No Stop Bullying and Harassment Orders After Termination: FWC Rules No Ongoing Risk in Ms S Case
Fair Work Commission clarifies the limits of stop bullying and sexual harassment powers following end of employment
25 June 2025 | Melbourne
In a decision reinforcing the prospective limits of the Fair Work Commission’s powers, Deputy President Millhouse has dismissed two applications brought by a former employee who alleged bullying and sexual harassment in her workplace—after her employment was terminated before the matters could be heard in full.
The case of Ms S [2025] FWC 1801 highlights the crucial requirement of an ongoing risk for the Commission to issue “stop” orders. Once employment ends, so too does the jurisdiction to grant protective orders under the Fair Work Act 2009.
However there are other remedies available.
Background: Two Applications, One Termination
Ms S lodged two applications with the Commission in late 2024:
- On 21 October, she filed a stop sexual harassment application under section 527F.
- On 24 October, she filed a stop bullying application under section 789FC.
Both applications concerned alleged conduct by her employer and colleagues during her employment.
A jurisdictional hearing was held in April 2025 to determine whether Ms S faced an ongoing risk of bullying or harassment at work—an essential threshold under the Act for issuing stop orders.
Before a ruling could be handed down, however, Ms S’s employment was terminated on 16 June 2025. The employer then applied to have both applications dismissed, arguing the Commission no longer had jurisdiction due to the absence of any current employment relationship or future risk.
The Law: Stop Orders Must Address Future Risk
Under the Fair Work Act:
- The Commission may only issue a stop bullying order (s 789FF) or stop sexual harassment order (s 527J) if it is satisfied there is a real and ongoing risk that the applicant will continue to experience the conduct at work.
- Section 587 empowers the Commission to dismiss applications that have no reasonable prospects of success.
Findings: No Ongoing Employment, No Jurisdiction
Deputy President Millhouse accepted that Ms S was no longer employed, no longer “at work” in the employer’s business, and no longer in contact with the individuals named in her applications.
As such:
- There was no risk of ongoing bullying or harassment, as required under ss 789FF(1)(b)(ii) and 527J(1)(b)(ii).
- Without that risk, the Commission lacked jurisdiction to make any stop order.
- The applications had no reasonable prospects of success and could be dismissed under s 587(1)(c) of the Act.
A General Protections Claim Remains
On the same day her employment ended, Ms S lodged a general protections application under s 365, claiming her dismissal was adverse action taken because she exercised her workplace rights.
Ms S argued this active general protections claim justified keeping the stop order applications open, in case she was reinstated to her former position.
The Commission disagreed. Deputy President Millhouse ruled:
- Reinstatement is not automatic under a general protections claim and remains speculative.
- Should Ms S be reinstated or re-employed, she would be entitled to reapply for stop orders based on the same alleged facts.
- There was no legal bar to dismissing the applications while a general protections claim was pending.
However, with a general protection claim on foot, Ms S can recover damages including compensation for mental harm and civil penalties can be imposed on the employer as we observed in our blog about Han v St Basils Nursing Home.
Outcome: Applications Dismissed
Both applications were formally dismissed:
- SH2024/122 – the stop sexual harassment application.
- AB2024/808 – the stop bullying application.
Deputy President Millhouse emphasised that stop orders under the Act are forward-looking and generally fall away once the applicant is no longer employed by the respondent.
The dismissal of the 2 applications had no effect on the general protection claim that will proceed.
Broader Implications
This case underlines a key limitation in the Commission’s jurisdiction: protective “stop” orders are only available to workers currently facing a risk of harm. Once the employment relationship ends, so too does the Commission’s ability to intervene in this way.
While the Commission cannot give “stop” order relief once employment ends, the general protection regime remains available for pursuing redress where dismissal may have been retaliatory or unlawful.
General protection claims are a pathway for employees who are terminated after exercising their rights—offering access to compensation including damages for mental harm, civil penalties, and potentially reinstatement.
And, for future applicants, Ms S [2025] FWC 1801 is a cautionary tale about timing and the importance of being currently employed when seeking a “stop” order and a reminder that retaliatory termination can defeat a “stop” order application but the Fair Work Act contains other avenues to seek redress for bullying and sexual harassment..
Citation: Ms S [2025] FWC 1801
Deputy President: Millhouse
Jurisdiction: Fair Work Commission, Melbourne
Decision Date: 25 June 2025
