Fair Work Act 2009

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

Dr Patrick Coughlan, The Corporation of the Roman Catholic Diocese of Toowoomba - Catholic Schools

Application for an FWC order to stop bullying - no reasonable prospects of success - application dismissed under s.587(1)(c)

• [1] Mr Stephen Derek Joslin (Mr Joslin) made an application to the Fair Work Commission (the Commission) on 15 April 2025, seeking orders to stop bullying under s.789FC of the Fair Work Act 2009 (Cth) (the Act). The Applicant named Dr Patrick Coughlan (the Person Named) in his application as a person who had bullied him and named his employer as the Corporation of the Roman Catholic Diocese of Toowoomba - Catholic Schools (the Employer/Principal).

• [2] The matter was allocated to my Chambers on 21 May 2025, and a conference was scheduled for 5 June 2025. Mr Joslin sought to adjourn the conference. I was not satisfied that the conference should be adjourned based on the medical certificate provided. Mr Joslin did not attend the conference on 5 June 2025. As Mr Joslin did not attend, the matter was not able to be resolved in conference.

• [3] Following the conference, I requested that the parties report back to my Chambers by the end of July 2025. The employer noted that Mr Joslin was on sick leave and that the parties would meet once Mr Joslin was cleared to return to work.

• [4] On 22 July 2025, my Chambers received emails from both the Employer and Dr Coughlan's representatives stating that Mr Joslin had voluntarily resigned from his employment. Dr Coughlan's representatives stated:

The employer made unsuccessful attempts following the conference on 5 June 2025 to engage with the Applicant in relation to his fitness for work.

We are informed that the Applicant has voluntarily resigned from his employment. In the circumstances there can be no risk that the Applicant will continue to be bullied as alleged at work where the employment has come to conclusion. On that basis we seek an order pursuant to section 587(1)(c) of the Fair Work Act 2009 that the application be dismissed as it has no reasonable prospect of success.

• [5] On 23 July 2025, my Chambers sent the following email to the parties:

I note the Respondent has advised that the Applicant has resigned and is seeking that the matter be dismissed under s.587(1)(c) on the basis of no reasonable prospects of success.

The Respondent may file a Form F1 seeking an order dismissing the application.

It is a prerequisite to making a stop bullying order that there be "...a risk that the worker will continue to be bullied at work by the individual or group" (s.789FF(b)(ii)). If there is no such risk, the application will have no reasonable prospects of success as, even if past bullying is established, there is no future risk to allow for making a stop order.

The Deputy President requests the following information from the Applicant by close of business, 30 July 2025:

1. Whether the Applicant agrees that his employment has ended; and
2. Whether the Applicant contends that there is a continuing risk that he will be bullied at work by the person named; and
3. If the Applicant contends that there is a continuing risk, the basis upon which the Applicant makes that contention.

If Chambers does not receive a response by close of business, 30 July 2025, the Deputy President may dismiss the application on his own initiative for no reasonable prospects of success.

• [6] My Chambers did not receive any response to the email of 23 July 2025.

• [7] Section 587 of the Act 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 or 773, or an application under s527F 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 Greenan v BBV Legal Pty Ltd [2025] FWCFB 61 (Greenan) distils the relevant principles which apply to the consideration of whether to dismiss an application for a stop bullying order under s.587(1)(c) of the Act where the applicant is no longer employed:

[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.

• [9] I note the advice of both Dr Coughlan and the Employer that Mr Joslin has voluntarily resigned. Mr Joslin was given an opportunity to rebut that assertion, but he did not reply to the email of 23 July 2025.

• [10] I adopt the view of the Full Bench that whether to dismiss an application for a stop order is a discretionary decision and it is relevant to consider whether a stop order is "available at that time or in the reasonably foreseeable future."

• [11] I determine that it is appropriate to exercise my discretion to dismiss the application under s.587(1)(c) of the Act. That discretion has been enlivened because Mr Joslin is no longer employed by the Employer. I have not been informed of any circumstances which suggest that Mr Joslin is contesting that his employment has ended nor is there any evidence that Mr Joslin will seek to be re-employed by the Employer/Principal in the foreseeable future.

• [12] In exercising my discretion, I am mindful of the manner in which the Commission must perform its functions under s.577 of the Act. It would be unfair to require the Employer and Dr Coughlan to attend and prepare for a hearing for an application for which there is no risk of bullying at work in the reasonably foreseeable future.

• [13] It is appropriate to dismiss the application under s.587(1)(c) as the application has no reasonable prospects of success. I Order accordingly.

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