//
[33]
[2026] FWC 337
General information, not legal advice.
Fair Work Commission
2026-02-13
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
[1] On 5 November 2025, Ms Jianan Sun (Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (Act).
[2] The Applicant is employed by Shuang C Chen & Associates Pty Ltd (Employer). The Applicant named Mr ShuangChao (David) Chen, Mr Tao (Thomas) Liu and Ms YuanHui (Vivian) Li in her application (Persons Named). The Persons Named did not file a Form F74 - Response from a person named as having engaged in bullying at work.
[3] On 18 November 2025, Mr Chen (Respondent) filed a Form F73 in which he raised two jurisdictional objections. Firstly, that the alleged bullying was reasonable management action, taken in a reasonable way, and secondly, that Ms Sun was not attending the workplace and there is no practical risk of further interaction that could give rise to workplace bullying.
[4] I conducted two conferences for the matter on 1 December 2025 and on 12 December 2025. In the Applicant's Form F72, and during the conferences, the Applicant advised that she was not presently at work and was certified as unfit to work. She says she would like to return to work when she is medically fit, and when she can do so in a safe environment. However, she was unable to advise when she would be returning to the workplace. I gave the Applicant additional time for her to clarify with her treating practitioners on when she would be returning to work.
[5] On 27 January 2026, the Applicant's husband (Xu) wrote to my Chambers and provided a medical report, dated 26/01/2026, from the Applicant's treating psychologist. The report states the following:
Based on her current psychological presentation, Ms Sun does not presently demonstrate the capacity to engage in work outside of her home. Based on her engagement in treatment and observed progress, it is my clinical opinion that a cautiously graded return to work may be considered in the future, potentially from around March 2026, subject to ongoing clinical review and the presence of appropriate psychological safeguards.
[6] On 10 February 2025, I wrote to the parties as follows:
O_n the basis of the material provided, the Commissioner is minded to dismiss the application on the grounds that it has no reasonable prospects of success._
In particular, the material indicates that there is no identified return to work date and, in those circumstances, the Commissioner cannot be satisfied there is a risk that in future the Applicant will be bullied "at work".
[7] On 11 February 2025, Mr Xu, on behalf of the Applicant wrote to my Chambers as follows:
We wish to confirm that Ms Sun plans to return to work on 3 March 2026. Given her ongoing recovery from work-related psychological injury, it is medically necessary that her initial return be entirely via working from home to ensure her safety and wellbeing.
[8] I sought the Respondent's views in relation to Mr Xu's correspondence.
[9] On 11 February 2025, the Respondent replied as follows:
The respondent does not have any further information concerning the applicant's return to work. The respondent has not received any medical reports confirming the applicant's fitness to return to work.
For the avoidance of any doubt, the employee has not requested and the employer has not agreed to the conditions referred to in numbered paragraphs 1 to 3 of Ms Sabrina Chen's report.
The applicant consents to the Commissioner's proposal referred to in your email dated 10 February 2026, noting that Ms Chen's report does not identify a return to work date.
[10] I gave the Applicant the opportunity to provide a response to the Respondents reply.
[11] On 12 February 2025, Mr Xu, on behalf of the Applicant responded as follows:
Following further consultation with her treating psychologist, Ms Sun confirms that her proposed return to work date is 3 March 2026. An updated letter from Ms Chen is attached for the Commission's reference, confirming that a return to work may be considered from that date, subject to appropriate psychological safeguards.
This confirms that Ms Sun intends to return to work and that her treating psychologist has now identified a specific proposed return date.
The safeguards outlined in Ms Chen's report - including an initial work-from-home arrangement, minimised direct contact with identified individuals, and structured written communication - are clinical risk-mitigation measures designed to support psychological safety during early reintegration. They are not a refusal to return to work, but rather measures intended to reduce foreseeable risk of symptom exacerbation.
If the employer does not agree to those specific arrangements, Ms Sun remains willing to resume work. However, prior to any return, it is respectfully submitted that the workplace must provide at least basic psychological safety protections, including reasonable steps to prevent exposure to the individuals and behaviours identified as causing distress.
Without such safeguards, there remains a foreseeable risk of recurrence or worsening of her psychological symptoms, which could undermine both her recovery and her ability to perform work safely.
[12] Attached to Mr Xu's correspondence was an updated letter from the Applicant's treating psychologist. The letter stated the following:
Based on her current psychological presentation, Ms Sun does not presently
demonstrate the capacity to engage in work outside of her home. Based on her
engagement in treatment and observed progress, it is my clinical opinion that a cautiously graded return to work may be considered in the future, potentially from 3rd March 2026, subject to ongoing clinical review and the presence of appropriate psychological safeguards. (emphasis added).
[13] In the circumstances, I find that the Applicant is currently not at work in the business of her Employer. The Applicant has not performed any duties for the Respondent since making this application nor have there been interactions between them except in connection with this application.
Printed by authority of the Commonwealth Government Printer