Daniel Robinson

[2025] FWC 2235

[2025] FWC 2235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Daniel Robinson

(AB2025/553)

COMMISSIONER LEE MELBOURNE, 31 JULY 2025

Application for an FWC order to stop bullying

Background

1. Mr Daniel Robinson (the Applicant) made an application to the Fair Work Commission (the Commission) on 6 July 2025 for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009. The employer named in the application is the Australian Rail, Tram and Bus Industry Union (the ARTBIU).

1. In his Form F72 the Applicant indicated that he was a student gaining work experience

at the ARTBIU at a time that is not specified. In any event, he is no longer engaged at the workplace where the alleged bullying had been occurring.

1. In the ARTBIU’s Form F73 they indicated that the Applicant has never been an employee, volunteer or member of the union according to their records. The ARTBIU raised a jurisdictional objection on the basis that as the Applicant has never been and is not an employee,

volunteer or member of the union they believe it is not feasible that he has experienced workplace bullying in connection with the ARTBIU and as such there is no risk of any workplace bullying taking place in future and no utility in an order to stop bullying.

1. My Chambers wrote to the Applicant on 18 July 2025 noting that as the Applicant either never was or no longer is a worker at the ARTBIU there is arguably no future risk of the Applicant being bullied at work. The Applicant was given the chance to respond to this and did

so, on the same day. The Applicant asserted that the impact of the bullying still persists, and that there remains a strong risk of further professional and personal harm.

1. Subsequently the matter was listed for Mention hearing on Thursday, 24 July 2025 by video using Microsoft Teams. On 22 July 2025 the Applicant emailed my Chambers requesting permission to provide a written statement for consideration in lieu of his attendance at the Mention hearing due to physical and psychological health concerns associated with him attending a Fair Work Commission proceeding. In the circumstances, I decided to grant the Applicant’s request and consequently vacated the Mention hearing and issued written directions.

1. In the directions I expressed the provisional view that there is no risk that the Applicant could continue to be bullied at work as contemplated in s.789FF(1)(b)(ii) in circumstances where the Applicant is no longer employed or engaged at that place of work. Therefore, my provisional view is that there is no jurisdiction to make a stop bullying order. The directions provided the Applicant an opportunity to make submissions as to why my provisional view should not be confirmed and the application dismissed by no later than close of business on Wednesday, 30 July 2025. The Applicant did not provide any submissions in accordance with the directions.

Legislative Framework

1. Section 587 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.

1. Section 587(1)(c) allows the Commission to dismiss applications that have no reasonable prospects of success. Section 789FF of the Act allows the Commission to make an order to stop bullying if the Commission is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. As the Applicant is no longer working for the ARTBIU, if he ever was, even if there was bullying of the type contemplated by the Act, there is no longer a risk of the Applicant being bullied at work. In the absence of any further submissions from the Applicant, I confirm my provisional view that the application has no reasonable prospects of success.

1. In the circumstances I have determined to exercise my discretion to dismiss the application pursuant to s.587(1)(c) of the Act and an order[1] to this effect will be issued concurrently.

COMMISSIONER

[1] PR790242.

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