FWC looks into case after employer relocates worker away from alleged bullying manager
The Fair Work Commission (FWC) recently dealt with a workplace bullying application where a worker sought orders against their manager, claiming persistent bullying behaviour that had made their working environment intolerable.
The worker initially requested separation from the alleged bully and compensation for the distress caused. However, as the case progressed, the worker's demands shifted focus to the removal of a disciplinary warning that had been issued against them - a warning they argued was part of the bullying pattern.
The employer took a different stance, arguing that any risk of future bullying had been eliminated through workplace changes they had already implemented.
They also challenged the worker's failure to provide supporting evidence despite multiple opportunities to do so, raising questions about the strength of the bullying claims.
The male worker at Coles Supermarkets filed his application on 3 January 2025 seeking stop bullying orders under section 789FC of the Fair Work Act 2009.
He named his store support manager as the person who had allegedly bullied him at work. By the time the case reached hearing, Coles had already made significant workplace changes that would prove decisive.
The procedural history showed the worker's reluctance to follow standard legal processes. Commissioner Boyce conducted a conference on 24 February 2025 attempting to resolve the matter, but was unsuccessful.
The Commissioner then issued directions requiring the worker to file his materials - submissions, witness statements and supporting documents - by 31 March 2025, a deadline for which the worker had already received an extension. When the deadline arrived, the worker sent only an email stating he wished to "move on" and requested removal of a warning.
The warning stemmed from an interaction between the worker and his manager. Coles investigated this incident and initially issued a first and final warning, which was later reduced to a first warning following a review.
The employer discussed this outcome with the worker on 13 December 2024. Significantly, by late January 2025, Coles had transferred the worker to a different store, meaning he no longer worked at the same location as the manager he accused of bullying.
The decision said that The Fair Work Act establishes two essential prerequisites for stop bullying orders under section 789FF. First, the FWC must be satisfied that the worker has been bullied at work by an individual or group.
Second, there must be evidence of a risk that the worker will continue to be bullied by that same individual or group. Both conditions must be met before the FWC can make any orders.
Coles applied on 22 April 2025 to dismiss the worker's application under section 587(1)(c), arguing it had no reasonable prospects of success. The employer's primary argument was that the worker couldn't satisfy the requirement of ongoing risk since he'd been transferred to a different store.
They also highlighted his failure to file evidence and argued that the order he now sought - removal of a warning - wasn't appropriate for preventing future bullying.
The hearing on 12 May 2025 proceeded with significant gaps in the worker's case, as discussed by the FWC. Despite representing himself and giving evidence, he appeared without any filed supporting materials.
When questioned about this failure, he explained that his psychologist had advised against filing materials and that relevant witnesses had changed their minds about giving evidence in support of him.
The FWC made clear it couldn't assess the bullying allegations without evidence: "I have not made any findings about whether [the worker] has been bullied at work. I am unable to do so because, despite multiple opportunities, [the worker] has not filed any materials in support of his application." This evidentiary void prevented the FWC from determining whether the first prerequisite - that bullying had occurred - was satisfied.
During oral submissions, the worker attempted to expand his allegations beyond the named manager. He argued that regional managers' involvement in issuing the warning also constituted bullying. However, the FWC found this wasn't the case originally presented to Coles.
While the worker's application mentioned various people regarding the warning incident, the FWC noted "it could not be expected that [the employer] would take that to mean each of those persons were also alleged to have bullied [the worker]."
The question of ongoing risk became central to the FWC's determination. During the hearing, the worker confirmed he had been transferred to a different store and no longer interacted with the manager.
This admission directly addressed whether the second prerequisite - risk of continued bullying - could be satisfied.
Applying legal principles, the FWC concluded: "I agree with [the employer] that in circumstances where [the worker] is no longer required to interact with [the manager], the person whom [the worker] alleges bullied him at work, there is no longer a risk that he will continue to be bullied at work by that individual."
The store transfer had effectively eliminated the possibility of future workplace interactions that could give rise to bullying.
In exercising its discretion under section 587, the FWC considered whether the application had any reasonable prospects of success. The combination of factors led to a clear conclusion:
"I am of the view that [the worker's] application has no reasonable prospects of success. This is because I am satisfied that there is no risk that [the worker] will continue to be bullied at work as he no longer works in the same location with [the manager], the Named Person in his application."
The FWC acknowledged that its decision didn't prevent future applications if new circumstances arose: "In relation to any allegations that conduct of other people may now be bullying of him, nothing prevents [the worker] from making a further application."
However, the FWC clarified that the current application, filed on 3 January 2025, didn't cover actions occurring after the store transfer or relating to persons other than the named manager.
The final order was definitive: "For the above reasons, I order that the application for a stop bullying order filed by [the worker] on 3 January 2025 be dismissed under s 587 of the Act."
This dismissal resulted from three key factors: the store transfer eliminating future risk, the complete absence of supporting evidence, and the inappropriateness of the remedy sought.
The decision reinforces that successful stop bullying applications require proper evidence, demonstration of ongoing risk, and requests for appropriate forward-looking remedies within the FWC's limited jurisdiction.
