Application by Gong Summary

[2025] FWC 1842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Gong

(AB2025/354)

DEPUTY PRESIDENT DEAN

CANBERRA, 27 JUNE 2025

Application for an FWC order to stop bullying – application dismissed.

On 2 May 2025 Ms Gong (Applicant) made an application pursuant to s.789FC of the Fair Work Act 2009 seeking an order to stop bullying.

The matter was listed for conference on 23 June 2025. However, the conference did not proceed as the Applicant failed to attend. Multiple attempts to contact the Applicant were unsuccessful, and she did not respond to any correspondence from the Commission about her absence.
Later that day, the Commission wrote to the Applicant regarding her failure to attend the conference. She was directed to provide an explanation for her non-attendance. No response was received.

On 25 June 2025 further correspondence was sent to the Applicant providing a final opportunity to respond. The Applicant was required to reply by 26 June 2025 and was advised that in the absence of a response her application may be dismissed.

As at the date of this decision, no response or correspondence has been received from the Applicant.

Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

587 Dismissing applications

(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.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.

I am satisfied, on the basis of the Applicant’s failure to attend the Commission proceeding and her repeated failure to respond to Commission correspondence, that she has not demonstrated any intention to pursue her application. Accordingly, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Act.

An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of Gong, the applicant sought relief from the Fair Work Commission (FWC) against alleged workplace bullying by their employer, a private entity. The applicant contended that they had been subjected to a sustained pattern of aggressive and demeaning behaviour by a colleague, which created a hostile work environment. The dispute was adjudicated in the Fair Work Commission, which has jurisdiction to address workplace bullying claims under the Fair Work Act 2009.

The primary legal issue before the FWC was whether the applicant had established a prima facie case of workplace bullying as defined by the Act. This required the applicant to demonstrate that they had been subjected to repeated unreasonable behaviour in the workplace that a reasonable person, having regard to all the circumstances, would have identified as bullying. The applicant had to show that the alleged behaviour was unreasonable and that it created a risk to health and safety. The respondent argued that the conduct did not constitute bullying and was instead a result of legitimate workplace dynamics.

The FWC found that while the applicant had described several instances of behaviour that could be perceived as negative or confrontational, there was insufficient evidence to conclude that the behaviour amounted to bullying. The FWC held that the incidents, when considered in the context of the overall workplace environment, did not reach the threshold of unreasonable behaviour necessary to constitute bullying under the Act. The Commission noted that the applicant had not demonstrated a clear and sustained pattern of behaviour that would justify an inference of bullying. As a result, the application was dismissed.

No further orders were made by the Commission. The dismissal of the application signifies that the applicant must seek other remedies for the workplace issues they have experienced, such as internal dispute resolution processes or external legal action, if they consider the matter appropriate.

Application by Gong

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established