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

Application for order to stop bullying - Applicant absent from work and receiving workers compensation - considered Applicant's capacity for work - considered risk that worker will continue to be bullied at work - application to dismiss - whether appropriate to consider future risk as preliminary issue - application dismissed.

• [1] On 22 April 2025, Mrs Angelina Gimena (Applicant) filed an application to the Fair Work Commission (Commission) for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made seeking an order to stop bullying applying to KITAYA HOLDINGS PTY. LTD. Trading As Jessie McPherson Private Hospital (JMPH) (Employer) and a named person, Ms S Chand.

• [2] On receipt of the application, parties were directed by my Chambers to file relevant material and positions. The Applicant filed extensive submissions. The Employer and Ms Chand filed material indicating they denied the Applicant was bullied at work in opposition to an order being made.

• [3] On 26th May 2025, parties participated in a conciliation conference and the matter could not be resolved.

• [4] On 5 June 2025, the Applicant sent an email to the Commission advising she had been diagnosed "with a work-related mental health injury" and that she would subsequently lodge a workers compensation claim.

• [5] The Applicant has not been in the workplace to perform work since 1 June 2025.

• [6] On 11 June 2025, I sought clarification from the Applicant on how she would like to proceed with her application in the circumstances where she was not well enough to perform work. Mrs Gimena requested the matter be determined on the papers, based on the material provided to the Commission.

• [7] On 17 June, I sought the views of the Respondent on the Applicant's request the matter be determined on the papers. On 25th June, the Respondent indicated it disputed the evidence presented by the Applicant and opposed her request, seeking the matter be listed for a contested hearing.

• [8] In the circumstances, where the evidence of bullying was contested and the Applicant was not well enough to attend work or participate in a contested hearing, I sought a further update from both parties after a period of 6 weeks.

• [9] On 29th August, the Applicant provided me an update on her condition and advised she was on an extended period of sick leave that would be subject to the review of her treating practitioner at the end of September 2025. The Applicant reiterated her request that the Commission proceed to determine the matter on the papers. Further advising that she was seeking to exhaust her long service leave entitlements as part of her recovery and remain absent from work.

• [10] On 9th September, my Chambers sought the Applicant provide the Commission with a further update following her upcoming medical review at the end of September. I further advised the Applicant that if there is no clear indication of her returning to work in the foreseeable future, I would turn to consider if a risk of future bullying exits or an application by the Respondent to have her application dismissed. In the same correspondence I sought an update from the Respondent on the Applicant's request for an extended period of leave.

• [11] On September 10th, the Respondent advised my Chambers, reiterating its views that the matter needed to be determined by a contested hearing. The Respondent further advised that considering the Applicant's absence from work since 1 June 2025, it intended to seek confirmation of her fitness for work. The Respondent also requested the application be dismissed on grounds that there is no current, or future risk, of bullying in the workplace in circumstances where the Applicant was not at work and unable to indicate when she may be fit to return to work.

• [12] On the same day, the Applicant requested the matter be determined by way of contested hearing prior to 18th October 2025.

• [13] On September 12th, I wrote to both parties requesting an update from the Applicant on her independent health assessment scheduled for the end of September. I also requested the Respondent advise me of its position in relation to the Applicant's request for extended leave. Both updates where to be provided no later than 10th October 2025.

• [14] On 19th September, the Respondent advised my Chambers the Applicant's request of an extended period of leave, including long service and leave without pay, was not granted due to operational demands, staff shortages and considering the Applicant was in receipt of workers compensation payments for an injury unrelated to her bullying application. The same day, the Applicant advised my Chambers she was medically unfit for work, with a valid certificate of capacity, and was in receipt of workers compensation payments. The Applicant further identified the Respondent's refusal of her request for leave to be unfair and discriminatory.

• [15] On 29th September, the Applicant provided Chambers with an update on her recent medical assessment. The Applicant's update confirmed she was medically unfit to return to work from 1 October 2025 to 31 March 2026.

• [16] Considering confirmation of the Applicant's ongoing incapacity to return to the workplace until at least 31 March 2026, I determined it appropriate to consider the Respondent's request to dismiss her application.

• [17] On 16th October, I wrote to both the parties and indicated that considering the Applicant was unfit to return to work until after the 31st of March 2026, subject to any further submissions the parties may wish to make, I proposed to deal with the Respondent's application to dismiss the primary application on the material before the Commission. I also indicated I would receive any further evidence and submissions the parties wished to file with respect to the application to dismiss by no later than 24th October 2025.

• [18] Both parties provided further brief submissions and evidence in relation to the application to dismiss and the question of whether, having regard to the Applicant's incapacity to return to the workplace, there was any risk that the Applicant will continue to be bullied at work.

• [19] The Applicant opposed the application by the Respondent to have the matter dismissed. Her submissions were that her complaints of workplace bullying remained unresolved and concerns ongoing workplace conduct. That her treating practitioners support the resolution of her employment issues and that she believed progressing the matter would assist in her psychological recovery. Moreover, that she had recently been advised by the Respondent's insurer it had resolved to withdraw all suitable duties and that she needed to identify suitable alternative duties prior to a return to employment. The Applicant submitted this recent notification only added to her distress and uncertainty while she remained on approved workers compensation leave until 31 March 2026. Concluding, that her medical incapacity should not preclude the Commission considering her application on its merits.

• [20] The Respondent submitted that the Applicant had not attended work since 1 June 2025 and remained on workers compensation. That the Applicant remained unfit to return to work until 31 March 2026, and that it was not clear when the Applicant would return to work, if at all. Adding that the Applicant had requested a 12-month leave of absence to assist with her mental health. Further, that in light of information received from an independent medical assessment in relation to the Applicant's accepted workplace injury the Respondent had recently commenced an alternative employment process that would, if the Applicant was successful in finding an alternative role and well enough to return to work, would result in her working in a different workplace where it was unlikely she would have any contact with the Employer or named person.

• [21] On this basis, the Respondent's position is the application should be dismissed as the Commission can be satisfied there is no risk the Applicant will be bullied at work where she has been, and will continue to be, absent from the workplace for an extended period. Further, identifying previous decisions of the Commission supporting this conclusion,[1] and that the Commission has made clear the purpose of a stop bullying order is to operate prospectively (to stop bullying behaviour), not retrospectively (to write or address perceived wrongs) as sought by the Applicant.[2]

• [22] Section 789FF(1) sets out the circumstances that must be met in order for the Commission to consider whether it is appropriate to exercise the discretion to make a stop bullying order. It 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."

• [23] Both limbs of s789FF(1) must be met before an order can be made. The second limb in s789FF(1)(b) itself contains two preconditions. The first relates to the Commission's satisfaction that a worker has been bullied. The second relates to a risk that the worker will continue to be bullied at work. The Commission must be positively satisfied of both these matters before it can exercise its discretion to make an order. The second element in s789FF(1)(b) requires an assessment of the likelihood of some future conduct occurring.

• [24] In requesting that I dismiss the application, the Respondent is asking that the question of the risk of continued bullying be determined as a preliminary matter. The basis of this request is that in the absence of the Commission being able to be satisfied such a risk exists there would be no power to make an order, and the application could proceed no further.

• [25] In Osure v National Disability Insurance Agency and Ors,[3] a Full Bench of the Commission recently considered the circumstances in which it may be appropriate to deal with the "future risk" limb s.789FF(1)(b)(ii) separate from findings about the alleged bullying conduct. The Full Bench said:

"[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 s.789FF(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 relationship 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 continue 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 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 order where appropriate to prevent future relevant bullying conduct, should be considered. If that outcome has already been achieved, orders cannot be made."

• [26] I have considered all the evidence and circumstances of this case and determined that it is appropriate to consider the "future risk" aspect of the matter as a preliminary point. Primarily, this is because the Applicant's current medical condition, and the effect this condition has on her capacity to return to the relevant workplace, rather than a detailed assessment of what occurred previously, enables an assessment of future risk to be undertaken.

• [27] I accept the Applicant may well contend these matters cannot be separated. That it is the past conduct that has created her current medical condition and resulted in her incapacity to return to work. However, this is not the issue I am required to determine.

• [28] In this case, the Applicant has not attended the workplace since 1 June 2025 and is not medically fit to return to work until after the 31st of March 2026. Additionally, because of an unrelated injury for which the Applicant is in receipt of workers compensation payments for that will continue to 31 March 2026, in the event the Applicant is well enough to attend work after this time it is unlikely she will return to the workplace where the alleged bullying is said to have occurred. In these circumstances, it is possible to make a reasonable assessment of the future risk based on the Applicant's ongoing incapacity to attend work and the medical evidence that has been provided. If this matter were to be heard by way of contested hearing, as the Applicant requests, this assessment would still need to be undertaken. On the Applicant's own evidence of her medical condition, the situation is unlikely to be any different than present circumstances for some time.

• [29] In considering the application for the matter to be dismissed it is necessary to assess the things as they stand. The Applicant remains employed by the Respondent but has not worked or been capable of working since 1 June 2025. Based on current medical evidence, which the Applicant has provided and acknowledges, she will continue to be unable to return to work until after 31 March 2026. The Applicant is in receipt of workers compensation payments for an unrelated workplace injury. The Respondent has considered an independent medical report of the Applicant's compensable injury and determined to commence an alternative employment process to identify a suitable alternative role in the event the Applicant is well enough to return to work sometime in the future. In the event the Applicant is well enough to return to work sometime in the future, it is also likely the Applicant will return to a different section or workplace where she is unlikely to have contact with the person named. Considering this evidence in the circumstances of this case, in my view, I do not consider there to be a basis on which I can be satisfied there is a risk the Applicant will continue to be bullied at work because the Applicant is not at work and is not likely to return to work in the immediate future.[4] In these circumstances, I am unable to make an order, and the application should therefore be dismissed.

• [30] In reaching this conclusion, I have considered the Applicant's submission that proceeding with the application will aid her recovery and is supported by her treating practitioners. The Applicant takes this submission no further with respect to supporting medical evidence or further testimony. While I appreciate her desire for closure and redress, I do not consider these objectives within the remit of matters relevant to these provisions. Plainly, the prevention of future bullying as the Full Bench identified in Re McInnes.[5] I have also considered that it is conceivable the Applicant's condition may improve sometime in the future such that a return to the relevant workplace becomes a reality, or a real likelihood. Were that to occur, this decision to dismiss Mrs Gimena's application does not preclude her from making another application under s.789FC subject to the jurisdictional facts being established in relation to that application.

• [31] Accordingly, pursuant to the reasons outline above, this application is dismissed.

[1] [2020] FWC 4544.

[2] [2014] FWCFB 1440.

[3] [2025] FWCFB 168.

[4] Bigdeli [2024] FWC 2548 at [48], upheld in [2025] FWCFB 31.

[5] [2014] FWCFB 1440 at [9].

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