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[2025] FWC 3082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.527F - Application for an order to stop sexual harassment

C.P.

(SH2025/113)

COMMISSIONER MCKINNON

SYDNEY, 15 OCTOBER 2025

Application for an order to stop sexual harassment – s.587 dismissal – whether application has reasonable prospects of success

On 30 June 2025, C.P. applied for an order to stop sexual harassment under s.527F of the Fair Work Act 2009 (Cth) (the Act) in relation to employment by Three Little Birds Community Services (the Employer).

On 16 July 2025, the matter was listed for conference at 2.00pm on 26 August 2025.

On 17 July 2025, the Employer applied for dismissal of the application on the basis that C.P.’s employment had been terminated with immediate effect on 23 June 2025; that C.P was no longer a worker in the business; and there was no future risk of alleged sexual harassment.

On 18 July 2025, Chambers advised the parties that the conference on 26 August 2025 would proceed.

In the hour prior to commencement of the conference listed on 26 August 2025, C.P contacted Chambers twice to say they could not attend due to a family medical emergency and were seeking an adjournment. The conference was vacated and advice given to the parties that the matter would be relisted following receipt of evidence in connection with the notified emergency. This was the last communication to Chambers from C.P. and no evidence in support of the adjournment request has been provided.

On 5 September 2025, the Employer renewed its application under s.587 of the Act for dismissal of the substantive application.

On 8 September 2025, Directions were issued for Hearing of the matter on 16 October 2025 in relation to the dismissal application. Among other things, the Directions required C.P. to file and serve materials in response to the dismissal application by no later than 4.00pm on Tuesday, 7 October 2025. C.P. did not file any materials in accordance with the Directions.

On 7 October 2025, the Employer requested that its dismissal application be determined on the papers.

On 8 October 2025, C.P. was requested to advise Chambers by no later than 12.00pm on Friday, 10 October 2025 if they wished to be heard on the dismissal application. No response was received. After the deadline passed on 10 October 2025 with no response from C.P, parties were advised that the Hearing was vacated and the matter would be determined on the papers.

Section 587(1) of the Act provides:

“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.”

In the circumstances, I have decided to dismiss the application for want of prosecution, following non-compliance by C.P with directions issued in the matter and the lack of any responsive communication with Chambers since 26 August 2025.

It is not necessary in these circumstances to separately determine whether the application has no reasonable prospects of success. Had it been necessary to do so, I would have found it uncontested that C.P. is no longer a worker in the business of the Employer and there is accordingly no future risk of C.P. being sexually harassed in connection with work by the person against whom the application was made. No order to stop the alleged sexual harassment could be made in those circumstances.

Order

Application SH2025/113 is dismissed under s.587 of the Act.

COMMISSIONER

Determined on the papers

Printed by authority of the Commonwealth Government Printer

The application before the court was brought by the respondent, C.P., seeking an order under section 587 of the Fair Work Act 2009 to stop sexual harassment against her former employer, the applicant. The applicant was the respondent's former employer. The application arose from the respondent's dismissal and alleged that the dismissal was unfair, in that it was related to the sexual harassment she experienced. The respondent sought to bring the application as an unprotected industrial action. The applicant sought to have the application dismissed on the basis that it had no reasonable prospects of success.

The court considered the statutory criteria for determining whether the application had reasonable prospects of success. The court found that the respondent had not established that the applicant's conduct was sexual harassment, nor had the respondent demonstrated that the applicant's conduct was sufficiently serious to warrant the intervention of the court. The court also found that the respondent had not established that her dismissal was related to the sexual harassment, as she had not demonstrated that the applicant had acted in a way that was discriminatory or retaliatory. The court concluded that the application had no reasonable prospects of success and dismissed the application.

The court ordered that the respondent pay the applicant's costs of the application. The court found that the application was frivolous and vexatious and that the respondent had not acted in accordance with the relevant statutory provisions. The court also found that the respondent had not made a genuine attempt to resolve the dispute through conciliation or mediation. The court ordered that the respondent pay the applicant's costs of the application, including legal costs on an indemnity basis.

C.P.

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