Young
[2025] FWC 2834
•23 SEPTEMBER 2025
| [2025] FWC 2834 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Young
(AB2025/158)
| COMMISSIONER MCKINNON | SYDNEY, 23 SEPTEMBER 2025 |
Application for an order to stop bullying at work – whether reasonable belief of bullying at work – application dismissed
On 27 February 2025, Mr Jamie Young filed an application for orders to stop bullying at work in relation to his employment in the Australian Public Service (APS) by the Commonwealth Department of Finance (the Department). The application was made under s.789FC of the Fair Work Act 2009 (Cth) (the Act) and was completed on 6 March 2025.
Attempts to resolve the matter were ultimately unsuccessful and on 14 and 15 August 2025 respectively, the parties consented to the matter being dealt with on the papers. I am satisfied that the matter can be adequately dealt with on the materials filed by the parties without holding a hearing.
The allegations of bullying at work are made generally against the Department and against six individuals who have interacted with Mr Young in their capacity as decision makers or administrators in relation to his employment. In broad terms, the allegations are that Mr Young was placed on forced part-time arrangements against medical advice despite his preference for full time work; that the Department has engaged in a ‘deliberate, coordinated strategy of administrative persecution, psychological warfare and financial sabotage’; that Mr Young has experienced ‘unjustified financial deprivation, forced reduction in work hours, obstruction of medical and grievance processes, and exploitation of personal vulnerabilities’; and that ‘process is being used as punishment, strategically targeted against him “to prevent accountability” and “frustrate inquiries”’.
The application can be resolved by considering whether, at the time he applied to the Commission, Mr Young reasonably believed that he had been bullied at work.
For the following reasons, and to the extent that Mr Young believed that he was being bullied at work at the time the application was made, the belief was not a reasonable one. It follows that Mr Young was not entitled to apply to the Commission for orders to stop the alleged bullying at work. The application will be dismissed.
‘Bullying at work’ under Part 6-4B of the Act
Section 789FC of Part 6-4B of the Act allows a worker who reasonably believes that they have been ‘bullied at work’ to apply to the Commission for an order to stop the bullying.[1]
The phrase ‘bullied at work’ is defined in s.789FD. A worker is bullied at work if, while they are at work in a constitutionally-covered business, an individual or group of individuals repeatedly behaves unreasonably towards the worker or a group of workers of which they are a member, and that behaviour creates a risk to health and safety.[2] Not all unreasonable behaviour toward a worker is within scope of s.789FD. The focus is on whether the behaviour can be characterised objectively as persistent conduct of a bullying nature, including (but not limited to) victimisation, humiliation, intimidation or threats. The behaviour must have occurred at work at a time before the application was made.[3]
The Act clarifies that reasonable management action, carried out in a reasonable manner, is not bullying at work.[4] This gives effect to the legislative policy that managers need to be able to manage their staff and to effectively direct and control the way work is carried out,[5] including by responding to poor performance, and if necessary, taking disciplinary action.
The Department is a constitutionally covered business within the scope of Part 6-4B of the Act because it is part of the Commonwealth Government. There is no submission that Mr Young is not a ‘worker’ for the purposes of the Act. At least some of the alleged bullying behaviour occurred while Mr Young was at work in the Department. Although Mr Young alleges that the behaviour created a risk to his health and safety and in fact caused, severe psychological and physical harm, placing him at an immediate and life-threatening level of risk, the only evidence provided in support of the submission is Mr Young’s opinion and assertions.
Relevant background
Mr Young has been employed in the APS since approximately 2016. In December 2022, he transferred to the Department after a period of employment in the National Disability Quality and Safeguards Commission (NDQSC). His employment in the NDQSC was not without difficulty. The workplace was a difficult one, described in the materials as ‘toxic’. At some point, allegations of misconduct were made against Mr Young. Those allegations do not appear to have been substantiated, although a warning was issued. Mr Young successfully applied for workers compensation through Comcare in relation to his experience at the NDQSC and separately filed a complaint about the process in the Australian Human Rights Commission (AHRC). In mid-2024, he was still working through what he described as the ‘trauma’ of the process, including through his AHRC claim which went to conciliation on 25 November 2024 but was not resolved.
These difficulties were disclosed by Mr Young to his managers in the Department at the time of his employment and he was offered relevant support. It appears that while working for the Department, Mr Young worked mostly, if not entirely, from home. It also appears that he may not have actually been ‘at work’ much or at all since 11 February 2025. On the materials, Mr Young last logged on to the Department’s work systems for a limited purpose on 10 June 2025 and then logged off again.
In late June 2024, Mr Young advised his manager of concerns about his mental health and the impact it was having on his ability to work effectively. At or around the same time, he was advised that he would be placed on a ‘back on track’ plan as part of a performance management process in the Department. The advice in relation to performance management triggered a significant emotional reaction from Mr Young. He took personal leave from 1 July 2024 for 5 weeks and then a further 4 weeks of discretionary ‘miscellaneous leave’ until 30 August 2024. At this time, his doctor advised of his support for a ‘graded return to work, starting off with 3 days a week’. Mr Young returned to work for a short period in early September 2024 before taking further leave from 9-20 September 2024.
An independent medical examination by Dr Kevin O’Daly, Consultant Psychiatrist, on 20 September 2024 and his ensuing report of 9 October 2024 did not result in any formal mental health diagnosis. The report noted a range of perceptions, thoughts and beliefs held by Mr Young consistent with ‘moral injury’ and ‘embitterment disorder’ in connection with his workplace experiences and his responses to those, due to an ‘idiosyncratic personalised belief system’. The report supported Mr Young working a 3-day week, with the other 2 days per week allowed for Mr Young to work on trying to resolve his workplace grievances.
The report was unclear in relation to whether the expressed support for a 3-day work week was a medical restriction or something less. A dispute arose between Mr Young and the Department when the Department interpreted the report as imposing a 3-day week restriction on Mr Young’s capacity for work. Mr Young did not agree with being restricted to part-time work and read the report either as supporting his ‘full capacity’ to return to work or declaring him unfit to participate in performance management while working part-time. The Department’s view prevailed for a time. Mr Young was invited to provide further medical evidence to support a full return to work but did not do so. The Department also offered other supports to Mr Young including to assist with the cost of medical appointments and access to leave to supplement his income. On 16 December 2024, Mr Young’s doctor provided a certificate expressing his support for ‘trying to find a way in which we are able to facilitate return to full time work with appropriate measures in place to support [Mr Young] as he needs’ and that Mr Young’s return could be ‘gradual in nature’.
In the meantime, on 31 October 2024, Mr Young sought a review of the 3-day work restriction and its impact on his earnings under s.33 of the Public Service Act 1999. After he objected to the review being dealt with internally, it was outsourced to ‘CPM Reviews’ on 13 December 2024, with the scope of the review confirmed on 8 January 2025. Mr Young provided written information on 10 February 2025 and was interviewed on 20 February 2025. CPM Reviews delivered its report on 24 March 2025. The report recommended seeking further advice from Dr O’Daly about whether the 3-day working week was a ‘necessary restriction’ or a ‘preference’. The recommended advice was sought, and Dr O’Daly advised that in his opinion Mr Young had had ‘full capacity’ for work in October 2024. This led to the 3-day restriction being lifted with a recommendation for consultation on any necessary or appropriate remedial measures.
Efforts continued after this time to negotiate Mr Young’s return to work and his compliance with workplace directions. The Department sought further medical evidence while Mr Young pressed for a lifting of restrictions and other measures he saw as impositions. Some of his leave requests were approved while others were not. Mr Young’s attendance pattern gave the Department cause for concern. He was directed to submit manual timesheets and formal leave requests as a condition of being paid for work.
The direction to complete manual timesheets came on the same day as Mr Young reported an incident of domestic violence said to have occurred two days earlier. Mr Young received the direction as retaliatory and punitive and did not comply with it. This resulted in him not receiving payment of salary for the fortnight commencing 13 February 2025. At the end of that fortnight, on 27 February 2025, and after receiving correspondence from the Department that he likely saw as inflammatory but was objectively reasonable in the circumstances (including because it provided a further opportunity to submit his timesheets and advised that his unauthorised leave the day before would be treated as personal leave), Mr Young filed this application.
Does Mr Young have a reasonable belief that he has been bullied at work?
As noted above, Mr Young experienced a significant emotional reaction to being told during an end-of-cycle assessment in June 2024 that his performance was not meeting expectations and that he was being placed on a ‘back on track’ plan. He immediately took leave for 9 weeks, returned for one week and then sought a further period of miscellaneous leave without pay.
Implementation of the 3-day week and the Department’s efforts to manage his attendance and non-compliance with directions after that time led to an ongoing and escalating dispute. On the materials, there is no reasonable basis for Mr Young to have considered his treatment at the hands of the Department and its officials as bullying in nature in the period leading up to 28 February 2025. Considerable care was taken in dealings with Mr Young to provide relevant support while also seeking to manage his employment, as the Department was both entitled and required to do. These efforts were generally rebuffed or rejected by Mr Young in lengthy correspondence that sought to entrench him in the position of victim and avoid taking responsibility for his own contribution to the circumstances he faced.
This behaviour is consistent with Dr O’Daly’s analysis of moral injury and embitterment disorder, and Mr Young’s related ‘idiosyncratic personalised belief system’ that explained his psychosocial behaviours and responses to these perceptions, thoughts, and beliefs. Objectively, these were not reasonable beliefs. Further, any belief that he was being bullied at work by the Department as a whole could not have been a reasonable one. As Mr Young acknowledged in his submissions, the Department is not an individual. It could not, as an entity, have engaged in bullying behaviour within the scope of Part 6-4B of the Act.
Dealing broadly with the allegations of bullying at work:
The contention that Mr Young was placed on forced part-time arrangements against medical advice overstates the effect of that advice while failing to acknowledge the lack of clarity in each of the medical reports relied upon.
The allegation that the Department has engaged in a ‘deliberate, coordinated strategy of administrative persecution, psychological warfare and financial sabotage’ is suggestive of some type of conspiracy against Mr Young which finds no support in the materials.
It can be accepted that Mr Young experienced financial stress due to a reduction in working hours and the of withholding of pay due to failure to complete timesheets. In each case, there is a reasonable explanation for the actions of the Department.
There is no foundation for any ‘obstruction of medical and grievance processes’ by the Department. Repeated efforts were made to assist Mr Young in obtaining additional medical information to support his return to full-time work. When he complained about the process to be adopted in the s.33 review, the Department changed the process to allow the review to be undertaken at ‘arms-length’. Procedural issues such as changes in relevant contacts in human resources or in connection with the review are unexceptional rather than personal or targeted toward Mr Young.
The alleged ‘exploitation of personal vulnerabilities’ is similarly unfounded. There is limited evidence about what Mr Young told the Department about his prior medical history. The only available medical evidence does not establish any formal mental health diagnosis. There is also no original source documentation in relation to the domestic violence incident, and no basis other than a coincidence of timing to suggest retaliatory action in connection with the reporting of that incident.
It follows that the allegation that the Department has adopted a ‘process as punishment’ methodology to target Mr Young, prevent accountability and/or frustrate his inquiries has no reasonable basis.
Finally, and to the extent that allegations made by Mr Young relate to events that occurred while Mr Young was not ‘at work’, they are beyond the scope of this jurisdiction. These include steps taken to understand Mr Young’s capacity for work by requiring him to attend independent medical examinations or manage his return to work during periods of leave.
Conclusion
I find that Mr Young did not have a reasonable belief that he had been bullied at work by the individuals named in his application at the time the application was made. He was not entitled to apply to the Commission for orders to stop the alleged bullying at work.
Order
The application is dismissed.
COMMISSIONER
Determined on the papers
[1] Fair Work Act 2009 (Cth), s.789FC(1).
[2] Act, s.789FD(1).
[3] Re SB[2014] FWC 2104; Amie Mac v Bank of Queensland Limited and other [2015] FWC 774; Greenan v Croftbridge Pty Ltd and others [2025] FWCFB 61.
[4] Act, s.789FD(2).
[5] Explanatory Memorandum to the Fair Work Amendment Bill 2013
Printed by authority of the Commonwealth Government Printer
<PR792013>
1
0
0