Fair Work Act 2009

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

Application for an order to stop bullying - applicant not attending for work and receiving workers compensation - applicant's capacity for work - whether risk worker will continue to be bullied at work - application to dismiss - whether appropriate to consider future risk as a preliminary issue

• [1] On 4 March 2025 the applicant in these proceedings, Mr. Kim, filed an application for orders to stop bullying under Part 6-4B of the Fair Work Act 2009 (Cth) (Act) against his employer Nongshim Australia Pty Ltd (respondent). The application identified various company officers and employees as allegedly having engaged in bullying conduct towards the applicant during the course of 2024 and early 2025.

• [2] The matter was first listed for video conference on 5 May 2025. That conference was adjourned at the applicant's request. The applicant cited mental health reasons in support of the request for the postponement of the initial conference. The matter was subsequently relisted for 20 May 2025. The parties attended by video conference on that day and the matter was not able to be resolved.

• [3] The matter was listed for an in-person conference on 13 June 2025 but again, no resolution was reached between the parties. Shortly thereafter directions were made and the matter was listed for hearing on 22 July 2025. On the day before the hearing, the applicant applied for the matter to be adjourned on the basis that his mental health condition was such that he was unable to proceed with the hearing. Medical evidence was provided in support of the application which certified that the applicant was medically unfit to attend the hearing. The application for adjournment was opposed by the respondent. Having regard to the medical evidence, I determined that it was appropriate for the matter to be adjourned.

• [4] In response to the adjournment request of 21 July 2025, the respondent also made an application for the matter to be dismissed on the basis that Mr. Kim was on workers' compensation, had no current capacity for work and there was no evidence as to when, if ever the applicant would be fit to return to the respondent's workplace. In those circumstances the respondent submitted that a statutory precondition for the making of a stop bullying order, that is, that there is a risk that the applicant will continue to be bullied at work,[1] could not be satisfied and in the absence of that risk, no order could be made and the appropriate course was to dismiss the application rather than simply adjourn the matter indefinitely.

• [5] On 22 July 2025 I wrote to the parties noting the respondent's application for the matter to be dismissed. I pointed out that the respondent had also supplied a certificate of capacity in relation to the applicant indicating that that the applicant was unable to work until 6 August 2025 and his estimated time to return to any type of employment was 3 to 6 months. I indicated that, subject to any further submissions the parties may wish to make, I proposed to deal with the application to dismiss primary application on the papers. I also indicated that I would receive any further evidence and submissions that the parties wished to file going to the issue of whether, having regard to the applicant's condition, there was any risk that the applicant will continue to be bullied at work. That material was to be provided by no later than 11 August 2025.

• [6] Both parties provided further evidence and brief submissions in relation to the application to dismiss and the question of the risk of continued bullying. The applicant opposed the application by the respondent to have the matter dismissed. He contended that the matter of workplace bullying remained unresolved, and no corrective action had been taken by the respondent. He said his medical evidence confirmed that he was expected to be fit to return to work in approximately 6 months and provided medical evidence as to his present state, ongoing treatment and prognosis. The applicant said it was important that upon his return to work he should not be exposed to the same workplace bullying that had prompted the application. The applicant urged that the matter be scheduled for a hearing in September 2025.

• [7] The respondent submitted that the applicant had not attended work since approximately 6 March 2025 and remained on workers' compensation. The respondent provided a further certificate of capacity which stated that the applicant had no capacity for work until at least 3 September and his estimated time to return to any type of employment was 3 to 6 months. The respondent said that the applicant was not at work and had no capacity to return to work in the foreseeable future, that there was no current or imminent risk that the applicant will be subject to bullying at work and that the necessary statutory element of a risk of continued bullying cannot be satisfied. In those circumstances, the applicant submitted that the application must be dismissed.

• [8] Section 789FF(1) sets out the circumstances that must be met in order for the Commission to consider whether it is appropriate to exercise the discretion to make an anti-bullying order. It provides:

(a) a worker has made an application under section 789FC; and

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

• [9] Both limbs of s789FF(1) must be met before an order can be made. The second limb in s789FF(1)(b) itself contains two preconditions. The first relates to the Commission's satisfaction that a worker has been bullied at work. The second relates to a risk that the worker will continue to be bullied at work. The Commission must be positively satisfied of both of those matters before the discretion to make an order is enlivened. The second element in s789FF(1)(b) necessitates an assessment of the likelihood of some future conduct occurring. By its application, the respondent is asking that the question of the risk of continued bullying be determined as a preliminary matter on the basis that in the absence of the Commission being able to be satisfied as to the risk of continued bullying there would be no power to make an order, and the application could proceed no further.

• [10] Section 587 provides an alternative basis upon which it might be argued that the present application should be dismissed. That section sets out a number of grounds on which the Commission may dismiss an application including, in s.587(1)(c), that the application has no reasonable prospects of success. Section 587(3) also provides that the Commission may dismiss an application on its own initiative or on application. A decision to dismiss an application under s.587 involves the exercise of a discretion. The respondent did not place express reliance on s.587(1) of the Act in pressing its application for dismissal. However, it is useful to briefly consider how that section has been applied in cases involving applications for anti-bullying orders.

• [11] The meaning of the expression 'no reasonable prospects of success' was considered in relation to a matter under Part 6-4B in Mitchell Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines (ANZ).[2] In that matter the Commission said that a conclusion that a matter had no reasonable prospects of success should only be reached with extreme caution, for example where an application is manifestly untenable. The Commission also noted that the answer to the question of whether an application had no reasonable prospects of success could vary depending upon the time at which the question was asked, so that an application might at the time it is initiated have reasonable prospects but lose that characteristic over time as circumstances develop. In Shaw the relevant development was that the applicant's employment had come to an end. This meant that there was no risk of continued bullying, no power in the Commission make an order to stop bullying and consequently no reasonable prospects of the application succeeding.

• [12] In Osure v. National Disability Insurance Agency and Ors[3] a Full Bench of the Commission recently considered the circumstances in which it may be appropriate to deal with the 'future risk' limb in s.789FF(1)(b)(ii) separate from findings about the alleged bullying conduct referred to in s.789FF(1)(b)(i). The Full Bench said:

[42] The second issue raises what we consider is properly a matter of discretion. The

Commission is not required in all cases to determine both elements of s 789FF(1) of the Act. Whether it is appropriate to deal with the future risk element as a threshold matter will depend upon the circumstances of each case. It will not always be appropriate to deal with the future risk as a preliminary issue, particularly where findings are being made in the context of ongoing working relationships where the applicant worker and the relevant individuals continue to work for the employer/principal concerned. In those circumstances, significant caution should be exercised before a member of the Commission adopts the course of determining whether there is a risk a worker will continued to be bullied without fully considering the past allegations of bullying behaviour.

[43] In some cases, it will be important to understand and make findings about the existence and nature of any bullying conduct in order to properly assess whether there is a future risk. The nature of the bullying, and those responsible for or involved in the relevant conduct, might only be fully revealed upon the hearing of evidence in relation to past conduct. In other cases, the scope of the alleged bullying may be clear, and the remedial actions taken, or change in circumstances, clear enough that it would be reasonable to deal with the future risk issue as a preliminary point. In making that assessment, the purpose of the provision, namely, to make orders where appropriate to prevent future relevant bullying conduct, should be considered. If that outcome has already been achieved, orders cannot be made.

• [13] I have considered the evidence and circumstances of this case and come to a view that it is appropriate to consider the 'future risk' aspect of the matter as a preliminary point. This is so primarily because in this case it is the current medical condition of the applicant and the effect that condition has on his capacity to return to the workplace, rather than a more detailed assessment of what has previously occurred, which enables an assessment of future risk to be undertaken. The applicant would no doubt contend that these matters cannot be separated, or even that the relationship is one of cause and effect, i.e. that it is the past conduct that has created his present medical condition and resultant inability to work. However, that is not the issue that I am required to determine. Nor is this a case in which an employee is continuing to work with those against whom the allegations of previous bullying behaviour have been made. In a case such as that it is more likely to be necessary to consider how previous interactions and past (and present) work arrangements contribute to any future risk. Here the applicant has not been able to work for many months and is currently unable to work for some time into the future. It is however possible to make a reasonable assessment of the future risk based on the applicant's ongoing incapacity to attend work and the medical evidence that has been provided. If the matter were to be heard in September as the applicant has urged, that assessment would still need to be undertaken and, on the applicant's own evidence as to his medical condition, the situation is unlikely to be materially different to the present circumstances.

• [14] In considering the application for the matter to be dismissed it is necessary to assess the circumstances as things presently stand. Mr. Kim remains employed by the respondent but has not been capable of working for many months. Based on current medical evidence, he is very unlikely to be able to return to work in the immediate future. I note in particular in this respect the evidence in the independent medical examination report dated 8 July 2025 which states that the applicant does not have capacity to return to pre-injury duties or suitable employment because of his condition. The report also states that the applicant is not ready for a gradual return to work or suitable duties or to participate in job seeking services or alternative employment. Further, the report concludes that the current treatment that the applicant was receiving is 'not beneficial nor likely to result in a recovery.' In my view, based on the current evidence, I do not consider that there is a basis on which I can be satisfied that there is a risk that the applicant will continue to be bullied at work because the applicant is not at work and is not likely to return to work in the immediate future.[4] In those circumstances I am unable to make an order, and the application should therefore be dismissed.

• [15] In coming to this conclusion, I have considered the applicant's submission that the dismissal of this application at this stage may make the path to a return to the workplace more difficult because the workplace issues raised by the application have not been addressed. I am also conscious that in some circumstances it may be appropriate to leave an anti-bullying matter in abeyance pending any further developments. This has occurred for example, in cases where the employment relationship has ended, but there are other proceedings on foot challenging the circumstances in which that has occurred.[5] Here, it is conceivable that the applicant's condition may change at some future time such that a return to work becomes a reality or at least a real likelihood. Were that to occur, this decision to dismiss Mr. Kim's application does not preclude him from making another application under s.789FC subject to the jurisdictional facts being established in relation to that application.[6] That would include the need to establish that the applicant has previously been bullied at work and that there is a risk of future bullying based on the circumstances as they exist at that future time.

• [16] An order dismissing the application will accompany this decision.

[1] Section 789FF(1)(b)(ii).

[2] [2014] FWC 3408 at paragraphs [8]-[11].

[3] [2025] FWCFB 168.

[4] See Bigdeli [2024] FWC 2548 at [48] for circumstances in which an applicant had been absent from work for an extended period, remained presently incapacitated and there was no indication as to when the applicant would return to work (upheld on appeal [2025] FWCFB 31).

[5] Re PK (2015) 247 IR 119 and Re DQ [2019] FWC 4530.

[6] Obatoki v. Mallee Track Health and Community Services Pty and Ors [2014] FWC 8828 at [21]. See also Osure at [46] and Shaw at [17].

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