Fair Work Act 2009

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

(AB2024/797; AB2024/819; AB2024/820; AB2024/821; AB2024/822)

Applications for an FWC order to stop bullying - whether applications have reasonable prospects of success - Applications dismissed.

• [1] On 31 October 2024, Dr Leanne Ridha applied for orders to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The applications were made in relation to Swinburne University (Swinburne) and several named persons with whom Dr Ridha interacted with while at work at Swinburne. I determined it appropriate to deal with the applications together as all relate to Dr Ridha's work at Swinburne.

• [2] I conducted two Conferences for the matters and issued Directions to determine whether I should make orders to stop bullying.

• [3] On 24 February 2025, Swinburne University sent correspondence to my Chambers advising that Dr Ridha's employment with Swinburne ended on 21 February 2025 and sought that the applications be dismissed on the basis that Dr Ridha is no longer a worker at Swinburne.

• [4] The Commission may issue an order to stop bullying, if an application is made under s.789FC, and if it is satisfied that:

1. The worker has been bullied at work by an individual or group of individuals; and
2. There is a risk that the worker will continue to be bullied at work by the individual or group of individuals.

• [5] An order is to have the effect of preventing future bullying behaviour at work by an individual or a group of individuals.

• [6] The Act permits the Commission to dismiss applications in certain circumstances. Relevantly, s.587 provides that the Commission may dismiss an application if it has no reasonable prospects of success, and it may dismiss a matter on application or by its own initiative.

• [7] The parties were given the opportunity to make submissions on whether the applications should be dismissed. Dr Ridha requested that the matter be determined on the papers and Swinburne had no objection to this approach.

• [8] I have considered all the material filed. It is not in dispute that Dr Ridha's employment with Swinburne came to an end on 21 February 2025 and that she is no longer interacting with the individuals named in the applications in any work context.

• [9] In its submissions, Swinburne says that it "has no intention of employing or engaging [Dr Ridha] to perform work in the future". Dr Ridha says that the applications should not be dismissed because "revoking of the unfair dismissal will not be the enough remedy as I will not be able to commence the work again in a toxic workplace environment without getting the Stop Bullying Order". Dr Ridha also says that the applications should not be dismissed as she has already spent a "significant" amount of time and effort and as the "process takes [...] too long". Whilst I accept that both parties have spent some time on these applications, I do not consider this to be an appropriate reason as to why I should not exercise my discretion under s.587, noting Swinburne's submissions with respect to Dr Ridha's employment.

• [10] Whilst Dr Ridha references a possible reinstatement, I also do not see this as a reason why the applications should not be dismissed on the basis they have no reasonable prospects of success. On this point, I adopt the reasoning of Deputy President Gostencnik (as he was then) in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines, as follows:[1]

I would observe that if [...] he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.

• [11] Even if I were satisfied that any bullying had occurred (which is denied by the Respondents), it is clear that Dr Ridha is no longer employed by Swinburne, which means that I cannot be satisfied that Dr Ridha "will continue to be bullied at work by the individual or group" (as required by s.789FF(1)(b)(ii) of the Act). Therefore, I do not have the power to make an order to stop bullying, and consequently, I am satisfied that Dr Ridha's applications have no reasonable prospects of success.[2]

• [12] Applications AB2024/797, AB2024/819, AB2024/820, AB2024/821 and AB2024/822 are dismissed pursuant to s.587(1)(c) of the Act. An Order[3] to this effect will be published with this Decision.

[1] [2014] FWC 3408 [17].

[2] Fair Work Act 2009 s 587(1)(c).

[3] PR786098.

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