Application by Mr Eok Kim - [2025] FWC 2524

[2025] FWC 2524

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC— Application for an FWC order to stop bullying

Application by Mr Eok Kim

(AB2025/174)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 27 AUGUST 2025

Application for an order to stop bullying – applicant not attending for work and receiving workers compensation – applicant’s capacity for work – whether risk worker will continue to be bullied at work – application to dismiss - whether appropriate to consider future risk as a preliminary issue

On 4 March 2025 the applicant in these proceedings, Mr. Kim, filed an application for orders to stop bullying under Part 6-4B of the Fair Work Act 2009 (Cth) (Act) against his employer Nongshim Australia Pty Ltd (respondent). The application identified various company officers and employees as allegedly having engaged in bullying conduct towards the applicant during the course of 2024 and early 2025.
The matter was first listed for video conference on 5 May 2025. That conference was adjourned at the applicant’s request. The applicant cited mental health reasons in support of the request for the postponement of the initial conference. The matter was subsequently relisted for 20 May 2025. The parties attended by video conference on that day and the matter was not able to be resolved.
The matter was listed for an in-person conference on 13 June 2025 but again, no resolution was reached between the parties. Shortly thereafter directions were made and the matter was listed for hearing on 22 July 2025. On the day before the hearing, the applicant applied for the matter to be adjourned on the basis that his mental health condition was such that he was unable to proceed with the hearing. Medical evidence was provided in support of the application which certified that the applicant was medically unfit to attend the hearing. The application for adjournment was opposed by the respondent. Having regard to the medical evidence, I determined that it was appropriate for the matter to be adjourned.
In response to the adjournment request of 21 July 2025, the respondent also made an application for the matter to be dismissed on the basis that Mr. Kim was on workers’ compensation, had no current capacity for work and there was no evidence as to when, if ever the applicant would be fit to return to the respondent’s workplace. In those circumstances the respondent submitted that a statutory precondition for the making of a stop bullying order, that is, that there is a risk that the applicant will continue to be bullied at work,[1] could not be satisfied and in the absence of that risk, no order could be made and the appropriate course was to dismiss the application rather than simply adjourn the matter indefinitely.
On 22 July 2025 I wrote to the parties noting the respondent’s application for the matter to be dismissed. I pointed out that the respondent had also supplied a certificate of capacity in relation to the applicant indicating that that the applicant was unable to…

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.

Continue reading Application by Mr Eok Kim

Details

AGLC: Application by Mr Eok Kim [2025] FWC 2524
Case: [2025] FWC 2524
Decision Date: 27 AUGUST 2025

CaseChat Overview and Summary

The Fair Work Commission heard an application by Mr Eok Kim against Nongshim Australia Pty Ltd for an order to stop bullying under the Fair Work Act 2009. Mr Kim claimed he was bullied by company officers and employees in 2024 and early 2025. The matter was repeatedly adjourned as Mr Kim cited mental health issues and was unable to attend the hearings. The employer applied to dismiss the matter, arguing that Mr Kim was on workers' compensation, had no current capacity to work, and there was no evidence of when, if ever, he would return to work. This raised the question of whether the statutory precondition of a risk of continued bullying could be satisfied.

The Commission considered whether to deal with the future risk of continued bullying as a preliminary issue. The respondent argued that without a current or imminent risk of continued bullying, the application must be dismissed. The Commission noted that the second limb of section 789FF(1) of the Act, which requires a risk of continued bullying, necessitates an assessment of future conduct. In this case, the applicant's ongoing medical incapacity to return to work allowed for a reasonable assessment of future risk based on his current condition.

Given that Mr Kim was not at work and was unlikely to return in the immediate future, the Commission concluded that there was no basis to be satisfied that there was a risk of continued bullying. As such, the application was dismissed. The Commission acknowledged that if Mr Kim's condition were to change, he could make another application subject to the jurisdictional facts being established. The decision to dismiss the application does not preclude future proceedings if and when the applicant returns to work.

Orders