Her bullying case was thrown out while she was off work, without warning

What happened

Dr Michelle Shamoell worked for Excelsia University College. In December 2025 she applied to the Fair Work Commission for an order to stop bullying at work. By then she had been off work on workers compensation for months: she had been certified as having nil capacity for work since August 2025.

She represented herself. At a conference on 17 February 2026 she was told her application could not progress until the Commission received her medical clearance to return to work. She wrote to the Deputy President asking exactly what medical evidence was needed. The reply from his chambers said they could not give legal advice.

She then sent a medical certificate dated 24 February 2026. It said she still had nil capacity for work, but that she was medically cleared to attend the Commission's conciliation meeting, which might help resolve the conflict and enable her to return to work in the future.

On 6 March 2026, at a 'report back' conference by phone, the Deputy President dismissed her application. His email afterwards said there was no evidence of a risk she would continue to be bullied at work 'when she is not at work', and that she could simply make a fresh application if she became fit to return.

The law: stop-bullying orders

Part 6-4B of the Fair Work Act 2009 (Cth) lets a worker who reasonably believes they have been bullied at work apply under s 789FC for an order to stop the bullying. Bullying means an individual or group repeatedly behaving unreasonably towards the worker in a way that creates a risk to health and safety. Reasonable management action carried out in a reasonable way is not bullying.

The Commission can make an order only if it is satisfied that the worker has been bullied and that there is a risk the worker will continue to be bullied at work by the same people (s 789FF). The orders look forward: they are meant to stop future bullying, not to compensate for the past, and the Commission cannot award money.

Separately, s 587(1)(c) lets the Commission dismiss an application that has no reasonable prospects of success. The Full Bench quoted an earlier decision saying that this conclusion should be reached only with extreme caution, for example where a claim is manifestly untenable or groundless.

The appeal

Dr Shamoell appealed. An appeal like this needs the Commission's permission. The Full Bench gave it for two reasons: this situation is relatively common in the bullying jurisdiction, so the question was in the public interest, and she had suffered an injustice.

First, the Full Bench found a significant error of fact. Being unfit for work on the day did not mean there was no evidence of a risk of further bullying. She was still employed, she wanted to return, and her doctor had linked a possible return to resolving the conflict. No attempt to resolve that conflict in conference had yet been made. The Full Bench said the dismissal was premature.

It contrasted an earlier case where the worker had already been dismissed, so a return was only speculation, and a case where a restructure meant the worker would no longer deal with the people involved. In those cases the absence of future risk was clear. Here it was not.

Second, she had been denied procedural fairness, which means a fair process. Nothing showed she knew her application might be dismissed if she did not produce a clearance, and her questions about what was needed had not been answered clearly. Raising dismissal only at a short conference, and dismissing the case at that same conference, was not enough, especially for someone without a lawyer.

Not every argument succeeded. The Full Bench accepted that the Act does not require a worker to be fit for work to apply, but found the Deputy President had not treated fitness as a jurisdictional requirement. It also left open whether contact with an employer or its insurer while on leave counts as being 'at work'.

What happened next

The Full Bench quashed the dismissal and sent the application back to the Deputy President. The Full Bench did not decide whether Dr Shamoell was bullied, and the decision does not describe what she says happened.

What this means for you

If you are off work because of bullying, you can still apply for a stop-bullying order, and being unfit for work is not the end of the application. Your employer may still argue there is no real risk of further bullying, so evidence that you intend and expect to return, such as a doctor's note linking a return to resolving the conflict, can matter.

If the Commission asks you for something and you are unsure what it means, ask in writing and keep a copy. A worker should be told clearly if their case is at risk of dismissal and given a chance to respond. Unlike a dismissal claim there is no 21-day limit for a stop-bullying application, but an order can only be made while there is a risk of further bullying at work, so if the job has ended the application is likely to fail. It is worth getting advice early.