Application by Ms S
[2025] FWC 1801
•25 JUNE 2025
| [2025] FWC 1801 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC – Application for an order to stop bullying
s.527F – Application for an order to stop sexual harassment
Application by Ms S
(AB2024/808)
(SH2024/122)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 25 JUNE 2025 |
Application for an order to stop bullying – application for an order to stop sexual harassment – applicant dismissed from employment – whether applications have reasonable prospects of success – applications dismissed.
On 21 October 2024, the applicant made an application under s 527F of the Fair Work Act 2009 (Cth) (Act) alleging that she had been sexually harassed in contravention of Division 2 of Part 3-5A of the Act. The application asked the Commission to make an order under s 527J to stop sexual harassment, and to otherwise deal with the dispute under s 527R.
On 24 October 2024, the applicant also applied for an order to stop bullying at work pursuant to s 789FC of the Act. Both of the applications were made in relation to the applicant’s Employer and persons with whom the applicant interacted while at work in the business of the Employer (Persons Named or Person Named).
On 16 June 2025, the Employer advised the Commission that the applicant’s employment had been terminated with effect on that date. This decision determines the Employer’s application to dismiss both applications pursuant to s 587(1)(c) of the Act (Dismissal Application). For the reasons that follow, the Dismissal Application is granted.
Relevant context
In the determination of the Dismissal Application, it is necessary to record only the following procedural matters. However, these do not represent all of the proceedings convened by the Commission in relation to the applicant’s sexual harassment application (matter SH2024/122) and the bullying application (matter AB2024/808).
First, in respect of the applicant’s request for the Commission to deal with the dispute under s 527R in matter SH2024/122, a conference was convened on 13 November 2024. The matter was the subject of further discussion on 12 February 2025. On 14 February 2025, a
s 527R(3)(a) certificate was issued.
Second, the residual aspect of matter SH2024/122 – being the application for a stop sexual harassment order under s 527J, and the application for a stop bullying order proceeded to a jurisdictional hearing on 14 April 2025. The jurisdictional hearing was convened for the purposes of determining whether, in the circumstances of each application, there was a risk that the applicant would continue to be bullied at work by the Persons Named in the application (see s 789FF(1)(b)(ii)), and whether the applicant would continue to be sexually harassed by the Person Named in the application (see s 527J(1)(b)(ii)). This was referred to as the Jurisdiction Question.
While a decision in respect of the Jurisdiction Question was reserved, the applicant’s employment was terminated by the Employer with effect on 16 June 2025. In the Dismissal Application, the Employer submits that the Commission no longer has jurisdiction to make any stop bullying or stop sexual harassment orders in respect of the applications. It says that as the employment relationship has been terminated, there is no future risk and therefore no basis for the Commission to exercise its jurisdiction in these matters. It seeks that the applications be dismissed.
The applicant contends that the applications should not be dismissed. This is because on 16 June 2025, the applicant filed with the Commission a s 365 general protections application involving dismissal in which she contests the termination of her employment and seeks reinstatement. The applicant relies upon various documents which are said to support the s 365 application. Noting that the s 365 application is presently before the Commission, it is not appropriate that I make any observations about this material here.
Consideration
Section 789FF(1) of the Act sets out when the Commission may make an order to stop bullying. It relevantly provides that the Commission must be satisfied both that (a) the worker has been bullied at work by an individual or group of individuals, and (b) there is a risk that the worker will continue to be bullied at work by that individual or group[1] (see s 789FF(1)(b)).
Section 527J(1) of the Act sets out when the Commission may make a stop sexual harassment order. It relevantly provides that the Commission must be satisfied both that (a) the aggrieved person has been sexually harassed in contravention of Division 2 by one or more persons, and (b) there is a risk that the aggrieved person will continue to be sexually harassed by the person or persons[2] (see s 527J(1)(b)).
It is not in dispute, and I find that the employment relationship between the parties has ceased. The applicant is not at work in the business of the Employer, and she is not interacting with the Persons Named in her applications. In the circumstances, there is no foreseeable risk that the applicant will continue to be bullied at work by the Persons Named in application AB2024/808, or that the applicant will continue to be sexually harassed by the Person Named in application SH2024/122. Accordingly, I am not satisfied of the matters at [9](b) and [10](b) above and as such, the Commission is not empowered to make an order to stop bullying or a stop sexual harassment order. I am therefore satisfied that the applications have no reasonable prospects of success.[3]
Section 587 of the Act provides the Commission with the power to dismiss an application, including if the application has no reasonable prospects of success. It relevantly provides as follows:
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), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The power to dismiss an application pursuant to s 587 of the Act is discretionary and should be exercised with caution. In deciding whether to exercise the discretion, I have considered the applicant’s submission that she has made a made a general protections application involving dismissal pursuant to s 365 of the Act, in which she seeks reinstatement.
I make no findings as to the prospects of the applicant’s s 365 application, as it is not before me for consideration. However, I observe that there is no statutory imperative to consider reinstatement as a remedy in relation to a general protections application. Further, should a certificate be issued by Commission pursuant to s 368(3) of the Act in that matter, the applicant’s general protections application can only proceed before the Court.[4] To the extent that reinstatement or re-employment may be a possible outcome, I consider the prospects of this occurring at some future time to be speculative and uncertain. I am not persuaded that this provides a basis for holding the applications before me in abeyance for an indefinite period as the applicant appears to seek.
I have afforded the following matters considerable weight in considering whether to exercise my discretion to dismiss the applications. First, having regard to my conclusion at [11] of this decision, the applications before me have no reasonable prospects of success. Second, I observe that should the applicant be reinstated or otherwise re-employed by the Employer, she is at liberty to make a further application under ss 789FC or 527F of the Act, relying upon the circumstances contained in the present applications.
Further, I am not precluded from dismissing matter SH2024/122 by reason of s 587(2)(b) of the Act. As paragraphs [1] and [5] of this decision describe, the applicant’s s 527F application did not initially consist solely of an application for a stop sexual harassment order. The applicant also applied for the Commission to deal with the dispute under s 527R. However, the issuance of a certificate under s 527R(3)(a) on 14 February 2025 brought the Commission’s role in relation to that aspect of the s 527F application to an end.[5] It follows that only the application for a stop sexual harassment order remains, which I am satisfied is capable of being dismissed pursuant to s 587(1).
For these reasons, I consider that it is appropriate to exercise my discretion to dismiss the applications under s 587(1)(c) of the Act. There are no matters weighing against the exercise of my discretion.
Order and disposition
Applications SH2024/122 and AB2024/808 are dismissed pursuant to s 587(1)(c) of the Act.
DEPUTY PRESIDENT
[1] See Mekuria v MECCA Brands Pty Ltd[2019] FWCFB 2771 at [29]; Shaw v Australian and New Zealand Banking Group Limited & Anor (Application by Shaw)[2014] FWC 3408 at [15]
[2] The Explanatory Memorandum to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 states at [47]: Orders would not be available in cases where there is no risk of harassment occurring again, for example when the person who harassed the worker is no longer employed at the workplace
[3] See Obatoki v Mallee Track Health & Community Services & Ors[2015] FWCFB 1661 at [16]-[21]; Application by Shaw [2014] FWC 3408 at [8]-[11], [17]
[4] Subject to any consent arbitration in the Commission pursuant the Fair Work Act 2009 (Cth), s 369
[5][5] No consent arbitration was sought pursuant to the Fair Work Act 2009 (Cth), s 527S
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