Mr Tony Orr [2026] FWC 415 (10 February 2026)

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

Application for an FWC order to stop bullying - Applicant not at risk of further bullying - application dismissed under s.587(1)(c)

[1] Mr Tony Orr (the Applicant) made an application to the Fair Work Commission (the Commission) on 18 October 2025, seeking orders to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). The Applicant named Mr Fielding Reid in the application (Person Named). Mr Fielding was the Applicant's supervisor at Coles at Goondiwindi.

[2] I listed the matter for a conciliation conference on 21 November 2025. In the conference, I was informed that Mr Fielding's secondment at Goondiwindi would soon end and that he would return to a store on the Gold Coast. Additionally, the Applicant was on medical leave and was unlikely to return to the Goondiwindi store before Mr Fielding's secondment ended. In the circumstances, I vacated the directions for a hearing and advised the parties that I would seek an update in the new year.

[3] On 22 January 2026, my Chambers emailed the parties to confirm if the Applicant and Person Named were still working in the same workplace. All parties confirmed that the Person Named had transferred to a different store on the Gold Coast.

[4] On 30 January 2026, my Chambers emailed the parties advising that, pursuant to s.789FF(1) of the Act, the power to make orders is limited to "prevent the worker from being bullied at work by the individual or group." The correspondence also noted my provisional view that there was no present risk of bullying by the Person Named considering he had transferred to the Gold Coast. Parties were advised that I was considering dismissing the application under s.587(1)(c) and the Applicant was directed to advise Chambers why the application should not be dismissed by close of business, Wednesday, 4 February 2026.

[5] The Applicant did not file any additional material or respond to the correspondence.

[6] Section 789FF(1) of the Act relevantly provides:

(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."

[7] Section 587 relevantly provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 - 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

[8] The Full Bench decision of Osure v Zoe Honner & National Disability Insurance Agency and Another [2025] FWCFB 168 provides assistance on when the Commission may dismiss a bullying application even though the Applicant and named individual are still employed. In her decision of Joseph Osure [2025] FWC 1346, Deputy President Millhouse found that there was no future risk of bullying notwithstanding that the Applicant continued to be employed. The Deputy President reached this conclusion because the organisation had undergone a restructure which meant the Applicant and the Persons Named were now physically separate. The Full Bench upheld the Deputy President's decision on appeal and made the following observations:

[37] We have previously set out the terms of s789FF of the Act. In applying that provision, the Commission has previously found:

(a) Both limbs of s789FF(1) must be met for the Commission to consider the exercise of the discretion to make an order to stop bullying. If the second limb of s789FF(1)(b) (the existence of future risk of relevant bullying) is not and will not be met, then an application for an order to stop bullying cannot succeed.

(b) An order under s789FF operates prospectively and is directed at preventing the applicant worker from being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.

(c) The Commission is given wide powers to make such preventive orders as it considers appropriate. The exercise of those powers must be informed by, but are not necessarily limited to, the workplace bullying found to have occurred. Orders must be directed towards the prevention of the applicant worker being bullied at work in the future by the individual or group of individuals concerned, be based upon appropriate findings, and have regard to the considerations established by s789FF(2) of the Act.

(d) Section 789FF does not limit the persons against whom orders can be made. The Commission may at least make orders directed to the behaviour of individuals found to have engaged in workplace bullying as well as their respective employer(s)/principal(s).

(e) The assessment under s789FF(1)(b)(ii) is based on a consideration as to whether there is a present risk that relevant bullying will continue at the time the application is being considered by the Commission and, if there is not, whether the Commission is satisfied that those circumstances will not change in the foreseeable future.

(f) The Commission must be satisfied that there is a real (and not simply conceptual or hypothetical) risk

[40] In Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica [2019] FWCFB 2771; (2019) 289 IR 105 (Mekuria), in dealing with an appeal from a decision where the Commission had dealt with both aspects of s789FF(1) together, the Full Bench stated:

[29] Apart from the requirement for an application to have been made under s 789FC, s 789FF(1) establishes two prerequisites: first, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals and, second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. The use of the definite article in s 789FF(1)(b)(ii) in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals considered for the purpose of s 789FF(1)(b)(i). That is, it is not sufficient to satisfy the second condition in s 789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s 789FF(1)(b)(i).

[41] Although the stop-bullying provisions in the Act are cast broadly and permit orders to be made which operate with respect to persons other than the individuals named in an application, the future risk element of s789FF(1)(b)(ii)is narrowly defined by the legislation. The Commission can only make orders under s 789FF(1) if it is satisfied that there is a risk the worker will continue to be bullied by the individual or group of individuals it is satisfied have bullied the worker in the past. This has an undeniable impact on the capacity for the Commission to address bullying in the workplace more generally. However, that is a matter for Parliament.

[42] The second issue raises what we consider is properly a matter of discretion. The Commission is not required in all cases to determine both elements of s789FF(1)of the Act. Whether it is appropriate to deal with the future risk element as a threshold matter will depend upon the circumstances of each case. It will not always be appropriate to deal with the future risk as a preliminary issue, particularly where findings are being made in the context of ongoing working relationships where the applicant worker and the relevant individuals continue to work for the employer/principal concerned. In those circumstances, significant caution should be exercised before a member of the Commission adopts the course of determining whether there is a risk a worker will continued to be bullied without fully considering the past allegations of bullying behaviour.

[43] In some cases, it will be important to understand and make findings about the existence and nature of any bullying conduct in order to properly assess whether there is a future risk. The nature of the bullying, and those responsible for or involved in the relevant conduct, might only be fully revealed upon the hearing of evidence in relation to past conduct. In other cases, the scope of the alleged bullying may be clear, and the remedial actions taken, or change in circumstances, clear enough that it would be reasonable to deal with the future risk issue as a preliminary point. In making that assessment, the purpose of the provision, namely, to make orders where appropriate to prevent future relevant bullying conduct, should be considered. If that outcome has already been achieved, orders cannot be made.

[44] Another reason for caution in dealing with the future risk issue as a preliminary point where the applicant worker and the named persons continue in the workplace, is that identified by the Full Bench in Mekuria:

[33] It may be accepted that anti-bullying matters may not necessarily proceed upon a fixed and static set of bullying allegations and that, somewhat like an industrial dispute, they may involve an ongoing and evolving workplace situation. This is more likely to be the case where the bullying allegations are made against a group of persons at the workplace, since this will involve the dynamic of a network of inter-relationships with the capacity to give rise to new developments operating conterminously with the conduct of the proceedings in the Commission. However, we do not consider that is the situation that confronted the Commissioner. As we have stated, the proceedings went forward entirely on the basis of bullying allegations against a clearly identified group of individuals, and Mecca responded to the case on this basis. ... ...But more importantly Ms Mekuria's application for orders to stop bullying by Ms Kelso, Ms Mantacas or Ms Chiruvu was never sought to be amended in any appropriate or procedurally fashion. The most that could be said is that one of the letters sent to the Commissioner on the morning of the hearing, as we have earlier set out, sought some new orders against her "supervisor and manager". We do not consider that it is reasonably arguable that the Commissioner should in the circumstances have entertained this as an amendment to the application (nor is any such proposition specifically adverted to in the amended appeal notice). As the Commissioner appropriately observed, Ms Mekuria's new allegations could be addressed via a fresh and separate anti-bullying application if they are seriously to be pursued

[9] I note the assessment of future risk is conducted based on circumstances existing at the time of the Commission's assessment of the application. The Commission must also be satisfied that those circumstances will not change in the foreseeable future.

[10] The Applicant and Person Named are now separated by approximately 400 kilometres. Given the Person Named is now no longer working in the physical workplace of the Applicant, nor supervising the Applicant, I am satisfied that there is no risk of bullying by the named individual at present or in the reasonably foreseeable future.

It is appropriate to exercise my discretion to dismiss the application. I Order accordingly.

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