Application by Ms S - [2025] FWC 1801

[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…

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 1801
Decision Date: 25 JUNE 2025

CaseChat Overview and Summary

In the Fair Work Commission, the Deputy President considered an application by Ms S, who sought orders to stop bullying and sexual harassment in the workplace. Ms S had been dismissed by her employer, which led to the termination of her employment and the cessation of her interactions with the individuals named in her complaints. The Deputy President was required to determine whether the applications had reasonable prospects of success and, if not, whether they should be dismissed. The Deputy President found that because Ms S was no longer employed and thus not at risk of continued bullying or sexual harassment, the applications could not succeed. Furthermore, the Deputy President noted that the dismissal of the applications did not preclude Ms S from pursuing further action if she were to be reinstated or re-employed in the future.

The legal issues at hand involved interpreting sections 789FF and 527J of the Fair Work Act 2009, which outline the conditions under which the Commission can make orders to stop bullying and sexual harassment. The Deputy President held that these sections require a finding of ongoing risk to the applicant, which was absent due to the termination of Ms S's employment. Additionally, the Deputy President examined section 587 of the Act, which grants the Commission the discretion to dismiss an application if it has no reasonable prospects of success. Given that the risk of continued bullying or sexual harassment no longer existed, the Deputy President concluded that the applications had no reasonable prospects of success and were appropriately dismissed.

The reasoning of the Deputy President was grounded in the statutory requirements for making orders under sections 789FF and 527J, which necessitate a foreseeable risk of continued bullying or sexual harassment. As Ms S's employment had been terminated, there was no such foreseeable risk, and therefore the Commission could not make the requested orders. The Deputy President also considered the discretionary power to dismiss applications under section 587, ultimately determining that the dismissal was warranted in this instance. The applications were dismissed, and Ms S was advised that should she be reinstated or re-employed, she could make further applications under the relevant sections of the Act.

Orders