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

Application for orders to stop bullying - applicant dismissed from employment - whether there is a risk that employee will continue to be bullied at work - application under s.587 - whether application has reasonable prospects of success - hearing vacated - parties directed to advise as to status of any other related proceedings

• [1] The applicant in this matter, Mr Oliver Anthony, has applied to the Fair Work Commission (Commission) for orders to stop bullying which Mr. Anthony has claimed has occurred in his workplace whilst he was employed by the respondent, the Belfield Bowling and Recreation Club Ltd (Respondent, or Club). The application is made under Part 6-4B of the Fair Work Act 2009 (Cth)(Act). The application identifies Mr. Paul Wilson, one of the Club's directors, as having engaged in bullying behaviour towards Mr. Anthony.

• [2] For present purposes it is unnecessary to traverse the background to the matter in great detail other than to say that there have been a number of conferences held in attempt to resolve the matter which have ultimately proved to be unsuccessful. Directions have been made for the filing of material by the parties and the matter is presently listed to be heard on 3 July 2025.

• [3] On 20 June 2025, the Club terminated the Applicant's employment on grounds of redundancy. Since then, the Club has filed an application asking that the application be dismissed under s.587(1)(c) of the Act. That section provides that the Commission may dismiss an application if the application has no reasonable prospects of success. The Club contends that in the absence of the ongoing employment of the Applicant by the Club, the Commission cannot be satisfied that there is a risk that the Applicant will continue to be bullied at work as is required by s.789FF(1)(b)(ii) of the Act. An order of the kind sought by the Applicant cannot be made in the absence of the Commission being satisfied that such a risk exists.[1]

• [4] The Applicant opposes the application for the matter to be dismissed and vigorously contests the circumstances in which his employment was brought to an end.

• [5] In circumstances in which there is no employment relationship in existence and no reasonable prospect of that employment resuming in the future there could not be a risk of Mr. Anthony being bullied at work in the future even if he had been bullied in the past.[2] In that case an application could not succeed and would ordinarily be dismissed upon application.

Where a dismissal with an apparent connection to an application for orders to stop bullying is being actively contested the Commission has previously determined that it may be appropriate to hold the bullying matter in abeyance whilst the dismissal-related proceedings are dealt with.[3] In the current situation, although there are, insofar as I am presently advised, no other proceedings underway in relation to the Applicant's dismissal, I note that the Applicant has indicated that he actively disputes the circumstances of his dismissal. Although the prospect of other related proceedings is speculative at this stage, I am conscious that any proceedings which may be initiated by the Applicant may have a bearing on the likelihood of the employment resuming in the future. I also note that even if the present application were dismissed at this stage it may be open to the Applicant to recommence proceedings under Part 6-4B in the event that any related proceedings had a bearing on the Applicant's re-employment. I consider that the appropriate course in the circumstances is to postpone consideration of both the main proceeding and the application under s.587. I therefore propose to vacate the current listing on 3 July 2025 and direct the parties to provide an update as to whether there are any other related proceedings on foot involving the Applicant and the Club within 14 days from today's date.

[1] Shaw v. Australia and New Zealand Banking Group Ltd [2014] FWC 3408 at [15].

[2] Cox v. Tweed Health for Everyone Pty Ltd [2018] FWCFB 3758 at [19].

[3] Re PK (20150 FWC 562 and Re DQ [2019] FWC 4530.

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