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

Application for an FWC order to stop bullying - where Person Named named no longer managing the Applicant - whether there is a risk that the Applicant will continue to be bullied at work - appropriate case to deal with future risk element as threshold issue - not satisfied of risk that the Applicant will continue to be bullied at work - application dismissed

• [1] Mr Munishvar Kumar has applied to the Commission for an order to stop bullying under s.789FC of the Fair Work Act 2009 (Cth).

• [2] The applicant is employed by Wyndham Destinations Asia Pacific Pty Ltd (the respondent) as a Chef de Partie. Mr Kumar is employed at a location in Torquay, Victoria.

• [3] In his application, Mr Kumar alleged bullying by his General Manager (the Person Named). The respondent denies that the applicant has been bullied and says that actions taken by the Person Named constitute reasonable management action.

• [4] A Determinative Conference listed for 3 July 2025 did not proceed because Mr Kumar indicated that he was not fit to attend. At a mention on 15 July 2025, the respondent indicated that the Person Named was no longer the applicant's manager as the Person Named was being transferred to a different position in New South Wales effective 25 July 2025

• [5] On 25 July 2025, the respondent filed a submission by letter setting out details of the transfer of the Person Named which was effective form 28 July 2025. In short, that submission confirmed that the Person Named was to be transferred to the position of Area General Manager in a region of New South Wales, a position which involves oversight of operations in that region. The submission further noted that the Person Named and the applicant are no longer located at the same location, do not have any professional interaction and there is no operational or reporting relationship between them.

• [6] On 1 August 2025, my chambers wrote to Mr Kumar noting the respondent's submission and advising that prima facie, there appeared to be no ongoing risk that he would continue to be bullied at work by the Person Named. I invited Mr Kumar to advise my Chambers whether he sought to press his application by 4pm on 8 August 2025.

• [7] On 6 August 2025, Mr Kumar advised the Commission that he did not wish to discontinue his application.

• [8] On 13 August 2025, I issued further Directions in relation to a threshold issue of a future risk of bullying by the Person Named. Mr Kumar filed a submission in relation to this issue. The respondent indicated that it did not wish to file any further material.

• [9] This Decision does not make any finding whether or not the applicant has been bullied at work by the Person Named. It deals only with the threshold issue of whether I can be satisfied that there is a risk that the applicant will continue to be bullied at work by the Person Named, given the transfer of the Person Named.

• [10] Section 789FC(1) of the Act provides as follows:

(a) while the worker is at work in a constitutionally - covered business:

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

• [11] Further, s. 789FF(1) sets out the circumstances in which the Commission may made a stop bullying order:

(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] 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.

• [13] In Joseph Osure v National Disability Insurance Agency & Ors,[1] A Full Bench of the Commission observed that as a matter of discretion, it is permissible in appropriate cases, to deal with the future risk element in s 789FF(1)(b)(ii) as a threshold matter. While caution must be exercised in doing so, I consider that this is an appropriate case to deal with the deal with the future risk element as a threshold matter. In that regard, I accept the matters set out in the respondent's submission that there is no ongoing working relationship between the Person Named and the applicant. This is because the Person Named has been transferred to the position of an Area Manager in New South Wales and is now responsible for operations in that region of New South Wales. Consequently, the Person Named and the applicant (who is employed in Torquay, Victoria) are no longer located at the same location, do not have any professional interaction and there is no operational or reporting relationship.

• [14] The applicant accepts that the Person Named has been transferred to a new role. However, the applicant submits that there is an ongoing risk that he will continue to be bullied by the Person Named despite the Person Named being transferred, on the basis that the Person Named has ongoing influence within the employer's organisation and that there is a likelihood that they will come into contact in the future. Further, the applicant submits that an alleged failure of management to intervene creates a real risk that the Person Named will continue to exercise influence and hostility to the applicant either directly or indirectly. I am not persuaded by these submissions. They amount to a submission that there is conceptual or hypothetical risk of bullying. It is well established that the requisite "risk" under s 789FF(1)(b)(ii) is one which is real and not simply conceptual or hypothetical.[2]

• [15] Therefore, I am not satisfied that there is an ongoing risk that the applicant will continue to be bullied at work by the Person Named. Accordingly, I dismiss the application.

[1] [2025] FWCFB 168.

[2] Application by L.P [2015] FWC 6602 at [189].

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