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

Application for an FWC order to stop bullying - Application for substantive application to be dismissed against Person Named - No ongoing relationship between Applicant and Person Named - No risk that Applicant will continue to be bullied at work by Person Named - No power to make order - Application against Person Named has no reasonable prospects of success - Application dismissed against Person Named.

• [1] On 10 December 2024, Mr Jaswinderjit Singh Pannu made an application to the Fair Work Commission (the Commission) for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (the Act).

• [2] In his application, Mr Pannu claimed he is being bullied by the following people relevant to his work as a chef in a restaurant named Punjabi Palace in Brisbane:

• Mr Baljit Singh, Director, Punjabi Pty Ltd;
• Mr Daulat Panwar, Director, DaulatVRR Pty Ltd; and
• Ms Athina Stephanou, Director, AIS Immigration Solutions.

• [3] Following a second telephone conference convened by me on 10 February 2025, AIS Immigration Solutions (AIS) on behalf of itself and Ms Stephanou filed an application to have the substantive application against it and Ms Stephanou dismissed on the grounds that there was no reasonable prospect of success. AIS has terminated its migration agent retainer with Mr Pannu. Accompanying the application was a statutory declaration of Ms Stephanou and a termination letter dated 31 January 2025, with an effective termination date of 7 February 2025.

• [4] This decision deals with the application made by AIS and Ms Stephanou to have the application against them dismissed pursuant to s.587(1)(c) of the Act on the grounds that the application as made against them has no reasonable prospect of success.

Hearing of the dismissal application made by AIS Immigration Solutions and Ms Stephanou

• [5] The application was due to be heard by me 9 April 2025. Ms Stephanou was suffering from concussion on that day. The hearing commenced, with AIS and Ms Stephanou granted leave to be represented by Mr Robert Lamb, Solicitor and Director, Hillhouse Legal Partners. Mr Pannu was represented by Mr Gurjit Singh, a human rights defender.

• [6] On account of Ms Stephanou's unavailability, the hearing was rescheduled for 29 May 2025. I informed the parties that in respect of the application made by AIS and Ms Stephanou, I would only hear evidence and determine the application relevant to whether there was any risk that Mr Pannu would continue to be bullied at work by AIS or Ms Stephanou pursuant to s.789FF(1)(b)(ii) of the Act. That is, I was only prepared to determine the future risk of bullying and not make a determination as to whether Mr Pannu has been bullied by Ms Stephanou (or AIS) in the past pursuant to s.789FF(1)(b)(i) of the Act. I made that decision on the record.

• [7] On 29 May 2025, the same parties and representatives appeared. Ms Stephanou and Mr Pannu were cross-examined.

• [8] Ms Stephanou gave evidence that on 31 January 2025 she sent the following correspondence to Mr Pannu:

We note your agreement with AIS for the provision of Migration Services to you dated 28 June 2023 (the Agreement).

Given you have commenced proceedings in the Fair Work Commission against AIS Immigration Solutions and its principal Ms Athina Stephanou the necessary relationship of trust and confidence that is necessary between you and AIS and Ms Athina Stephanou has irretrievably broken down.

Accordingly, the purpose of this letter is to give you notice that AIS and its principal Ms Athina Stephanou are terminating the Agreement.

The date the Agreement will end is 7 February 2025.

Given the termination of the Agreement the Migration Agent's Code of Conduct dictates that we advise you of certain matters. To that end we advise as follows:

1. The subclass 186 nomination application submitted to the Department on 24th October 2023 was requested to be withdrawn on 29th November 2024 and submitted to the Department on 2nd December 2024. To date, the withdrawal request is still not finalised.

1. Your subclass 186 visa application submitted to the Department on 24th October 2023 is still in process with the Department.

We do not intend and have not allocated your matter to another registered migration agent. You may find another registered migration agent through the Office of the Migration Agents Registration Authority (OMARA) website (https://www.mara.gov.au). OMARA maintains an official Register of Migration Agents, where you can search for agents by name, location, or registration status. Alternatively, you may seek referrals from professional associations such as:

• Migration Institute of Australia (MIA) - https://www.mia.org.au
• Migration Alliance - https://www.migrationalliance.com.au

To find a registered migration agent, you may you wish to follow these steps:

1. Go to www.mara.gov.au and select "Search for a registered agent".
2. Complete the search fields with information about the agent you are looking for.
3. Verify the agent's registration with the Office of the Migration Agents Registration Authority (OMARA).
4. Consider previous client reviews and have an in-person consultation with the agent.
5. Look for an experienced migration agent and ask about their success rate.

AIS does not hold any money on your behalf, and you do not owe AIS any money in relation to our migration services.

AIS will also notify the Department of Immigration and Citizenship in writing that AIS is no longer your migration agent.

We will for 28 days after we have notified the Department of Immigration and Citizenship forward any communication we receive from the Department of Immigration and Citizenship to you at [email address].

We do not hold any physical documents on your behalf.

We strongly recommend you seek migration advice regarding your current visa application and its status and your overall immigration status.

• [9] The following letter was sent by her legal representative to Mr Pannu on 31 January 2025:

Fair Work Commission Application by Mr Jaswinderjit Singh Pannu AB2024/950 Respondent: AIS Immigration Solutions (AIS)

1. As you know we act for AIS Immigration Solutions and Ms Athina Stephanou (our client).

1. We note that matter is next before the Fair Work Commission on 10 February 2025.

1. We are instructed that our client has terminated its retainer with you and is no longer your migration agent.

1. Further to the submissions we made on our client's behalf in her Form 73 and at the Fair Work Commission conference on 29 January 2025 and noting the Commissioner's comments we submit as follows:

1. For your bullying claim to be successful against our client you must show that our client has bullied you at your work (and our client denies this absolutely) but also there is a risk that you will continue to be bullied at work by our client.

1. Our clients are no longer your migration agent and she will have nothing further to do with you and there is no reasonable prospects of our client having any interaction with you in the future whether at your place of work or otherwise.

1. You also stated at the conference that you were currently on Workcover and not attending the workplace in any event.

1. Accordingly there is no risk that Ms Stephanou can continue to bully you at work.

1. Accordingly your claim has no reasonable prospects of success as against our clients.

1. You should immediately withdraw your application and complaint as against our clients.

1. If you do not advise by 4 pm 5 February 2025 that you will or have withdrawn your application against our client, we are instructed to make an application for the Commission to dismiss the substantive application pursuant to s.587(1)(c) of the Fair Work Act on the grounds that the application does not have reasonable prospects of success.

1. If you force our client to bring such an application, we are instructed to seek our client's legal costs of an incidental to the application under section 611 of the Fair Work Act on the grounds that it should have been reasonably apparent that your application had no reasonable prospects of success.

1. We reserve the right to tender this letter as to that application and argument as to costs.

1. Our client sincerely hopes that such an application will not be necessary.

• [10] In evidence given during the hearing, Ms Stephanou stated that she does not now and does not ever wish to deal with Mr Pannu. If he requested immigration services from her in the future, she would decline such a request. He has been encouraged to obtain services from an alternative registered migration agent by searching the government migration website.

• [11] She stated that she currently does not have any commercial relationship with Mr Baljit Singh and Mr Daulat Panwar or their relevant entities. She presently does not provide immigration advice to them.

• [12] Ms Stephanou accepted she had been sent correspondence on 26 February 2025 by the Department of Home Affairs in respect of Mr Pannu's permanent residency application. While Ms Stephanou appears not to have forwarded the email directly to Mr Pannu as she had committed to doing within 28 days of the termination of the services provided to him, she did immediately notify the Department of the cessation of the migration services to Mr Pannu. She supplied to the Department a copy of the termination letter dated 31 January 2025 and uploaded it to Mr Pannu's 'ImmiAccount', accessible by Mr Pannu.

• [13] Mr Pannu's witness statement dated 17 February 2025 concluded that he held ongoing concerns that Ms Stephanou would interfere with his visa and migration status in her dealings with Mr Baljit Singh and Mr Panwar at the restaurant. Having heard Ms Stephanou's evidence that she does not have any dealings with Mr Baljit Singh and Mr Panwar, Mr Pannu conceded that Ms Stephanou does not want to have any future dealings in respect of him.

• [14] Despite Mr Pannu's concession, Mr Gurjit Singh made the following (summarised) oral submissions:

• The letter dated 31 January 2025 terminating the migration agent services was not effective or it was invalid;
• Ms Stephanou would continue to have an ongoing nexus with the restaurant and Mr Baljit Singh and Mr Panwar, unless she could produce evidence that she had formally terminated migration services between AIS and the two corporate entities purportedly involved in running the restaurant;
• Ms Stephanou failed to meet her obligation to forward to Mr Pannu the correspondence of the Department within 28 days of the termination of the agreement.

• [15] The circumstances in which the Commission may make orders to stop bullying are set out in s.789FF of the Act, as produced below:

(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.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body - those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes - that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes - those outcomes; and

(d) any matters that the FWC considers relevant."

• [16] Pursuant to ss.789FF(1)(b) of the Act, for the Commission to make orders with respect to an application under s.789FC for an order to stop bullying, it must be satisfied that the worker was bullied at work and that there is a risk that the worker will continue to be bullied at work.

• [17] The leading authority on the application of s.789FF(1)(b) in analogous cases is Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines.[1] In that case Gostencnik DP held that:

"[15] As s. 789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw's application has no reasonable prospect of success."

• [18] This position was subsequently affirmed by the Full Bench in Obatoki v Mallee Track Health & Community Services and Others.[2]

• [19] In a decision of Commissioner Yilmaz in THDL,[3] the Commissioner dismissed THDL's application on the basis that the application had no reasonable prospect of success when THDL moved the location of their warehouse from an industrial complex away from where THDL submitted they had been bullied by two men, the persons named. The Commissioner found the parties would no longer have any contact with each other and accordingly dismissed the application. The Commissioner concluded:

"[13] ...There is no risk that THDL may be subject to bullying and/or sexual harassment at work. Consequently, there is no reason I should not exercise my discretion to dismiss THDL's application against the named Respondents."

• [20] As s.789FF(1)(b)(ii) of the Act makes clear, the Commission must be satisfied that there is a risk that Mr Pannu will continue to be bullied at work by Ms Stephanou. Without satisfaction of this, no power to make an order against Ms Stephanou exists.

• [21] I accept that Ms Stephanou validly terminated the immigration services to Mr Pannu in in her written communication to him on 31 January 2025. The submission that the notice is invalid is preposterous. I accept Ms Stephanou's oral evidence that she has ceased providing immigration services to Mr Baljit Singh and Mr Panwar and their respective corporate entities at this time and for the foreseeable future.

• [22] There is presently no risk that Mr Pannu will continue to be bullied at work by Ms Stephanou. This has been true since Ms Stephanou's notification to Mr Pannu that she no longer wished to provide immigration services to him. If it was not clear to him then, it ought to have been clear to him when she gave evidence that she does not provide any immigration services to Mr Baljit Singh and Mr Panwar and to their respective corporate entities.

• [23] It follows that I do not have power to make an order to stop bullying in respect of Ms Stephanou, and as a consequence, I am satisfied that the application, as made against Ms Stephanou, for an order under s.789FF has no reasonable prospects of success and should be dismissed. I exercise my discretion to do so pursuant to s.587(1)(c) of the Act.

• [24] An Order [PR788192] giving effect to my decision will be published.

R Lamb, for AIS Immigration Solutions and Ms Athina Stephanou.

[1] [2014] FWC 3408.

[2] [2015] FWCFB 1661 at [16].

[3] [2021] FWC 6692.

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