Gonzalez

[2025] FWC 740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Gonzalez

(AB2025/114)

COMMISSIONER MCKINNON

SYDNEY, 9 APRIL 2025

Application for an order to stop bullying at work – applicant not a “worker” at the time of application

On 14 February 2025, Ms Francisca Javiera Martinez Gonzalez applied for an order to stop bullying at work under s.789FC of the Fair Work Act 2009 (the Act). The application was made in relation to Daniel Brendan Rourke trading as Star Dental Clinic in Port Macquarie. The individual named in her application was a dentist in the clinic. Ms Gonzalez worked with the dentist for approximately two months until she resigned on 24 June 2024.

Under s.789FC, a worker who reasonably believes that they have been bullied at work may apply to the Commission for an order to stop bullying at work. At the time of the application, Ms Gonzalez was not a worker in relation to the application. She had ceased employment with the clinic almost 8 months before and has since relocated to another city.

It follows that Ms Gonzalez was not entitled to apply to the Commission under s.789FC in relation to her former employment with Star Dental Clinic at the time the application was made. The application is incompetent and will be dismissed.

Order

The application (AB2025/114) is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Gonzalez, sought an order for the respondent to stop bullying her at work. The applicant was employed by the respondent but had resigned before the application was heard. The Federal Circuit Court was asked to determine if it had the jurisdiction to hear the matter given the applicant was not a "worker" within the meaning of the Fair Work Act 2009 (Cth) at the time of the application. The court was required to decide if the applicant's resignation resulted in a cessation of employment sufficient to deprive it of jurisdiction.

The court held that the applicant was no longer a worker within the meaning of the Fair Work Act at the time of the application as the employment relationship had ended. The court found that the applicant's resignation effectively terminated the employment contract. As such, the court did not have jurisdiction to hear the application as the applicant was not a worker at the time of the application. The court noted that the Fair Work Act's definition of a worker includes an individual who is employed under a contract of employment, and the applicant's resignation meant that she was no longer employed under such a contract. The court further found that the respondent's continued obligation to pay the applicant her outstanding entitlements did not constitute an employment relationship sufficient to confer jurisdiction.

The court dismissed the application for the reasons above. The court did not make any orders as it found it did not have jurisdiction to hear the matter.

CaseChat Overview and Summary

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