Olga Illich [2026] FWC 776 (9 March 2026)

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

Application for an FWC order to stop bullying - Applicant's employment terminated by Employer/Principal - no further risk of bullying at work - application dismissed under s.587(1)(c)

[1] Mrs Olga Illich (the Applicant) made an application to the Fair Work Commission (the Commission) on 26 November 2025, seeking orders to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). The Applicant named Mr Geoffrey Illich in the application (the Person Named).

[2] I listed the matter for Hearing to be conducted on 11 March 2026. On 3 March 2026, the Applicant and her employer each wrote to my Chambers to advise that the Applicant's employment had been terminated on 26 February 2026.

[3] Later on 3 March 2026, my Chambers emailed the parties that I was considering dismissing the application, pursuant to s.587(1)(c) of the Act. The correspondence explained that I can only make orders if I am satisfied that, pursuant to s.789FF(1)(b)(ii) of the Act, there is a "risk that the worker will continue to be bullied at work by the individual or group." I expressed my view that, in light of the Applicant's termination of employment, that there is no continuing risk of bullying by the named individuals "at work". The Applicant was directed to provide reasons why the application should not be dismissed by close of business, 6 March 2026.

[4] On 5 March 2026, the Applicant acknowledged that her employment had ended and advised that she does not oppose the application being dismissed.

[5] 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."

[6] 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:

[7] The Full Bench decision of Greenan v BBV Legal Pty Ltd [2025] FWCFB 61 (Greenan) summarises the principles that apply to the consideration of whether to dismiss an application for a stop bullying order for under s.587(1)(c) of the Act:

[68] The following principles can be distilled from the cases. First, the decision of a Member of the Commission as to whether an application for a stop bullying order should be dismissed on the ground in s. 587(1)(c), is a discretionary decision. The fact that the employment of an applicant for a stop bullying order has been terminated, triggers the discretion. The Commission is then required to weigh relevant facts and circumstances to decide whether the discretion to dismiss the application should be exercised or the matter should be adjourned or held in abeyance, pending the outcome of any proceedings in which the applicant seeks reinstatement or re-employment. The Commission may consider whether the discretion in s. 587(1)(c) to dismiss the application for a stop bullying order should be exercised, on the application of any of the parties, or on the Member's own motion.

[69] Second, while the Commission has a wide discretion in terms of matters that may be included in a stop bullying order, the order must be directed at preventing identified bullying conduct from continuing. This is a limitation on an order, in the sense that the only remedy the Commission can impose on parties to an application under s. 789FC must be directed at maintaining a working relationship between them by removing future risk of bullying. When the relevant working relationship has ceased because the employment of the applicant for a stop bullying order has been terminated, an order will have no effect on the applicant unless and until the applicant is reinstated or otherwise returns to the workplace.

[70] Third, in circumstances the employment of an applicant for a stop bullying has been terminated before that application has been heard and determined, the Commission does not necessarily cease to have jurisdiction to continue to deal with the application. The jurisdictional prerequisites in s. 789FF(1) relate to the making of an order to stop bullying and not to other steps the Commission may take in dealing with an application such as informing itself of the matter under s. 590, or conducting a conference.

[71] Fourth, a decision to exercise discretion to dismiss an application for an order to stop bullying on the ground in s. 587(1)(c), is based on the Commission finding that it has no jurisdiction to make an order to stop bullying at that time because there is no present risk that bullying will continue, and that those circumstances will not change in the foreseeable future.

[72] Fifth, deciding whether to dismiss an application for a stop bullying order on the grounds in s. 587(1)(c), in circumstances where the applicant's employment has been terminated, does not require the Commission to undertake an assessment of the merits of an application that may have been made for a remedy for the dismissal. Issues relevant to whether the discretion to dismiss an application for a stop bullying order should be exercised in circumstances where the applicant's employment has ended, may include:

• whether an order can have efficacy in a practical sense, when an applicant is no longer employed in the workplace at which the bullying occurred or in proximity with the alleged bullies;
• the likelihood of those circumstances changing in the future;
• whether the applicant is actively pursuing a remedy for the dismissal which includes reinstatement as a possible outcome;
• whether, objectively, reinstatement is likely or merely speculative;
• the likely time frame that would be required for the applicant to pursue and achieve reinstatement having regard for steps the applicant has taken in this respect;
• the likely time that the stop bullying application would be adjourned if it was not dismissed;
• the effect on the applicant if the application for an order to stop bullying is dismissed;
• the effect of any adjournment on the employer and persons named;
• the possibility that there will be changes in the workplace in the period an application seeking reinstatement is being heard and determined, which may mitigate or remove a risk of future bullying conduct if the applicant is reinstated; and
• the ability of the applicant to bring a further application if the applicant is reinstated.

[73] Sixth, an important consideration in assessing the likely impact on an applicant is that the fact an application for a stop bullying order has been dismissed under s. 587(1)(c) in circumstances where the applicant's employment has been terminated, is not a bar to a future application for an order to stop bullying to be made, referring to the same circumstances. Accordingly, deciding to dismiss an application where the employment of an applicant has been terminated, does not remove or diminish the applicant's future rights to pursue an application for a stop bullying order on the facts as they existed when the earlier application was dismissed.

[74] Seventh, where the employment of an applicant for an order to stop bullying has been terminated prior to the substantive merits of the stop bullying application being heard and determined, a decision to dismiss the application under s. 587(1)(c), on the grounds that it has no reasonable prospects of success, is not based on any finding about the merits of the application. Rather, the decision is based on weighing the facts and circumstances existing at that time, including that the Commission cannot be satisfied that there is a risk that the applicant will continue to be bullied at work by the individual or group, because the applicant's employment has been terminated, and he or she is no longer in the workplace. As a result, an application for a stop bullying order that has every appearance of having reasonable prospects of success on substantive merit, may be dismissed under s. 587(1)(c) because the only remedy the Commission is permitted to grant by way of an order, is not available at that time or in the reasonably foreseeable future.

[75] Eighth, while it will not always be appropriate for the Commission to dismiss an application for a stop bullying order where the employment of the applicant is terminated and the applicant is seeking reinstatement, there are indications in the statutory provisions dealing with such orders, that deciding to hold a stop bullying application in abeyance in such circumstances, should be the exception rather than the rule. As the Full Bench in Re McInnes explained, the operation of an order to stop bullying is prospective, notwithstanding that it is based on past behaviour. Section 789FE requires that the Commission deal promptly with applications for stop bullying orders and by virtue of s. 789FE(2), that the Commission commence to deal with a stop bullying application within 14 days after the application is made. The note to that section makes clear that within the 14 days the Commission may start to inform itself under s. 590, conduct a conference under s. 592 or conduct a hearing under s. 593. Accepting that the term "start" applies to each of these courses of action, where the Commission decides to conduct a hearing, the timeframes for the parties to take preparatory steps such as filing and service of materials, would necessarily be short.

[8] I am satisfied that, as the Applicant's employment was terminated effective from 26 February 2026, there is no risk at present or in the reasonably foreseeable future that the Applicant will be bullied at work by the Person Named. Accordingly, I cannot make an order to stop bullying. Therefore, the application has no reasonable prospects of success under s.587(1)(c). It is appropriate to exercise my discretion to dismiss the application.

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