Fair Work Act 2009

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

Application for an FWC order to stop bullying - application for interim orders - Commission required to be satisfied that the worker has been bullied at work and that there is a risk that the bullying will continue - bullying not established - continuing risk not established - application for interim orders dismissed

• [1] Mr Ammar Mousali (the Applicant) made an application to the Fair Work Commission (the Commission) on 11 July 2025 seeking an order to Queensland Titles Registry Pty Ltd (the Employer or Respondent), Mr Paul Wilton, Mr Paramesh Rajagopalan, Mr Mike Whelan and Mr Aubry Thonon (the Persons Named) pursuant to s.789FC of the Fair Work Act 2009 (Cth) (the Act).

• [2] On 26 August 2025, the Applicant applied to the Commission for interim orders preventing the Employer from proceeding with its disciplinary process. The Applicant filed an amended Form F1 on 26 August 2025 at 2:02pm, which I have accepted.

• [3] Under s.589(2) of the Act, the Commission is empowered to make an interim decision in relation to a matter before it.

• [4] The Applicant is seeking the following orders:

1. Interim order for an interlocutory injunction restraining the Respondent, whether by itself, its servants, agents or otherwise, from taking any steps to dismiss, discipline, or otherwise alter the Applicant's employment pending the final determination of these proceedings.

1. An Interim order that the Respondent be restrained from taking any further steps in the "Invitation to Show Cause on Disciplinary Findings and Proposed Disciplinary Action" process, including the issuing of any disciplinary sanction, until further order of the Deputy President.

1. An Interim order that the Respondent not take any adverse action against the Applicant because the Applicant exercised a workplace right by making an application for an order to stop bullying under Part 6-4B of the Fair Work Act 2009 (Cth).

1. An Interim order that the status quo as at 11 July 2025 be preserved until the final hearing and determination of the substantive application.

• [5] The parties consented to the application for interim orders being determined on the papers.

• [6] The Applicant lodged his application for stop bullying orders on 11 July 2025.

• [7] On 7 August 2025, I conducted a private conciliation with the parties. The matter was not resolved in conciliation. The matter was then listed for a hearing to determine the Respondent's jurisdictional objections and to determine whether a stop order should be granted.

• [8] On 19 August 2025, the Applicant received a show cause letter from the Respondent. The letter alleges the following behaviour and notes the Applicant may be liable for "disciplinary findings":

That on or around 15 November 2024, while working from home, you engaged in

inappropriate workplace conduct by smoking during a meeting with the ATS Team

That on 26 February 2025 at 1:10pm, you engaged in inappropriate workplace conduct

by sending a message in the Application Development group chat on Microsoft Teams

with the words, "description: impenetrable like a Nun".

That on 11 August 2025 at 9:34am, you engaged in inappropriate workplace conduct by

creating a poll in the ICT Team Chat group on Microsoft Teams with the following

question and voting options for consideration by members of the group:

a) "I am seeking an order to stop bullying on Paul, paramesh [sic], Aubrey [sic]

b) "Cut and run" and "Stay and fight" (the voting options).

• [9] The Applicant was advised that he had an opportunity to respond in writing within 7 days. He was advised that serious consideration was being given to termination of his employment.

• [10] Six days later, on 25 August 2025, the Applicant emailed my Chambers a copy of the show cause letter and requested an urgent "interim order staying (pausing) a concurrent disciplinary process initiated by my employer, Queenlsnad [sic] Titles Register Pty Ltd". The Applicant alleged that the allegations were "inextricably linked to the very events, interactions, and circumstances that form the basis of my application to stop bullying".

• [11] My Chambers advised that the Commission does not have power to "stay" the Respondent's disciplinary proceedings but that the Applicant may apply for an interim order under s.589 of the Act by filing a Form F1. The Applicant was advised that the Commission cannot make interim orders in relation to a s.789FC application unless satisfied that bullying has occurred and that there is a continuing risk of bullying, in accordance with Wills v Marley & Sydney Trains and Another [2020] FWCFB 4514 ("Wills"). The Wills decision is considered in further detail below.

• [12] The Respondent advised that they would hold the disciplinary process in abeyance pending determination of this interim application.

• [13] The Applicant seeks orders preventing, among other things, the disciplinary process from continuing. The Applicant submits that the orders should be granted for reasons, which are, in summary, as follows. The Applicant refers to the balance of convenience test which he says "overwhelmingly favours intervention".[1]

• [14] The Applicant says that the show cause notice relies on the same allegations which are the subject of his bullying complaint and that by requiring the Applicant to respond, the Respondent was requiring the Applicant to "lay out my evidence and arguments prematurely" and thereby, the Respondent was acting unreasonably and unfairly.[2]

• [15] The Applicant argues that the Respondent is not "acting in good faith" and is engaging in retaliation by issuing a show cause notice following the bullying complaint.[3]

• [16] The Applicant alleges that the Respondent is resurrecting old complaints which have already been dealt with and, in doing so, is engaging in a "fishing expedition".[4]

• [17] The Applicant alleges that his workplace access has been restricted so he is not able to gather evidence in support of his application for a stop order.[5] The Applicant says this is a form of victimisation and harassment.[6] The Applicant argues that the show cause notice is not intended to address any misconduct and is instead intended to punish him.[7]

• [18] The Applicant claims that it was unreasonable for the Respondent to issue a show cause letter while he is on "unpaid sick leave".[8] The Applicant has been on unpaid leave for four months, since approximately 20 March 2025. The Applicant says that by initiating the disciplinary process while the Applicant was on leave, the Respondent was engaging in bullying. The Applicant relies on Application by Bayly [2017] FWC 1886 ("Bayly") in support of that proposition.[9]

• [19] Finally, the Applicant argues that his application for an order to stop bullying would be nullified if the interim order is not granted, as if the order is not granted his employment may be terminated and his complaint will be "silenced"[10].

• [20] The Respondent submits that the Applicant has not been bullied. The Respondent submits that the Applicant has no reasonable belief that he has been bullied, the conduct complained of does not amount to bullying and the conduct complained of is reasonable management action.

• [21] The Respondent further submits that the Commission has no power to restrain the Respondent from pursuing an internal administrative process.

• [22] In relation to the Applicant's request for an interim order preventing the Respondent from taking adverse action against him, I have no power to grant such orders. Under s.589(2), the Commission may make an interim decision only "in relation to a matter before it." There is no general protections application before me. I cannot, under the Act, make the requested order. Of course, the Applicant is not prevented from seeking relief against adverse action through a general protections court application.

• [23] The rest of the orders sought by the Applicant are largely directed at preventing the disciplinary process from continuing.

• [24] I note that the Applicant relies on the Bayly case which in Commissioner Hampton found that the worker's bullying application had prima facie merit and that the balance of convenience favoured an interim order. It is relevant to note that the test in Bayly was not followed by the Full Bench in Wills. It does not assist the Applicant to rely on a decision where initiating discipline while the employee was on sick leave established prima facie bullying when the Commission is now required to be actually satisfied that bullying has occurred.

• [25] In Wills, the Full Bench of the Commission held:

[32] As we have mentioned, the Appellant contends that s.589(2) empowers the Commission to grant interlocutory relief if satisfied that there is a serious issue to be tried and the balance of convenience favours the grant of the relief sought. The Appellant submits that in the context of a bullying application the Commission is not required to be satisfied of the matters in s.789FF.

[33] For the reasons which follow we reject the Appellant's contention that an interim anti-bullying order may be issued based only on a prima facie case, or serious question to be determined, and the balance of convenience favouring the interim relief sought. In our view s.789FF allows the Commission to make an anti-bullying order, including an interim order, only if it is 'satisfied' that a worker has been bullied at work and that there is a risk that the bullying will continue.

[53] The Appellant also contends that her construction is supported by the remedial or beneficial character of s.589. Contrary to the Appellant's submission we are not persuaded that s.589 should be characterised as a remedial or beneficial provision, such that it should be construed in a manner which gives the fullest relief to an intended beneficiary - in this case, Ms Wills. Section 589 is in subdivision B of Division 3 of Part 5-1 of the FW Act which deals with the conduct of matters before the Commission. These provisions are procedural in nature in the sense that they facilitate the effective and efficient exercise of the Commission's substantive powers. They are not remedial or beneficial provisions in the sense contended by the Appellant.

• [26] The Full Bench further noted that the Commission does not have a general power to grant interlocutory injunctions to preserve the subject matter of the dispute.[11]

• [27] Following the reasoning of the Full Bench in Wills, I find that the balance of convenience test contended for by the Applicant does not apply.

• [28] In relation to the Applicant's argument that an interim order is necessary to preserve his application so that he is not "silenced" and so he may seek order to stop bullying, I adopt the following comments of Deputy President Colman in Application by Mayson [2020] FWC 1404:

[28] Further, I do not see force in Ms Mayson's contention that an interim order should be granted in the present matter because it is necessary in order to preserve the ability of the Commission to determine the substantive anti-bullying application. The contention implicitly, and correctly, recognises the difficulty with the proposition that a person will continue to be subjected to bullying at work after the employment relationship has ended. But it wrongly in my view sees the determination of an anti-bullying application as an end in itself, whereas such a determination is in fact a means to an end, namely the end specified in the Act: to prevent a worker being bullied at work. This is the purpose of an anti-bullying order. The purpose is not to ensure that employment continues, or to prevent termination of employment in circumstances which are said to be unfair, or otherwise to maintain the status quo until an anti-bullying application can be determined.

• [29] In order to make the requested interim order, the Commission must be satisfied that the Applicant has been bullied and that there is a risk of bullying continuing. I will deal with the question of whether bullying has occurred first. I will consider the allegations raised in the Form F72, noting that my conclusions around whether the conduct alleged is bullying may change with further evidence at a final hearing.

• [30] The Applicant makes numerous allegations of bullying by the four Persons Named in his Form F72. The allegations are not well particularised.

• [31] In relation to Mr Thonon, the alleged bullying relates to one single incident. The Applicant had posted a message in a Microsoft Teams group chat. Mr Thonon replied "banter-dome' please"[12]. This is a reference to a "banter" group chat called the "banter-dome". Mr Thonon was asking the Applicant to post the message there. Mr Thonon later retracted his comment and said: "never mind, I'm too caffeine-deprived to notice the name of this group". The Applicant said this in relation to Mr Thonon's comment: "No explanation or policy was provided for this restriction, suggesting enforcement of arbitrary, unwritten rules". [13]There is no reasonable basis for the Applicant to allege that Mr Thonon's comment was bullying. Firstly, it was an anodyne comment for which Mr Thonon admitted he had been mistaken. Secondly, it happened only once. It is, by definition, not repeated unreasonable behaviour. This does not amount to bullying.

• [32] In relation to the allegations against Mr Whelan, the Applicant's arguments are equally weak. Mr Whelan asked the Applicant to update his status to show he was working from home.[14] The Applicant said he was in fact at the office at the time and that this behaviour shows: "ATS team enforces attendance tracking in ASM, demonstrating excessive scrutiny not applied to other TQ teams."[15] Firstly, it seems that there was a simple misunderstanding by Mr Whelan. I can see no evidence of repeated unreasonable behaviour. Secondly, I cannot accept any argument that requiring an employee to update their location to show whether are working from home is "excessive scrutiny". It is not unreasonable "attendance tracking" to want to know whether the Applicant is at work during work time.

• [33] In relation to Mr Wilton, there are no allegations of positive conduct which is said to amount to bullying. Rather he is said to have been "complicit" in bullying by others.[16] I am not satisfied on the evidence before me that Mr Wilton has engaged in any repeated, unreasonable behaviour.

• [34] The Applicant primarily makes bullying allegations against his manager, Mr Rajagopalan. The Applicant claims "false performance allegations" were raised by Mr Rajagopalan.[17] The Applicant raises serious allegations against Mr Rajagopalan, which are strongly denied by the Respondent. The Respondent states that Mr Rajagopalan discussed performance issues informally with the Applicant on three occasions in the end of 2024. On 17 March 2025, a formal meeting was arranged, with an agenda set to discuss the Applicant's performance.[18] The Applicant did not attend the meeting and has been on leave since 21 March 2025.[19]

• [35] Many of the allegations raised against Mr Rajagopalan relate to Mr Rajagopalan delivering feedback on the Applicant's performance. I do not have evidence before me to establish whether this conduct amounts to bullying, or whether it is simply reasonable management action. I am not satisfied on the evidence before me that any of the allegations against Mr Rajagopalan amount to bullying.

• [36] I am not satisfied that the Respondent's show cause letter amounts to bullying. If it were the case that the Respondent had raised disciplinary matters from months ago, with no new allegations, then I would be inclined to find that that behaviour was unreasonable. However, the third allegation relates to conduct from 11 August 2025, when the Applicant started a poll in a work group chat about whether he should "cut and run" or "stay and fight". I cannot understand why the Applicant would think that the poll was a good idea. The poll specifically referred to the Persons Named and was viewable by 54 staff members. The Respondent raised, rightly in view, concerns about the Applicant bringing the Persons Named into disrepute by accusing them of bullying in a group chat with 54 of their colleagues.

• [37] In relation to the second allegation, the "impenetrable like a Nun" comment, although a formal disciplinary letter may be perceived by some as an overreaction, this is a matter which management may reasonably discipline an employee for, particularly given the Respondent has a relevant Code of Conduct for employee communication in place.

• [38] In relation to the first allegation, I do not understand why the Applicant smoking a cigarette in his own house during a meeting would warrant a disciplinary letter. However, I accept that it is a matter which may warrant verbal counselling. Considered together with the other two allegations, it is not unreasonable conduct for the Respondent to issue a show cause letter for this allegation.

• [39] I am not satisfied that the Applicant has been bullied at work. Accordingly, I cannot make the interim orders sought by the Applicant.

• [40] I note that I am also not satisfied on the current evidence that there is a continuing risk of bullying at work. The Applicant has not been at the workplace in four months. He is on unpaid leave. The Applicant stated in an email to my Chambers:

Further, the Respondent has argued that I have failed to provide a current medical certificate. On principle, such a demand is misconceived. To require a "certificate of clearance" before the underlying workplace cause of that incapacity is removed will render a medical certificate redundant. A treating doctor cannot reasonably certify me fit to return to the same unsafe environment while the conditions giving rise to my illness remain unresolved.

The Commission has in previous cases acknowledged that where workplace factors cause ill-health, it is not feasible to expect medical clearance absent corrective measures. Accordingly, the lapse in my certificate should not be treated as undermining my standing or my genuine absence on medical grounds.[20]

• [41] The difficulty with the Applicant's submission is that there is no evidence before me that the Applicant has an illness or incapacity caused by bullying at work. The medical certificate I have been provided by the Respondent is from a general practitioner and states that the Applicant has a "medical condition". That medical certificate is dated 28 April 2025 and the Applicant has provided no further medical certificates since. I note also that the Applicant's WorkCover claim was rejected as the injury was found to have arisen out of reasonable management action.[21]

• [42] As the Applicant will not provide a clearance certificate until the workplace changes, I am not presently satisfied that the Applicant will return to the workplace. Accordingly, I am not satisfied that there is a continuing risk of workplace bullying.

• [43] The application for interim orders is dismissed. I Order accordingly.

[11] [2020] FWCFB 4514 at [70] - [74]

[12] Applicant Form F72 page 14 of 24, Form F73 page 33 of 60

[16] Applicant Form F72 page 11, 13, 15, 17 of 24

[20] Email to Chambers dated 26 August 2025 at 10:24pm.

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