Kevin Burke [2025] FWC 1014 (10 April 2025)

Application for an order to stop bullying - application dismissed

• [1] This decision concerns an application made by Kevin Burke under s 789FC of the Fair Work Act 2009 (Act) for an anti-bullying order against Football Victoria, Football Australia and several named individuals (respondents). Mr Burke is a football referee who for a number of years has officiated matches between clubs affiliated with Football Victoria. A list of qualified referees is maintained by Football Victoria. It allocates referees to matches. Referees are paid match fees by the home club of the relevant fixture.

• [2] In early 2023, a player at the Swan Hill Football Club made an allegation of sexual assault against Mr Burke, which was said to have occurred after a social event. Mr Burke was charged by the police. He denied the allegations. In March 2024, the charges were dropped. Football Victoria then commenced an investigation into the incident that had been the subject of the allegation. Football Australia was involved in the investigation. Due to staff shortages the investigation was delayed and remains ongoing. Since the allegation was made against Mr Burke, he has not been allocated any football matches to referee.

• [3] Mr Burke says that his attempts to contact Football Victoria, Football Australia and the named individuals about the protracted investigation have been ignored, and that their refusal to engage with him has caused him mental distress. Mr Burke contends that the allegation that was made against him was false, that he should not have been suspended from refereeing matches, that the investigation has taken too long, and that he should be returned to the referee roster. He contends that the conduct of the respondents amounts to bullying within the meaning of the Act and that the Commission should order it to cease.

• [4] At a conference on 7 February 2025, Football Victoria denied that Mr Burke had been subjected to bullying. It said that it was necessary to conduct an investigation after the police dropped the charges against Mr Burke, and that although this had taken a long time, the outcome should be known in a matter of weeks. Football Victoria said that it had offered to return Mr Burke's 2024 referee registration fee to him but he had declined. It stated that if the investigation into the incident concluded that the alleged conduct had not occurred, Mr Burke would be returned to the referee roster. If the allegation was substantiated, it would be necessary to determine the appropriate sanction, which could include a permanent ban.

• [5] On 13 March 2025, Mr Burke advised the Commission that the investigation had still not concluded. I listed the matter for a determinative conference.

• [6] At the conference earlier today, Football Victoria and Football Australia told the Commission that the investigation had nearly concluded and that an outcome was imminent. Mr Burke maintained that he was being subjected to bullying. I considered that it was appropriate in the circumstances to proceed to determine the matter, and after hearing further from Mr Burke, dismissed the application for the following reasons.

• [7] An antibullying order can only be made if a worker has been bullied at work (that is, has been subjected to repeated unreasonable behaviour that creates a risk to health and safety), and there is a risk that the worker will continue to be subjected to such behaviour (see ss 789FD(1) and 789FF(1) of the Act). I was not satisfied that the preconditions for the making of an order were satisfied in this case.

• [8] First, having reviewed the material and heard from the parties, I was not satisfied that Mr Burke had been bullied, because I did not consider that he had been subjected to repeated unreasonable conduct while at work. Clearly, it was appropriate that an investigation into the incident be undertaken. On one view, the investigation might be said to have taken an unreasonably long time. But this is not the view I hold. The respondents owed Mr Burke no special or general duty. He had no right to expect to be placed on the referee roster, to be assigned matches, or to have the investigation concluded within any particular time. But even if the lengthy period for which the investigation has been underway were regarded as unreasonable, this would be a single instance of unreasonable behaviour. There has been no repeated unreasonable conduct on the part of the respondents.

• [9] Secondly, it did not appear to me that the relevant conduct had occurred at work. Mr Burke is not an employee or a contractor of any of the named parties. He had previously performed work for the relevant home clubs when refereeing their matches from time to time. However, at the time when Football Victoria ceased assigning him matches to referee, he was not at work, either physically or in any other sense. He has not been at work since that time.

• [10] Thirdly, I was not satisfied that the respondents' conduct had created a risk to Mr Burke's health and safety. The statements by Mr Burke to the effect that he has been mentally distressed, unwell, and in receipt of medical care do not establish that these things were caused by the conduct of the respondents.

• [11] The preconditions for the making of an anti-bullying order were not made out, and therefore the Commission had no power under the Act to make an anti-bullying order in this case. For these reasons, the application was dismissed.

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