Ms Wang
[2025] FWC 2885
•26 SEPTEMBER 2025
| [2025] FWC 2885 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms Wang
(AB2024/999)
| COMMISSIONER THORNTON | ADELAIDE, 26 SEPTEMBER 2025 |
Application for an FWC order to stop bullying– jurisdictional objection – application to dismiss on basis of no reasonable prospects of success – no future risk of bullying – Applicant no longer employed by employer – application dismissed.
Ms Lihui Wang (Ms Wang or the Applicant) made an application under section 789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying at work. The application named her employer, TAFE SA (the Respondent) as the First Respondent. Ms Wang also named her supervisor, Ms Krinas (supervisor), as the Second Respondent.
Ms Wang was engaged by the Respondent on a series of fixed-term contracts as a lecturer in the Adult Migrant English Program. The contracts commenced on 1 May 2023 and concluded on 31 December 2024.
Ms Wang claimed that her supervisor had bullied her at work by criticising her work and her interpersonal communication, placing her on a performance improvement plan that included having her teaching observed by other lecturers, and ultimately not renewing her fixed-term contract when it ended on 31 December 2024.
The Respondent asserts there were genuine performance concerns in respect of Ms Wang and that it had acted in response to complaints from students and then on feedback collected in the performance management process. The Respondent says the process to manage Ms Wang’s performance and its decision not to offer her a further fixed-term contract was reasonable management action carried out in a reasonable manner.
The Respondent has objected to the Commission dealing with Ms Wang’s application because it does not have jurisdiction to make an order to stop bullying on account of there being no risk of future bullying with Ms Wang no longer remaining employed by the Respondent and therefore, no longer in the workplace. The Respondent has sought the dismissal of Ms Wang’s application on the basis that it has no reasonable prospects of success because an order cannot be made in accordance with the Act.
Ms Wang argues that the Commission can and should make an order to stop future likely bullying because she has sought a review of decisions relating to her employment, including the decision not to offer her a further fixed-term employment contract, in the South Australian Employment Tribunal (the SAET). In the proceeding before the SAET, Ms Wang has sought an order that the Respondent offer her a further fixed-term contract. Ms Wang argues that she is likely to be reinstated, or re-employed, and therefore an order to address prospective bullying will be necessary when she returns to work.
The matter proceeded to hearing with respect to the Respondent’s application to dismiss the matter for want of jurisdiction. The merits of Ms Wang’s claim regarding whether the conduct she alleges occurred or constituted bullying at work were not the subject of the hearing and are not addressed in this decision.
Relevant legislation
Ms Wang brought her claim pursuant to section 789FC of the Act, as a worker who says she reasonably believes she has been bullied at work, seeking an order with the effect of preventing future bullying at work in the terms of section 789FF.
Section 789FF(1) allows the Commission to make any order it considers appropriate if certain criteria are met:
789FF FWC may make orders to stop bullying
(1)If:
(a)a worker has made an application under section 789FC; and
(b)the FWC is satisfied that:
(i)the worker has been bullied at work by an individual or a group of individuals; and
(ii)there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
Section 789FD of the Act sets out when a worker is bullied at work:
When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally - covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business.
Jurisdictional objections of the Respondent
In its Form F73 response, the Respondent objected to the jurisdiction of the Commission when it asserted that the Applicant was not working in a constitutionally-covered business: “It is our understanding that TAFE SA does not fall under the jurisdiction of the Fair Work Act 2009”.[1]
When the Respondent filed its written submissions, it set out two jurisdictional objections:
(a) The Applicant is not currently working for the Respondent employer and there is no risk of behaviour that creates a risk to the Applicant’s work health and safety; and
(b) The Applicant did not work in a constitutionally-covered business when the alleged bullying occurred.
At the commencement of the hearing of the matter, the Respondent advised the Commission that it no longer pressed the objection that the Applicant was not employed by a constitutionally-covered business for the purposes of Part 6-4B of the Act,[2] but pressed for the dismissal of the matter on the basis that the second element of section 789FF(b) could not be met and no order could be made.
At the conclusion of the hearing, after the evidence had been heard, the Respondent reinstated their objection that Ms Wang was not working in a constitutionally-covered business as required by section 789FD(1)(a) and sought an adjournment to obtain further advice from Counsel. An adjournment of a month was granted, after which time the Respondent again confirmed they did not press the jurisdictional objection regarding TAFE as a constitutionally-covered business.
For the reasons set out below, I find that there is no jurisdiction to make an order in the terms sought by Ms Wang. Ms Wang’s employment came to an end on 31 December 2024 and therefore, there is no risk that she will continue to be bullied, an element required for the making of an order under section 789FF(1)(b)(ii).
I have not made a finding in respect of the second (and initial) jurisdictional objection that Ms Wang is not employed by a constitutionally-covered business. That objection was not ultimately pressed by the Respondent. However, I observe that the objection appears on its face to raise a legitimate question about the Commission’s jurisdiction to deal with this matter. It is not clear whether the Applicant, when employed by the Chief Executive of TAFE SA pursuant to section 14 of the TAFE SA Act 2012 (SA), was in fact at work in a constitutionally-covered business when she alleges that she was bullied. That objection is legally complex. As it was not pressed there is insufficient material before me for me to consider it. Most importantly, as I have upheld the Respondent’s objection regarding the absence of future risk of bullying, there is no need to determine this objection to the exercise of the Commission’s jurisdiction.
Relevant factual background
Ms Wang was employed by the Respondent as a lecturer in the Adult Migrant English Program on a series of fixed-term contracts ranging from 0.5 full-time equivalent (FTE) to 0.9 FTE between 1 May 2023 to 26 January 2024, at which time the Applicant accepted a full-time contract. The full-time contract concluded on 19 July 2024, and Ms Wang accepted two further, and ultimately final, contracts of employment from 20 July 2024 to 20 December and 21 to 31 December 2024 in which she was engaged at 0.8 FTE.
Towards the end of Term 3, 2024, the Respondent arranged for Ms Wang’s teaching to be observed by other lecturers, who offered negative feedback about Ms Wang’s performance as a lecturer. Ms Wang alleges that in that time, her supervisor, Ms Krinas, was aggressive in her conduct towards Ms Wang. Ms Wang then attended further training and a Performance Improvement Plan was implemented on 20 September 2024. The Performance Improvement Plan included observations of Ms Wang’s lectures by other senior lecturers, the receipt of feedback and observation of other lecturers by Ms Wang.
On 5 December 2024, there was a meeting between Ms Wang, and her supervisor to discuss concerns the Respondent held about Ms Wang’s performance. Ms Krinas sent an email to Ms Wang the following day containing the following statement: “Whilst there have been some small improvements, unfortunately you have not demonstrated the standard performance expectations and level of delivery we require for a Lecturer in the AMEP program. As a result your contract will not be extended beyond its current end date of 31 December 2024.”
On 11 December 2024, Ms Wang met with Ms Karren Raper, Faculty Dean and following the meeting made a complaint in writing about bullying conduct towards her. On 18 December 2024, Ms Raper emailed Ms Wang advising that each issue raised had been investigated. Ms Raper noted that Ms Wang had been offered a range of professional development opportunities and then confirmed that “TAFE SA has decided not to offer you further employment.”
On 20 December 2024, Ms Wang again met with Ms Raper to present evidence in support of her allegations of workplace bullying. The minutes of this meeting, submitted as evidence, reflect that Ms Raper told Ms Wang that the bullying complaint and the decision not to renew Ms Wang’s contract of employment were separate matters and the decision not to renew her employment “would not be reversed.” Ms Wang then raised a complaint with Dr Norman Baker, Executive Dean of Educational Operations at TAFE SA, about the unfairness of the relevant processes and the decision not to offer her a further contract.
On 21 December 2024, Ms Wang made an internal bullying complaint at TAFE that was escalated to the Investigation Management Unit (IMU). The outcome of the IMU’s investigation was communicated to Ms Wang on 3 February 2025 in correspondence from the Crown Solicitor’s Office, then acting for TAFE, wherein Ms Wang was advised that “IMU have found that the alleged bullying was reasonable management action, carried out in a reasonable and fair manner, and accordingly, will be taking no further action in respect of your complaint.”
On 5 February 2025, Ms Wang sought an internal review of the IMU’s findings by the Chief Executive of TAFE SA. On 12 February 2025, the Crown Solicitor’s Office advised Ms Wang that internal review processes no longer applied to her as a former employee.
On 17 February 2025, Ms Wang filed an application for a review of various decisions relating to her employment in the South Australian Employment Tribunal (SAET) pursuant to the Technical and Further Education Act 1975 (SA) and the TAFE SA Regulations 2012. In that proceeding, Ms Wang asked the SAET to set aside the decisions of the Respondent that the alleged bullying was reasonable management action carried out in a reasonable manner and its refusal to renew Ms Wang’s fixed-term contract. Ms Wang’s application also set out that she sought an order that the Respondent reinstate her fixed-term contract for a further six months “as per its usual practice.”[3]
Material filed in evidence suggested the SAET proceeding ran concurrently with this proceeding. The outcome of the application for review filed in the SAET (if there in fact has been an outcome) is not before the Commission.
Submissions of the Respondent
In support of its jurisdictional objection, the Respondent submits that the “Applicant is no longer employed by the C[hief] E[xecutive] of TAFE SA. Therefore, the Commission is unable to make an order to “prevent the worker from being bullied at work” because the worker is no longer at work. The Applicant is no longer employed by the Respondent employer.”[4]
The Respondent says that the Applicant was employed on a business-needs basis, with each contract offered being distinct and offered in a separate manner. The Respondent says that whilst the Applicant may have thought she would be offered future employment, this does not change the legal position that she was engaged on a fixed-term contract which came to an end on 31 December 2024. Ms Wang was notified before the conclusion of the contract ending on 31 December 2024 that she would not be offered another contract.
The Respondent submits that orders of the nature sought by the Applicant operate prospectively and presume the worker still remains at work. As the Applicant is no longer employed and therefore no longer at work, the necessary temporal connection was severed upon the contract expiring on the effluxion of time on 31 December 2024.
Further, the Respondent argues that Ms Wang’s application to the SAET is deficient in that it relies on section 62 of the Public Sector Act 2009 (SA) (the PS Act). The Respondent says that the PS Act no longer applies to Ms Wang as she is not employed by the Respondent and even if she were, the PS Act does not apply to the employment she held with the Respondent. The Respondent also notes that the SAET’s powers under section 62(4)(c) of the PS Act do not extend to reinstatement.
The Respondent submits that the Commission cannot make an order on the mere possibility that Ms Wang may be offered employment with TAFE SA in the future. The Applicant is not prevented from applying for roles with TAFE SA on a merit-selection basis, but that at this time, there is no prospect she will return to employment with the Respondent and any suggestion to the contrary is only hypothetical.
Whether the Applicant was bullied or the conduct alleged was reasonable management action carried out in a reasonable manner, the Respondent says has no relevance to the jurisdictional objection they have raised and should not be addressed in this proceeding.
Submissions of the Applicant
The Applicant submitted that the Commission should reverse the unfair assessments of her supervisor and the decision not to renew her contract to stop the “consistent bullying” against her. Ms Wang says that but for the unfair assessments of her performance and bullying by her supervisor, she would have been offered a further fixed-term employment contract.
With respect to the matter of jurisdiction, Ms Wang maintains that the Commission does have jurisdiction to deal with this matter and her claim should not be dismissed. Ms Wang argues that there remains a risk that she will be bullied at work because: “the connections between [me] and TAFE SA have not been severed yet, and [I] still have a connection to the workplace where the bullying took place because the process of the external review of TAFE SA’s decision is underway”.[5]
The Applicant further submitted that “it is highly likely that the Application lodged with the SAET will be upheld based on its merits, and [I] may be allowed to return to work with TAFE SA … a scenario of unlikely returning to work at TAFE SA … and thus there being no risk of that the Applicant will continue to be bullied at work … does not exist in this matter.”[6]
The Applicant submits that her application was not lodged under the PS Act, as asserted by the Respondent, and agrees that Part 7 of the PS Act does not apply to her employment. Ms Wang says that her application is made pursuant to the TAFE SA Regulations 2012. The TAFE SA Regulations allow an employee aggrieved with a decision to apply to the SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 (SA) (SAET Act) for a review of the decision. The Applicant asserts that pursuant to the jurisdiction granted to the SAET by section 30(1) of the SAET Act, the SAET may, amongst other things, set aside the decision being reviewed and substitute its own decision. Ms Wang says she has asked the SAET, relevantly, to set aside the decision not to offer her a further fixed-term contract and to order that she be re-employed on a further fixed-term contract. Ms Wang made clear that she does not seek reinstatement through this application before the Commission but rather expects to be reinstated by an order of the SAET following the determination of her application for an external review. It is apparent from her submissions that Ms Wang says the SAET has power under section 30(1) of the SAET Act to reinstate her to employment with TAFE SA.
The Applicant argues that the Commission must consider and make findings that she was bullied at work because it is relevant to whether her claim before the SAET has prospects of success. Ms Wang says that if the Commission finds that her claim before the SAET has reasonable prospects, then it will be necessary and appropriate for the Commission to make an order to stop bullying to prevent bullying following the SAET making an order that she be reinstated.
Consideration
It is not necessary that I make a finding about whether Ms Wang was bullied at work in order to determine the issue of jurisdiction to make an order. In my view, a determination of the second element of section 789FF(1)(b) is sufficient to resolve jurisdiction and an appropriate course in these circumstances.
The circumstances in which it is appropriate or necessary to consider both elements of section 789FF(1)(b) of the Act in determining jurisdiction to make an order has recently been considered by a Full Bench of the Commission in Osure v National Disability Insurance Agency[7]:
“ [42] The second issue raises what we consider is properly a matter of discretion. The Commission is not required in all cases to determine both elements of s 789FF(1) of the Act. Whether it is appropriate to deal with the future risk element as a threshold matter will depend upon the circumstances of each case. It will not always be appropriate to deal with the future risk as a preliminary issue, particularly where findings are being made in the context of ongoing working relationships where the applicant worker and the relevant individuals continue to work for the employer/principal concerned. In those circumstances, significant caution should be exercised before a member of the Commission adopts the course of determining whether there is a risk a worker will continued to be bullied without fully considering the past allegations of bullying behaviour.
[43]In some cases, it will be important to understand and make findings about the existence and nature of any bullying conduct in order to properly assess whether there is a future risk. The nature of the bullying, and those responsible for or involved in the relevant conduct, might only be fully revealed upon the hearing of evidence in relation to past conduct. In other cases, the scope of the alleged bullying may be clear, and the remedial actions taken, or change in circumstances, clear enough that it would be reasonable to deal with the future risk issue as a preliminary point. In making that assessment, the purpose of the provision, namely, to make orders where appropriate to prevent future relevant bullying conduct, should be considered. If that outcome has already been achieved, orders cannot be made.”
I do not consider this to be a case where findings about the existence and nature of any alleged bullying conduct are necessary to appreciate whether there is any future risk of the behaviour continuing. Ms Wang is not engaged in an ongoing working relationship with the Respondent, such that the risk of future bullying at work is nuanced or shifting as arrangements at the workplace change. Ms Wang has clearly set out the alleged bullying conduct and the fact she is no longer at work sets a clear boundary around the past conduct and nature of any future risk. In reaching a view that it is appropriate that I deal with the future risk element as a threshold matter upon which I can determine whether there is jurisdiction to make an order, I have had regard to the purpose of any orders – being the prevention of future bullying conduct.
If I am not satisfied, in accordance with section 789FF(1)(b) that there is a risk that Ms Wang will continue to be bullied at work, taking into account relevant matters addressed below in this decision, then there is no power to make a stop bullying order in the manner sought by Ms Wang. If there is no power to make an order to stop bullying, then it follows that Ms Wang’s application is unlikely to have any reasonable prospects of success. It is on the basis that Ms Wang’s application has no reasonable prospects of success that the Respondent seeks the dismissal of the application pursuant to section 587(1)(c).
Dismissal of an application for stop bullying orders pursuant to section 587(1)(c) of the Act
The circumstances in which an application for an order to stop bullying may be dismissed under section 587(1)(c) of the Act, on the grounds it has no reasonable prospect of success, was considered in detail in the recent Full Bench matter of Greenan v Vilensky[8] (Greenan). The Full Bench helpfully considered past decisions of the Commission and enunciated eight principles that were “distilled from the cases”[9] that I adopt as a relevant guide in determining this matter. The principles are summarised as follows:
The decision to dismiss an application for stop bullying orders pursuant to section 587(1)(c) of the Act is a discretionary decision. “The fact that the employment of an applicant for a stop bullying order has been terminated triggers the discretion. The Commission is then required to weigh relevant facts and circumstances to decide whether the discretion to dismiss the application should be exercised or the matter should be adjourned or held in abeyance, pending the outcome of any proceedings in which the applicant seeks reinstatement or re-employment.”[10]
- Any order made by the Commission to stop bullying “must be directed at preventing identified bullying conduct from continuing. This is a limitation on an order” in that the only remedy that the Commission can order in such a matter must be “directed at maintaining a working relationship between them by removing future risk of bullying. When the relevant working relationship has ceased because the employment of the applicant for a stop bullying order has been terminated, an order will have no effect on the applicant unless and until the applicant is reinstated or otherwise returns to the workplace.”[11]
- If “the employment of an applicant for a stop bullying order has been terminated before the application has been heard and determined, the Commission does not necessarily cease to have jurisdiction to continue to deal with the application. The jurisdictional pre-requisites in s. 789FF(1) relate to the making of an order to stop bullying and not to other steps the Commission may take in dealing with an application such as … conducting a conference.”[12]
- A decision of the Commission to exercise discretion to dismiss an application for a stop bullying order on the ground that it has no reasonable prospects of success is based on the circumstances at the time the order is being sought. That is, at the time the Commission is considering the matter, there is no present risk that the bullying will continue and “that those circumstances will not change in the foreseeable future.”[13]
- In deciding whether to dismiss an application for stop bullying orders where an applicant’s employment has terminated, the Commission is not required to “undertake an assessment of the merits of an application that may have been made for a remedy for the dismissal.” This principle lists a number of issues relevant to the exercise of the discretion in circumstances where the employee’s employment has terminated, that include:
- “whether an order can have efficacy in a practical sense”;
- whether the applicant is actively pursuing a remedy for their dismissal that includes reinstatement as a possible outcome and whether that outcome is “likely or merely speculative”;
- the timeframe in which the issue of reinstatement is likely to be addressed; and
- the effect on the applicant if the matter is dismissed and the ability of the applicant to bring a further application if they are so reinstated.[14]
- Considering the impact of a dismissal of the application on an applicant, “an important consideration” is whether the applicant is barred from bringing a future application referring to the same circumstances and consequently, whether a dismissal of the application “does not remove or diminish the applicant’s future rights to pursue an application for a stop bullying order on the facts as they existed when the earlier application was dismissed.”[15]
- Where the employment of an applicant for an order to stop bullying has been terminated prior to the determination of the application, any decision to dismiss the application because it has no reasonable prospects of success is not based on the merits of the application but rather the consideration and weighing of “the facts and circumstances existing at that time, including that the Commission cannot be satisfied that there is a risk that the applicant will continue to be bullied at work by the individual or group, because the applicant’s employment has been terminated, and he or she is no longer in the workplace.” This could result in a claim that has merit being dismissed “because the only remedy the Commission is permitted to grant by way of an order, is not available at that time or in the reasonably foreseeable future.”[16]
- “[W]hile it will not always be appropriate for the Commission to dismiss an application for a stop bullying order where the employment of the applicant is terminated and the applicant is seeking reinstatement, there are indications in the statutory provisions dealing with such orders, that deciding to hold a stop bullying application in abeyance in such circumstances, should be the exception rather than the rule.”[17]
I now address the application of these principles to this matter.
Ms Wang’s employment came to an end when her fixed-term contract concluded. The continuation of her application for stop bullying orders beyond the end of her employment with the Respondent triggers the exercise of the Commission’s discretion to dismiss the application (in particular given the objection of the Respondent to the exercise of jurisdiction) or to hold the matter in abeyance, pending the outcome of any application for reinstatement or re-employment made by the Applicant.
The termination of Ms Wang’s employment does not of itself remove the Commission’s jurisdiction to deal with the application or make it inevitable that the matter should be dismissed.[18] Therefore, I must decide whether to exercise my discretion to dismiss the matter or otherwise take steps to deal with the matter, for example by holding it in abeyance awaiting the SAET proceedings or conduct a conference. I note that, despite the Applicant making an application for a review of the decision and seeking re-employment in another fixed-term contract in the SAET, neither party made a submission that this matter ought to be held in abeyance until the conclusion of the SAET proceedings. I cannot see a benefit in taking any other step other than proceeding to determine whether I should exercise my discretion to grant the Respondent’s application to dismiss.
Taking into account the principles enunciated in Greenan, in my view, the further considerations relevant to determining whether there is any risk that Ms Wang will continue to be bullied at work (such that an order may be made subject to the merits of the case), or whether because there is no such risk, the matter has no prospects of success, are:
(a)Whether, at the present time, there is a risk that the bullying conduct alleged by Ms Wang will continue and will not change in the foreseeable future;
(b)Whether the application being pursued by Ms Wang in the SAET includes reinstatement or re-employment as a remedy such that there is a possibility of the risk of bullying changing in the foreseeable future;
(c)Whether reinstatement or re-employment is a likely or merely speculative outcome from the SAET proceedings; and
(d)The effect on Ms Wang should the application be dismissed, including whether Ms Wang would be barred from bringing a further application if she was reinstated or re-employed.
At the present time, I am not satisfied that there is a risk that the bullying conduct alleged by Ms Wang will continue because she is no longer employed by the Respondent and therefore, is no longer at work. Whilst I have not made findings about whether the conduct occurred, the bullying conduct alleged primarily concerned negative feedback, performance management and a decision not to offer a further fixed-term contract. With the conclusion of Ms Wang’s fixed-term employment contract, and her resulting absence from the workplace, there is no risk that the conduct can or will continue.
Whether an applicant seeks reinstatement or re-employment in other proceedings is a consideration relevant to a determination of whether the matter has no reasonable prospects of success on account of the absence of future risk of bullying necessary for the making of an order and, in turn, whether discretion should be exercised to dismiss the matter.[19]
For the reasons set out below, I cannot be satisfied that the SAET has the power to order re-employment as a remedy in the application brought by Ms Wang. On that basis, I cannot find that the application brought by Ms Wang in the SAET includes re-employment as a remedy and therefore, that there is a possibility that the risk of future bullying will change in the foreseeable future.
SAET Application
As set out, Ms Wang made an application to the SAET for a review of the decision of the Chief Executive. Remedies sought by Ms Wang include the setting aside of the decision not to offer her a further fixed-term contract and a renewal of the fixed-term contract for a period of six months.
The Respondent refutes that the SAET has power to reinstate Ms Wang, however, appears to refer to a basis for the application not relied on by Ms Wang. In any event, the Respondent strongly opposes the orders sought by Ms Wang in the SAET.
Ms Wang’s claim as filed in the SAET was submitted as evidence in this matter. The Application was filed in a Form A19 – a form of general application and noted that the “Action Type” was a matter pursuant to the Technical and Further Education Act 1975 (SA) (the TAFE Act) and TAFE SA Regulations 2012. The sections of the TAFE Act and regulations upon which Ms Wang relied were not specified in her application.
In her submissions, Ms Wang set out that her claim in the SAET was brought under Regulation 31(4) of the TAFE SA Regulations and section 30(1) of the SAET Act,[20] not the PS Act as asserted by the Respondent.
Part 3 Division 1 of the SAET Act concerns the exercise of the SAET’s ‘review jurisdiction’. In summary, section 27 of the SAET Act says that a matter under the division will be dealt with by the Tribunal as a review of the decision that constitutes the matter. Section 27 also says that the SAET will examine the matter by way of a rehearing and on such a rehearing must reach the correct or preferrable decision having regard to the decision of the original decision maker.
Section 30 allows the SAET to affirm, vary or set aside the decision and substitute its own decision or send the matter back to the decision maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate.
I accept that Ms Wang’s application to the SAET is made in reference to the TAFE SA Regulations and TAFE Act, and not the PS Act as asserted by the Respondent. It says as much on the application form.
A preliminary review of the relevant legislative provisions relied on by Ms Wang do not reveal any express impediment to the SAET ordering reinstatement for Ms Wang, should it be so persuaded. Conversely, the relevant legislation does not provide an express power to order reinstatement or re-employment.
I therefore cannot accept on the face of it, the submission of the Respondent that the SAET has no power to order the reinstatement of Ms Wang. I note the Respondent did not expressly address the Commission on the scope of the SAET’s powers under Part 3 Division 1 of the SAET Act because it proceeded on the basis that the Applicant was seeking orders under the PS Act.
I likewise cannot accept on the face of it that reinstatement or re-employment is a remedy available to Ms Wang arising from the application she has filed in the SAET. There is insufficient material before me about the nature of the SAET’s powers to order reinstatement or re-employment in the kind of application brought by Ms Wang to form a view that the application made by Ms Wang for a remedy including reinstatement or re-employment to her expired fixed-term contract (which no longer exists), is anything more than aspirational or speculative.
In short, I am unable to reach a view that Ms Wang is actually pursuing a remedy for reinstatement or re-employment because I cannot be satisfied that the SAET has the power to order such a remedy in the application filed by Ms Wang. I also cannot be satisfied that the SAET would contemplate ordering the Respondent to offer a contract of employment to Ms Wang when her fixed term contract had expired and the Respondent had made clear their intention not to offer a new one. It therefore seems to me that the re-employment of Ms Wang cannot be viewed as anything more than hypothetical.
With respect to what effect a dismissal of the application may have on the Applicant, I note her confidence in achieving her desired outcome in the proceeding before the SAET and that the SAET proceeding has been conducted concurrently with this one. If Ms Wang is in fact re-employed on a new fixed term contract, despite the previous one concluding on 31 December 2024, and she is of the view that there is a renewed risk of bullying by her supervisor, then Ms Wang can make a fresh application to the Commission to seek stop bullying orders, subject to other jurisdictional requirements being met.
In that regard, I note the comments of Deputy President Gostencnik (as he then was) in Shaw v ANZ Bank[21]:
“I would observe that, if as a consequence of Mr Shaw’s general protections application or any other remedy he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.”
This approach has been followed in other matters before the Commission[22] and has application to the circumstances of this case.
Conclusion
I am not satisfied that the second of the jurisdictional prerequisites for making an order under section 789FF(1)(b) is met. There is no evidence before me that at this time there is a risk that Ms Wang will continue to be bullied at work because she is not at work. Ms Wang is pursuing re-employment through an application for review in the SAET but I am not persuaded that Ms Wang can, or is likely, to achieve re-employment through this proceeding. Therefore, as it is not apparent that the risk to Ms Wang of bullying at work will change in the foreseeable future, I am not satisfied there is a basis upon which I can make an order to stop bullying.
I note that if the SAET is able to and does make an order that the Respondent re-employ Ms Wang, Ms Wang is not barred from bringing a further application in this Commission for stop bullying orders in the same terms, relying on the same alleged conduct. If this circumstance arises, there may be a basis for the Commission to further consider its jurisdiction to deal with the matter and will need to satisfy itself that Ms Wang was at work in a constitutionally-covered business in accordance with section 789FD of the Act.
As I am not satisfied there is a basis to make an order to stop bullying, I consider it appropriate to exercise my discretion to dismiss the application on the basis it has no reasonable prospects of success pursuant to section 587(1)(c) of the Act. An order dismissing Ms Wang’s application will be published concurrently with this decision.[23]
COMMISSIONER
Appearances:
L Wang, Applicant on her own behalf.
M Lamb of the Crown Solicitor’s Office for TAFE SA.
Hearing details:
Adelaide
2025
4 March.
Final written submissions:
Applicant: 12 March 2025
Respondent: 19 March 2025
[1] Form F73 at section 9.
[2] Fair Work Act 2009 s.789FD(3) (‘the Act’).
[3] Form A19 Application to SAET at page 6.
[4] Outline of submissions for the Respondent at 22.
[5] Reply submissions to the Respondent’s outline of submissions at paragraph 6.
[6] Ibid.
[7] [2025] FWCFB 168.
[8] [2025] FWCFB 61 (‘Greenan v Vilensky’).
[9] Ibid at [68].
[10] Ibid.
[11] Ibid at [69].
[12] Ibid at [70].
[13] Ibid at [71].
[14] Ibid at [72].
[15] Ibid at [73].
[16] Ibid at [74].
[17] Ibid at [75].
[18] Atkinson v Killarney Properties Pty Ltd[2015] FWCFB 6503 at [35].
[19] Dr Say Teong Ng [2019] FWC 3055 at [20], also referenced in Greenan v Vilensky at [65].
[20] Reply submissions to Respondent’s outline of submissions at paragraph 8.
[21] Shaw v Australia and New Zealand Banking Group Ltd T/A ANZ Bank[2014] FWC 3408 at [17].
[22] See, for example, Obatoki v Mallee Track Health & Community Services and & others[2015] FWCFB 1661 at [17] and Dr Manu Chopra [2020] FWC 3491 at [36] – not overturned on appeal, see [2020] FWCFB 5084.
[23] PR792171.
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