Worker seeks protection from director's alleged behaviour, but company sale creates unforeseen complications
The Fair Work Commission (FWC) recently dealt with an application for a stop bullying order that was ultimately dismissed due to the worker's impending employment termination.
The case involved a general manager who sought protection from alleged workplace bullying by his company's sole director, but the proceedings took an unexpected turn when the business was sold.
The worker had previously filed a stop bullying application in February 2025 against the same director, which was resolved.
However, he made a second application in April 2025, seeking protection from continued alleged workplace bullying behaviour. The director denied all claims of bullying contained in the worker's application.
The worker argued that the Commission should determine whether bullying had occurred before closing the matter, even though he acknowledged the business sale would likely end future contact with the director.
The general manager was employed at an egg company when he made his second application under section 789FF of the Fair Work Act 2009 on 8 April 2025. The company's sole director denied all allegations of bullying in the worker's application.
Under the Fair Work Act 2009, the FWC must satisfy three criteria before making an anti-bullying order. The decision explained:
"The Fair Work Commission may make an anti-bullying order if three criteria in s 789FF of the Act exist. Firstly, a 'worker' must have made an application; secondly, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals; and thirdly, the Commission must be satisfied there is a risk that the worker will continue to be bullied at work by the individual or group."
The third criterion, ongoing risk of future bullying, would prove decisive. The question of continued risk became complicated when business circumstances changed dramatically during proceedings.
During a conference on 13 May 2025, the director revealed significant changes affecting the worker's employment.
The director explained that the general manager would receive redundancy notice the next day because the egg company had agreed to sell the business and assets, with settlement scheduled for 17 June 2025. The director would not continue with the business after the sale.
The director also advised that the worker would be unfit for work from 15 May to 13 June 2025 due to scheduled surgery.
The decision notes: "Effectively, [the director] and [the worker] would have limited to no contact up until Tuesday 17 June 2025, and no contact at all after Tuesday 17 June 2025."
These developments fundamentally changed the application. The FWC formed a preliminary view that regardless of whether bullying had occurred, the changed circumstances meant the essential requirement of ongoing risk could not be satisfied.
The decision maker stated: "regardless of what findings can be made on whether there has been bullying at work, I cannot be satisfied that there is a risk that [the worker] will continue to be bullied at work by [the director]."
Following the conference, the FWC issued directions for both parties to file material addressing the preliminary view and whether the application should be dismissed under section 587 of the Fair Work Act 2009. Both parties complied and indicated the matter could be determined on the papers.
The director provided the worker's termination letter and medical documentation supporting his conference statements.
The director said the worker would not be 'at work' for the remainder of his employment and there would be no further contact between them at work.
The general manager filed limited material focused on a meeting on 8 April 2025, which was the main subject of his application.
The worker agreed that the egg company had been sold and he would 'most probably' have nothing further to do with the director after the sale. However, he believed the Commission should first determine whether bullying occurred before closing the matter.
The FWC drew upon established precedent to guide its decision. Previous FWC decisions found that where a worker seeking a stop-bullying order is no longer employed, the Commission may dismiss the application because it has no reasonable prospects of success. The decision refers to an earlier Full Bench decision for guidance.
After 17 June 2025, the worker's employment would end, the business would have new ownership, and the director would no longer be involved.
The decision explains: "After that date, [the company] will have new ownership. [The director] and [the worker] will not have any further contact at work."
This timeline made it impossible for the FWC to find the required ongoing risk. The decision states:
"I cannot be satisfied that there is a risk that [the worker] will continue to be bullied at work by [the director], and I cannot make a stop-bullying order even if I were satisfied that [the worker] had been bullied at work by [the director]."
The FWC's analysis focused on the forward-looking nature of anti-bullying orders under workplace legislation.
These orders are designed to prevent future bullying rather than provide retrospective judgments on past conduct.
When the employment relationship ends and no future workplace contact is anticipated, the protective purpose becomes meaningless.
Despite the general manager's desire to have the bullying allegations examined, the absence of ongoing risk meant such an examination would serve no useful purpose under the anti-bullying provisions.
The FWC exercised its powers under section 587 to dismiss applications that have no reasonable prospects of success.
The decision states: "I am persuaded that is it appropriate to exercise my powers under s 587 to dismiss [the worker's] application on the basis it has no reasonable prospects of success."
The final order dismissed the application under section 587(1)(c) of the Fair Work Act 2009, demonstrating that stop bullying orders require ongoing workplace relationships to be effective.
