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[2026] FWC 610
General information, not legal advice.
Fair Work Commission
2026-02-25
Original judgment source is linked above.
s.789FC - Application for an order to stop bullying
Application for stop bullying order - applicant no longer employed - no future risk of bullying - application dismissed
[1] Mr Lawrence Christy (applicant) has made two separate applications under s 789FF of the Fair Work Act 2009 (Cth) for stop bullying orders under s 789FC. The employer respondent to the application is Mercy Hospitals Victoria Ltd (respondent).
[2] At the time of making his applications, the applicant was employed by the respondent at the Mercy Hospital for Women. The applicant commenced employment with the respondent on 16 December 2024.
[3] The first application (AB2025/947) identifies another employee of the respondent as a person named who is alleged to have bullied the applicant. The allegations of bullying against the employee are made in respect of four identified incidents which the applicant alleges occurred as between the applicant and the employee on 23 July 2025, 24 July 2025, 11 August 2025 and 22 October 2025. Each of these allegations relate to matters which arose whilst the applicant was performing work at the Mercy Hospital for Women.
[4] The second application (AB2025/1025) identifies the applicant's manager and an employee of the respondent as a person named who is alleged to have bullied the applicant. The allegations of bullying against the manager relate to the commencement and conduct of the "Managing Conduct and Performance" process as set out in clause 18 of the applicable enterprise agreement, being the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021 - 2025 (the Enterprise Agreement).
[5] The respondent denies the applicant's allegations of bullying and maintains that each of the two persons named have acted fairly and reasonably in their respective dealings with the applicant.
[6] Section 789FF of the Act sets out the jurisdictional prerequisites for the making of a stop bullying order. Section 789FF is in the following terms:
(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
[8] The anti-bullying applications were initially before the Commission for a conference. However, the matters did not resolve and were jointly listed for hearing on 5 March 2026. By way background and relevant to a submission the applicant makes in the present matter, I note that he has also filed a non-dismissal general protections application in the Commission under s 372. That application is listed for conference before the Commission, also on 5 March 2026.
[9] On 20 February 2025, the respondent informed the Commission by email that the applicant's employment with the respondent had been terminated effective 16 February 2026. In the same communication the respondent applied to have the applications dismissed on the basis that there is no risk that the applicant will continue to be bullied in the future by the individuals named in his applications. The respondent referred to and relied upon a previous decision of the Commission in Application by Vanessa Stewart [2020] FWC 4562 (Stewart). The respondent's email was copied to the applicant and attached (in support of the dismissal application) a copy of a letter of termination dated 16 February 2026.
[10] The letter of termination dated 16 February 2026 discloses that the respondent terminated the applicant's employment effective immediately. The letter of termination referred to misconduct allegations made against the applicant under clause 18 of the Enterprise Agreement and to previous correspondence dated 2 January 2026 and 6 February 2026.
[11] On 20 February 2025, the applicant sent an email in reply to the respondent's application for the dismissal of his s 789FC applications. The applicant submitted that he had been dismissed by the respondent and sought to distinguish Stewart on the basis that he had been dismissed whereas the applicant in the Stewart had resigned. The applicant foreshadowed an unfair dismissal application and asserted a belief that he been dismissed for a prohibited reason of exercising a workplace right. The applicant opposed the dismissal of his s 789FF applications and referred to a "status quo" referrable to a non-dismissal general protections application under s 372.
[12] On 23 February 2026, my Chambers emailed the parties providing them an opportunity to put any further submissions as to whether the applications should be dismissed on the basis sought by the respondent. This email indicated to the parties that I was considering whether or not to dismiss the applications. It further stated that, after the parties had been given an opportunity to put any further submissions, I intended to decide whether or not to dismiss the applications on the papers.
[13] On 24 February 2025, the applicant sent an email to the Commission attaching 30 documents. The applicant's covering email noted that that his work email access had been blocked by the respondent but that he has attached documents to "reflect the factual background of the matters". It is apparent that the documents submitted by the applicant include documents relating to the applicant's allegations that he has been bullied at work, aspects of the clause 18 processes under the Enterprise Agreement and reports he has made to WorkSafe Victoria (the relevant work health and safety regulator).
[14] On 24 February 2025, the respondent filed a further submission the effect of which was that the cessation of the applicant's employment meant that the Commission should not be satisfied of the jurisdictional pre-requisite provided by s789FF(1)(b), that being that 'there is a risk that the worker will continue to be bullied at work by the individual or group'. The substance of the respondent's submissions was that the cessation of the applicant's employment meant that none of the persons named can or could bully the applicant at work as they no longer worked with or manage the applicant.
[16] I move now to consider whether or not I am satisfied of the 'future risk' element in both of the applicant's s 789FF applications. Having regard to the terms of the applicant's s 789FF applications and the submissions and documents relied upon by the parties as set out above, I am not satisfied that there is a risk that the applicant will continue to be bullied at work by either of the persons named. The applicant has been terminated effective 16 February 2026. He is no longer employed by the respondent. The substance of his bullying allegations against the manager relates to a performance process in 2025. The substance of his allegations against the other employee relates to interactions between that employee and the applicant at the workplace during the course of the applicant's duties in 2025. Clearly, the termination of the applicant's employment gives rise to a conclusion that there can be no continuing bullying conduct of such nature or indeed of any other nature by the persons named. In making this observation, I make clear that I have not made any finding whatsoever that the applicant has been bullied at work by the persons named. As I have noted above, the respondent maintains that those two persons have acted fairly and reasonably and I have not made any decision that the applicant's allegations of past bullying have any substance.
[17] The applicant refers refer to a "status quo" referrable to his non-dismissal general protections application under s 372 as a reason that his s 789FF applications should not be dismissed. This is no such 'status quo" obligation which attaches to a s 372 application. This submission has no persuasive force.
[18] The applicant seeks to distinguish the Stewart case on the basis that the applicant was dismissed while Ms Stewart resigned. There is no proper foundation of the applicant's submission. The relevant point is that the applicant's employment with the respondent has ceased and he is no longer working with either of the persons named. The mode by which the applicant's employment came to an end, whether it be dismissal or resignation, is not material.
[19] The applicant foreshadows another application in the Commission in the nature of an unfair dismissal application and refers to his dismissal as being for a prohibited reason. The mere foreshadowing of an unfair dismissal application or an alleged contravention of the general protections does not provide a proper basis for me to be satisfied that there is a risk that the applicant will continue to be bullied at work.
[20] As noted above, the applicant has supplied a range of documents to the Commission under cover of his email dated 24 February 2026. I have reviewed those documents, and nothing in those documents causes me to be satisfied that the applicant will continue to be bullied at work given that his employment has ceased.
[21] In light of the above matters, I am not satisfied of the jurisdictional element in s 789FF(1)(b)(ii) and consequently I conclude that the Commission has no jurisdiction to make a stop bullying order under s 789FF.
[22] I dismiss both of the applicant's applications made under s 789FF in matters AB2025/947 and AB2025/1025.
[2] See Joseph Osure v National Disability Insurance Agency [2025] FWCFB 168 at [42].
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(2019) 289 IR 105