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Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Liu
(AB2024/551)
COMMISSIONER MCKINNON SYDNEY, 26 NOVEMBER 2024
Application for an order to stop bullying at work – whether applicant is a “worker”
[1] On 25 July 2024 (and completed on 29 July 2024), Mr Robin (Bing-Han) Liu applied
for orders to stop bullying at work under s.789FC in Part 6-4B of the Fair Work Act 2009 (the
Act). Mr Liu alleges that he was bullied while at work as a casual employee in the business of
Prominent Fluid Controls Pty Ltd (PFC).
[2] Only a worker can apply for orders to stop bullying at work. The question is whether
Mr Liu is relevantly a “worker” for the purposes of s.789FC of the Act.1 To answer the question,
it is also necessary to consider whether Mr Liu has resigned or was dismissed from his
employment with PFC.
[3] I find that Mr Liu was dismissed by PFC on 17 July 2024. The result is that he was not
a worker at the time he applied to the Commission and did not have standing to bring the
application. The application will be dismissed. These are my reasons.
The facts
[4] For approximately 9.5 years, Mr Liu worked for PFC as a casual draftsman. In July
2024, he had recently returned from a period of parental leave and was rostered to work 2 days
per week.
[5] On 16 July 2024, Mr Liu was called into a meeting with Mr Scott Carlson, Engineering
Manager. Mr Carlson has worked for PFC for approximately 30 years and has input into
decisions about hiring and firing from the business. To the extent that PFC asserts that his input
into hiring and firing decisions in the engineering department is only limited, the assertion is
rejected. It is clear from reading the materials and hearing from Mr Carlson that he has a
significant degree of autonomy over the engineering department, although of course he keeps
Mr Nick Bohm, Chief Executive Officer, apprised of important decisions and events.
[6] The context for the meeting on 16 July 2024 was that Mr Carlson had decided to have a
chat with Mr Liu about his work pattern, because the business had a lot of work to get through
and needed Mr Liu to be more available to the business. He asked Mr Liu if he would increase
his days of work to 4 days per week to make it easier to manage jobs. Mr Liu responded by
[2024] FWC 3282
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3282
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explaining that as he had a newborn baby, the answer was probably no. Mr Carlson asked him
to think about it and talk to his wife.
[7] On the afternoon of 17 July 2024, there was another meeting between Mr Liu and
Mr Carlson. Mr Carlson again asked Mr Liu if he could work 4 days per week, and Mr Liu
again said no. Mr Carlson then mentioned he had accepted an intern to work in the business and
said, in words to the effect:
“I don’t think this is going to work. If you are unable to commit to 4 days per week, it
would be better for you to finish up.”
[8] Mr Liu responded by saying, in words to the effect: “You have a replacement, it’s fine,
I have a baby.” Mr Carlson offered him some work in the afternoons but Mr Liu declined
because it was not a valuable offer. Mr Liu then said: “It’s fine, I don’t need to come.” He left
shortly after the conversation and has not worked with PFC since.
[9] On 18 July 2024, Mr Carlson told Mr Bohm about his conversation with Mr Liu,
including that Mr Liu had decided to leave immediately. Mr Carlson also contacted Mr Rhett
Lennox in IT to tell him that Mr Liu had left.
[10] On 24 July 2024, Mr Bohm asked Mr Lennox to remove Mr Liu’s access from its
business systems. Mr Bohm also contacted Mr Ke Wang, the company accountant, and asked
him to process Mr Liu’s final pay. Mr Wang progressed Mr Liu’s final pay on 25 July 2024 and
paid his final superannuation contribution on 12 August 2024.
Consideration
[11] In making the findings of fact above, I have preferred the evidence of Mr Liu over the
evidence of Mr Carlson and the other witnesses for PFC as to the facts in conflict. Their
evidence generally aligns on the critical matter of Mr Carlson telling Mr Liu on 17 July 2024
that if he could not work 4 days per week, it would be better if he finished up. It is in conflict
in relation to Mr Carlson’s assertion that he offered for Mr Liu to finish up the following week
and to be taken out for lunch, a matter denied by Mr Liu. The offer of lunch was a sore point
for Mr Liu given his long history as a casual employee watching others be celebrated for their
service but not him. I prefer his denial to the evidence of Mr Carlson on this matter.
[12] The evidence of Mr Liu and Mr Carlson is also apart on the date of their first
conversation – which Mr Liu says occurred on 16 July 2024 and Mr Carlson puts at 10 July
2024. Mr Carlson’s evidence, which changed mid-way through the proceeding, lacked
precision as to significant dates and times. His initial error as to dates significantly contributed
to errors made by other PFC witnesses. Although the errors were subsequently mostly
corrected, some remained unexplained. On balance, I find the evidence of Mr Carlson less
persuasive than the generally consistent and unchanged evidence of Mr Liu about events up to
and including 17 July 2024. My conclusion in this regard is not affected by an error made by
Mr Liu about whether he still had access to PFC’s IT systems in September 2024, which is of
tangential relevance to the question for decision and was corrected by Mr Liu at the outset of
his evidence.
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[13] Mr Liu’s evidence that he was offered afternoon shifts is denied by Mr Carlson. I cannot
see any reason why Mr Liu would make this up, but nothing turns on it. There is also a
discrepancy in the evidence about whether and when Mr Carlson engaged a replacement, or an
intern, or a contractor, to undertake some of the work performed by Mr Liu. Again, nothing
turns on it. I accept Mr Liu’s evidence that reference was made to the business accepting an
intern in conversation with Mr Carlson on 17 July 2024 and that Mr Liu understood this to mean
a replacement for him.
[14] Ultimately, the questions for determination can be resolved by understanding the effect
of the conversation between Mr Liu and Mr Carlson on 17 July 2024. In this regard, only the
evidence of Mr Liu and Mr Carlson is of relevant probative value. Evidence from other PFC
witnesses that touches on the content of that conversation is hearsay and of limited weight. The
evidence of all witnesses as to the legal effect of the conversation on 17 July 2024 is opinion
and of limited weight. The actions taken by PFC witnesses after 17 July 2024 is consistent with
the conclusion that the employment relationship between Mr Liu and PFC came to an end on
17 July 2024.
Conclusion
[15] I find that Mr Liu’s employment was terminated by Mr Carlson on 17 July 2024 when
he told Mr Liu that if he was unable to commit to 4 days per week (as Mr Liu had by then
confirmed) it would be better for him to finish up. It was both intended and probable that this
conduct would have the effect of bringing the employment of Mr Liu to an end. The fact that
Mr Liu then said “It’s fine, I don’t need to come” or words to that effect is not evidence of his
resignation. It is evidence of his acceptance of what he was being told by Mr Carlson. As a
casual employee, he was not entitled to notice of termination despite his long period of service.
[16] Mr Liu’s employment was terminated at the initiative of PFC. In other words, he was
dismissed. At the time of his application on 29 July 2024, he was no longer a worker for the
purposes of s.789FC of the Act. Accordingly, he was not entitled to apply for orders to stop
bullying at work.
[17] The application is dismissed.
COMMISSIONER
WORK R WORK MMISSION THE F AUSTRALIA THE SEAL
[2024] FWC 3282
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Appearances:
J Winarta of Winarta Legal for the applicant.
B Field of Irwell Law Pty Ltd for the respondents.
Hearing details:
2024.
Sydney (by video):
October 31.
Printed by authority of the Commonwealth Government Printer
PR781693
1 In the Act, “worker” generally has the same meaning as in s.7 of the Work Health and Safety Act 2011 (Cth) (s.789FC(2)).
