Toma v Commissioner of Police & Ors [2026] NSWIRComm 1057 | Case summary | Zoe

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Toma v Commissioner of Police & Ors [2026] NSWIRComm 1057 | Case summary | Zoe

The Respondents rely upon a number of decisions cited in their written submissions and, in addition, upon the decision of Michelle Shamoell v Excelsia University College [2026] FWCFB 122 (Shamoell), a copy of which was provided to the Commission at the interlocutory hearing.
Broadly, the Respondents advance two principal submissions in support of the Notice of Motion:
First, the Respondents submitted that the Commission lacks jurisdiction because the conduct relied upon by Mr Toma occurred prior to the commencement of Chapter 3A, Part 1 of the IR Act (Chapter 3A) on 13 October 2025. They submitted that conduct predating the commencement of Chapter 3A cannot satisfy the requirement in s 144G(1)(a) of the IR Act that an employee "has been bullied at work" or otherwise enliven the Commission's jurisdiction. In oral submissions, the Respondents accepted that pre-commencement conduct may be considered in assessing future risk but maintained that it cannot itself ground liability under Chapter 3A.
In the alternative, the Respondents submitted that there is no risk that Mr Toma will continue to be bullied at work within the meaning of s 144G(1)(b) of the IR Act. They submitted that the requirement is a jurisdictional precondition and that it is open to the Commission to deal with the matter as a threshold issue.
In support of their position, the Respondents relied upon the distinction between legislation that uses past events as the basis for the making of prospective protective orders and legislation that attaches legal consequences to past conduct. They submitted that the inclusion of a power to award compensation under s 144G(3) of the IR Act indicates that the scheme established by Chapter 3A falls within the latter category and thereby engages the presumption against retrospective operation. In support of their reliance upon the presumption against retrospective operation, they relied upon Grant v Commissioner of Police (No 2) [2025] NSWIRComm 1060 (Grant).
The Respondents further submitted that, in the absence of any authority concerning the operation of Chapter 3A, decisions concerning the federal stop bullying jurisdiction provide the closest analogous authorities. They relied, in particular, upon Ms Kathleen McInnes [2014] FWCFB 1440 (McInnes), Shamoell*,* Joseph Osure v National Disability Insurance Agency [2025] FWCFB 168 (Osure) and Ms Aferdita (Rita) Shehu [2020] FWC 4544 (Shehu).
The Respondents submitted, however, that the statutory scheme established by Chapter 3A is materially different from the stop bullying jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). In particular, they submitted that, unlike the FW Act, the IR Act permits the award of compensation for loss or damage arising from bullying. They contended that this distinction was critical and meant that the reasoning in McInnes should not be applied to the construction of Chapter 3A in relation to conduct occurring prior to 13 October 2025.
Secondly, and in the alternative, the Respondents submitted that there is no risk that Mr Toma will continue to be bullied at work within the meaning of s 144G(1)(b) of the IR Act. It was submitted that this requirement is directed to a present and real risk, and not a merely theoretical or speculative possibility once he returns to work.
The Respondents further submitted that the continued existence of warnings, cautions, disciplinary records and related management records did not, without more, constitute bullying conduct within the meaning of s 144C of the IR Act. They contended that any future risk said to arise from the existence of those records was merely conceptual or hypothetical and did not establish a real risk of continued bullying.
The Respondents relied upon Mr Toma's prolonged absence from the workplace, his current lack of capacity for work and the absence of any alleged conduct during that period of absence, including during a brief return to duties in or about February 2026. It was submitted that Mr Toma was not presently fit for work, that there was no medical evidence indicating a capacity to return to work in the foreseeable future and that the medical restrictions upon his employment had remained in place for a significant period.
In Shamoell*,* the Full Bench of the Fair Work Commission held that it was an error to summarily dismiss an application for a stop bullying order on the basis that the applicant was unfit for work where medical evidence supported a prospective return to work, including a return contingent upon the resolution of workplace conflict. The Respondents submitted that the present case was distinguishable because Mr Toma had produced no medical evidence indicating a capacity to return to work in the foreseeable future.
In those circumstances, the Respondents submitted that the application is premature and that a stop bullying application could only properly arise if, and when, Mr Toma's medical capacity changes and he returns to work and is subjected to alleged bullying conduct. They submitted that, on the present material, the statutory preconditions are not satisfied.

Mr Toma relies upon his submissions dated 20 May 2026 and his statement, dated 19 May 2026, together with annexures.
The submissions of Mr Toma, broadly summarised, are as follows:
He submits that the jurisdiction conferred by s 144G of the IR Act is protective in nature and directed to the prevention of future bullying. Past conduct, including conduct occurring prior to the commencement of Chapter 3A, may be taken into account in assessing whether there is a risk of future bullying. He further submits that s 144G(1)(a) of the IR Act contains no temporal limitation upon the conduct capable of being considered.
Mr Toma submits that, notwithstanding his absence from the workplace, he remains employed and subject to the Respondent's management structure. If he were to return to work as a special constable, as he hopes to do, he would be required to work within the same command structure and under the same management identified in his application. He further submits that, consistently with McInnes, pre-13 October 2025 conduct may be considered in assessing future risk and that Shehu is distinguishable because he is not permanently and totally incapacitated and is involved in a return-to-work process.
He further submits that, during an earlier attempt to return to work in or about February 2026 in a different area of the NSW Police, his condition deteriorated and he remained subject to the same management structure, including receiving ongoing communications from that command.
Mr Toma also submits that the risk of bullying is not confined to physical attendance at the workplace but may arise in connection with ongoing processes, including the maintenance of records and the exercise of managerial authority during periods of absence.
In relation to his capacity for work, Mr Toma submits, in substance, that his current incapacity is attributable to the alleged bullying and his work circumstances, and that any capacity to return to work depends upon the circumstances and conditions under which that return occurs.
Mr Toma submits that his present absence from work does not negate the existence of a continuing risk. He contends that his incapacity and absence are themselves consequences of the alleged bullying and that there remains an active and ongoing process directed towards a return to work.
Mr Toma submits that the application should not be dismissed on an interlocutory basis and that the issues raised by the Notice of Motion should be determined at a full hearing on the evidence.

The authorities relied upon by the Respondents in relation to jurisdiction and future risk have been considered.
The Respondents' jurisdictional argument is founded upon the presumption against retrospective operation. They submitted that, unlike a purely preventative scheme, the inclusion of a power to award compensation under s 144G(3) of the IR Act demonstrates that Chapter 3A is capable of attaching legal consequences to past conduct. On that basis, it was contended that conduct occurring prior to the commencement of Chapter 3A cannot satisfy the requirement in s 144G(1)(a) of the IR Act that an employee "has been bullied at work" and therefore cannot enliven the Commission's jurisdiction under that provision.
Chapter 3A differs in some respects from the stop bullying jurisdiction under the FW Act. In particular, the availability of compensation under s 144G(3) of the IR Act distinguishes the State regime from the federal jurisdiction. That distinction must be recognised when considering authorities decided under the FW Act. Nevertheless, both statutory schemes are directed, at least in substantial part, to the prevention of workplace bullying and the protection of employees from future harm.
I have considered the Respondents' reliance upon Grant. In my view, Grant is not determinative of the present issue. The proceeding in that case concerned a claim of victimisation under s 213 of the IR Act, rather than an application under Chapter 3A. The statutory context was therefore materially different. Whilst the observations in Grant concerning the presumption against retrospective operation are relevant, the decision does not resolve the proper construction of Chapter 3A, nor whether pre-commencement conduct may be taken into account in assessing whether the requirements of s 144G of the IR Act have been satisfied.
The Respondents relied upon Shamoell and Osure in support of the proposition that the requirement in s 144G(1)(b) is directed to a real and present risk of future bullying and that, in an appropriate case, that question may be determined as a threshold issue. In Osure, changes in the workplace circumstances were found to bear materially upon the assessment of future risk.
More generally, I have had regard to the Fair Work Commission authorities relied upon by the Respondents. While those decisions are not binding upon the Commission, they provide some assistance in considering the operation of a statutory jurisdiction directed to the prevention of future workplace bullying. However, the IR Act must ultimately be construed according to its own text, context and purpose.
The Respondents' submissions raise two related questions. The first is whether conduct occurring prior to the commencement of Chapter 3A may be taken into account for the purposes of s 144G(1) of the IR Act. The second is whether Mr Toma's present absence from work, together with the absence of medical evidence indicating a capacity to return to work in the foreseeable future, necessarily precludes satisfaction of the requirement that there be a risk that he will continue to be bullied at work.
In considering those questions, it is necessary to have regard to the terms of s 144G(1) of the IR Act. The power conferred by s 144G(1) arises only where the statutory requirements in that provision are satisfied, including the requirement that there be a risk that the employee will continue to be bullied at work. That requirement is directed to the likelihood of future conduct occurring.
The expression "has been bullied at work" in s 144G(1)(a) is framed in the past tense and is not accompanied by any express temporal limitation. The provision does not, on its face, confine consideration to conduct occurring after the commencement of Chapter 3A.
While s 144G(3) of the IR Act includes a power to award compensation, that power is only enlivened where the requirements of s 144G(1) are first satisfied. The existence of a compensatory remedy forms part of the broader remedial framework established by Chapter 3A. However, it does not displace the forward-looking requirement that there be a risk of continued bullying.
The Respondents submitted that McInnes should not be applied because Chapter 3A, unlike the FW Act regime considered in that case, permits the award of compensation. I accept that this is an important point of distinction. However, the power in s 144G(3) is only available if the requirements of s 144G(1) are first satisfied. For those reasons, I am not persuaded that the existence of that remedy, of itself, supports the conclusion advanced by the Respondents on this interlocutory application.
Having regard to the text and structure of the provision, I am not persuaded, for the purposes of determining the present interlocutory application, that conduct alleged to have occurred prior to the commencement of Chapter 3A is incapable of satisfying the requirements of s 144G(1) of the IR Act. Nor am I persuaded that the availability of compensation under s 144G(3) of the IR Act, of itself, requires a contrary conclusion.
I accept that in an appropriate case the requirement in s 144G(1)(b) of the IR Act, namely whether there is a risk that the employee will continue to be bullied at work, may appropriately be considered as a threshold issue. For the reasons that follow, I am not satisfied that the requirement is incapable of being met on the present material.
The position in relation to future risk is more finely balanced. The Respondents' submissions concerning Mr Toma's present absence from work, the state of the medical evidence and the absence of any identified return-to-work date are not without force. Those matters warrant careful consideration. However, they do not, in my view, presently justify the summary disposition of the application.
In that regard, the authorities relied upon by the Respondents, including Shamoell and Shehu, do not establish that the requirement in s 144G(1)(b) cannot be satisfied merely because an employee is not presently at work. The material before the Commission does not establish that Mr Toma's incapacity is permanent or that the possibility of a future return to work can presently be excluded. Whether there is a real risk that Mr Toma will continue to be bullied at work remains a matter requiring determination on the evidence.
Mr Toma's case is advanced on the basis that his capacity for work is closely connected with the circumstances in which any return to work might occur. Whether that position can ultimately be sustained is not a question that can appropriately be determined on this interlocutory application.
The present question is not whether Mr Toma will ultimately establish the requirements of s 144G(1) of the IR Act, but whether it is sufficiently clear that those requirements are incapable of being satisfied. The Commission is not a court of strict pleading. Bearing in mind the caution that ordinarily attends the summary disposition of proceedings, I am not so satisfied.
The Notice of Motion is therefore dismissed.