When Difficult Doesn't Mean Bullying

What Two Dismissed FWC Stop Bullying Applications Teach Us About the Real Legal Threshold

By Vrushali Suvarna - HR Specialist | ER/IR Practitioner | Founder, HRWise.com.au | May 2026

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Case Study Summary

A Fair Work Commission decision involving two employees of a property management contractor and the Body Corporate Secretary at an apartment complex was recently analysed by Aaron Goonrey, Partner and Head of Employment & Reward Australia and APAC at Pinsent Masons. The Commission dismissed both stop bullying applications - despite finding that emails questioned competence using language described as condescending, dismissive and belittling, and that one applicant's professionalism had been unfairly questioned.

This case study examines why both applications failed, what the decisions reveal about the gap between difficult behaviour and legally actionable bullying, and what HR practitioners and managers need to understand before escalating - or defending - a workplace bullying complaint.

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1. The Case That Made Employment Lawyers Do a Double-Take

Imagine the Fair Work Commission describing someone's behaviour as displaying 'the characteristics of a narcissist' and their demands as 'bordering on delusional.' Now imagine that person winning, anyway.

That is essentially what happened in a recent decision analysed by Aaron Goonrey, Partner and Head of Employment & Reward Australia and APAC at Pinsent Masons. Two employees of a property management contractor applied to the FWC for stop bullying orders against the Secretary of a Body Corporate at an apartment complex. The emails at the centre of the dispute were, on any reading, unpleasant. They questioned competence, set deadlines the Commissioner described as 'simply ridiculous' (one demanded a security camera quote within 24 hours), and used language characterised as condescending, dismissive and belittling.

Both applications were dismissed.

Not because the conduct was acceptable. Not because the Commission was indifferent to how the applicants had been treated. But because - and this is the distinction that matters for every HR practitioner and manager working through a bullying complaint - the conduct did not meet the legal threshold for a stop bullying order under the Fair Work Act.

Understanding why is more useful than the headline.

"Confronting, yes. Bullying, not quite. The distinction matters enormously - for employees who feel genuinely mistreated, and for the employers and HR practitioners trying to work out what they're dealing with."

• Aaron Goonrey, Partner, Pinsent Masons, LinkedIn analysis of FWC decision, May 2026

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2. What the Law Actually Requires: Three Thresholds Most People Don't Know

Before examining why these applications failed, it is worth establishing exactly what the Fair Work Act requires. Section 789FD of the Fair Work Act 2009 (Cth) defines 'bullying at work' as conduct that meets three cumulative requirements - all three must be satisfied, not just one or two.

#	Threshold	What it means in practice
1	Repeated unreasonable behaviour	More than once. An isolated incident - however severe - does not meet the 'repeated' requirement. The behaviour must be ongoing or have occurred on multiple occasions. Objective standard: what would a reasonable person consider unreasonable in the circumstances?
2	Creates a risk to health and safety	Not just that the conduct was offensive or upsetting. There must be a demonstrable risk to psychological or physical health and safety. Causing unreasonable stress, affecting mental health, or causing loss of sleep have all been accepted as meeting this threshold in prior FWC decisions.
3	Continuing risk of the conduct recurring (s.789FF)	This is the threshold most applicants and their advisers overlook. Even if thresholds 1 and 2 are satisfied - even if bullying has occurred - the FWC can only make a stop bullying order if it is satisfied there is a real risk the worker will continue to be bullied at work. No continuing risk: no jurisdiction to make an order.

One critical exclusion: the Act explicitly provides that 'reasonable management action carried out in a reasonable manner' does not constitute bullying. This carve-out matters because a significant proportion of stop bullying applications arise from performance management, disciplinary processes, and change management decisions - all of which are lawful management functions, even when the employee experiencing them finds them stressful.

⚠️ The Statistic That Puts This in Context

The Fair Work Commission's anti-bullying jurisdiction commenced on 1 January 2014. In the first 15 months of operation, 874 stop bullying applications were lodged - and only four resulted in a stop bullying order being made. The overwhelming majority (around 87%) were withdrawn, settled at conciliation, or dismissed without a formal order.

This pattern has continued consistently across the decade since. Stop bullying orders are rare. The gap between 'this behaviour was unacceptable' and 'this behaviour meets the legal threshold for a Commission order' is wider than most people expect - and that gap is exactly what this case illustrates.

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3. Why Each Application Failed: A Practitioner's Analysis

The two applicants in this matter were both employees of a property management contractor. The person named in the applications was the Secretary of a Body Corporate at the apartment complex their employer managed. Both applications were dismissed, but for different reasons - and that difference is instructive.

3.1 Applicant One: No Continuing Risk - No Jurisdiction

The first applicant's case was resolved cleanly on a jurisdictional point. The Commission found she had no ongoing contact with the Body Corporate Secretary and faced no future risk of the conduct continuing. Under section 789FF of the Fair Work Act, a continuing risk is a prerequisite for jurisdiction - the Commission can only make an order if it is satisfied the bullying will continue.

No future risk, no order. The Commission did not need to determine whether the past conduct constituted bullying. The application was dismissed at the threshold.

This is consistent with a well-established line of FWC authority. In multiple decisions since 2014, the Commission has held that where the employment relationship has ended, or where the applicant has no ongoing contact with the named respondent, the continuing risk threshold cannot be satisfied. The jurisdiction is prospective - it exists to stop future bullying, not to make findings about past conduct.

3.2 Applicant Two: Confronting Conduct - But Not Bullying

The second application presented a more nuanced picture - and the more instructive outcome for HR practitioners.

The Commission accepted that the applicant's professionalism had been unfairly questioned and that some demands made of her were unreasonable. This is not a trivial concession. The Commissioner's language was direct: the conduct included language characterised as condescending, dismissive, and belittling, with demands described as 'simply ridiculous.'

And yet - the application was still dismissed.

The Commission was not satisfied that the conduct created a risk to health and safety - the mandatory threshold under the Fair Work Act. The applicant experienced conduct that was confronting and arguably professionally disrespectful. But the evidence did not establish that it created the kind of risk to psychological health and safety that the Act requires.

Two additional factors compounded the application's difficulties. First, the Commission noted that the contractor's own principal had sent emails of an equally combative nature. As the Commission observed, it is 'hardly appropriate for an employee of a contractor to complain about the behaviour of a client, if the principal of the contractor is engaged in similar complained-about behaviour.' The conduct was not one-directional.

Second - and this is the finding that should sit with every HR practitioner - neither applicant had ever raised their concerns directly with the person they accused of bullying before filing. The Commission was pointed about this:

"It beggars belief that a person could be accused of bullying without having had the opportunity to correct their behaviour, or even have their behaviour raised with them by the offended party."

• Fair Work Commission, as cited by Aaron Goonrey, Pinsent Masons, May 2026

The decision closed with an explicit caution: if the conduct continues unchanged, future complaints may result in a different outcome. In Goonrey's words, 'consider it a final warning dressed up as a win.'

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4. What This Means for HR Practitioners: Five Operational Lessons

I have sat across from managers who were genuinely distressed by behaviour that, when examined against the legal framework, did not reach the bullying threshold. I have also sat with HR professionals who dismissed complaints that, in retrospect, should have been taken more seriously. The gap between 'this felt like bullying' and 'this is legally actionable bullying' is one of the most practically consequential distinctions in employee relations practice.

This case illustrates five things worth building into your practice.

Lesson 1 - Confronting ≠ Bullying. Health and safety risk is the operative test.

The fact that conduct is rude, disrespectful, professionally inappropriate, or objectively unreasonable does not, by itself, constitute bullying under the Fair Work Act. The applicant must establish that the conduct created a risk to health and safety. In practice this means HR practitioners need to go beyond documenting the conduct and assess the impact: has the employee experienced psychological harm? Is there evidence of stress, anxiety, loss of sleep, changes in functioning? These are the evidentiary matters that move a complaint from 'this is unpleasant' to 'this may be actionable.'

Lesson 2 - Before any formal complaint process: has the conduct been raised with the respondent?

The Commission's observation that neither applicant had raised concerns directly with the Secretary before filing is not just a procedural point. It goes to the jurisdiction's entire logic. The FWC's anti-bullying regime is designed to stop future conduct - it is not a mechanism for obtaining findings about past behaviour. An employee who escalates to a formal complaint without first attempting direct resolution (where safe to do so) weakens their own application and exposes the organisation to claims of inadequate process design.

For HR practitioners, this means: your complaint process should include, as a first step, an assessment of whether direct resolution is appropriate and safe. If so, it should happen before a formal investigation. If not - because the conduct is severe, or because direct communication is unsafe - document why.

Lesson 3 - Conduct is not assessed in isolation. The respondent's conduct matters too.

The Commission's finding that the contractor's own principal was sending equally combative emails is a reminder that bullying complaints do not exist in a vacuum. Where the complainant, or their organisation, has engaged in similar conduct - even if their conduct was provoked - this will be considered. For HR practitioners managing complaints that arise from deteriorating workplace relationships, the question to ask is not just 'what did the respondent do?' but 'what is the full picture of the relationship, and how has each party communicated?'

Lesson 4 - The continuing risk requirement is a genuine jurisdictional threshold - not a formality.

Stop bullying orders exist to prevent future harm. Where the complainant has no ongoing contact with the respondent, or where the circumstances that gave rise to the conduct no longer exist, the Commission's jurisdiction may not be engaged. This has practical implications for how organisations structure their response to bullying complaints: sometimes the most effective resolution is not a formal finding but a structural separation of the parties. Whether that is an option depends on the workplace, the roles, and the nature of the relationship.

Lesson 5 - A 'win' with a warning attached is not a clean outcome. Treat the caution seriously.

The Commission's final warning to the Body Corporate Secretary - that future complaints may result in a different outcome - is a feature of FWC stop bullying decisions that organisations often overlook. The first application was dismissed. The conduct continues. The respondent has now been explicitly told by a federal tribunal that if the behaviour recurs, the result may be different. For any HR practitioner advising an organisation in this position, the correct response to a dismissed bullying application is not 'we won, move on.' It is: what management and communication protocols will we put in place to ensure the same complaint cannot be filed again with a stronger evidence base?

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5. A Practitioner's Framework: Triaging a Bullying Complaint

When a bullying complaint lands on your desk - whether from an employee, a manager, or a third-party contractor - the framework below gives you the questions to work through before deciding whether to investigate formally, mediate, separate the parties, or advise on a FWC application.

Question to ask	If YES	If NO
Has the conduct occurred more than once?	Proceed to next question	Single incident - does not meet 'repeated' threshold. Consider mediation or direct resolution.
Would a reasonable person consider the conduct unreasonable?	Proceed to next question	Likely reasonable management action - document but no formal investigation warranted.
Is there evidence of impact on health and safety? (stress, anxiety, loss of sleep, changes in functioning, medical certificates)	Proceed to next question	Conduct may be poor behaviour but may not meet bullying threshold. Document, address, monitor.
Has the complainant raised concerns directly with the respondent (where safe)?	Can proceed to formal complaint. Document the direct attempt and its outcome.	Assess whether direct resolution is safe. If safe: facilitate it first. If unsafe: document why and proceed.
Is there a continuing risk of the conduct recurring? (ongoing work relationship, ongoing contact)	Formal investigation warranted. Consider FWC stop bullying application if internal process insufficient.	No FWC jurisdiction for stop order. Internal process + separation may be more effective than formal application.
Is the respondent's own conduct free of equally confronting or combative behaviour?	All above criteria met: formal investigation and stop bullying application may be appropriate.	Investigate full picture. Commission will assess conduct of both parties. Complainant's case may be weakened.

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6. Where the Triage Gap Lives in Real Organisations

The most consistent pattern I see in organisations navigating bullying complaints is not a failure of policy - most organisations have a policy. It is a failure of triage: the inability to assess quickly and accurately whether a complaint, at the stage it arrives, meets the legal threshold that would justify a formal investigation, versus the threshold that would make direct resolution, management coaching, or a facilitated conversation more appropriate.

Getting this wrong in either direction is costly. Over-escalating a complaint that does not meet the legal threshold burns management time, creates adversarial dynamics, and often entrenches the conflict rather than resolving it. Under-escalating a complaint that does meet the threshold - or that, as in the case above, carries a 'final warning' dimension - leaves the organisation exposed to a better-evidenced application down the track.

HRWise.com.au is designed to close exactly this gap - helping HR practitioners work through the triage questions at the point the complaint arrives, before resources are committed to a formal process. If you're managing a complaint and want to think through whether the facts as presented meet the threshold, that is precisely the kind of structured assessment HRWise.com.au is built to support. Similarly, if you are a smaller organisation without dedicated ER capability and you are facing a complaint of this kind, Flex HR offers structured case review as part of its advisory service.

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7. Key Takeaways

1. Stop bullying orders under the Fair Work Act require three thresholds to be met: repeated unreasonable behaviour, a risk to health and safety, AND a continuing risk of the conduct recurring. The FWC can only make an order if all three are satisfied.

2. Confronting, rude, and professionally disrespectful conduct is not automatically bullying. The health and safety risk threshold is a genuine evidentiary requirement - not a formality. Applicants need evidence of psychological impact, not just a description of the conduct.

3. The FWC's jurisdiction is prospective. Stop bullying orders prevent future harm. Where there is no ongoing contact and no continuing risk, the jurisdiction does not apply - regardless of how serious the past conduct was.

4. Before any formal bullying complaint proceeds, HR practitioners should assess whether the complainant has raised the concern directly with the respondent (where safe). The Commission has been explicit: it is difficult to sustain a bullying application where the respondent was never given the opportunity to change their behaviour.

5. Conduct is assessed in the full relational context. Where the complainant's own organisation has engaged in similar behaviour, this will be considered. HR practitioners managing complaints from within deteriorating relationships need to examine the full picture.

6. A dismissed bullying application with a warning attached is not a clean outcome. Treat the Commission's caution as a risk management signal and put management protocols in place to address the conduct, even without a formal finding.

7. Stop bullying orders are rare. In the first 15 months of the FWC's anti-bullying jurisdiction, only 4 of 874 applications resulted in an order. This does not mean bullying complaints should be dismissed - it means the internal process, structured triage, and early intervention are more likely to produce a resolution than a formal application alone.

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References

[1] Aaron Goonrey, Partner and Head of Employment & Reward Australia and APAC, Pinsent Masons. LinkedIn analysis of FWC decision, May 2026. (The specific FWC decision citation was not published in the LinkedIn post - readers are encouraged to contact Pinsent Masons directly for the decision reference.)

[2] Fair Work Act 2009 (Cth), ss.789FD, 789FF. Definition of bullying at work; threshold for stop bullying orders; continuing risk requirement.

[3] Marsh Benefits (2015). Fair Work Commission Anti-Bullying Jurisdiction: 7 Years On. Analysis citing CF, NW v Company A and ED [2015] FWC 5272. Of 874 applications in first 15 months, only 4 resulted in stop bullying orders. www.marsh.com

[4] Gillis Delaney Lawyers (2025). No Stop Bullying and Harassment Orders After Termination: FWC Rules No Ongoing Risk in Ms S [2025] FWC 1801. Analysis of continuing risk jurisdictional threshold. www.gdlaw.com.au

[5] Osure v National Disability Insurance Agency [2025] FWC 1346 (Deputy President Millhouse, 14 May 2025); appeal dismissed [2025] FWCFB 168 (5 August 2025). Confirms continuing risk as threshold jurisdictional matter for stop bullying applications.

[6] Application by Ms A [2018] FWC 4147. FWC stop bullying order against Body Corporate Committee Chairman - body corporate secretary/chairman found to have engaged in unreasonable email conduct creating health and safety risk, continuing risk established. Mondaq/Olexo analysis.

[7] Fair Work Commission Quarterly Report to FWO, Q4 2024–25 (April–June 2025). www.fwc.gov.au

[8] Lexology / Allens analysis (2014). Recent FWC anti-bullying cases. Confirms that termination of employment and no ongoing contact defeats continuing risk threshold in stop bullying applications. www.lexology.com

[9] Citation Group (2025). FWC 2024: From Record Cases to Faster Outcomes. 99.9% of stop orders completed within 14 days. Court Services Victoria fined $379,157 for toxic work culture. www.citationgroup.com.au

[10] Safe Work Australia. Psychosocial Hazards at Work - Code of Practice 2022. Bullying as a psychosocial hazard; WHS obligations in relation to bullying and harassment. www.safeworkaustralia.gov.au

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About the Author

Vrushali Suvarna

Vrushali is an HR and Employment Relations specialist with 14 years of experience across ER, IR, workplace investigations and recruitment operations. She has advised organisations in clinical research, health services and professional services. She is the founder of HRWise.com.au, an AI-powered HR triage tool for Australian HR teams, and Flex HR, a fractional HR consulting service for SMBs and NFPs.

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