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

Mr Leigh Grant, Grace MacLeod, Eastern Electrical Solutions

Application for an FWC order to stop bullying; Applicant resigned employment; Respondent sought matter be dismissed - s 587 - matter dismissed

• [1] On 10 September 2025, Mrs Rebecca Semple made an application pursuant to s 789FC of the Fair Work Act 2009 (the Act) seeking orders to stop bullying at work. The application is directed against Eastern Electrical Solutions (EES) and several named persons.
• [2] The application was allocated to my chambers on 23 September 2025, and I listed the matter for a case management hearing to occur on 2 October 2025.
• [3] On 30 September 2025, my chambers received an email from Mrs Semple in which she said "could we please reschedule? I have an appointment for my newborn which I can't change". My chambers responded to this email directing Mrs Semple to make her request in accordance with instructions set out in a Notice of Listing previously sent to her and advising that if this did not occur, that that the case management hearing would proceed as listed.
• [4] My chambers has received no further correspondence or contact from Mrs Semple.
• [5] On 1 October 2025, my chambers received an email on behalf of EES which said:

"Please note that the Applicant resigned from her job with Eastern Electrical Solutions Pty Ltd on 12 September 2025. That resignation has been accepted by the company and Mrs Semple is collecting her belongings from the company's premises by mutual arrangement at 11.30 am on 3 October 2025. Attached is a copy of her resignation letter."

• [6] The letter attached to this email, dated 20 September 2025, appeared to have been sent by Mrs Semple, and said she was writing to "formally resign from my position".
• [7] A case management hearing occurred on 2 October 2025. There was an appearance for EES and the named persons but no appearance for Mrs Semple. At the appointed time, my chambers sent an email to Mrs Semple reminding her to join the hearing, to which there was no response.
• [8] During the hearing, EES submitted the application should be dismissed. It said that Mrs Semple had resigned her employment and was collecting her belongings from the workplace the following day. It said that Mrs Semple is presently on maternity leave. It denies the allegations made by Mrs Semple in respect to bullying at work, but submitted that, in any event, in the circumstances, the Commission cannot be satisfied that there is a risk the worker will continue to be bullied at work by an individual or individuals, and the application should be dismissed for want of jurisdiction.
• [9] Later, on 2 October 2025, an email issued from my chambers to Mrs Semple which confirmed EES seeks the application be dismissed. It outlined the basis of EES' position and Directed parties to file a short submission in respect to the proposition that Mrs Semple's application be dismissed. EES was to file its submission by 4:00PM that day, and Mrs Semple was to respond, if she wished to do so, by 4:00PM Monday 6 October 2025.
• [10] EES filed a short submission reiterating the submissions it made at the case management hearing. Mrs Semple has not responded or filed anything in reply.

• [11] Section 789FF of the Act says in part:

(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.

• [12] Thus, before making an order to stop bullying, the Commission must be satisfied of two matters: (a) that the worker has been bullied, and (b) that there is a risk it will continue.
• [13] A Full Bench of Commission recently provided guidance as to the correct approach to the second of those two matters - the "future risk" consideration. It said:

"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."[1]

• [14] The submissions made by EES in this matter, which are not responded to or contradicted by Mrs Semple, plainly urge that this is a case in which the change in circumstances is clear enough - those being that Mrs Semple no longer works for EES.
• [15] Section 587 of the Act 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

(b) the application is frivolous or vexatious; or

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

• [16] Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge2. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording applicant's procedural fairness (although without necessitating a hearing).
• [17] Similar caution was urged in a decision concerning circumstances not dissimilar to this one, in Mitchell Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines (ANZ)[2]. In that matter, the Commission considered where in an application for stop bullying orders concerning an employee whose employment had come to end, the Commission could be satisfied, taking into account the particular circumstances of the case, that the application had "no reasonable prospect of success" (within the meaning of s 587(1)(c) of the Act), because there was no "future risk" of continued bullying.
• [18] This is the approach I intend to adopt in this matter. I accept the submissions made by EES that Mrs Semple has resigned. On the papers, it is not possible to conclude there is a risk that Mrs Semple could continue to be bullied at work by an individual or group. There is no apparent basis upon which the Commission could make the Orders sought by the application.
• [19] I consider that Mrs Semple has been provided with procedural fairness, having been afforded several opportunities to explain her position to the Commission, including to provide a response to the assertions made by EES, none of which she has availed herself of.
• [20] Mrs Semple's application is dismissed, and an Order[3] will issue to that effect with this decision.

[1] Osure v National Disability Insurance Agency and Ors [2025] FWCFB168 [43]

[2] [2014] FWC 3408

[3] PR792453

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