Manoj Kumar Sarmaik v Dr Tom Yong, Rae Barrera, Rose Gibbons, Dr Mark Brazier, Dr Sabrina Pillay, Tara McLaughlin, Apollo Health Pty Ltd

[2025] FWC 1523

[2025] FWC 1523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 789FC - Application for an order to stop bullying

Manoj Kumar Sarmaik
v

Dr Tom Yong, Rae Barrera, Rose Gibbons, Dr Mark Brazier, Dr Sabrina Pillay, Tara McLaughlin, Apollo Health Pty Ltd

(AB2025/321)

DEPUTY PRESIDENT O’KEEFFE PERTH, 3 JUNE 2025

Application for an FWC order to stop bullying – Applicant dismissed from his employment – no remedy available and thus no reasonable prospects of success – application dismissed pursuant to s 587 of the Act.

1. On 16 April 2025 Mr Manoj Kumar Sarmaik (the Applicant) applied to the Fair Work Commission (FWC) under section 789FC of the Fair Work Act (Act) seeking a stop-bullying order.  The matter was allocated to my Chambers on 15 May 2025.

2. On 28 May 2025 I conducted a conference between the Applicant and the parties named in his application.  During that conference it emerged that the Applicant was suspended from duties pending the outcome of an investigation into his performance.  The Applicant was due to meet his employer later that day to be advised of the outcome of that investigation.  In the circumstances I resolved that the matter should be held over pending the outcome of that meeting.  I advised the Applicant that if his employment ended then, as per previous decisions of the FWC, his stop-bullying application would have no utility because there was no prospect that bullying could continue.

3. Later that day I received correspondence from the Applicant’s employer advising that his employment had been terminated.  As such, I caused the following email to be sent to the parties:

   “Dear Parties,

   Deputy President O’Keeffe notes the correspondence from Ms Harvey received in Chambers 28^th May 2025.  It appears from that correspondence that Mr Sarmaik’s employment with St John’s has been terminated.  Consistent with previous decisions of the Fair Work Commission, Deputy President O’Keeffe confirms that the termination of Mr Sarmaik’s employment means that his anti-bullying claim no longer has utility in that there is no risk that bullying – if indeed it took place – could continue.  As such, no remedy can be granted.

   Mr Sarmaik is advised that the Deputy President will be issuing a decision formally dismissing his application.  Should he seek to be heard with respect to this decision, he should advise Chambers by no later than 5:00 PM (AWST) on Thursday 29^th May 2025.”

4. As at 5.00pm on 29 May 2025 no correspondence had been received from the Applicant.

5. Previous decisions of the FWC have found that where an applicant for a stop-bullying order is no longer employed, the FWC has discretion to dismiss the application on the basis of no reasonable prospects of success – see Carole Greenan v BBV Legal Pty Ltd t/a Bowen Buchbinder Vilensky & Ors - [2025] FWCFB 61.

6. In this instance, I am persuaded to exercise my powers under s 587 to dismiss the application.  The Applicant has not indicated that he will contest the dismissal and if he did so and was reinstated, there is no impediment to him lodging a fresh application under s 789FC.  An order dismissing the application will issue.

DEPUTY PRESIDENT

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