Application by Hojat Alizadeh Sabeti - [2025] FWC 1308

[2025] FWC 1308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Hojat Alizadeh Sabeti

(AB2025/5)

COMMISSIONER TRAN

MELBOURNE, 12 MAY 2025

Application for an order to stop bullying – application to dismiss under s 587 – whether application has no reasonable prospects of success – whether there is a risk that the applicant will continue to be bullied at work – application dismissed

On 3 January 2025, Mr Hojat Sabeti applied for orders to stop bullying at work under section789FC of the Fair Work Act 2009(Cth).

Mr Sabeti’s employer is Coles Supermarkets Australia Pty Ltd. Mr Sabeti says that he was bullied by Mr Sam Asahak, Store Support Manager. Mr Sabeti sought separation from Mr Asahak and compensation.

This decision does not make any findings about whether the behaviour of Mr Asahak was bullying of Mr Sabeti within the meaning of the Act.

Coles has moved Mr Sabeti to another location, which would remove him from any bullying by his former manager. There is no longer any risk of future bullying of Mr Sabeti by the named person. I dismiss this application under section 587(1)(c) of the Act, as it has no reasonable prospect of success. My reasons follow.

Procedural History

I conducted a conference in this matter on Monday 24 February 2025 but was unable to assist the parties to resolve the matter.

I listed the matter for hearing and issued Directions to the parties. The Directions were amended when Mr Sabeti sought and was granted an extension of time. Mr Sabeti’s materials (being submissions, witness statements and any documents he intended to rely on) were due on 31 March 2025.

On 31 March 2025, Mr Sabeti did not file any materials. He sent an email saying that he wished to move on and made a request that a warning issued against him be removed.

On 2 April 2025, my chambers replied to Mr Sabeti to ask if, by his email, he intended to discontinue his application. My chambers also informed Mr Sabeti that if he wished to continue, he needed to file materials. Mr Sabeti replied to reiterate his desired outcome and that he did not think it necessary to file materials.

On 3 April 2025, in response to an email from Coles seeking clarification on the Directions, my Chambers repeated that Mr Sabeti had changed the outcome he sought, and informed Mr Sabeti of the Commission’s process if he wished to continue his application, including providing him links to the Stop Bullying Benchbook, information about the Commission’s workplace advice referral service and community legal centres. The parties were also informed that the hearing remained listed for 12 May 2025, and that I would proceed to hear and determine it based on whatever materials were available to me. The parties were also informed that I may conduct a conference at the commencement of the hearing.

On 22 April 2025, Coles applied for Mr Sabeti’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1308
Decision Date: 12 MAY 2025

CaseChat Overview and Summary

In the matter of Hojat Alizadeh Sabeti versus Coles Supermarkets Australia Pty Ltd, the applicant Mr Hojat Sabeti applied for an order under section 789FC of the Fair Work Act 2009(Cth) to stop bullying at work. Mr Sabeti alleges that he was bullied by Mr Sam Asahak, Store Support Manager at Coles. Mr Sabeti sought separation from Mr Asahak and compensation. The Fair Work Commission was required to decide whether the application had no reasonable prospects of success, whether there was a risk that the applicant would continue to be bullied at work, and what orders, if any, should be made. The Commission dismissed the application under section 587 of the Act, finding that it had no reasonable prospects of success. The Commission found that there was no longer any risk of Mr Sabeti being bullied by Mr Asahak, as Mr Sabeti had been transferred to another location and no longer interacted with Mr Asahak. The Commission also found that Mr Sabeti had not made out a case that he had been bullied at work, as he had not filed any materials in support of his application. The Commission found that the order that Mr Sabeti now sought - the removal of a warning - was not one that was appropriate to make or directed towards preventing him from being bullied at work. The Commission dismissed the application under section 587 of the Act, as it had no reasonable prospect of success. The Commission ordered that the application for a stop bullying order filed by Mr Hojat Sabeti on 3 January 2025 be dismissed under section 587 of the Act.

Orders