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[2026] FWCFB 73
General information, not legal advice.
Fair Work Commission (Full Bench)
2026-03-26
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [2026] FWC 210 of Commissioner Yilmaz at Melbourne on 22 January 2026 in matter number AB2025/869 - permission to appeal refused
[1] Mr Bobby McLean has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Commissioner Yilmaz on 22 January 2026 ( [2026] FWC 210) (Decision) which dismissed Mr Mclean's application for an order to stop bullying under s 789FC of the Act. The matter was listed before us in relation to permission to appeal only.
[2] We are not persuaded that it would be in the public interest to grant permission to appeal for the following reasons.
[3] Mr McLean made his application under s 789FC of the Act on 21 October 2025. The application disclosed that at the time of filing the application Mr McLean did not have a representative. Mr McLean identified in his application that his line manager was the person named and that he was an employee of KNAPP Australia Pty Ltd (the Respondent). Mr McLean's application appeared to disclose that he was experiencing issues with the person named challenging his existing working arrangements and subsequently making 'dismissive and authoritative remarks', and that the person named had removed his set up of three monitors without prior consultation. Mr McLean further disclosed in the application that he was unfit for work and that in respect to any orders, he believed 'it is important to prioritise my health and well-being'. Mr McLean stated that once he received medical advice, he would be better positioned to determine how to proceed, including whether to escalate the matter further or take additional protective measures. Mr McLean noted that he remained committed to resolving the issue constructively and ensuring that his concerns were addressed through the proper channels.
[4] On 6 November 2025, the Commissioner's Chambers issued an email and notice of listing to the parties for a conference on 26 November 2025. That email set out that matter no. AB2025/869 had been listed for conference concurrently with matter no. C2025/10555 (Mr McLean's general protections application not involving dismissal).
[5] On 17 November 2025, Mr McLean's legal representative filed a Form F53, confirming that Patrick & Phillip Lawyers were acting on his behalf. By email of that same date, the Respondent sought to be legally represented for the listed conference, and, in that respect, filed submissions in support of permission being granted pursuant to ss 596(2)(a)-(c) of the Act.
[6] By email dated 21 November 2025, the Commissioner's Chambers emailed the parties inviting Mr McLean's representative to file brief submissions in respect of s 596 in advance of the listed conference.
[7] On 24 November 2025, Mr McLean's legal representative emailed the Commissioner's Chambers seeking confirmation as to whether any legal representation was required for the conference.
[8] By email dated 24 November 2025, the parties were informed by the Commissioner's Chambers that legal representation had not been granted for the conference.
[9] In response to Chambers' email dated 24 November 2025, on that same date, Mr McLean's representative sought permission to appear pursuant to s 596(2)(b) of the Act accompanied by supportive submissions. Further, on 26 November 2025, Mr McLean's representative filed a 'Memorandum' for use in the conference. That Memorandum, traced, from Mr McLean's perspective, the issue concerning his working from home arrangements from April 2025 to October 2025.
[10] Following the conference, on 28 November 2025, the Respondent emailed to the Commissioner's Chambers a draft agreed statement dated 26 November 2025, as prepared by the Commissioner (the Agreed Statement), and noted its amendments to the Agreed Statement whilst expressing that it remained open to an agreed separation with Mr McLean. The Agreed Statement set out that in resolution of the dispute, the parties had agreed to Mr McLean's working from home arrangements, the notification requirements for absences, that a warning letter of 8 October 2025 be rescinded, the processes for escalating disputes and the standard for written and verbal communication.
[11] By email dated 28 November 2025, the Commissioner's Chambers emailed the Applicant the Agreed Statement with the Respondent's amendments and asked, if the Agreed Statement was acceptable to him, that Mr McLean return the signed Agreed Statement. Alternatively, it was noted if Mr McLean did not wish to resolve the matters on this basis, he was to advise if he wanted to discuss an exit with the company.
[12] On 1 December 2025, Mr McLean emailed the Commissioner's Chambers and whilst identifying that the entire experience had been disheartening, he wished to express his appreciation for the Commissioner's assistance in resolving the matter. Attached to Mr McLean's email was said to have been a signed copy of the Agreed Statement. The Agreed Statement was not signed by Mr McLean.
[13] As the Agreed Statement was not signed, the Commissioner's Chambers emailed Mr McLean on 1 December 2025, and asked Mr McLean to review the Agreed Statement, sign and resend it. In response, on that same day, Mr McLean emailed the Commissioner's Chambers and asked what his options were if he chose to exit.
[14] The Commissioner's Chambers responded to Mr McLean on 2 December 2025, noting that he was required to confirm his position - sign the Agreed Statement or make an offer to the Respondent to consider.
[15] By email dated 3 December 2025, Mr McLean informed the Commissioner's Chambers that he declined to proceed with the Agreed Statement and chose 'exit/formal hearing' as an alternative. Mr McLean set out the reasons and then stated: '[p]lease consider based on the following information that has been provided and what are the next steps if proceeding to a hearing'.
[16] By email dated 4 December 2025, Mr McLean's legal representative emailed the Commissioner's Chambers noting that matter no C2025/10555 had not yet been resolved and that Mr McLean was currently in communication with the Respondent in an attempt to settle the matter. The Commissioner's Chambers responded by email on that same date, informing Mr McLean's representative that the conference for matter no C2025/10555 had been conducted and the matter now closed.
[17] On 11 December 2025, Mr McLean called the Commission requesting that his general protections application be re-opened. Mr McLean was advised that he would need to lodge a new application. On that same day, Mr McLean emailed the Commissioner's Chambers concerning matter no. C2025/10555 and his workplace bullying application. Mr McLean's email stated:
I am writing in relation to my matter lodged with the Fair Work Commission under Case Number C2025/10555 and AB2025/869. A conciliation conference was held November 26 2025. At the conclusion of that conference, I requested that the matter proceed to a formal hearing before attempting exit, which was later rejected by the respondent.
However, I have since been advised that the case was closed. I have not received a formal decision, order, or explanation regarding the closure.
I wish to ensure that my rights under the Fair Work Act 2009 (Cth) are preserved and that I understand the Commission's reasoning for closing the matter without a hearing.
Thank you for your attention to this request. I look forward to your clarification.
[18] By email dated 12 December 2025, the Commissioner's Chambers emailed Mr McLean explaining the operation of the general protections provisions not involving dismissal and why this matter had been closed - noting that the Commission was absent power to bring the matter on for hearing. Mr McLean was informed that he could take a general protections application not involving dismissal to the Federal Court and a link was provided to the Commission's website on non-dismissal applications. In respect to Mr McLean's workplace bullying application, Chambers informed Mr McLean:
To be clear, the anti-bullying application, matter number AB2025/869 remains open and has not been closed. We are awaiting your response to our email on 3 December 2025 seeking confirmation on your position (attached for your reference). You will recall that at the conference on 26 November 2025 the parties worked on an Agreed Statement in resolution of the dispute. You were invited to sign this statement on 28 November 2025. You replied on 1 December 2025 attaching the agreed statement, stating 'please find the signed document attached'. However, the document you uploaded was not signed but after Chambers requested you to send the signed Agreed Statement, you responded asking what your options are if you choose to exit. The Commissioner advised in reply on 2 December 2025 that you need to confirm your position (sign the Agreed Statement or make an offer to the Respondent to consider). You replied "My lawyer was already informed and will be proceeding with the following for exit." You then sent two emails on 3 December 2025, firstly asking if its possible to proceed to a hearing for this matter, and secondly bringing reasons for why you "declined to proceed with the agreement and chose exit/formal hearing as an alternative." Accordingly, we emailed you seeking your confirmation on how you wish to proceed.
Please note your responses to your AB2025/869 matter are not clear. Your options are:
Please advise which of these above options you would like to proceed with.
We note that you have once again emailed without copying in the Respondent. Continual disregard of the requirement to copy all parties into correspondence will result in your emails not being provided to the Commissioner until you resend the email copying in all parties to the matter. For further information on communicating with the Commission see Fair Hearing Practice Note [30]-[32].
[19] On 12 December 2025, Mr McLean emailed the Commissioner's Chambers asking for a certificate in respect of matter no. C2025/10555. At best, this part of Mr McLean's email presented as misconceived. Regarding his workplace bullying application, Mr McLean wrote:
I acknowledge that this matter remains open. At the conference on 26 November 2025, both parties worked on an Agreed Statement. While I initially indicated my intention to sign, subsequent developments led me to reconsider.
For clarity, I also seek confirmation on the implications if I were to withdraw the anti-bullying application. I understand that withdrawing would close the matter before the Commission and no stop bullying order could be made. However, since both matters are related and were requested to be heard jointly by the respondent, I ask whether the Commission can confirm if the bullying issues can still be advanced together in the Federal Court once the s.373 certificate is issued.
[20] By email dated 12 December 2025, the Commissioner's Chambers informed Mr McLean that the Commission did not issue a certificate in relation to s 372 applications and that if he was utilising 'AI' for information, to please be careful. Regarding his workplace bullying application, Mr McLean was informed that if he chose to proceed to hearing for an order to stop bullying, directions would issue for the filing of materials.
[21] On 15 December 2025, Mr McLean advised Chambers that he would seek legal advice on the matter and how to proceed.
[22] The Respondent emailed the Commissioner's Chambers on 8 January 2026 advising that it had made a settlement offer to Mr McLean but had not received a response and sought the Commission's assistance to engage with Mr McLean. As a consequence, the Commissioner's Chambers emailed Mr McLean on 9 January 2026 and asked Mr McLean to respond to the Respondent's email dated 8 January 2026.
[23] By email dated 9 January 2026, Mr McLean informed Chambers that he was not in a good place mentally, that the offer was swiftly rejected last year and that he agreed with the Respondent not to have the 'back and forth'. Mr McLean concluded the email noting that his health and wellbeing were of the utmost importance. Chambers responded to Mr McLean's email on that same date asking whether he wished to close the file or for the Commission to issue directions for an arbitration.
[24] By email dated 12 January 2025, Mr Mclean responded to Chambers' email:
At this stage, I am not in a position to proceed to arbitration as I require additional time to recover from health impacts. This factor currently limits my ability to prepare the detailed submissions and evidence required for a hearing. I respectfully request that the Commission hold the file in abeyance to allow me to address these preliminary matters.
[25] By email of that same date, Chambers responded to Mr McLean, notifying him that the Commission could not indefinitely adjourn matters and therefore he was required to provide a medical certificate confirming that he did not have capacity to advance his application before the Commission at this stage and a timeframe in which he would be fit to resume.
[26] By email dated 19 January 2026, Chambers sought an update from Mr McLean on the whereabouts of a medical certificate, noting that none had been received.
[27] Mr McLean responded by email on 19 January 2026, attaching to the email a Certificate of Capacity (Certificate). That Certificate stated that Mr McLean had been examined on 17 January 2026, and that he had no capacity for employment from 1 January 2026 to 28 January 2026.
[28] By separate email of that same date, Mr McLean sought clarification as to whether bullying matters proceeded through conferences and hearings, not arbitration. Chambers responded by email on 19 January 2026, confirming that it had used the words 'arbitration' and 'hearing' interchangeably and that it related to his workplace bullying application. By further email dated 19 January 2026, Chambers observed that there was no reason why Mr McLean could not advise if he intended to have his bullying application heard by way of arbitration or whether he wished to withdraw the application.
[29] By email dated 19 January 2026, Mr McLean responded to Chambers' email of that same date, advising:
I am not able to participate in a hearing due to the impact on my wellbeing. I do not consent to proceeding to a hearing. I request that the bullying application be closed or paused.
[30] By email dated 20 January 2026, the Commissioner's Chambers emailed Mr Mclean in the following terms:
Your application for orders to stop bullying was made on 20 October 2025. As has been explained to you, no orders can be made unless:
You will recall we had a conference on 26 November 2025 where this was explained to the parties. In addition, the Commissioner expressed her preliminary view of no reasonable prospect of success. The parties jointly agreed to resolve the dispute, so extensive time was spent on an agreed outcome which clarified responsibilities and processes in the workplace.
You have since indicated you prefer to exit from the business, and the in principle agreed outcome is not your preferred resolution of your application.
Such applications in the Commission are required to be dealt with promptly. It is noted that you have rejected the Respondent's offer to accommodate your preferred outcome being an exit.
You advise you are not in a state of health to deal with this application, but your medical certificate is unhelpful to support your refusal to advise whether you intend to discontinue (withdraw) your application or for the Commission to issue directions for arbitration (a hearing).
However, you advise you do not intend to have the matter proceed to hearing. Consequently for want of prosecution, and consistent with her preliminary view of no prospects of success the Commission will issue a decision dismissing your application.
A decision will be published and issued to the parties by end of this week.
[31] By email dated 20 January 2026, Mr McLean informed the Commissioner's Chambers of the following:
I have a few concerns regarding the handling/outcome of this matter.
Please recall that it was asked why the General Protection was closed and it was informed that it was due to administrative reasons.
Also, I explicitly expressed that I requested that the bullying application be closed or paused. This should not be taken in light of no grounds of success, unless the commissioner was already aware yet asked to proceed to arbitration. However, certain progression has caused this to be the less lightly course of action to take while I seek medical attention and decide how to proceed.
Commissioner, I would also like to expressed that on the 26th of November, it was asked that both applicants privately communicate with the commissioner, however on 3rd of December 2025, when the incorrect document was sent, it was forwarded to the respondent before it was brought to my attention. This allowed the respondent to once again harassed and belittled me which was the determined factor to exit.
Commissioner then proceed to closing the General Protection case and then mentioned that you can only contravene a conciliation. I then asked for clarification of why it was closed, it was stated due to administrative reasons.
I then asked for exit and an offer was made to the respondent who rejected and stated that nothing will be offered as the general protection was now closed and I should resign effective immediately.
Another offer was then made to the respondent who counter offer and stated that I should resign effectively and they will not entertain any back and forth. This was rejected as it overlooked the psychological and mental impacts this had caused me.
Yesterday even after presenting my medical certificate, it was overlooked and stated no grounds for not proceeding to hearing/arbitration. I then requested that the matter be closed or paused. The commissioner decided to close the matter, not because I requested to do so, but claimed that there are no grounds of success.
Isn't the bullying application only meant to issue a bullying stop order if there is a future risk of bullying?
This has led me to believe that the Commissioner is well aware of the outcome, but still requested to proceed to arbitration.
Based on the request that was made, shouldn't the below also be stated that this was withdrawn voluntarily, rather than the following statement "Consequently for want of prosecution, and consistent with her preliminary view of no prospects of success the Commission will issue a decision dismissing your application"? Unless the commissioner is acting off the basis of no future occurrence of bullying can occur? (bold our emphasis)
[32] Following the Commissioner's publication of the Decision, Mr McLean emailed the Commissioner's Chambers noting the following:
The information provided in the Decision document is disproportionate and does not fully reflect the nature of the occurrence that occurred.
Also, within the document it was stated that I had not responded to the email, however, this is not the case. About 2 hours after receiving your email I had sent an email outlining my concerns regarding the handling of this matter which I did not receive a response to.
I respectfully request that the commissioner withdraw these statements from the final document and input the true and reflecting events that had occurred.
[33] In the Decision, the Commissioner outlined that on 20 October 2025 Mr McLean made an application under s 789FC of the Act for orders to stop bullying. The application identified the Respondent as the employer and that the person named was an individual employed as Mr McLean's line manager. As to the alleged workplace bullying, the Commissioner identified that Mr McLean had not clearly articulated in the application or the conference that was held on 26 November 2025, what conduct he complained of that constituted bullying - albeit there appeared to have been a dispute about working from home. Furthermore, Mr McLean had not articulated the orders that he was seeking but that he was awaiting further guidance from his doctor who would advise Mr McLean on the appropriate next steps.
[34] The Respondent and person named filed a response to the application objecting to the application on the ground of reasonable management action.
[35] The Commissioner recorded that at the conference, she explained to the parties that no orders could be made unless: (a) Mr McLean was able to adduce evidence that he had been bullied; and (b) the evidence showed a risk that Mr McLean would continue to be bullied to justify the making of orders to stop the bullying. The Commissioner further noted that she had expressed a preliminary view to the parties in the conference that the application had no reasonable prospect of success.
[36] At paragraph [6] of the Decision, the Commissioner recorded that at the time the application was made and at the time the conference was held, Mr McLean was on personal leave. Therefore, efforts were made to resolve matters to facilitate a return to the workplace. The Commissioner noted that the parties jointly agreed to resolve the dispute and extensive time was spent on an agreed outcome, which clarified responsibilities and processes in the workplace.
[37] Notwithstanding, the Commissioner expressed that Mr McLean indicated a preference to exit from the business and that on 19 December 2025, the Respondent made an offer to accommodate Mr McLean's preferred outcome being an exit, which was subsequently rejected by Mr McLean. At paragraph [8] of the Decision, the Commissioner identified that Mr McLean advised he would not make a counteroffer to the Respondent, and therefore on 9 January 2026, Chambers sought Mr McLean's view on whether he wished to close the file or for directions to be issued to hear the matter.
[38] On 12 January 2026, Mr McLean responded stating that he was not in a state of health
to deal with the application and later provided a medical certificate. However, the Commissioner considered that the medical certificate was unhelpful to support Mr McLean's refusal to advise whether he intended to discontinue his application or for the Commission to issue directions for arbitration.
[39] At paragraph [11] of the Decision, the Commissioner noted that on 19 January 2026, Mr McLean subsequently advised that he did not intend to have the matter proceed to hearing. Consequently, for want of prosecution, and consistent with her preliminary view of no prospects of success, the Commissioner said that on 20 January 2026 she indicated to Mr McLean that the Commission would issue a decision dismissing the application.
[40] The Commissioner recorded that no further response was received from the Mr McLean regarding the above. Consequently, the Commissioner exercised discretion under s 587 of the Act and dismissed the Applicant's application for want of prosecution. In doing so, the Commissioner relied upon the Full Bench decision of Sayer v Melsteel Pty Ltd.[1]
[41] The Notice of Appeal contains five grounds of appeal with supporting submissions that can be summarised as follows.
[42] By ground one, Mr McLean asserts he was denied procedural fairness on the basis that by email dated 24 November 2025, the Commissioner declined to allow him to be legally represented at the conference on 26 November 2025 on the basis that it was 'unnecessary' as the conference was in 'private'.
[43] Related to ground one, Mr McLean again asserts in ground two that, essentially, he was again denied procedural fairness by having been deprived a promised procedural pathway. Mr McLean submitted that the Commissioner's email dated 24 November 2025, explicitly stated that if the bullying matter did not resolve, the Commission would discuss next steps and consider legal representation. Instead, said Mr McLean, the Commissioner did not re-evaluate the need for legal representation to remedy the Applicant's 'lack of clarity' and moved straight to dismissing his application under s 587.
[44] By ground three, Mr McLean claims that the Commissioner made a significant error of fact in paragraphs [10] and [11] of the Decision, by characterising his request as a 'refusal to advise' or 'want of prosecution', when, by emails dated 12 January and 19 January 2026, he had explicitly requested that the matter be held in 'abeyance' due to documented psychological impact. Further to this, Mr McLean submits that dismissing the application when he had provided a Certificate constituted a failure to consider a relevant consideration and an error in exercising discretion. He asserts that his email dated 19 January 2026 stating that he did not consent to a hearing, was a direct consequence of his documented medical incapacity and denial of legal representation.
[45] By ground four, Mr McLean contends that the Commissioner erred in her management of the applications joined by the Notice of Listing dated 6 November 2025. In addition, Mr McLean presses that during a period where the Commissioner invited 'private email' communication, an administrative error occurred and the Commissioner wrongly uploaded a document from Mr McLean to the Respondent. According to Mr McLean, this resulted in the Respondent 'attacking' him, triggering his exit from the business. Albeit we observe that at the hearing, the Full Bench was informed that Mr McLean remained employed by the Respondent. Mr McLean added that by the Commissioner closing his general protections matter and dismissing his bullying application, the Commissioner failed to provide a fair adjudication of overlapping facts that led to the breakdown in the employment relationship.
[46] By ground 5, Mr McLean states, as evinced in his email dated 19 January 2026, that he did not consent to a hearing and that this was as a direct consequence of his documented medical incapacity and the denial of legal representation. Mr McLean submits that it was an error of discretion for the Commissioner to treat this as a final 'want of prosecution' rather than granting his primary request of an abeyance to allow for medical recovery.
[47] Regarding the matter of the public interest, Mr McLean explained that the matter raised significant issues of manifest injustice, access to justice, and administrative integrity that transcend the interest of individual parties. In particular, Mr McLean referred to access to justice for vulnerable litigants, procedural fairness and representation - that is, whether it is consistent with the Objects of the Act to deny legal representation for a 'private conference', and administrative responsibility - namely whether summary dismissal is appropriate where an applicant's decline in health and subsequent expressed 'wish to exit' were directly triggered by the unauthorised forwarding of a private document to the Respondent.
[48] Whilst Mr McLean raised a further factor in respect of the public interest, that is, consistency across jurisdictions, the contention is so misconceived it warrants neither explanation nor response.
[49] An appeal under s 604 of the Act is an appeal by way of rehearing, and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker.[2] There is no right to appeal, and an appeal may be made only with the permission of the Commission.
[50] Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so.' The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[3] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[4] The public interest might be attracted where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court (or a Full Bench of the Commission) is required, where the decision at first instance manifests an injustice or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5]
[51] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[6] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[52] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[7] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[53] We have considered the grounds advanced by Mr McLean in his Notice of Appeal and the matters raised by Mr McLean's written submissions. We are not persuaded that any of these arguments give rise to an arguable case of appealable error. Nor are we satisfied that it would be in the public interest to grant permission to appeal. Our reasons are explained as follows.
[54] By ground one, Mr McLean asserts he was denied of procedural fairness on the basis that he was declined legal representation at the conference on 26 November 2025. The requirement for permission for legal representation, and the exceptions to that requirement, are contained in s 596 of the Act. It is apparent from the terms of s 596 that a party in a matter before the Commission must normally appear on her or his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered.[8] Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequent exercise of the discretion conferred by s 596(2).[9] As was noted by Flick J in Warrell v Fair Work Australia, the appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality.[10] The legislative purpose for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided that the Commission is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner.[11] We see no arguable error in the exercise of discretion by the Commissioner, who was attending to the first conference in a workplace bullying application, where, the purpose of the conference was not to determine facts, make findings or inform as to who was right or wrong, but rather to conciliate between an employee, their employer and a person named, with a view to resolving the dispute that gave rise to the application. It was open to the Commissioner to exercise discretion in the manner that she did in light of the context of the proceedings and therefore no arguable error is demonstrated.
[55] Mr McLean appears to submit that by declining him legal representation, the Commissioner overlooked the Memorandum prepared by his lawyer. In terms of what is said here, there is no evidence that the Commissioner did not consider the material prepared by Mr McLean's lawyer and there is no evidence to suggest that she came to her views without considering it.
[56] Somewhat similarly focused on procedural fairness, Mr McLean presses by ground 2, that he was deprived a promised procedural pathway, noting that the Commissioner's email dated 24 November 2025, explicitly stated that if the bullying matter did not resolve, the Commission would discuss next steps and consider legal representation. The email in question dated 24 November 2025 communicated the following to the parties:
The s.372 application (C2025/10555) requires a conciliation conference to be convened and at its conclusion the s.372 application will be closed. The anti-bullying application (AB2025/869), in the event the matter does not resolve at conference, then the Commissioner will talk to parties about next steps and if it is appropriate to consider legal representation, the Commissioner will raise that with the parties.
[57] The question that arises is what fairness requires in all the circumstances of the case. The evidence shows that following the abovementioned email, correspondence passed between the Commissioner's Chambers and the parties to ascertain whether the application should be programmed for arbitration or closed. The Commissioner engaged with the parties to determine the appropriate course (or next steps) to take and in doing so, the parties, particularly Mr McLean, were provided opportunity to communicate their positions. There is no arguable case of appealable error.
[58] By ground three, Mr McLean claims the Commissioner made a significant error of fact in paragraphs [10] and [11] of the Decision by characterising his 'request' (presumedly for an abeyance) as a 'refusal to advise' or 'want of prosecution' and that by failing to take into account the Certificate, the Commissioner failed to consider a relevant consideration and therefore made an error in exercising discretion. Mr McLean refers to his emails to the Commissioner dated 12 January and 19 January 2026 in support. By email dated 12 January 2026, Mr McLean advised that he was not positioned to proceed to arbitration and asked that the Commissioner hold the file in abeyance with no period specified for the 'abeyance' and no evidence in support of the request. The Commissioner's Chambers, understandably, responded on that same date informing the parties that the 'Commission cannot indefinitely adjourn matters' and required a 'medical certificate confirming you have no capacity to advance your application before the Commission at this stage and a timeframe for when you will be fit to resume'. Mr McLean did not respond until such time as the Commissioner's Chambers again emailed the parties, requesting an update from Mr McLean regarding a medical certificate on 19 January 2026. On 19 January 2026, Mr McLean sent a Certificate. The Certificate whilst certifying that Mr McLean had no capacity for employment, specified that his memory was not affected, his judgment was not affected by his incapacity, and his incapacity was manifesting in poor sleep, low energy and a depressed mood. It is evident that the Commissioner did consider the Certificate and formed the view that it did not disclose any incapacity to participate in the Fair Work Commission process, a view that was entirely open on the evidence. Mr McLean now seeks to characterise his emails dated 12 January and 19 January 2026 as simply requesting an 'abeyance' and in doing so fails to reconcile, with him having expressed that he did not consent to a hearing and having requested that the bullying application be closed or paused. Further, whilst his email dated 20 January 2025 is not referred to in the Decision, Mr McLean articulates in that email that based on the request he had made, what should be stated was that the application was 'withdrawn voluntarily'. It follows that the conclusions formed by the Commissioner at paragraphs [10] and [11] of the Decision appear to have been reasonably available and supported by material before the Commissioner, in this respect there are no demonstrable arguable errors.
[59] By ground four, Mr McLean contends that the Commissioner erred in her management of the applications joined by the Notice of Listing dated 6 November 2025. The error complained of appears to be that the Commissioner should not have conducted a joint conference of the two applications that were filed. Both files, namely matter no. C2025/10555 and matter no. AB2025/869 were allocated to the Commissioner and she conducted a joint conference, which resulted in an 'agreement' between the parties that ultimately fell over. There is no error in conducting a joint conference. It was clearly open to the Commissioner to do that, given the overlap between the two set of facts and two sets of allegations and clearly open to her given her duty to act quickly and efficiently under the Act. Whilst Mr McLean speaks to an administrative error occurring when the Commissioner wrongly uploaded a document, there is no evidence of that in the Appeal Book and it is not a feature of the Decision, hence rendering the contention as having no bearing on the Decision and therefore not giving rise to an arguable ground on which to grant permission.
[60] By ground 5, Mr McLean again agitates what he has contended by ground 3, which we have addressed. The Commissioner considered the material before her and applied the law accordingly. Her conclusion was open to her as a matter of discretion. That is, it was comfortably open to the Commissioner to reach the conclusions that she did. No arguable error is demonstrated in her conclusion.
[61] Regarding the matter of the public interest, we do not agree with Mr McLean's contentions that the matter raises significant issues of manifest injustice, access to justice, and administrative integrity that transcend the interest of individual parties. Regarding the point that permission should be granted because it involves access to justice for vulnerable litigants, we repeat our reasons at paragraphs [54] - [58]. Regarding a denial of legal representation at the conference, we have observed at paragraph [54] that the default approach under the Act is that parties represent themselves. In circumstances where a party seeks to be represented by a paid agent or a lawyer at a conference or a hearing, permission must be sought. The Commissioner denied permission to both parties in respect of the conciliation conference and provided a reason which was open for doing so. Therefore, it is not open to argue that there was a failure to afford 'a fair go all round' as required by the Act. As to the integrity of the Commission's processes being at stake on the basis of an administrative error by the Commission, as already observed, there is no evidence of that in the Appeal Book and it did not feature in the Decision. Even if it had occurred, we are not persuaded that it has any bearing on the Decision and therefore is not a ground to grant permission.
[62] The Commissioner exercised her discretion under s 587(1)(c) of the Act and dismissed Mr McLean's bullying application. Contrary to the contentions made by Mr McLean concerning the public interest and grounds (3), (4) and (5), and in some of Mr McLean's written submissions, this power may be exercised summarily, such that an application may be dismissed pursuant to s 587(1)(c) of the Act prior to a full hearing being conducted.[12] On the material before us, we are not persuaded that the matters set out in the grounds of appeal or in Mr McLean's submissions raise an arguable case of a significant error of fact or an error in the Commissioner's exercise of her discretion, of the kind discussed in House v The King.[13] Nor are we persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise.
[63] For the reasons given, permission to appeal is refused.
[1] [2011] FWAFB 7498 [19].
[2] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204 [17] per Gleeson CJ, Gaudron and Hayne JJ.
[3] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210, 216-17 per Mason CJ, Brennan, Dawson and Gaudron JJ, applied in Hogan v Hinch ( 2011) 243 CLR 506, 548 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 ('Lawler'), 90 [44]-[46]; GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 ('Makin'), [26].
[4] Makin (n 3) [23]; Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089, [28], affirmed on judicial review in Lawler (n 3); NSW Bar Association v McAuliffe [2014] FWCFB 1663, [28].
[6] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481, 489 [30].
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82].
[8] Warrell v Fair Work Australia [2013] FCA 291; (2013) 233 IR 335, 342 [24].
[11] Ibid 342-3 [25] citing Explanatory Memorandum, Fair Work Bill 2008, [2291]-[2296].
[12] See Fair Work Act 2009 (Cth), s 593(1); cf ss 589 and 590.
Printed by authority of the Commonwealth Government Printer
Bobby McLean
KNAPP Australia Pty Ltd [2026] FWCFB 73
(2013) 233 IR 335
(1989) 168 CLR 210
(2011) 192 FCR 78
(2001) 116 FCR 481
(2000) 203 CLR 194
(1936) 55 CLR 499