Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying; application for dismissal of application on the basis it has no reasonable prospect of success; applicant's employment terminated; applicant sought Commissioner recuse himself on the basis of apprehended bias; application for recusal denied; application for dismissal of the application granted

[1] On 7 June 2025, an application was made by Mr Jacob Lye pursuant to s 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying at work. The application seeks orders be made against Mr Lye's former employer, the Bureau of Meteorology (the Bureau) and alleges bullying against four named persons. The application has been the subject of several decisions of the Commission, including [2025] FWC 3061 and [2025] FWC 3410 in which some of the relevant background is set out.

[2] On 22 October 2025, the Bureau made an application under cover of Form 1, pursuant to s 587 of the Act, seeking that Mr Lye's application for stop bullying orders be dismissed (the dismissal application). It also seeks an order prohibiting the publication of the names of the named persons (the non-publication application).

• [3] The dismissal application asserts that on 22 October 2025 Mr Lye's employment was terminated and thus the Commission has no power to make stop bullying orders under s 789FF of the Act because it cannot be satisfied in the circumstances there is a risk that Mr Lye will continue to be bullied at work by an individual or group[1].

[4] On 23 October 2025, I made directions for the dismissal application to be dealt with, by requiring the Bureau to file and serve an Outline of Submissions and any evidentiary material upon which it relies on 31 October 2025 and Mr Lye to do so on 7 November 2025. I indicated that the matter would be listed for a hearing on 14 November 2025. I conducted a hearing in relation to the dismissal application on 14 November 2025.

[5] Some of the events leading up to the hearing are set out in [2025] FWC 3410. In short, the Bureau filed an outline of submissions on 31 October 2025. Mr Lye filed submissions on 12 November 2025 after having been given two extensions to do so. Mr Lye's submissions were described as being filed and served "under duress".

[6] On 13 November 2025, Mr Lye sought that the hearing scheduled for the following day be adjourned or vacated. I declined this request for reasons given in [2025] FWC 3410. The basis of Mr Lye's request that the hearing be adjourned or vacated was that he was medically unfit to participate, and, as explained in [2025] FWC 3410, he provided medical information to that effect.

[7] Early on 14 November 2025, an application was filed in the registry by Mr Lye under cover of Form F1 seeking "an immediate stay of the hearing listed for 14 November 2025 ...", and "an immediate stay of all steps in the Respondent's dismissal application ..." until particular steps were taken. Mr Lye also sought an "expedited administrative hearing before a different member of the Commission" for directions on the "stayed proceeding". The application was said to be made pursuant to ss 577, 578 and 589 of the Act, and the Commission's "implied powers to stay or suspend proceedings where necessary to ensure procedural fairness, prevent prejudice to a party or avoid injustice" (the stay application). Other procedural or interim applications have been made in relation to this matter by Mr Lye, which are dealt with below.

[8] Also, on 14 November 2025, Mr Lye sent correspondence to chambers asking that I recuse myself from the proceeding on various grounds (the second recusal application).

[9] During the morning of 14 November 2025, I indicated to parties that the matters raised by Mr Lye would be dealt with at the hearing listed later that day. Mr Lye opposed this course, including on the basis that he said he was medically unfit to attend or participate in the hearing (as he had done the previous day). He recorded these strong objections in several emails but also said "should the hearing nevertheless proceed, I will attend only for the limited purpose of placing these objections formally on the record".

[10] I permitted Mr Lye to attend the hearing via video, and he did so. Ms Lucas of Counsel appeared for the Bureau in person. At the commencement of the hearing, I indicated that I intended to hear from parties in relation to Mr Lye's apparent stay application. I said I would also hear from parties about the second recusal application, but was unlikely to determine that issue immediately, and thus proposed that I would also hear submissions from parties about the dismissal application and the non-publication application as well. I indicated that if after hearing from parties I thought it necessary to disqualify myself, then it was likely that the dismissal application, and the non-publication application would need to be re-heard before a different member of the Commission. However, I indicated that if the second recusal application was declined, I would determine the dismissal and non-publication applications on the basis of the written and oral submissions of the parties. The Bureau pointed out the prejudice to them if it became necessary for the dismissal and non-publication applications to be re-heard but accepted the course of action I outlined. The hearing was conducted on this basis.

[11] Mr Lye said he was appearing at the hearing under duress and that he was not capable of making submissions and could only read a prepared statement. He read the statement. In his statement he repeated his objections that the hearing proceed and again sought that the matter be allocated to a different member of the Commission to deal with his stay and recusal applications.

[12] After Mr Lye concluded his statement, I again indicated that I intended to hear submissions from both parties, firstly about the stay application and then the subsequent matters. Mr Lye again protested that he was not in a position to make submissions. He then left the hearing, by logging off the video link. The hearing proceeded in Mr Lye's absence.

[13] I dismissed Mr Lye's purported stay application ex tempore for reasons that were delivered on transcript. In short, the application did not disclose the basis upon which the Commission has the power to grant a stay in these circumstances. It is plainly not an application made pursuant to s 606 of the Act, as the decision it refers to (the decision to refuse the adjournment request) is not the subject of an appeal. Mr Lye did not make submissions in support of the application. In effect, the application was that I change the decision I had made the previous day, to conduct the hearing. There was no proper basis for this application.

The grounds on which the application was based.

[14] Mr Lye did not make submissions in support of his application that I recuse myself despite having been given an opportunity to do so at the hearing. I must therefore determine his application on the basis of the grounds he set out in writing. The Bureau did not make submissions in relation to the application save to oppose it. Mr Lye sent my chambers an email in relation to the recusal application and a document called "Summary Grounds for Recusal".

[15] I note that in addition to the grounds of opposition set out by Mr Lye, he opposes my determining the application itself, stating that he is "extremely concerned" that the "Commissioner whose conduct is the subject of the recusal request is proposed to determine the very stay and recusal issues that concern his own conduct".

[16] The grounds set out by Mr Lye in relation to the recusal application in his summary document focus on the decision I issued on 13 November 2025 in relation to my refusal to grant his adjournment request, and are as follows:

1. Incorrect or unsupported factual findings.
2. Use of an incorrect legal test for adjournment.
3. Consideration of irrelevant matters, and failure to consider mandatory matters.
4. Outsourcing decision-making to the Respondent.
5. Statements indicating possible pre-determination.
6. Treatment of disability-related limitations as matters of preference.

"This request is made on the basis that a fair-minded lay observer may reasonably apprehend that I may not receive a fair hearing if the matter continues before you. My concerns arise from features of your recent procedural decision and the handling of related issues, including:

1. findings of fact that do not appear consistent with the material on the Commission's file;
2. reliance on incorrect or incomplete understandings of the procedural history;
3. statements suggesting pre-determination of issues;
4. the requirement that confidential medical material be disclosed to the Respondent as a precondition to its consideration; and
5. treatment of disability-related limitations as matters of preference rather than as matters requiring proper consideration."

Principles in relation to the determination of a recusal application.

• [18] In [2025] FWC 3061, in a decision in relation to Mr Lye's first application that I recuse myself in this matter, I set out the principles ordinarily used by Australian Courts and Tribunals to determine recusal applications. I have applied these principles in relation to the second recusal application. In relation to apprehended bias, which is the basis of Mr Lye's second recusal application, the test is whether a fair-minded lay observer might reasonably apprehend that a Judge or Tribunal Member might not bring an impartial mind to the resolution of the question they are required to decide[2]. This requires a two-step process: first, the identification of the factor which is said might lead to a decision about a case other than on its legal or factual merits, and second, the articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits[3].
• [19] I also observed that disqualification on the ground of apprehended bias must must be "firmly established", and a finding of apprehended bias is not to be reached lightly[4]. Members of the Commission have a duty to sit[5] and substantial grounds must be established if this is otherwise to be the case[6].

Grounds based on the decision in question being adverse to Mr Lye.

• [20] Most of the grounds upon which Mr Lye again seeks that I recuse myself in this matter are based on his apparent view that my decision to refuse his request for the hearing on 14 November 2025 to be vacated or adjourned was wrong or incorrect or unfair. It is well established that a belief that an issue may be decided adversely to a party (or is decided adversely) does not constitute an apprehension that an issue might be determined other than impartially[7]. Thus, even if the decision was incorrect or unsupported by factual findings, or based on an incorrect legal test, or based on the consideration of irrelevant matters, or if there was a failure to consider mandatory matters, these are not of themselves indicative of a failure to decide the matter impartially, or matters that might cause the fair minded lay observer to reasonably apprehend that further decisions I may be required to make in relation to this matter might not be impartial.

[21] I consider that the Mr Lye's grounds labelled (a) - (c) above, and numbered 1 and 2 in his email, are not properly grounds upon it might be said that I should disqualify myself in this matter but are rather some of the bases upon which Mr Lye considers my decision was wrong. I do not consider that on these grounds it is appropriate I recuse myself in this matter.

[22] I have arrived at this determination based on the material filed by Mr Lye in support of this, his second recusal application. As I have said, these were not supplemented by oral submissions.

Grounds based on the reference to Mr Lye having not disclosed his medical information to the Bureau.

[23] Mr Lye also submitted that the decision to refuse his request for an adjournment, "outsources" decision making to the Bureau, by conditioning the consideration of his medical evidence on him providing that evidence to the Bureau. Or, as he put it in his email, that it was required that "confidential medical material be disclosed to the Respondent as a precondition to its consideration". This is likely a reference to an observation I made in my reasons for decision, that Mr Lye's decision not to reveal to the Bureau the medical information he provided me with deprived it of procedural fairness in responding to his request, which was (in my view) "particularly relevant in circumstances where its interests are affected by it".

[24] I do not consider that the fair-minded lay observer would consider it indicative of bias that an Applicant is required to provide to a Respondent information about the basis of a request it has made which, if granted, is adverse to the Respondent's interests, so they have sufficient information to make submissions about the request. Nor do I consider the fair-minded lay observer would consider it indicative of bias that an Applicant who refuses to do so might have their request refused.

Grounds based on an allegation of pre-judgement.

"The decision includes statements suggesting that the Commissioner:

- already had a "comprehensive understanding" of the parties' positions, and

- viewed the outcome of the dismissal application as largely determined by existing case law,

prior to hearing the Applicant or resolving his preliminary issues.

Such statements may give rise to a reasonable apprehension of pre-judgment."

• [26] The decision to refuse the adjournment said, among other things (citations omitted)[8]:

"Secondly, I consider that both Mr Lye and the Bureau have already been afforded procedural fairness in relation to the dismissal application, and the substantive proceeding. In relation to the dismissal application, both parties have filed and served submissions in relation to it, and Mr Lye was provided two unsolicited extensions of time for him to do so. Thus, the Commission is already appraised of the basis upon which the Bureau says the application should be dismissed, and why Mr Lye opposes that course. I had listed the matter for hearing to provide both parties an opportunity to supplement those submissions if they wished to do so, largely out of an abundance of prudence. This is not to say that based on the written submissions, I do not already have a reasonably comprehensive understanding of the parties' respective positions.

Thirdly, in the Directions I issued in relation to the dismissal application, I alerted parties to decisions of the Commission such as that of Gostencnik DP in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines. Decision such as this suggest that the circumstances in which an Applicant might resist the dismissal of an application made pursuant to s 789FC of the Act for orders to stop bullying where their employment has been terminated may be extremely confined.

In these circumstances, a compelling reason is required to justify adjourning a hearing at a very late stage, in circumstances where it is likely to be relatively brief and largely supplementary."

• [27] Evidence of apparent pre-judgement might in some circumstances lead a fair-minded lay observer to apprehend a decision maker might not be impartial. However, as the High Court has said (citations omitted)[9]:

"[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

[14] There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation."

[28] I do not consider it can be objectively established that by referring parties to decisions of the Commission that might be relevant to a matter, the Commission can be said exhibit a bias or predetermination. The Commission is not bound by the principle of stare decisis - to follow previous decisions of the Commission - but will usually have regard to them, and it will often be appropriate for the Commission to draw relevant decisions to the parties' attention.

[29] The comment which is made in the decision, that the circumstances in which the Applicant will succeed in resisting the dismissal application might be "extremely confined" is not passive (or "sphinx like") but it is not definitive either, and, even if it could be said to convey a tentative opinion, not inappropriate taking into account the comments of the High Court extracted above. The suggestion made by Mr Lye that Commission will be influenced in its determination by "existing case law" is not indicative of bias.

[30] The statement that the Commission has a "comprehensive understanding of the parties' respective positions" after having read their written submissions is also not one that would lead a fair minded lay observer to apprehend bias, in circumstances where the comment is made in the context of the Commission having listed the matter for hearing for the precise reason of hearing further from the parties about the matter.

Grounds based on the characterisation given to Mr Lye's medical capacity.

[31] Mr Lye also submits that the decision characterises his "medical incapacity and disability-related needs as matters of preference or convenience". It complains that "the decision does not consider the medical evidence indicating that participation would not be safe". For similar reasons outlined above, this submission appears to relate to the basis upon which Mr Lye considers the decision to be wrong or unfair and is not a basis upon which I consider it appropriate to disqualify myself in this matter.

The determination of a recusal application by the member against whom it is directed.

• [32] Finally, as I have noted, Mr Lye expressed concern that it is not appropriate that the "Commissioner whose conduct is the subject of the recusal request is proposed to determine the very stay and recusal issues that concern his own conduct". In Australia, when an application is made by a party that a member of a Court or Tribunal recuse themselves from a proceeding, the usual approach is that the application is dealt with by that Judge or Member. This has been described as the "ordinary, and the correct practice" [10]. A useful explanation as to why this is so can be found in the decision of Edelman J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor[11]. I have adopted this approach in this matter.

Conclusion in relation to the second recusal application.

[33] For these reasons, I decline to recuse myself in relation to this matter. On that basis, as I indicated to the parties at the hearing, I will proceed to determine the dismissal application and the non-publication application.

[34] The Bureau sought an order that names of the four named persons in this application not be published. It seeks this order be made in relation to the determination of the dismissal application and otherwise in relation to the substantive proceedings.

[35] The basis of the Bureau's application was that it submits that the four named persons have been subject to a significant volume of serious and unfounded complaints by Mr Lye, both internally and externally to the Bureau, and this course of conduct creates a risk to the health and safety of those persons. It said that the orders it seeks are highly confined in nature, that none of the evidence on which the allegations against the Bureau or the named persons is based has been admitted into evidence by the Commission, that the orders are for the purposes of protecting the safety of the named persons, and that the orders are necessary to protect the name persons from prejudice or disadvantage, taking into account, among other things, that each are very senior public servants. It relied in particular upon a report made by a Comcare Inspector which said that Mr Lye's "conduct and persistent allegations may have had an impact on the health and safety of other BOM employees ...". It also submitted that Mr Lye had during these proceedings made serious allegations against the named persons, including at times in relation to criminal conduct.

[36] Mr Lye objected to the application for non-publication orders. He submitted that such orders should only be made when "really necessary", that no confidential or safety-sensitive material had been identified and that open justice should prevail, "with any limited measures confined to temporary de-identification for junior staff only".

• [37] The Commission can make orders prohibiting or restricting the publication of matters contained in documents lodged with the Commission or before it in a hearing, or the whole or any part of its decisions or reasons in relation to a matter, such as the names of the named persons[12].
• [38] A Full Bench of this Commission recently observed as follows (citations omitted)[13]:

"There will be some matters before the Commission, including in the anti-bullying jurisdiction, where there will be good reason to make orders restricting or prohibiting publication of evidence, or identification of the persons involved, having regard to the circumstances of the case including the nature of the allegations, the situation of the parties and the status of proceedings. Similarly, the Commission might choose not to use the names of individuals in a published decision if persuaded that is the appropriate course. However, mere embarrassment or distress, or possible damage to reputation, has not generally been regarded as sufficient to justify non-publication orders. In Mac v Bank of Queensland, Hatcher VP (as his Honour then was) said in relation to proceedings in the Commission's anti-bullying jurisdiction:

In relation to the anti-bullying jurisdiction established by Pt 6-4B of the FW Act, it is apparent that the purpose of the legislation, namely to ensure that workers can continue in their engagements at work free from the risk to health and safety caused by workplace bullying, would be defeated if the public disclosure of sensitive information during the course of anti bullying proceedings would be likely to have the effect of rendering the relevant worker's continuing engagement unviable. However it is equally apparent that, in accordance with the open justice principle, it is not sufficient to justify the making of a non-disclosure order merely that allegations have been made which are embarrassing, distressing or potentially damaging to reputations. In an anti-bullying matter, as with other types of proceedings before the Commission such as unfair dismissal remedy applications, the findings of the Commission concerning allegations which have been made will usually appropriately resolve concerns about embarrassment, distress or damage to reputation. If findings are made that an applicant's allegations of bullying behaviour are unfounded, then the position of persons alleged to be the perpetrators of such bullying will be vindicated and the outcome will redound upon the applicant. However if allegations of bullying are found to be substantiated, then public identification of the perpetrators of that bullying is normally appropriate. In either case, the public scrutiny involved will have a deterrent effect that is in the public interest - in the former case against the making of unfounded allegations and in the latter case against engagement in bullying behaviour."

[39] I am not persuaded that on the material before me, there is anything directed against the named persons more than allegations which are likely embarrassing, distressing or potentially damaging to reputations. With regard to the principles of open justice, I do not consider it appropriate to make the order sought by the Bureau, at this time.

[40] Having said this, I see no reason to identify the named persons in this decision - doing so adds nothing to the decision, and not mentioning their names does not prevent me from explaining the reasoning for my determinations.

[41] The Bureau submits that Mr Lye's application for stop bullying orders should be dismissed because it has no reasonable prospects of success. It denies Mr Lye has been bullied at work by the named persons, or at all, but more importantly, submits that there is no risk Mr Lye will continue to be bullied at work because his employment has been terminated.

[42] The termination of Mr Lye's employment occurred on 20 October 2025 when Ms Ella Harrison, General Manager and delegate of the Chief Executive Officer and Director of Meteorology, gave notice to Mr Lye of her decision to terminate his employment under section 29(1) of the Public Service Act 1999 (Cth), on the basis that he had been found to have breached the APS Code of Conduct.

[43] In response to the Bureau's submission, Mr Lye submits that:

"Termination does not extinguish jurisdiction. The Respondents' own authorities (Willis; Dobler) show the Commission may adjourn or determine preliminary issues first. Shaw is distinguishable as that case had a clean break in employment, whereas here termination coincided with these proceedings. The evidence is incomplete, and the Comcare report relied upon is limited to WHS compliance, not bullying merits."

6. Additional Grounds for Refusing or Adjourning Dismissal

Pending General Protections Dismissal Claim: the GP claim provides a live avenue for reinstatement or continued relationship, negating the no-prospects threshold. Pending Appeal: issuing dismissal now would pre-empt the appeal and risk inconsistency. Ongoing SRC/Rehabilitation Obligations: employer rehabilitation duties create continuing work-related interactions; bullying risk remains and can be managed via tailored orders.

7. Fair-Hearing and Reasonable-Adjustment Obligations

Sections 577-578 require proceedings to be fair and just and to accommodate disability. The Applicant's requests for reasonable adjustments and assistance remain unaddressed. These issues must be resolved before any substantive or summary determination.

Dealing with "future risk" as a preliminary issue.

• [45] Undoubtedly, orders to stop bullying may only be made by the Commission if both limbs of s 789FF of the Act are satisfied - namely - that (i) the worker has been bullied at work by an individual or a group of individuals and (ii) there is a risk the that the worker will continue to be bullied at work by the individual or group[14].

[46] The Bureau's dismissal application is based on s 587(1)(c) of the Act, which provides the Commission may dismiss an application if it has no "reasonable prospect of success".

• [47] Such an application requires the exercise of discretion as to whether the future risk that the worker will continue to be bullied at work to be determined as a threshold or preliminary matter. In relation to this issue, a Full Bench of the Commission recently observed[15]:

"The second issue raises what we consider is properly a matter of discretion. The Commission is not required in all cases to determine both elements of s 789FF(1) of the Act. Whether it is appropriate to deal with the future risk element as a threshold matter will depend upon the circumstances of each case. It will not always be appropriate to deal with the future risk as a preliminary issue, particularly where findings are being made in the context of ongoing working relationships where the applicant worker and the relevant individuals continue to work for the employer/principal concerned. In those circumstances, significant caution should be exercised before a member of the Commission adopts the course of determining whether there is a risk a worker will continued to be bullied without fully considering the past allegations of bullying behaviour.

In some cases, it will be important to understand and make findings about the existence and nature of any bullying conduct in order to properly assess whether there is a future risk. The nature of the bullying, and those responsible for or involved in the relevant conduct, might only be fully revealed upon the hearing of evidence in relation to past conduct. In other cases, the scope of the alleged bullying may be clear, and the remedial actions taken, or change in circumstances, clear enough that it would be reasonable to deal with the future risk issue as a preliminary point. In making that assessment, the purpose of the provision, namely, to make orders where appropriate to prevent future relevant bullying conduct, should be considered. If that outcome has already been achieved, orders cannot be made."

[48] As I have recorded above, Mr Lye submits that the Commission can "adjourn or determine preliminary issues first", and thus appears to argue that in this case I should not exercise my discretion to determine the "future risk issue" as a preliminary matter, because, in particular, his termination of employment "coincided with these proceedings" and "the evidence is incomplete". I consider this submission to be misconceived. Whether or not Mr Lye's termination of employment "coincided with these proceedings" does not change the fact that his employment is terminated. There is sufficient material before me to know this - while it's circumstances and legitimacy is questioned by Mr Lye - the fact that it has occurred is not. I consider in these circumstances there is sufficient information before me such that it is not inappropriate for me to determine the issue of future risk as a preliminary matter. To do so I do not consider it necessary for me to determine whether bullying has occurred with respect to Mr Lye for the reasons outlined above.

Principles in relation to the dismissal of an application because it has no reasonable prospect of success.

• [49] An order made to dismiss proceedings because they do not have a reasonable prospect of success should not be made lightly. Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge2. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording applicant's procedural fairness (although without necessitating a hearing)[16]. I have had regard to these principles in relation to the Bureau's application.
• [50] In Matthew Priestly and Mika Tyson v Blackfisch Films Pty Ltd[17] a Full Bench of the Commission said:

"The exercise of a discretion by a member of the Commission to summarily dispose of proceedings on grounds of want of prosecution, under s 399A in the case of unfair dismissal proceedings or otherwise, involves a balancing exercise in which a variety of factors are to be considered. Considerations such as those set out by Simpson J in Hoser v Hartcher are likely to be relevant. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. That assessment must also be undertaken taking into account the obligations of the Commission under s 577(1) of the Act and the impact of any non-compliance with directions on the operations of the Commission more broadly."

[51] Mr Lye is of the view that he has been denied procedural fairness in relation to this matter - including with respect to the dismissal application. After the hearing - after I reserved my decision in this matter - he sent correspondence to the Commission in which he sought to report "serious procedural concerns" arising from the hearing of the matter, including as follows:

1. The Commissioner did not recognise or acknowledge my attempt to make a preliminary procedural statement, including my need to place objections on the record.
2. I was permitted to speak only on the condition that my remarks related to the stay application, despite my statement addressing:
   • - the undetermined stay;
   • - the undetermined recusal request; and
   • - my certified medical incapacity.
3. The Commissioner refused to acknowledge either the contents of my statement or my request for the full transcript and video recording of the hearing.
4. Immediately after hearing my statement, the Commissioner invited the Respondent to make submissions on the stay application, despite:
   • - my documented medical incapacity to participate in any capacity;
   • - my formal procedural objections; and
   • - the fact that both the stay and recusal relate directly to the Commissioner's own conduct and therefore require independent determination
5. Given my medical incapacity, I reiterated that I could not safely participate in the hearing and then left the hearing for safety reasons.

• [52] Previously, Mr Lye has also complained that he has been denied procedural fairness in this matter including by not having had "reasonable adjustments" requests granted, and by not having had been provided sufficient time to comply with Directions. Mr Lye's request for "reasonable adjustments" has frequently involved, among other things, a request for orders that he be granted "immediate reinstatement of read-only access to my work email, MS Teams, OneDrive, and all relevant files/notes required for my case preparation"[18]. I issued a Statement in relation to some of his requests on 4 September 2025 outlining provisional views in relation to them, later confirming those provisional views after having afforded both parties an opportunity to make submissions in relation to them. Some of Mr Lye's requests were granted but some, such as an order requiring the Bureau to grant him access to its computer systems, were not[19].
• [53] Section 577 of the Act provides that the Commission is to perform its functions in a manner that fair and just, quick, informal and avoids unnecessary technicalities, is open and transparent and promotes harmonious and cooperative workplace relations. As I have said above, parties are also entitled to be provided with procedural fairness. Both this Commission and the Courts have observed that the concept of procedural fairness is not prescribed in a fixed body of rules, and what is required can be different in one case from what is required in another[20]. It is usually fundamental however that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to their interests before the power is exercised[21].

[54] On 23 October 2025, I made Directions in relation to the conduct of the Bureau's dismissal application. These are set out above - the Bureau was permitted a week to file written materials in relation to the application, and Mr Lye, two weeks. When Mr Lye failed to comply with this Direction, I provided him with two extensions of time to do so. Parties were also provided with three weeks' notice of the hearing to be conducted on 14 November 2025. Mr Lye did eventually file written submissions in relation to the dismissal application (as he said, "under duress") and I have considered them in relation to this matter.

[55] During this period, Mr Lye complained on several occasions of his inability to comply with these Directions until "appropriate reasonable adjustments were made" and ultimately, that his compliance was "under duress". In the various correspondence sent by Mr Lye, it was not always apparent precisely what adjustments he was referring to, but as I understand it, those adjustments may have included (but were probably not limited to) his requests to be provided with access to the Bureau's computer systems, or his emails, or other documents or material. On 23 October 2025, Mr Lye sent an email requesting "urgent interim orders for the preservation of all evidence and documents relevant to these proceedings" and on 6 November 2025, filed an application apparently made pursuant to ss 577 and 578 of the Act, and the Disability Discrimination Act 1992, seeking the determination of "threshold issues" such as his requests for reasonable adjustments, again referencing his lack of access to "workplace systems". Mr Lye sought that these matters be determined before the dismissal application was dealt with.

[56] I determined, based on giving consideration to the views expressed by both parties, that it was appropriate to deal with the dismissal application before dealing with the various other requests made by Mr Lye. On 23 October 2025 I advised parties as follows:

1. I have noted the correspondence sent to chambers on 22 October 2025 by Mr Lye in which he:
   1. Agrees with the proposition that this matter be listed for hearing tomorrow to determine his application for interim Orders.
   2. Seeks a range of other Orders, including Orders for the production of documents, for the attendance of witnesses, a "preservation Order" and raises other matters.
2. I have also noted a further email sent by Mr Lye earlier today in response to the correspondence sent by the Respondent. In this correspondence he repeats the request for a "preservation order", asks that it be issued immediately, and also asks me to refuse the Respondent's dismissal application (referred to below).
3. For reasons that follow, this matter will not be the subject of a hearing on Friday 24 October 2025 as was previously canvassed with the parties.
4. In the evening of Thursday 23 October 2025, the Respondent filed an application pursuant to s 587(1)(c) of the Fair Work Act 2009 that Mr Lye's application for stop bullying orders be dismissed.
5. The Respondent contends that the efficient conduct of this matter warrants this application - the application for the matter to be dismissed - to be dealt with first.
6. The Respondent's contention is based on several grounds including that if the issue at the heart of its application for dismissal is determined in its favour, this proceeding must be disposed of in its entirety. It is in this sense the Respondent submits that the most efficient manner for the matter to proceed is to determine this matter before other matters.
7. There is obvious merit in this submission. I also note that the basis of the Respondent's application is essentially a jurisdictional contention - that being that in the absence of a risk that the worker will continue to be bullied at work by the individual or group, the Commission does not have power under s 789FF(1) of the Act to make stop bullying orders. In several decisions, the Commission has also determined that in these circumstances it does not have power to make interim orders either (see for example Wills v Grant, Marley & the Government of New South Wales, Sydney Trains [2020] FWCFB 4514).
8. I note Mr Lye now appears to seek, in relation to his application for interim Orders filed on 14 October 2025, further orders of an interlocutory nature including those mentioned above.
9. In circumstances where the Commission's has had its jurisdiction in this matter put squarely at issue, I consider it is most appropriate to deal with that matter, before dealing with other matters, by determining the Respondent's application filed yesterday (22 October 2025) pursuant to s 587 of the Act.
10. I note further the Respondent seeks a non-publication Order as part of its application that Mr Lye's application for stop bullying orders be dismissed. This application can be dealt with as part of the application made pursuant to s 587 of the Act, with which it is obviously associated.
11. I have noted that Mr Lye seeks, among other things, an Order be made directing the Respondent to "preserve" (a term described in detail in his request) various material. For the avoidance of doubt, I am not prepared to make such an Order at this time. To the extent it is an Order sought to be made pursuant to s 590 of the Act, I do not consider that such an Order is necessary for me to inform myself in relation to this matter or is otherwise justified at this time.

[57] I also observe that during this period of time - since directions were issued in relation to the dismissal application - Mr Lye proved himself capable of engaging on many occasions with the proceeding and with the Commission, including by engaging in sometimes lengthy correspondence traversing legal issues, and by filing formal documents. On this basis, it was reasonable to expect Mr Lye to be able to file and serve submissions in relation to the dismissal application within the period - in the end more than two weeks - afforded to him to do so.

[58] I consider that the Directions made in relation to the dismissal application afforded Mr Lye with a procedurally fair opportunity to file documentary material in relation to it.

[59] In [2025] FWC 3410, I have outlined my reasons for refusing Mr Lye's request that the hearing conducted in relation to the dismissal application on 14 November 2025 be adjourned. I note that Mr Lye did attend the hearing, albeit, he said, "under duress" and thus had an opportunity to address the Commission about the dismissal application. Mr Lye complains that during the hearing he was "permitted to speak only on the condition that my remarks related to the stay application", which disregards the fact that clear direction was provided to parties as to the order in which the Commission would deal with matters before it during the course of the hearing. In so far as it is asserted by Mr Lye, it is not correct that he was not afforded during this hearing an opportunity to hear the submissions of the Bureau in relation to the dismissal application and respond to them. Other complaints made by Mr Lye, such as that he or his comments were not "acknowledged" during the hearing are inconsistent with the fact that he was afforded the opportunity to address the Commission and did so.

[60] In so far as Mr Lye complains to have been denied procedural fairness by the conduct of the hearing on 14 November 2025, I do not agree.

[61] In determining whether Mr Lye's application for stop bullying orders should be dismissed pursuant to s 587(1)(c) I have considered whether he has been afforded procedural fairness, and whether the application has otherwise been dealt with in accordance with the requirements of the Act, including s 577 of the Act. I consider that Mr Lye has been afforded procedural fairness in relation to this matter, and it has been dealt with in accordance with the Act.

Dismissal of an application for stop bullying orders where employment has been terminated - balancing prejudice.

• [62] It is not uncommon that the Commission will determine that in circumstances where an the employment of an Applicant for stop bullying orders has terminated, there can be no future risk they will continue to be bullied at work and thus their application can have no reasonable prospect of success, and should be dismissed pursuant to s 587(1)(c)[22]. As Gostencnik DP said in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines[23] :

"... It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw's application has no reasonable prospect of success."

[63] There is undoubtedly prejudice to the Bureau if their application that this matter be dismissed is declined. It submitted that the continuation of the proceeding would continue to subject the named persons to what it considers to be unfounded criticism, that Mr Lye has failed to properly articulate his case despite being given opportunity to do so, that it would not be equitable that the matter continue given that it was filed over four months ago and that in these circumstances the prejudice to it if the matter is not dismissed is significant.

[64] I note that if the application is not dismissed, the Bureau will be put to the cost and inconvenience of defending a proceeding in which on the basis of the material before me, there appears no prospect Mr Lye can obtain the relief from the Commission he seeks, because there is no future risk of bullying. The prejudice arising from this circumstance is enhanced by the delay that has beset the proceeding. There is prejudice to Mr Lye in having his application dismissed, but in circumstances where it appears to me that he cannot succeed, the prejudice to the Bureau if the matter is allowed to continue weighs in favour of granting its application.

• [65] Some decisions of the Commission have contemplated whether in these circumstances, there may be some future possibility of the worker being reinstated to their employment, reinvigorating the possibility of a risk of bullying[24]. Mr Lye in this matter submitted that an application he says he has filed pursuant to s 365 of the Act "provides a live avenue for reinstatement or continued relationship ...".
• [66] At the hearing, the Bureau claimed that it is not at this stage aware of the application Mr Lye says he has made pursuant to s 365 of the Act. There is very little information before me about the application, save that Mr Lye asserts he has made it - and alludes to reinstatement being a possibility (suggesting it is one of the remedies sought). I note that to achieve reinstatement through this pathway, Mr Lye may need to engage in protracted litigation with an obviously uncertain result and ultimately have capacity to return to the workplace in a safe manner. In the circumstances, the prospect that Mr Lye's employment may be reinstated at the Bureau is speculative and uncertain[25].
• [67] I do not consider that the possibility that Mr Lye may bring proceedings against the Bureau seeking the reinstatement of his employment, or may have already done so, does in these circumstances outweigh the prejudice to the Bureau if the application for stop bullying orders is allowed to proceed. I note that if Mr Lye is successful in obtaining reinstatement at the Bureau, subject to the need to establish the necessary elements under the Act, he is not precluded from bringing a fresh application[26].

• [68] For the foregoing reasons, the application made by the Bureau that Mr Lye's application for stop bullying orders be dismissed pursuant to s 578(1)(c) is granted. An Order[27] will issue to that effect. In so far as any procedural or interlocutory matters relating to this proceeding remain on foot, they will fall away as the result of the dismissal of the substantive application.

[1] Fair Work Act 2009 s 789FF(1)(b)(ii).

[2] Woodside Energy Ltd v The Australian Workers' Union [2022] FWCFB 192 [38] (Woodside); Ebner v Official Trustee [2000] HCA 63; (2000) 176 ALR 644 [74] (Ebner); [6]

[5] Application by Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 779 [22]; Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 [352]

[7] Woodside [39]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15 [88] [328]

[8] Application by Mr Jacob Lye [2025] FWC 3410 [28] - [30]

[9] Johnson v Johnson [2000] HCA 48 [13] - [14]

[11] [2023] HCA 15 [121] - [130]

[12] Fair Work Act 2009 ss 593(3)(d)(ii) and 594(c) and (d)

[13] Joseph Osure v National Disability Insurance Agency, Zoe Honner, Kent Hua [2025] FWCFB 193 [11]

[14] Atkinson v Killarney Properties Pty Ltd T/A Permapleat Schoolwear and Michael Palm [2015] FWCFB 6503 [21]; Re Pilbrow [2020] FWCFB 4373 [17]; Joseph Osure v National Disability Insurance Agency; Zoe Honner, Kent Hua [2025] FWCFB 168 [37] (Osure)

[16] See also Mitchell Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines [2014] FWC 3408

[17] [2025] FWCFB 40 [33]

[18] See [2025] FWC 3061 [12]

[20] Peter Viavattene v Health Care Australia [2013] FWCFB 2532 [28]; Kioa v West (Minister for Immigration and Ethnic Affairs) and another (1985) 60 ALR 113 (Kioa)

[22] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank [2014] FWC 3408 (Shaw); Re Janet Dobler [2019] FWC 7344; Lianne Ridha v Swinburne University of Technology & Others [2025] FWCFB 115

[24] See for example Re PK (2015) 247 IR 119 and Re DQ [2019] FWC 4530

[25] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408 [16]

[26] See Application by Mr Eok Kim [2025] FWC 2524 [15]; Osure [46]

[27] PR793911

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