mr Hojat Sabeti on 3 January 2025 be dismissed under s 587 of the Act.

[1] [2016] FWC 763 at [21] to [24]

[2] [2021] FWC 6217

[3] [2018] FWC 6037

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