[2025] FWCFB 61

The attached document replaces the document previously issued with the above code on 24 March 2025

MNC of the primary decision has been updated to [2024] FWC 1754.

[2025] FWCFB 61

Fair Work Act 2009

s.604 - Appeal of decision

David Vilensky, Tim Lethbridge, Bernard Mackin, Croftbridge Pty Ltd T/A Croftbridge, Workplace Consulting Australia Pty Ltd T/A WCA Solutions, BBV Legal Pty Ltd T/A Bowen Buchbinder Vilensky

Appeal against decision [2024] FWC 1754 of Commissioner Schneider at Perth 04 July 2024 in matter number AB2024/117 - Appeal against decision made on 21 May 2024 to refuse application for notices requiring attendance of witnesses to be issued - Role of McKenzie Friend - Exercise of discretion to dismiss applications for stop bullying orders under s. 587(1)(c) - Whether application for stop bullying order should have been placed in abeyance pending finalisation of general protections application where Appellant sought reinstatement - Whether Appellant was denied procedural fairness - Grounds of appeal rejected - No error in Commissioners decisions - Permission to appeal granted - Appeals dismissed.

[1] This decision concerns two appeals lodged by Ms Carole Greenan (the Appellant) pursuant to s. 604 of the Fair Work Act 2009 (Cth) (FW Act), for which permission is required, against decisions issued by Commissioner Schneider on 21 May 2024 and 4 July 2024. The decisions concern an application for an order to stop bullying (stop bullying application) made by the Appellant on 20 February 2024, in which she alleged that she had been bullied at work by Mr Vilensky, the Managing Director of her employer Bowen Buchbinder Vilensky (BBV Legal) and by various persons engaged by BBV Legal to investigate claims of bullying made against and by, the Appellant. The other persons named in the application are: Mr Tim Lethbridge, a Lawyer from the firm Croftbridge, engaged by BBV Legal in connection with the bullying allegations; and Mr Bernard Mackin, of Workplace Consulting Australia Pty Ltd T/A WCA Solutions, who was engaged to investigate the bullying allegations. We will refer to BBV Legal and the named persons collectively as the Respondents.

[2] Prior to the stop bullying application being listed for hearing, the Appellant's employment was terminated on the ground of redundancy. Following correspondence with the parties, confirming that the Appellant intended to continue her application for a stop bullying order and to contest the termination of her employment, the Commissioner listed the matter on his own motion to determine whether he should exercise discretion under s. 587(1)(c) to dismiss the application on the basis that he could not be satisfied that there was a risk that the Appellant would continue to be bullied at work.

[3] In a Decision issued by email on 21 May 2024 (Attendance Order Decision),[1] the Commissioner refused an application by the Appellant for an order requiring several witnesses to attend the Commission to give evidence at the hearing in relation to the jurisdictional issue, on the basis that the matter to be determined did not concern the substantive merits of the application for a stop bullying order or an application contesting the dismissal. In a Decision[2] issued on 4 July 2024 concerning the jurisdictional issue (the Dismissal Decision), the Commissioner dismissed the Appellant's application for a stop bullying order pursuant to s. 587(1)(c) of the Act, determining that it had no reasonable prospects of success.

[4] Directions for the hearing of the appeals were issued, including a requirement that parties wishing to apply to be legally represented were required to lodge submissions, not exceeding one A4 page in length, identifying the lawyer or paid agent the subject of the application, and the reasons why such permission should be granted. The Respondents' submissions stated that Mr Tim Lethbridge of Croftbridge acts for the BBV Legal and that BBV Legal sought permission to be represented in the appeal, on the grounds that it would enable the matter to be dealt with more efficiently, and it would be unfair not to allow the firm to be legally represented. It was also submitted that although BBV Legal is a law firm, its directors do not practice in employment law, one director is the subject of the majority of the Appellant's allegations of bullying and the other director gave evidence at first instance. As we have noted, Mr Lethbridge is also one of the Respondents to the appeal

[5] The Appellant filed submissions in reply, taking issue with Mr Lethbridge asserting that he is the Respondents' legal representative and asserting that BBV Legal has a HR specialist and there is no indication in their submissions that Mr Vilensky and Mr Mackin are not able to represent themselves efficiently. It was also pointed out that Mr Lethbridge has repeatedly threatened to apply for costs against the Appellant to attempt to force her to withdraw the appeal, that his submissions are three pages in length in contradiction of "orders" and that "arguments purporting efficiency cannot logically stand when made in a format that contradicts them." Later the Appellant advised that she did not object to the Respondents continuing on a "self-represented basis using Mr Lethbridge who is one of the Respondents".[3]

[6] At the hearing of the appeal, Mr Lethbridge was granted permission to represent the Respondents on the basis that the Full Bench was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity. In the capacity as a Respondent in his own right, Mr Lethbridge did not require permission to represent himself. That Mr Lethbridge was granted permission to represent all Respondents to the appeal was also a matter which we were satisfied would assist with the appeal being conducted more efficiently than if each Respondent had been separately represented.

[7] At first instance and in the appeal, the Appellant was assisted by Mr Naylor who claimed to be in acting in the capacity of her McKenzie Friend. Mr Naylor's conduct in both hearings bore no resemblance to that of a McKenzie friend and instead Mr Naylor acted as the Appellant's representative. Before turning to the Decisions which are the subject of these appeals, it is first necessary to consider, in some detail, the course of the first instance proceedings.

[8] The Appellant's Form F72 Application for an order to stop bullying, was lodged on 20 February 2024. On 11 March 2024 a Form F73 Response from an employer/principal was lodged by the BBV Legal, naming Mr Vilensky as the contact person. Also on 11 March 2024, Mr Lethbridge lodged a Form F73 on behalf of Croftbridge and on 14 March, Mr Vilensky filed a Form F73 on behalf of WCA.[4] The responses objected to the application asserting that the alleged bullying was reasonable management action taken in a reasonable way in the investigation of the Appellant's allegations of bullying and allegations made against the Appellant by a work colleague. The application was allocated to the Commissioner who conducted a Case Management Conference on 20 March 2024.

[9] On 17 April 2024, the Appellant contacted the Commissioner's Chambers by telephone to advise that her employment had been terminated by BBV Legal. A file note indicates that the Commissioner's Associate provided the Appellant with Forms for making an unfair dismissal application and a general protections application and a notice of discontinuance for the stop bullying application. On the same date, an email was sent to the parties from the Commissioner's Chambers seeking clarification of the Appellant's intentions in relation to the stop bullying application. The email requested that the Appellant confirm discontinuance in writing if the application was to be withdrawn, and stated that if the Appellant had been dismissed, and her application was not withdrawn, directions would be issued to deal with the "jurisdictional issue" arising from the termination of her employment. By email also sent on 17 April 2024, BBV's legal representative advised that the employment of the Appellant had been terminated by reason of redundancy, notice had been paid such that her employment came to an end with immediate effect, and as the Appellant was not in the workplace and would not be present at the workplace in the future, the bullying application should be withdrawn by the Appellant or dismissed. BBV Legal did not make an application under s. 587 seeking that the application be dismissed.

[10] On 19 April 2024, further correspondence was sent from the Commissioner's Chambers to the Appellant, requesting that the Appellant clarify whether, in light of the Respondent's email, she was seeking to discontinue the application. On 22 April 2024, the Appellant sent an email to the Commissioner's Chambers confirming that she wished to continue an application and that she would be lodging a general protections application by 26 April 2024. The Appellant also said that there was no justification for dismissing the application or for an alternative path forward, given that current orders were for the production of documentation.

[11] On the afternoon of the 22 April 2024, the Appellant sent a further email to the Commissioner's Chambers which said:

"I am currently working on an application for a General Protections Dismissal, but it has been brought to my attention that it is possible for the Commissioner to dismiss my previous application without a hearing. May I ask, if that happens, what is the process for appealing that decision? Is it simply the process found on this page of your website: https://www.fwc.gov.au/hearings-decisions/appeal-decision-or-order/appeals-process."

[12] On 23 April 2024, a response was sent from the Commissioner's Chambers to the Appellant as follows:

"The basis for dismissal would be jurisdictional, noting that the Commission cannot make orders in the absence of ongoing risk. Further, it should be noted that any orders made by the Commission in such a matter would be in attempt to mitigate any bullying risk, not for the production of documents. Directions will be issued shortly seeking your reasons for continuing to pursue this Application in light of your employment's termination and your intention to pursue a new application. Information on the Commission's website regarding eligibility to make an application under national anti-bullying laws can be found here. If a decision is made, you are correct in your identification of the appeals process."

[13] On 29 April 2024, the Commissioner issued Directions[5] which included a statement to the effect that to make orders to stop bullying, the Commission must be satisfied, not only that a worker has been bullied at work by an individual or group of individuals, but also that there is a risk that the worker will continue to be bullied at work by the individual or group. It was also stated that if the Commission is not satisfied that bullying will continue, there is no power for an order to stop bullying and that if the conditions for the making of an order are not satisfied, the application may be dismissed for lack of reasonable prospects of success. After noting that the Appellant's employment had been terminated, she had been notified of the jurisdictional issue, and had elected to proceed with the application, the Commissioner directed the parties to file "submissions and supporting documentation" in relation to the jurisdictional issue and indicated that he proposed to determine the matter on the papers, unless he deemed that a hearing was deemed appropriate based on the material filed. The Appellant was required to file her material by 2 May and the Respondent by 7 May 2024.

[14] On 1 May 2024, the Appellant corresponded with the Commissioner's Chambers in the following terms (salutations omitted), in response to the Directions:

"Thank you for the email. Given the other Orders in this matter, can I please have an extension of time for producing the documents as ordered. I understand that the Commissioner is going on leave soon and may be trying to wrap this up before his departure. If I need to complete an application for that extension can you please let me know the process. I understand completely if the Commissioner refuses but it would then be my intention to appeal based on procedural unfairness."

[15] On 1 May, correspondence in was sent to the Appellant from the Commissioner's Chambers stating:

"... To answer your question - there are no formal requirements for requesting an extension, a simple email request (as you have provided) suffices. Commissioner Schneider advises that the extension request has been denied on this occasion noting lack of supporting grounds. The Commissioner also wishes to highlight that the only active directions are those issued on 29 April 2024 - currently, there are no "other Orders" issued in this matter that require the parties' action or compliance."

[16] The Appellant responded on 1 May 2024 requesting information on the appropriate appeal mechanism in relation to the extension request and in relation to "Monday's orders" - presumably a reference to the 29 April Directions issued by the Commissioner. On 2 May 2024, the Appellant filed a document headed "Response by the Applicant to Directions in the Application by Greenan (AB2024/117) by Commissioner Schneider, 29 April 2024." It is apparent that the document was intended to be the Appellant's submissions in relation to the jurisdictional issue. In that document, the Appellant commenced by stating that the Directions issued by the Commissioner in relation to the jurisdictional issue had focused on s. 789FF(1) and had not included the "instructions" contained in s. 789FF(2) in relation to matters the Commission must take into account in considering the terms of an order to stop bullying, including any interim or final investigation of the genuineness of her redundancy. According to the Appellant, the "investigation" referred to in s. 789FF(2) of the Act would be undertaken by virtue of her application for "Unfair Dismissal/General Protections" and that application is "an obvious avenue of investigation or possible resolution". The Applicant contended that as it had yet to commence, the Commissioner should adjourn the application for an order to stop bullying sine die - to a date to be fixed after the application in relation to the termination of her employment was heard and determined. The Appellant's submissions also traversed the reasons why the termination of her employment was not a case of genuine redundancy and contended that the outstanding issue of the unfair dismissal/general protections application is vital in relation to whether her application for an order to stop bullying has a reasonable prospect of success.

[17] Further, the Appellant contended that it is reasonable and common in instances of unfair dismissal and general protections matters that reinstatement is an outcome, particularly when the evidence points towards her dismissal being a sham redundancy. The Appellant also contended that as her case has a very significant chance of success, the obvious possible outcome of those proceedings is reinstatement, and the chances of bullying continuing are "extraordinarily high" so that it would be improper for her application for an order to stop bullying to be dismissed on the basis that it had no reasonable prospects of success in circumstances where an order for reinstatement would expose the Appellant to the risk that she would again be bullied at work.

[18] The Appellant submitted that the test of whether there is a reasonable chance of success, is based on the facts that are, or will be, in dispute. According to the Appellant, there is a significant dispute as to whether her dismissal was legitimate and there was an application on hand for dealing with that dispute. The Appellant asserted in her submissions that the Commissioner had made the orders to an unrepresented litigant, in an extremely tight four-day time frame, "presumably to allow for their uptake of leave" and that the short time frame is suggestive of procedural unfairness, which is an error of law. The Appellant does not state how she is aware of any plans the Commissioner may have had to take leave.

[19] The Appellant also made various allegations in her submissions to the effect that material filed by the Respondent contained false information and asserted that she had made a complaint to the Legal Profession Complaints Committee which was also relevant to the merits of her applications. Further the Appellant submitted that as an unrepresented litigant it was incumbent on the Commission to assist to make her arguments plain and in relation to issues related to objection to evidence, which could not occur if the matter was decided based on written submissions without a hearing. The Appellant objected to the matter being dealt with based on the material filed and sought that the matter be listed for hearing no earlier than six weeks from the date of the submissions or adjourned sine die until the conclusion of any unfair dismissal/general protections application.

[20] The Commission's records show that on 3 May 2024 - after her submissions in relation to the application for an order to stop bullying had been filed - the Appellant filed an application under s. 365 of the Act for the Commission to deal with a general protections dispute involving dismissal. The Appellant incorrectly lodged her application by sending it directly to the Commissioner's Associate and it was forwarded by the Associate to the Commission's Client Services Team to be processed and served on the Respondents. Probably because the general protections application was not filed in the usual manner, it was not served on the Respondent's until 8 May 2024, after the Respondents filed submissions in support of the Appellant's stop bullying application being dismissed.

[21] In summary, the Respondents' submissions referred to the Appellant's position being made redundant on 12 April 2024, asserted that there was no risk that she will continue to be bullied at work, and outlined that the purported bullying related to an investigation into allegations made by, and against, the Appellant. It was also submitted that unless obliged as part of legal proceedings commenced by the Appellant, or responding to her complaints, none of the persons alleged to have bullied the Appellant, had reason to have further contact with her. Further, the Respondents pointed to the fact that despite advising on 22 April 2024 that she intended to file a general protections application as a result of her dismissal, no such claim had been made, and that in the event that such a claim was successful, it is unlikely that the Appellant would be reinstated given her assertions about her dismissal indicated that the necessary relationship of trust and confidence had permanently and irretrievably broken down, the Appellant had not performed any work for the Respondent since July 2023, and there was no role for the Appellant in employer's small legal practice. A witness statement made by Mr Buchbinder, filed with the submissions, was brief and simply said that the Appellant's position had been made redundant, she had been paid her entitlements and due to a period of personal leave and suspension, had been absent from the workplace since 12 July 2023. Mr Buchbinder's witness statement did not address the merits of the Appellant's stop bullying application nor make any assertions about the validity of the reason for her dismissal.

[22] In relation to the Appellant's submission that the application should be adjourned sine die, or stayed pending the outcome of any claim she might make, the Respondents said that a general protections application may take years to resolve, it would be prejudicial for the Respondents to have the bullying application hanging over their heads for that period, and in the unlikely event that the Appellant was reinstated, nothing would prevent her from making a new application for an order to stop bullying. The Respondents also took issue with the Appellant's assertion that they had "falsified evidence", pointing out that it had been made without setting out specifics or providing a basis for what is a serious allegation, including the correspondence giving rise to the alleged inconsistency. The Respondents opined that the allegation appears to be based on the answer provided to question 14 in the Form F73 documents, which asks: "Has the Applicant been advised that they are not performing their duties to the required standard or that they are facing disciplinary action?" The Respondents answered "yes" to this question, with reference to question 9 of the Form F73, in response to which they explain inter alia that allegations have been made against the Appellant and are being investigated. The Respondent also said that the alleged inconsistent statement referred to by the Appellant as appearing "in a letter to myself", is a reference to a letter sent to the Appellant on 2 August 2023, stating that her suspension pending an investigation into allegations against her, is not a disciplinary sanction. The Respondent contended that the statement in the 2 August letter was correct and not inconsistent with any statement in the Form F73 Response filed by the Respondents.

[23] On 13 May 2024, an email was sent from the Commissioner's Chambers, in the following terms:

As foreshadowed in the Directions, the Commissioner has reviewed the materials filed to determine the most suitable manner in which to proceed with his determination. Upon reviewing the materials, the Commissioner has formed the opinion that a Hearing will be held. The Commissioner will also afford the Applicant a brief right of reply to the materials filed by the Employer.

The parties will shortly receive a Notice of Listing, with the reply direction attached, confirming the details of the Hearing."[6] (emphasis added)

[24] A Notice of Listing and further Directions for a hearing to be held on 23 May 2024 were issued.[7] The Directions stated that the matter was listed for "Hearing - Jurisdiction only" and required that, by 20 May 2024 the Appellant file and serve an outline of submissions and written statements of evidence from any witness to be called and emphasised that the material should be "in response to the Employer's materials" (emphasis in original).

[25] On 17 May 2024, the Appellant filed an application using Form F51, seeking an order to require four persons to attend the hearing on 23 May 2024, in relation to the jurisdictional issue. The application set out in detail that the reasons the attendance of those persons was sought, was to give evidence relevant to whether her dismissal was a case of genuine redundancy, and the alleged mismanagement of the bullying investigation by Mr Vilensky and the persons engaged to conduct the investigation. It was also asserted that the witnesses could give evidence attesting to the "incredibly strong" case of the Appellant with respect to both the stop bullying and the general protections applications.

[26] On 20 May 2024, the Appellant filed submissions in reply to the submissions of the Respondents. Rather than engaging with the issue for determination - whether there was a risk that she would continue to be bullied at work - the Appellant's submissions focused on the merits of her bullying application (asserting that she was required to address merits); the alleged mismanagement of the investigation of the bullying claims made against, and by, the Appellant; claims that the processes followed by the Respondent were not in accordance with BBV's Quality Procedures Manual (referred to by the Appellant as the QPS Manual); assertions that the termination of the Appellant's employment was a sham redundancy; and that evidence had been falsified by, or on behalf of, the Respondents.

[27] The Appellant detailed the basis of her assertion that evidence had been falsified by the Respondents stating that in the Responses to her application the Respondents had stated "the bullying claims were related to Disciplinary Proceedings and related to a discipline process". The Appellant submitted that the Responses contradicted the Respondents' position set out in correspondence that the investigations and processes being followed were not in any way disciplinary. It was contended that these dishonest statements should be considered by the Commissioner and if they were mistakes then this also called into question all submissions made to the Commission by the Respondents. The Appellant did not file a statement setting out her evidence in response to that of Mr Buchbinder.

[28] Also on 20 May 2024, correspondence was sent to the parties from the Commissioner's Chambers asking whether the Respondents had any views on the applications by the Appellant for orders requiring the attendance of witnesses at the hearing on 23 May 2024 and requiring that such views be provided by 21 May 2024. On 21 May 2024, the Respondents filed submissions objecting to the attendance notices being issued and contending that the Appellant was seeking to lead evidence as to whether bullying had occurred, when the only relevant question to be determined, in the context of the jurisdictional issue, is whether alleged bullying will continue. The Respondent submitted that in circumstances where the Appellant had not performed work, or been present in, the workplace of BBV Legal since July 2023, and there is no prospect of the Appellant returning to that workplace, bullying cannot continue. The Respondents also submitted that none of the Appellant's proposed witnesses could give evidence relevant to the jurisdictional issue. Further, the Respondents submitted that even if the Appellant was reinstated, and she alleged that bullying was continuing, it would be open to her to make a new stop-bullying application at that time.

[29] As a further basis for opposing the issuing of the attendance notices the Respondents asserted that the Appellant had known the date of the hearing since 29 April when the Directions were issued and had waited until 17 May, shortly before the date of the hearing, to apply for the attendance notices to be issued. It was submitted that this delay could result in the witnesses having insufficient notice of the hearing date and being unable to arrange to attend. It was also submitted that the matter had been listed for a hearing of half a day duration, on the assumption that only the Appellant would be giving evidence (noting that she had not filed any witness statements).

[30] On 21 May 2024 the Appellant sent an email to the Commissioner's Chambers taking issue with the fact that the Respondents had been requested to provide a submission in relation to the application for orders requiring attendance made by the Appellant, expressing concern that the Appellant had not been provided with the same opportunity and attaching a submission in support of the notices being issued. The submission reiterated the matters set out in the Form F51 and the Appellant's earlier arguments about her applications and contended that the witnesses could give direct testimony about the bullying and the sham redundancy. The Appellant also made a further allegation that the Respondents' representative had provided false information to the Commission in its submissions objecting to the attendance notices being issued. The "false information" referred to by the Appellant on this occasion, was that the Respondents' statement that the Directions of 29 April included a reference to the 23 May hearing date, was wrong. As the Appellant correctly pointed out, and subsequently conceded by the Respondents, the Directions issued on 29 April 2024 make no reference to a hearing date, as at that point, the Commissioner was considering whether to determine the matter based on the material filed rather than conducting a hearing.

[31] On 21 May 2024, correspondence was emailed to the parties from the Commissioner's Chambers communicating the Attendance Notice Decision, in the following terms:

"I have considered the Applicant's application under s 590(2)(a) of the Act. Pursuant to s 601(1)(a) of the Act, I am not obliged to reduce to writing a decision under Part 5-1.

However, I briefly observe the following set out below.

• The Applicant applied for the orders, on 17 May 2024, in the context of her application for an Order to stop bullying (the Anti-Bullying application).

• The Commission has raised a jurisdictional issue, being that it may be unable to issue any orders sought in the Anti-Bullying application as there appears to be no ongoing risk of harm owing to the termination of the Applicant's employment.

• The Employer is of the view that the Anti-Bullying application should be discontinued or dismissed due to the aforementioned issue.

• The Applicant has since made a further application to the Commission pursuant to section 365 of the Act (the General Protections application).

• The matter to be determined at the upcoming Hearing, as highlighted in the Directions issued on 29 April 2024, is whether there is a risk that the worker will continue to be bullied at work (the jurisdictional issue).

I am not satisfied that an order should issue for all or any of the witnesses requested to attend. Having regard to all that has been put before me, in the exercise of my discretion, and in balancing the competing interests, I have decided not to issue the orders sought on the basis that the apparent evidence to be extracted from the individuals named in the Form F51 is of limited relevance to the jurisdictional issue to be determined. I note and agree with the submission of the Employer, that the evidence sought largely concerns the substantive merits of the Anti-Bullying application and the alleged sham redundancy which led to the Applicant's termination. Individually, I cannot identify the value that any of the persons requested could provide to the matter to be determined. It is my conclusion that evidence regarding such matters will not be of notable assistance in making an informed decision on the jurisdictional issue.

I further note that granting the orders for the attendance of the persons requested could cause significant burden on and inconvenience to the witnesses named and, correspondingly, the Commission's programming of the Anti-Bullying application. I do not believe such inconvenience and burden is outweighed by the apparent value of the evidence that could be extracted from the witnesses requested, again noting that I have concluded the apparent evidence is of extremely limited relevance to the jurisdictional issue."

[32] On 22 May 2024, the Appellant lodged an appeal against the Attendance Notice Decision and against the Directions orders which had been issued by the Commissioner on 13 May in relation to the hearing of the jurisdictional objection and sought a stay of those decisions. The Appellant sent the Notice of appeal directly to the Commissioner's Chambers, with a covering email requesting clarification as to whether the hearing on 23 May 2024 would proceed in light of the appeal and stating that if advice was not provided before 10.00 am on 23 May that the hearing was proceeding, the Appellant would not attend. Correspondence was sent to the Appellant from the Chambers of the Commissioner indicating that the Notice of appeal had been forwarded to the Registry and that the hearing in relation to the jurisdictional objection would proceed at 2.00 pm on 23 May 2024, in accordance with the listing.

[33] On the morning of 23 May 2024, Deputy President Slevin conducted a hearing in relation to the stay application and dismissed it, by Decision[8] issued prior to the scheduled commencement of the 2.00 pm hearing in relation to the jurisdictional issue.

[34] At that hearing, evidence was given by Mr Buchbinder, who was cross-examined by Mr Naylor. The Appellant's material was a submission that also contained information that would more appropriately have been set out in a witness statement. The Commissioner provided an explanation to the Appellant about the distinction between giving evidence and making a submission. With the permission of the Commissioner, the Appellant gave evidence by adopting the statement she had filed. The Appellant was cross-examined by Mr Lethbridge. The process adopted by the Commissioner in relation to the Appellant's evidence, and the explanation he provided of the distinction between evidence and submissions, are the subject of some of the grounds of appeal.

[35] The provisions of the Act dealing with workers bullied at work, are found in Part 6 - 4B. Section 789FD defines bullying at work in the following terms:

(1) A worker is bullied at work if:

• (a) while the worker is at work in a constitutionally-covered business:

  • (i) an individual; or

  • (ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action

(3) If a person conducts a business or undertaking (within the meaning of the Work

(a) the person is:

• (i) a constitutional corporation; or

• (ii) the Commonwealth; or

• (iii) a Commonwealth authority; or

• (iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or

(c) then the business or undertaking is a constitutionally-covered business."

[36] Section 789FE(1) provides that the Commission must start to deal with an application under s. 789FC within 14 days after the application is made. The heading of the clause is "FWC to deal with applications promptly" and a note to the section states that, for example, the Commission may start to inform itself of the matter under s. 590, conduct a conference under s. 592 or decide to hold a hearing under s. 593. Section 789FE(2) provides that the Commission may dismiss an application for an order to stop bullying in circumstances not presently relevant, but the note to s. 789FE(2) states that: "For another power of the FWC to dismiss applications under s. 789FC, see s. 587." Section 789FF sets out the powers of the Commission to make orders as follows:

(1) If:

• (a) a worker has made an application under section 789FC; and

• (b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of

(ii) there is a risk that the worker will continue to be bullied at work by the

then the FWC may make any order it considers appropriate (other than an order

requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an

investigation into the matter that is being, or has been, undertaken by another

(b) if the FWC is aware of any procedure available to the worker to resolve

(c) if the FWC is aware of any final or interim outcomes arising out of any

procedure available to the worker to resolve grievances or disputes - those

(c) any matters that the FWC considers relevant."

[37] Section 587 of the Act provides for a discretion for the Commission to dismiss an application if, on its own initiative or on application, if inter alia, the application has no reasonable prospect of success and provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair

dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application

under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

• (b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

• (a) on its own initiative; or

(b) on application."

[38] The application the Commissioner dismissed was not made under ss. 365 or 773, and s. 587(2) does not apply to it.

[39] The Commissioner commenced by setting out preliminary matters, including that the Decision relates to a jurisdictional issue only, as to whether the Commission has power under the Act to issue a stop bullying order, given that the Appellant had been dismissed from her employment and as a result is no longer a worker and there is no risk of the alleged bullying continuing. Next the Commissioner set out the background including the allegations of bullying made by Ms Greenan, her advice on 17 April 2024 that she had been dismissed and the email correspondence thereafter. The Commissioner observed that both parties had raised issues that were outside the scope of the issue to be determined including issues pertaining to the merit of the stop bullying application in its entirety and the Appellant's general protections application.

[40] The Commissioner then set out ss. 789FD, 789FE and s. 587 of the Act and turned to the evidence and submissions. In summary, the Commissioner noted the Appellant's submissions that: consistent with s. 789(2) of the Act issues of fact had not been properly investigated; the facts surrounding the termination of her employment would be heard in another forum; if an order for reinstatement is granted by the Court the issues of bullying remain real; it is impossible for the Commission to predetermine any outcome for the general protections dispute; as there is a significant chance that she will return to work it would be improper to dismiss her application because of lack of reasonable prospects of success; and the application should be adjourned until the substantive general protections application is resolved. The Commissioner noted the Appellant's evidence that two of the persons she alleged had bullied her are from external companies engaged to investigate bullying allegations against the Appellant and that as the investigation had been terminated, there would be no need for her to have further interaction with those persons if she was reinstated. Further, the Commissioner noted the Appellant's confirmation under cross-examination that she had not attended the workplace to complete work after July 2023 and that she would not be required to have any interaction with the Respondents to the application outside of the legal proceedings she had commenced to contest the termination of her employment.

[41] This was confirmed by the Respondent's submissions stating that the workplace investigation into the Appellant's conduct had ceased when her employment was terminated and outside of the ongoing legal proceedings there is no there is no reason why persons named in the Appellant's application for orders to stop bullying would have any contact with the Appellant. The Commissioner further noted the Respondent's submission that unless directed to reinstate the Appellant there is no risk that she can continue to be bullied at work. The Appellant's allegations in relation to falsified evidence were said by the Respondent to be vexatious and scandalous. Mr Buchbinder's evidence about the Appellant's role being made redundant was also summarised by the Commissioner. The Commissioner observed in relation to the case conducted for the Appellant that her representative had numerous questions for Mr Buchbinder under cross-examination, but the factual matters which confirmed the termination of the Appellant's employment, were not challenged and the cross-examination focused on the merits of the application for orders to stop bullying and potential matters for the general protections application.

[42] In his consideration, the Commissioner noted that the jurisdiction to summarily terminate an application is to be exercised sparingly and that the discretion to make an order to stop bullying can only be exercised if the Commission is satisfied that:

• the worker has been bullied at work by an individual or a group of individuals; and

• there is a risk that the worker will continue to be bullied at work by the individual or group of individuals.

[43] The Commissioner concluded that there was no evidence to support the Appellant's assertion that she would be reinstated, beyond "the mere existence of the General Protections application itself", such as to satisfy the Commissioner that the application should continue. The Commissioner noted the Respondent's submissions as to the low probability of the Court making an order for reinstatement such as to enable the Commission to continue to hear the stop bullying application, and reiterated that in a General Protections application, reinstatement is not the primary remedy and is one remedy open to the Courts to make should the Applicant be successful. Further, the Commissioner noted that in the event the Appellant's General Protections application was successful, there remains the question of whether the Applicant would continue to be the subject of the alleged bullying, particularly considering the time that would pass between the alleged bullying and the potential reinstatement, and the changes that may have happened to the working environment such that the alleged bullying could no longer occur_._ The Commissioner also accepted the Respondent's submission that it is prejudicial to persons named in the application to have it hanging over their heads for an extended period and went on to dismiss the application on the basis that it had no reasonable prospects of success, because the requisite for making an order pursuant to s. 789FF(1) of the Act could not be met where there is no present risk that the Appellant will continue to be bullied at work. Further, the Commissioner noted that if the Appellant was reinstated, it would be open to her to lodge a further application for an order to stop bullying.

[44] With some exceptions, the grounds of appeal set out in both notices are identical. They are also discursive, repetitious, and take the form of bare complaints or assertions of error without providing detail of the effect of the asserted error. The Appellant elaborated on the grounds of appeal in the hearing of the appeal and in some respects this elaboration raised additional grounds of appeal. For reasons which will become apparent we summarise the grounds of appeal rather than setting them out in full.

[45] Grounds 1 - 24 are common to both appeal notices in terms of content and numbering. Ground 25 of the appeal against the Attendance Order Decision is found only in the Notice of appeal relating to that decision. Grounds 26 to 32 of the Attendance Notice Decision and grounds 25 to 31 of the Dismissal Decision are also common to both appeals. Grounds 33 to 36 of the appeal against the Attendance Notice Decision are unique to that appeal and grounds 32 - 41 are unique to the appeal against the dismissal decision.

[46] Ground 1 is no more than an assertion that the Appellant is an unrepresented litigant who has "a Mckenzie friend assisting her in a small capacity". Grounds 2 - 4 concern the Commissioner conducting conferences of the parties prior to the hearing. The Appellant states in ground 2 that she was assured by the Commissioner that she would not be required to be in the same room as the alleged bullies. In grounds 3 and 4 the Appellant complains that upon attending a further conference on 8 April 2024, ordered by the Commissioner, she was asked to meet with the Respondents, contrary to the Commissioner's earlier assurances, and that the Commissioner became aggressive when she refused to do so, and stated that the Appellant was wasting his time, a comment that is said to have stunned the Appellant and to have cemented her views that she was denied procedural fairness.

[47] By grounds 5 - 7, the Appellant complains that after she was informed that the Respondent had decided to exit the conference, the Commissioner stated that he would issue orders for the parties to make submissions and attend a hearing, then delayed making the orders and any further action. Grounds 8 - 11 complain that after being informed by the Appellant on 17 April that her employment had been terminated through a "sham redundancy", the Commissioner without prompting, or any party making an application for the bullying application to be dismissed, indicated that he would be issuing orders in relation to a jurisdictional issue and on 19 April instructed the Appellant to clarify her position as to whether she wished to proceed with her application.

[48] By grounds 12 - 16 the Appellant contends that she was denied procedural fairness because the Directions issued by the Commissioner for the first instance hearing provided more time for the Respondent to file its material than was provided to the Appellant. In this regard the Appellant said that the Directions were issued on 29 April 2024, and the Appellant was given until 2 May 2024 to file material while the Respondent, which was legally represented, was given until 7 May 2024 - 8 days from the date the Directions were issued and 5 days from the date the Appellant's submissions were provided. In oral submissions in the appeal, the Appellant contended that the exchange of correspondence with the Commissioner's Chambers in which she sought an extension to the date for lodging her material (set out at [17] and [18] above) establishes that she was not afforded procedural fairness.

[49] Grounds 17 and 18 contend that it would have been procedurally unfair for the Commissioner to deal with the jurisdictional issue based on the material filed and that this point was made in the Appellant's submissions at first instance. Grounds 18 and 19 take issue with the fact that the hearing was listed 10 days after the Directions were issued, which is said to be an inadequate lead time and thereby procedurally unfair. By grounds 20 - 24 the Appellant complains that the Commissioner asked the Respondent whether it wished to make submissions in relation to the Appellant's application for the Commissioner to issue Notices requiring the attendance of witnesses, and did not make the same request of the Appellant, nor respond to numerous phone calls seeking clarification about the Appellant's freedom to lodge submissions.

[50] Ground 25 of the appeal against the Attendance Notice Decision complains that the Commissioner failed in his duty to assist the Appellant, an unrepresented party, to make clear her arguments, and that this is a failure at law. The same complaint is made in grounds 34 and 35 of the notice of appeal against the Dismissal Decision. Grounds 26 - 28 of the appeal against the Attendance Notice Decision and ground 25 - 27 of the appeal against the Objections decision, respectively state that the Appellant made a submission about the attendance notices, regardless of the fact that she was not invited by the Commissioner to do so, because the Respondent's submission "contained significant false information" which it "instructed the Commission to remove". The Appellant also questions the extent to which the false information was considered by the Commissioner in the first instance decision. The grounds of appeal do not identify the allegedly false information the Appellant takes issue with.

[51] Grounds 29 and 30 of the appeal against the Attendance Notice Decision and grounds 28 and 29 of the Dismissal Decision appeal contend that the Commissioner's refusal to issue the notices requiring the attendance of witnesses at the hearing, significantly affected the ability of the Appellant to argue that her case had merit and that the decision at least partly related to the "timeframes created by the terribly short notice periods given by the Commissioner". Grounds 31 - 33 of the appeal against the Attendance Notice Decision and grounds 30 and 31 of the appeal against the Dismissal Decision state that "it must be remembered" there was no application from any person seeking that the application for an order to stop bullying be dismissed, and assert "real fears not just for lack of procedural fairness in these orders, but also in the perception of procedural fairness" on that basis, and based on the assertion that the Commissioner told the Appellant on 8 April 2024 that she was "wasting his time". For reasons that follow, we do not accept that the Appellant has been denied procedural fairness, or that a denial of procedural fairness could reasonably be perceived. It is also the case that if there was a denial of procedural fairness, it was not material and did not deny the Appellant the outcome she sought.

[52] The remaining matters canvassed at 34 - 36 of the appeal against the Attendance Notice Decision are not grounds of appeal and simply state that the Appellant will file an appeal book, seek a stay of the Attendance Notice Decision and orders in relation to the filing of evidence and the hearing of the application for an order to stop bullying, and that if the application is dismissed, the Appellant will appeal that decision. Grounds 32 - 41 of the notice of appeal in relation to the Dismissal Decision, are directed at the conduct of the hearing at first instance and make various assertions including that:

• the Commissioner refused to allow the Appellant to present "in formation" material that was specific, admissible and relevant in the matter (ground 32);

• the Commissioner misapplied the rules about what evidence was permissible and erred by "drawing too tight a noose around the evidence brought forward" (ground 33);

• the Commissioner failed to assist or provide proper direction to the Appellant particularly in relation to the requirement for her to "take the stand" and when pressed by the Appellant, the Commissioner did not provide a coherent explanation or cogent argument as to why he was insisting on the application of what seemed to be arbitrary decisions about the evidence that could, or must be admitted (grounds 34 - 36);

• the Commissioners errors in relation to "forced testimony" and admissibility of evidence are mistakes at law (ground 37);

• the Commissioner made findings on the evidence that are incorrect on many fronts and ignored significant issues of evidence from the Appellant and the Respondent (grounds 38 - 39);

• evidence from the Respondent was accepted and evidence of like or related matters from the Appellant was rejected (ground 40); and

• the "cherry-picking" of evidence by the Commissioner is a clear sign of bias and leads to a reasonable apprehension of bias (ground 41).

Dismissing stop bullying applications under s. 587

[53] Before considering the grounds of appeal, it is necessary to consider the circumstances in which an application for an order to stop bullying may be dismissed under s. 587(c) of the FW Act, on the ground that it has no reasonable prospects of success, for the same or similar reasons as those relevant in the present case. In Shaw v Australia & New Zealand Banking Group Ltd,[9] Deputy President Gostencnik (as his Honour then was) dismissed an application for an order to stop bullying on the ground that it had no reasonable prospects of success. In doing so, the Deputy President made the following observations. First, a conclusion that an application has no reasonable prospects of success should be reached only with extreme caution, and in cases, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. It was also observed that these examples do not provide an exhaustive description of when a particular application has no reasonable prospects of success. Second, the Deputy President referred to the judgement of the majority of the High Court in Spencer v The Commonwealth of Australia[10] where it was observed that the phrase "no reasonable prospects of success" should be given full expression and not limited by expressions such as "clearly", "manifestly", "obviously", "frivolous", "untenable", "groundless" or "faulty". Third, the Deputy President said that the answer to whether a particular application has no reasonable prospects of success may differ, depending on the time at which the question is asked. Changed circumstances may have the result where an application that had some reasonable prospects of success at a certain point in time, no longer has reasonable prospects of success.

[54] The Deputy President noted that Mr Shaw had been dismissed, and went on to find that assuming, without deciding, that he had been bullied at work by an individual or group, and that the actions about which he complained were not reasonable management action taken in a reasonable way, he had no power to make an order to stop bullying, unless he could be satisfied that there is a risk that Mr Shaw would continue to be bullied at work. With respect to a general protections application relating to dismissal filed by Mr Shaw, the Deputy President said:

"That Mr Shaw is taking steps to seek a remedy in relation to his dismissal that may result in reinstatement at some point in the future, does not have a bearing on the question that I must answer, and is speculative and uncertain. 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."[11]

[55] The Deputy President was satisfied that the application had no reasonable prospects of success, and that there was no reason in the circumstances not to exercise his discretion to dismiss the application. However, the Deputy President observed that:

"...if as a consequence of Mr Shaw's general protections application, or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seems to accept that he will be at liberty to make a fresh application at that time. That he has made this application and it has been dismissed, will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application."[12]

[56] The decision in Shaw was followed by Deputy President Kovacik in Obatoki v Mallee Track Health and Community Services and Others.[13] On appeal against that decision, a Full Bench of the Commission found that the Deputy President correctly held that there were no reasonable prospects that the application could succeed and that the Commission could not be satisfied that the second of the two jurisdictional prerequisites of s. 789FF(1) could be met. The Full Bench said that there was no evidence before the Commission indicating that there was a risk that the Applicant would continue to be bullied at work once his engagement with the employer had ceased. The Full Bench also endorsed the observation of the Deputy President that there is nothing to preclude the Applicant, should he return to work for the Respondent at some future point, from making another application under s.789FC subject to the jurisdictional facts being established in relation to that application.

[57] That an applicant in such circumstances can base a fresh application for an order to stop bullying, on conduct that was the subject of the first application, can be extrapolated from the Full Bench decision in Re McInnes.[14] That case concerned a jurisdictional objection based on the assertion that the reference to "is at work" in s. 789FD(1) meant that a worker could only be bullied at work from a point in time when legislation characterising bullying commenced - 1 January 2014 - and that behaviour that was alleged to have occurred prior to that date could not be relied on as the basis for an order to stop bullying. In rejecting that proposition the Full Bench said that the reference to "is at work" provides the context in which the alleged bullying behaviour has taken place and the requirement is that the behaviour must take place prior to the application for an order to stop bullying being made.[15]

[58] The Full Bench in Re McInnes explained that although it is prospective, the operation of an order to stop bullying is based, in part, on past events as indicated by three requirements which must be met before the Commission's discretion to make an order is enlivened:

• (i) a worker (who reasonably believes they have been bullied at work) must make an application under s. 789FC (hence the jurisdiction cannot be exercised on the Commission's own motion); and

• (ii) the Commission must be satisfied that the worker "has been bullied at work by an individual or a group of individuals"; and

(iii) the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group.[16]

[59] That the Commission is specifically precluded from making an order for compensation was said to indicate that the legislative scheme is not directed at punishing past bullying behaviour, but rather, at stopping future bullying behaviour.[17] While not entirely on point with the present case, the Full Bench decision in Re McInnes emphasises the need for a link between past conduct occurring while a worker is at work, and future risk that the conduct will continue. There is no requirement evident in the provisions concerning workers bullied at work in Part 6 - 4B of the Act, that all the conduct alleged to be bullying that is sought to be addressed by an order under s. 789FFm must have occurred during a single and continuous period of employment. This is consistent with the observation of Commissioner Bissett in D.Q.[18] that the applicant could, if reinstated, made a fresh application for orders to stop bullying, on the facts that existed at the time of the current application and that the issue (putting aside merits) does not go away.[19] A subsequent appeal by the applicant against this decision was not pressed but the stop bullying application did not continue because the Applicant's unfair dismissal application was not successful at first instance[20] or on appeal.[21]

[60] In Atkinson v Killarney Properties Pty Ltd T/A Permapleat Schoolwear and Michael Palm[22] (Atkinson), a Full Bench of the Commission considered appeals against two decisions[23] issued on the same date, to dismiss applications for orders to stop bullying, on the ground in s. 587(c), that the applications had no reasonable prospects of success, in circumstances where the applicant's employment had been terminated. The Full Bench emphasised that a decision to dismiss an application under s. 587(c) of the Act involves an exercise of discretion,[24] and found that:

• The Commissioner's finding that the Applicant's employment had been terminated and that he was no longer "at work" was consistent with the material before him.[25]

• There was no error in the conclusion that one of the prerequisites in s. 789FF of the Act for the Commissioner to be able to make an order to stop bullying - namely "that there is a risk that the worker will continue to be bullied at work by the individual or group" was not satisfied in respect of the applications before him.[26]

• The fact that the Applicant had unfinalised general protections applications at the time his applications for orders to stop bullying were dismissed, and that the court had the power to order reinstatement, did not preclude the Commissioner's conclusion.[27]

• The Commissioner's determination that as a consequence of concluding that one of the prerequisites for making an order to stop bullying in respect of the applications was not satisfied, the applications for stop bullying orders had no reasonable prospect of success, did not involve error.[28]

[61] The Full Bench also identified a caveat to the exercise of the power to dismiss an application in such circumstances, in the following terms:

"[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee."

[62] In both KM[29] and Re Adamson[30] Deputy President Hampton exercised discretion to dismiss applications for stop bullying orders on the basis that the Applicants in those cases were no longer employed. The Deputy President (in our view correctly) observed in Re Adamson that the finding that there is no future risk of bullying concerns the Commission's capacity to make an order rather than going directly to the original jurisdiction to hear an application. It was also observed that the power to dismiss an application is discretionary and should be exercised in appropriate cases. In that case the future return of the Applicant to a position with the Respondent was a matter of pure speculation.[31]

[63] In PK Deputy President Hampton noted that the Applicant had not been dismissed after lodging his stop bullying application and it was therefore not potentially influenced by the making of the application.[32] The Applicant had lodged a general protections application but the time to elect to make a court application had lapsed. The Deputy President said that the general protections application did not bear upon the discretion to dismiss the stop bullying application and in other circumstances, it may be appropriate for the Commission to consider holding the stop bullying application in abeyance where there is apparently related dismissal that is being actively contested, and that this is ultimately a matter of judgement in the particular circumstances of each case. Other considerations bearing on that judgement were identified as the statutory directive to deal with these matters promptly; the nature and circumstances of the parties; and the capacity to bring a new application if further bullying occurs. It was concluded that in circumstances including where there was no discernible risk of future bullying conduct, there was no reasonable prospect of success for the stop bullying application, given the powers of the Commission to make orders in the jurisdiction.

[64] There are also decisions where notwithstanding that the employment of an applicant for a stop bullying order has ceased, the Commission has refused to exercise the discretion in s. 587(1)(c) to dismiss that application and has decided to hold it in abeyance, pending the outcome of an unfair dismissal application filed by the applicant. In Re DQ,[33] Commissioner Bissett concluded that it had not been possible to decide if bullying at work occurred as the application had been overtaken by the dismissal and the subsequent unfair dismissal application. The Commissioner considered the following matters relevant to whether the discretion to dismiss the application should be exercised: the Applicant was dismissed after making a stop bullying application; the Applicant did not seek that the Commissioner make findings or issue orders in relation to the stop bullying application; if the application was not dismissed the employer and the person named would be left in a position where they could not close off the matter; and if the application was dismissed it would not go away as the Applicant could make a fresh application in the event of being reinstated. After weighing these matters, the Commissioner decided to place the stop bullying application into abeyance rather than dismissing it. In deciding to take this step, the Commissioner made it clear that the decision was based on the circumstances of the case, including that the Applicant was actively pursuing her unfair dismissal application.

[65] In Dr Say Teong Ng,[34] Deputy President Hampton considered an application under s. 587(c) by a Respondent seeking that a stop bullying application be dismissed in circumstances where the Applicant's employment had been terminated. The Applicant in that matter sought that the bullying application be placed in abeyance pending the outcome of an unfair dismissal application. After discussing Shaw and Obataki the Deputy President noted the caveat expressed by the Full Bench in Atkinson that it would not necessarily be appropriate for all stop bullying applications to be dismissed on the basis that the applicants in those cases were no longer employed, and observed that considered in context, it must potentially inform both the finding that there is no reasonable prospect of success and the exercise of any discretion that arises.[35] This observation is plainly correct and we agree with it.

[66] After discussing cases establishing that the discretion to dismiss an application on the ground that there is no reasonable prospect of success should be exercised strictly and with caution, the Deputy President said (citations omitted):

[24] What all of this means is that the cessation of the employment or contractual relationship may provide a context in which the stop-bullying application has no reasonable prospects of success by virtue of the import of s.789FF(1)(b) of the FW Act. This is not a reflection upon the substantive merit (or otherwise) of that application (s.789FF(1)(b)(i)), but rather, consideration only of whether there is the absence of one of the (other) prerequisites for the making of any orders from such an application due to the fact that the applicant is no longer a worker at potential risk in the relevant workplace (s.789FF(1)(b)(ii)). However, in making that assessment the Commission must consider whether there is any other context in which the applicant might, as a worker, be subject to the risk of future workplace bullying conduct in the relevant workplace.

[25] Such a context could include where the applicant already has other work where they are likely to be involved in the relevant workplace in that capacity, or in my view, where there is some identifiable prospect that the applicant will return to the workplace as a worker as a result of some other intervention, such as a reinstatement order made by the Commission or by the Court. In that regard, this could well arise when an applicant had actually made a timely relevant application and was genuinely seeking that particular form of remedy. The prospect of these events occurring must certainly be something more than mere speculation; however, for reasons outlined above, the findings that there are no reasonable prospects of success is not a finding to be made lightly.

[26] Further, if there is a finding of no reasonable prospects, the dismissal of an application under s.587 of the FW Act remains a matter of discretion and each case must be considered on its merits.

[27] Accordingly, any attempts by an applicant worker to contest a dismissal or the cessation of the relationship are relevant; however in order to be more than speculation, the applicant would need to be genuinely and actively pursuing reinstatement as the remedy through some relevant application that had been made. This is relevant to the finding as to whether, or not, there are no reasonable prospects of success. Further, the impact upon other parties, including the individuals named in the application and the employer/principal are also relevant considerations in the case management of a stop-bullying matter including any decision to dismiss it on the grounds raised here. These latter considerations, and the fact that an applicant can make a fresh stop-bullying application should circumstances change, are relevant to the discretion, but not to the assessment of whether there are no reasonable prospects of success present in the extant application

[67] The Deputy President went on to note that the applicant was dismissed after the stop bullying application was made and the Commission had commenced to deal with it, but before any determinative proceedings had been conducted. Further, at the point the Deputy President was deciding whether to dismiss the stop bullying application, the unfair dismissal application had been listed for hearing and determination. The Deputy President concluded that the Applicant was actively seeking reinstatement, and that while the proportion of reinstatements in the Commission's unfair dismissal jurisdiction is low, he could not be satisfied, in the context of the matter, that the applicant had no reasonable prospects of success in respect of his stop bullying application. The Deputy President concluded that: "Whether he is ultimately successful in the unfair dismissal application and is reinstated is a matter for that arm of the Commission to determine. Further, a finding that he will not be reinstated, or rather there is no reasonable prospect of this occurring, is not a finding that can appropriately be made by this arm of the Commission at this juncture". (emphasis added)[36]

[68] The following principles can be distilled from the cases. First, the decision of a Member of the Commission as to whether an application for a stop bullying order should be dismissed on the ground in s. 587(1)(c), is a discretionary decision. The fact that the employment of an applicant for a stop bullying order has been terminated, triggers the discretion. The Commission is then required to weigh relevant facts and circumstances to decide whether the discretion to dismiss the application should be exercised or the matter should be adjourned or held in abeyance, pending the outcome of any proceedings in which the applicant seeks reinstatement or re-employment. The Commission may consider whether the discretion in s. 587(1)(c) to dismiss the application for a stop bullying order should be exercised, on the application of any of the parties, or on the Member's own motion.

[69] Second, while the Commission has a wide discretion in terms of matters that may be included in a stop bullying order, the order must be directed at preventing identified bullying conduct from continuing. This is a limitation on an order, in the sense that the only remedy the Commission can impose on parties to an application under s. 789FC must be directed at maintaining a working relationship between them by removing future risk of bullying. When the relevant working relationship has ceased because the employment of the applicant for a stop bullying order has been terminated, an order will have no effect on the applicant unless and until the applicant is reinstated or otherwise returns to the workplace.

[70] Third, in circumstances the employment of an applicant for a stop bullying has been terminated before that application has been heard and determined, the Commission does not necessarily cease to have jurisdiction to continue to deal with the application. The jurisdictional prerequisites in s. 789FF(1) relate to the making of an order to stop bullying and not to other steps the Commission may take in dealing with an application such as informing itself of the matter under s. 590, or conducting a conference.

[71] Fourth, a decision to exercise discretion to dismiss an application for an order to stop bullying on the ground in s. 587(1)(c), is based on the Commission finding that it has no jurisdiction to make an order to stop bullying at that time because there is no present risk that bullying will continue, and that those circumstances will not change in the foreseeable future.

[72] Fifth, deciding whether to dismiss an application for a stop bullying order on the grounds in s. 587(1)(c), in circumstances where the applicant's employment has been terminated, does not require the Commission to undertake an assessment of the merits of an application that may have been made for a remedy for the dismissal. Issues relevant to whether the discretion to dismiss an application for a stop bullying order should be exercised in circumstances where the applicant's employment has ended, may include:

• whether an order can have efficacy in a practical sense, when an applicant is no longer employed in the workplace at which the bullying occurred or in proximity with the alleged bullies;

• the likelihood of those circumstances changing in the future;

• whether the applicant is actively pursuing a remedy for the dismissal which includes reinstatement as a possible outcome;

• whether, objectively, reinstatement is likely or merely speculative;

• the likely time frame that would be required for the applicant to pursue and achieve reinstatement having regard for steps the applicant has taken in this respect;

• the likely time that the stop bullying application would be adjourned if it was not dismissed;

• the effect on the applicant if the application for an order to stop bullying is dismissed;

• the effect of any adjournment on the employer and persons named;

• the possibility that there will be changes in the workplace in the period an application seeking reinstatement is being heard and determined, which may mitigate or remove a risk of future bullying conduct if the applicant is reinstated; and

• the ability of the applicant to bring a further application if the applicant is reinstated.

[73] Sixth, an important consideration in assessing the likely impact on an applicant is that the fact an application for a stop bullying order has been dismissed under s. 587(1)(c) in circumstances where the applicant's employment has been terminated, is not a bar to a future application for an order to stop bullying to be made, referring to the same circumstances. Accordingly, deciding to dismiss an application where the employment of an applicant has been terminated, does not remove or diminish the applicant's future rights to pursue an application for a stop bullying order on the facts as they existed when the earlier application was dismissed.

[74] Seventh, where the employment of an applicant for an order to stop bullying has been terminated prior to the substantive merits of the stop bullying application being heard and determined, a decision to dismiss the application under s. 587(1)(c), on the grounds that it has no reasonable prospects of success, is not based on any finding about the merits of the application. Rather, the decision is based on weighing the facts and circumstances existing at that time, including that the Commission cannot be satisfied that there is a risk that the applicant will continue to be bullied at work by the individual or group, because the applicant's employment has been terminated, and he or she is no longer in the workplace. As a result, an application for a stop bullying order that has every appearance of having reasonable prospects of success on substantive merit, may be dismissed under s. 587(1)(c) because the only remedy the Commission is permitted to grant by way of an order, is not available at that time or in the reasonably foreseeable future.

[75] Eighth, while it will not always be appropriate for the Commission to dismiss an application for a stop bullying order where the employment of the applicant is terminated and the applicant is seeking reinstatement, there are indications in the statutory provisions dealing with such orders, that deciding to hold a stop bullying application in abeyance in such circumstances, should be the exception rather than the rule. As the Full Bench in Re McInnes explained, the operation of an order to stop bullying is prospective, notwithstanding that it is based on past behaviour. Section 789FE requires that the Commission deal promptly with applications for stop bullying orders and by virtue of s. 789FE(2), that the Commission commence to deal with a stop bullying application within 14 days after the application is made. The note to that section makes clear that within the 14 days the Commission may start to inform itself under s. 590, conduct a conference under s. 592 or conduct a hearing under s. 593. Accepting that the term "start" applies to each of these courses of action, where the Commission decides to conduct a hearing, the timeframes for the parties to take preparatory steps such as filing and service of materials, would necessarily be short.

Principles governing appeals from decisions involving exercise of discretion

[76] An appeal under s 604 of the Act is by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[37] There is no right to appeal, and an appeal may only be made with the permission of the Commission. 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.[38] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[39] 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 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.[40] 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.[41] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[77] While the matter considered by the Commissioner was described as a jurisdictional issue, a decision in relation to whether the Appellant's application for an order to stop bullying should be dismissed on the grounds in s. 587 of the Act, is discretionary. In relation to decisions involving the exercise of discretion, the majority of the High Court held in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[42]

" 'Discretion' is a notion that 'signifies a number of different legal concepts. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result.' Rather, the decision maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision maker is required to make a particular decision if he or she forms a particular opinion or value judgement."[43] (citations omitted).

[78] The majority in that decision also held that because a decision maker charged with making a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process,[44] also described as the discretion not being exercised correctly.[45] It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Member at first instance in the absence of appealable error. The classic statement as to the approach to be taken in relation to whether there is error in a discretionary decision, and which is applied in appeals against such decisions under s. 604 of the FW Act, was stated by the High Court in House v The King as follows:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."[46]

[79] We now turn to consider the grounds of appeal.

[80] As we have noted, grounds 1 - 24 are common to both appeals and we deal with them on that basis. Appeal ground 1 contains a bare assertion that the Appellant has a McKenzie friend assisting her in a small capacity. The role of a McKenzie friend was described in a decision of the Family Court (Lindenmayer J) in Watson & Watson_[47]_ as follows:

... The case of McKenzie v McKenzie was to the effect that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a 'McKenzie friend' is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings." (Citations omitted).

[81] A brief perusal of the transcript of the first instance proceedings and the appeal indicates that Mr Naylor was acting as an advocate, and the capacity in which he was acting could not be described as "small". The Commissioner gave considerable latitude to the Appellant and to Mr Naylor, to the extent that there can be no valid complaint about denial of procedural fairness with respect to his involvement. Appeal ground 1 is a bare statement rather than a ground of appeal, incorrectly characterises the role of Mr Naylor, discloses no error on the part of the Commissioner, and we reject it.

[82] Appeal grounds 2 - 4 are also simply statements about various grievances the Appellant has with the process the Commissioner followed by deciding to conduct an in person conference prior to the hearing, in alleged contradiction of assurances said to have been given by the Commissioner, that the Appellant would not be required to be in a room with the persons named in the application and then ordering the Appellant to attend a conference contrary to that assurance. These grounds are not properly pleaded grounds of appeal and are without merit.

[83] Contrary to the Appellant's assertions about her understanding of the process that would be followed by the Commissioner, on 22 March 2024, the Appellant sent an email to the Commissioner's Chambers, stating that on 8 April, she would be attending a "without prejudice" meeting with the other parties, to be conducted at the Commission's premises. In the email the Appellant asks about the conference process including whether, given it is an "informal session for the other party to present an offer", the Appellant should bring a representative with any particular qualifications. The Appellant's email also asks whether she has the capacity to terminate the meeting if she thinks it is going nowhere and immediately schedule a hearing at a time determined by the Commissioner. The Commissioner's Associate responded to the series of questions posed by the Appellant about the 8 April conference informing her that she could bring a person without specific qualifications to speak on her behalf and that a decision to adjourn the conference and to program a hearing would be taken by the Commissioner at his discretion.

[84] This exchange of correspondence is at odds with the Appellant's assertions in appeal ground 4 that contrary to assurances previously given by the Commissioner, she was asked to meet with the Respondents. In any event, regardless of what the Appellant understood about the conference on 8 April 2024, there is nothing unusual about Members of the Commission conducting conferences of the parties prior to the hearing of an application with all parties in the same conference room. Further, while the Appellant had an aversion to being in the same room as the Respondent, there is nothing in the Appellant's stop bullying application or the evidence before the Commissioner, that in our view, should have outweighed the Commissioner taking the orthodox approach of conducting a conference of the parties in person, with all relevant persons present, prior to a hearing. In any event, appeal grounds 5 and 6 state that when the Appellant attended the Commission on 8 April 2024, she refused to meet with the Respondents and was informed by the Commissioner that they had decided to leave. It is apparent from those appeal grounds that the Appellant was not forced by Commissioner to be in a room with the Respondents.

[85] The Appellant's assertions about her reluctance to attend a conference with the Respondents are also at odds with the remedies sought in her stop bullying application. The solution proposed by the Appellant includes that she be allowed to return to the workplace while investigations into her complaints are being conducted. While the application states that the Appellant was suffering a range of mental and physical health issues because of the conduct complained of and that the Appellant had been provided with medical certificates establishing the physical and mental harm she had suffered as a result of the bullying, those certificates were not provided to the Commission, either on 20 February 2024 when the application was filed, or before the conference on 8 April 2024. Nor did the Appellant provide these to the Full Bench in the appeal or give evidence as to the steps she took to object to the Commissioner conducting a conference of the parties. Further, the health and safety risks set out by the Appellant in an Annexure to her stop bullying application refer to general risks in relation to the work environment and all employees, associated with what is described as her former employer "improperly using bastardised processes and procedures that caused harm and damage to the emotional, mental and physical wellbeing of staff" and failure to abide by processes and procedures of the QPS Manual, rather than to the Appellant personally.

[86] That the Commissioner may have become frustrated in the face of the Appellant's refusal to participate in a conference that he had convened to address her application, attended by the Respondents and which the Appellant had agreed to attend with Mr Naylor, it would be entirely understandable. The Appellant has not identified any error in the decisions against which she appeals because of the conduct of the Commissioner alleged in appeal ground 5 and nor is the Commissioner taking the orthodox approach of convening a conference of the parties, an indication of bias. As we have previously stated, the Appellant and Mr Naylor were granted considerable latitude by the Commissioner and this ground discloses no error. Appeal ground 6 is also a statement and does not assert or identify an error on the part of the Commissioner. We reject those grounds of appeal.

[87] Appeal ground 7 asserting that the Commissioner delayed action after the conference on 8 April 2024, also has no merit. As we have noted, the Commissioner was informed by the Appellant on 17 April that her employment had been terminated. It is neither unusual nor inappropriate that the Commissioner had not issued a notice of Listing prior to that date. Upon being made aware of the termination of the Appellant's employment, it was appropriate for the Commissioner to request confirmation of whether she intended to proceed with her stop bullying application, and to explain the implications of the termination of the Appellant's employment for the making of the order sought by the application. Following confirmation that the Appellant intended to proceed with her application, it was entirely appropriate for the Commissioner to issue Directions for the purposes of dealing with the jurisdictional issue, instead of listing the matter for a merits hearing. The Commissioner issued Directions on 29 April 2024 requiring material to be filed in relation to that issue. The time frame in which those directions were issued was unexceptional and there is no appealable error in relation to it. Nor has the Appellant identified any adverse impact the time frame had on her ability to present her case. Grounds 8 and 10 simply state that the Commissioner was notified that the Appellant's employment had been terminated and do not disclose any error on the part of the Commissioner.

[88] Appeal grounds 9 and 11 take issue with the Commissioner, acting on his own initiative to raise the matter of whether the Appellant's stop bullying application should be dismissed on the ground in s. 587(1)(c) that it had no reasonable prospects of success. As s. 587(3) makes clear, the Commission may dismiss an application on its own initiative or on application by the parties. That the Commissioner decided to invoke s. 587(1)(c) on his own initiative is not an error, and nor does this indicate or support any argument with respect to bias. We reject those appeal grounds.

[89] The remaining grounds of appeal deal broadly with assertions that the Appellant was denied procedural fairness. In the hearing of the appeal, the Appellant provided an alleged example of procedural unfairness at first instance that was not the subject of a particular appeal ground. That example is the email exchange of 1 May 2024 between the Appellant and the Commissioner's Chambers, in which the Appellant requested an extension of time for the filing of documents which were required by the Directions to be lodged with the Commission by 4.00 pm on 2 May 2024 and asked whether a formal application for an extension would be required. The response from the Commissioner's Chambers stated that there were no formal requirements for an extension and an email as provided by the Appellant would suffice and went on to state that the extension application was denied based on lack of supporting grounds. The Appellant contended that the email was a denial of procedural fairness because the Commissioner refused the request for an extension before it had been properly made and denied her the opportunity to make supporting submissions. The Appellant also took issue with a statement that the Commissioner made during the hearing to the effect that the Appellant had been given an opportunity in submissions in reply, to address anything that she disagreed with in the Respondent's submissions. In the hearing of the appeal, Mr Naylor said:

"Fair enough. That's a good point. However, if we then turn to page 7, which has the actual orders about it, we see that, on page 7 of the appeal book, it says at point 7(a), the applicant files. The employer files. There was no right of reply to submissions from the employer. For the Commissioner to lie to the applicant and tell them that they had the opportunity to respond and, therefore, I had to shut up while questioning that, and showing my confusion, and for them to deliberately misrepresent the orders that they had previously made, that's scandalous.

The idea that they referred to orders that they made when they did not make those orders, that should be on the front page of a newspaper. And I put to you that those sorts of things are obvious errors. They are obviously bias. They are obviously fundamentally failures to abide by correct procedure and represent the worst of procedural unfairness, to say that she could not raise an objection there and then - and could not continue to talk about the issue..."[48]

[90] That assertion is not only factually incorrect, but also offensive and insulting to the Commissioner. As we have set out above, when the Commissioner decided to conduct a hearing, and on 13 May 2024, issued a Notice of Listing and further Directions for that hearing, the Appellant was given a seven-day period (until 20 May 2024) to lodge submissions and witness statements "in response to the Employer's materials". This point was underlined in the Directions for emphasis. An email sent to the parties in advance of the Directions also stated that the applicant (Appellant) would be given a brief right of reply to the materials filed by the Respondent. At that point the Appellant had filed material in accordance with the earlier Directions and Respondent had filed submissions as to why the Appellant's stop bullying application should be dismissed, and a witness statement made by Mr Vilensky (discussed above). The Appellant cannot claim that she was unaware of the Notice of Listing and Directions issued on 13 May 2024, giving her the opportunity to file reply submissions, or the email stating that she would be given a brief right of reply to the material filed by the Respondent, as those documents were included in the Appeal Book filed by the Appellant.[49]

[91] Even allowing for the fact that the Appellant is not legally represented, the assertions about the Commissioner's conduct should not have been made. We can only wonder what additional steps the Commissioner could have reasonably taken to afford the Appellant the opportunity to put her case in opposition to her application for a stop bullying order being dismissed under s. 587(1)(c) of the Act.

[92] As Kirby J observed in Allesch v Maunz[50], it is a principle of justice that a decision maker, exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.[51] His Honour referred to this principle as an indispensable requirement of justice, a rule of natural justice or procedural fairness. Importantly, and relevantly for the present case, his Honour went on to observe:

"...it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require."[52]

[93] To this we would add that procedural fairness does not require the Commission to provide an opportunity to a party to be heard on matters that are not material or relevant to the case the Commission is required to determine. Nor does it require the Commission to hear submissions and receive evidence about matters that it considers are irrelevant and immaterial, simply because the party seeking to be heard asserts a right to place such material before the Commission. The Commission's powers to hear and determine matters and to grant remedies, are limited by statute and it does not have the power to determine any matter that an aggrieved party may wish to articulate or expound.

[94] As a Tribunal exercising public power, it is a fundamental requirement that the Commission affords procedural fairness to all parties in its dealings with them. The requirement in s. 578(b) that in performing functions or exercising powers under the Act, the Commission must take into account equity, good conscience and the merits of the matter, is a powerful control over the Commission and underpins its obligation to afford procedural fairness to persons and organisations affected by its proceedings and decisions. However, the requirement that the Commission take these matters into account applies with respect to all parties and necessitates the Commission balancing competing interests to ensure that the right of a party to be heard, is not exercised in a way that requires other parties to respond to submissions that are irrelevant to a matter in dispute. It is contrary to the public interest and to the interests of all persons litigating matters before the Commission that its resources are expended on dealing with irrelevant matters.

[95] It is also well established that while procedural fairness is a fundamental principle in proceedings of the Commission, not every denial of procedural fairness constitutes appealable error. The following principles can be derived from cases dealing with appeals on the grounds of denial of procedural fairness:

• A Tribunal's error in failing to afford procedural fairness will involve jurisdictional error only if that failure was material to a decision in the sense that the error deprived a party of a realistic possibility of a different outcome.[53]

• The appellant bears the onus of demonstrating that the denial of procedural fairness was material in this sense.[54]

• There will generally be a realistic possibility of a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.[55]

• The materiality of a breach of procedural fairness requires consideration of "the factual question of how the decision that was in fact made, was in fact made". This is determined by historical facts on the balance of probabilities, and consideration of whether the decision that was made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[56]

• The standard of "reasonable conjecture":
  • recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious or not liable to be advanced by the apparently persuasive story of the opposing party;
  • does not require demonstration of how that party might have taken advantage of that lost opportunity where a party is denied a reasonable opportunity to present their case; and
  • is that if given a fair opportunity to present their case, a party will take advantage of that opportunity, and by doing so, could achieve a favourable outcome.

• The burden falls on the plaintiff to prove "on the balance of probabilities, the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition".[57]

[96] In Minister for Immigration and Border Protection v WZARH,[58] Gordon J explained in the following terms, that a denial of procedural fairness can take different forms in different contexts, not all of which can be said to have changed the outcome for a person:

"There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given."[59] (emphasis added)

[97] In the present case, the grounds of appeal relating to procedural fairness are based on a misconception on the part of the Appellant, that if a denial of procedural fairness is established, the appeal must succeed, and the Full Bench must either determine that

Appellant's stop bullying application should be put into abeyance pending the finalisation of her general protections application, or order that the entire matter be reheard by another Member of the Commission. This is reflected in the oral submissions of Mr Naylor on behalf of the Appellant in the hearing of the appeal, who contended that in the Dismissal Decision, the stop bullying application was not dismissed, but instead, was dismissed in a way attended by procedural unfairness and bias, which is inconsistent with justice not only being done but being seen to be done.[60] Mr Naylor also contended that if some of the things that were done to the Appellant were "in the [news]paper", there would be outrage, and that this was the issue in the appeal.[61] Those grounds of appeal are also premised on the Appellant's view that the merits of her stop bullying and general protections applications should have been determinative of the jurisdictional issue and that she was denied the opportunity to be heard in relation to these matters.

[98] Reflecting these misconceptions, the grounds of appeal relating to alleged procedural unfairness are generally bare assertions that the Appellant was not given a fair opportunity to be heard, and are not supported by any indication - either in the form of submissions or evidence - of what the Appellant would have said in support of the matters she was agitating in her submissions at first instance, had she been afforded the opportunity she contends was denied by the Commissioner. The Appellant has also not identified how the incidents of procedural unfairness she complains of denied her the possibility of a successful outcome. The Appellant was requested during the hearing of the appeals to make oral submissions informing the Full Bench of the matters she would have put to the Commissioner at first instance, had she been offered a further opportunity to make submissions or call evidence, or been given extensions of time frames, that she contends were denied to her by the Commissioner. Rather than addressing this request, Mr Naylor on behalf of the Appellant simply indicated that the instances of procedural unfairness simpliciter identified in the grounds of appeal, were a sufficient basis for the appeal to be upheld. In this regard, when asked to respond to the proposition that if there had been a denial of procedural fairness, the Full Bench may redetermine the matter or refer it to another Member of the Commission to rehear and determine, with the same outcome, Mr Naylor said:

"...And that, in many ways, is the crux of the matter. If you're saying that if it was returned to another Commissioner, and that Commissioner would make a similar ruling but with procedural fairness, then it's not exactly the same. Fundamentally, you're acknowledging that the basis of our appeal is correct in that procedural fairness matters".[62]

[99] In response to the proposition that if the Appellant succeeded with her application for reinstatement, she could make a fresh application if she believed that the alleged bullying was continuing, Mr Naylor said that for the Full Bench to make a finding that there was procedural unfairness, but nonetheless confirm the Commissioner's decision, would be for the Full Bench to conclude that there was no merit for the Appellant in a finding of procedural unfairness and that procedural unfairness did not matter if it might lead to a similar outcome.[63]

[100] We have considered the grounds concerning procedural fairness in both notices of appeal and have concluded that the Appellant was not denied procedural fairness in a material sense, and to the extent that there was any failure in this regard, it did not deny the Appellant an opportunity to be heard on matters relevant to the issues for determination, nor the possibility of a successful outcome.

[101] In relation to grounds 12 - 16 in both appeals, we do not accept that the time allowed to each party to submit material for the hearing into the jurisdictional issue, constituted a denial of procedural fairness. The Appellant knew from 17 April 2024 that the issue she was required to address was that the termination of her employment meant that there was no future risk of bullying. The Appellant was informed of this orally by the Commissioner's Associate and in email correspondence sent to her from the Commissioner's Chambers and through the material filed by the Respondent. If the Appellant was in any doubt about the issues her material was required to address, that doubt should have been removed by the email from the Commissioner's Chambers dated 23 April 2024. In addition to informing the Appellant that the Commission could not make orders in the absence of ongoing risk of bullying and that orders were for the purpose of mitigating such risk, the email included a link to information regarding the Appellant's eligibility to make an application under national anti-bullying laws, which contained the following information:

"The national anti-bullying laws only apply to certain workers. To ask the Commission to stop workplace bullying, you must be:

• a worker AND
• working in a 'constitutionally covered business' AND
• still working in (or connected to) the workplace where the alleged bullying happened AND
• experiencing (or at risk of experiencing further) behaviour that creates a risk to your health and safety"

[102] By the Appellant's own application for an order to stop bullying, she sought remedies centring on her returning to the workplace. At the point the Appellant was required to file her material, she had been clearly informed that such an order could not be made by the Commissioner, in circumstances where her employment had been terminated, and could not be made unless and until she succeeded in being reinstated. It had been explained to the Appellant that the Commissioner was not deciding the merits of her stop bullying application, and merit was not determinative of the jurisdictional issue that was to be heard by the Commissioner. The Appellant's assertion that the merits of her general protections application were relevant is also misconceived in circumstances where regardless of those merits, the Commissioner could not have made an order to stop bullying at the relevant time and in the foreseeable future.

[103] The Appellant had also been informed that if she was reinstated, she could make a fresh application for a stop bullying order. The only relevant matter that the Appellant was required to address was the basis upon which she asserted that an order for bullying could be made in the circumstances where she was no longer employed or the basis upon which the Commissioner should hold her application in abeyance. These are narrow issues and as we have observed, the Appellant has not provided the Full Bench with any indication of the submissions or evidence she would have placed before the Commission had she been given more time to file material. We reject appeal grounds 12 - 16 in both appeals. We also reject any suggestion that the Respondent being given more time than the Appellant to file its material, indicated bias on the part of the Commissioner.

[104] In relation to the example of alleged denial of procedural fairness advanced by the Appellant in oral submissions at the hearing, we do not accept that the email exchange about seeking an extension to the time to file material was a denial of procedural fairness. On a fair reading of the Appellant's email of 1 May 2024, it was reasonable for the Commissioner to assume the email was, of itself, an application for an extension. The statement that the Appellant would appeal a refusal of an extension, is also consistent with the email being such an application. While it may have been prudent for the Commissioner's Chambers to clarify the Appellant's intention, it was reasonable for the Commissioner to accept the email as an application for an extension and to inform the Appellant that for present and future purposes, she was not required to make a formal application. Whether the Commissioner intended to take leave is not a matter on which it is appropriate for the Appellant to comment, and we reject the inference in the Appellant's submission that the Commissioner refused an extension for personal reasons.

[105] It is also the case that the shorter time frame for the Appellant to file her initial tranche of material was offset by the further opportunity to file submissions in reply and witness statements in response to the material filed by the Respondent. The Commissioner's attempts to direct the Appellant's attention to the matters her reply material was required to address, were to no avail. The Appellant continued to focus on irrelevant matters such as the asserted merit of her stop bullying and general protections applications. That the Appellant failed to take an opportunity given to her to file material that was relevant to the matters for determination, is not an error on the part of the Commissioner.

[106] The Act required the Commissioner to deal with the application for an order to stop bullying promptly, the Appellant sought a hearing into whether her stop bullying application should be dismissed, and once it became clear that a hearing was required, it was reasonable for the Commissioner to issue directions reasonable albeit tight timeframes. The Commissioner conducting a hearing in what the Appellant considers to be short time frame, does not, of itself, constitute a denial of procedural fairness, and we reject appeal ground 19 in both appeals. We also note that the time frame in which the Commissioner dealt with the matter is consistent with the statutory imperative for applications for stop bullying orders to be dealt with expeditiously. This is in the interests of all parties.

[107] Appeal grounds 17 and 18 in both appeals simply record uncontested facts that do not constitute error on the part of the Commissioner. The Appellant submitted that the Commissioner should conduct a hearing, and he did so. The fact that the Commissioner was considering dealing with the matter based on the material filed, and then decided to conduct a hearing, is unexceptional and not a basis for grounds of appeal. Nor does the fact that the Commissioner's decision to conduct a hearing coincided with the Appellant's request, indicate bias on the part of the Commissioner nor a reasonable basis for the Appellant's assertion that she had a reasonable perception of bias.

[108] We also reject grounds 20 - 24 in both appeals in which the Appellant complains that she was denied the opportunity granted to the Respondents to make a submission about her Form F51 application for orders requiring the attendance of witnesses. The Form F51 requests the party making the application to set out why the attendance of the persons is sought and how this will assist the Commission in reaching a decision. Further, the template draft for orders provided to applicants contain a statement that the persons served with such an order can seek to have it set aside. The information provided by applicants in the Form F51 generally suffices as submissions for such an order, and it is entirely appropriate for a Member of the Commission to simply confirm that the application and order has been served on all relevant respondent parties and to await a response. There is nothing unusual or untoward about a Member of the Commission seeking the views of the respondent parties about witnesses being required to attend a hearing to give evidence, without first requesting a submission on this issue from the applicant for the orders. If further submissions from an applicant for an order requiring attendance are requested by a Member of the Commission, it would generally (but not always) be in response to any objection from either a person issued with a notice or the Respondent.

[109] As we have discussed at [25] above, the Appellant lodged an application and draft orders which, had they been issued by the Commissioner, would have required four persons to attend the hearing in relation to the jurisdictional issue, to give evidence on behalf of the Appellant. The Form F51 filed by the Appellant sets out in detail the reasons why the Commissioner should issue the attendance notices and the subject matter of the evidence the Appellant intended to adduce from the persons ordered to attend.

[110] There were additional factors which the Commissioner was required to balance in deciding whether to issue the notices, including: that there were multiple respondents to the stop bullying application; multiple persons being sought to attend the hearing to given evidence; a relatively short time frame between the application for the attendance notices to be issued and the hearing date; the fact that only one witness statement had been filed by BBV Legal and none by the Appellant; and that the scheduled duration of the hearing (which had been appropriately based on fact that there was only one witness at the time the hearing was listed) did not allow for four additional witnesses to give evidence and be cross-examined. It is also the case that on the face of the Form F51 filed by the Appellant, the evidence proposed to be called from the witnesses was not relevant to the issues the Commissioner was required to determine. These matters were considered by the Commissioner as set out in his reasons for refusing to issue the orders and we discern no error on the part of the Commissioner in this regard.

[111] Ground 25 of the appeal against the Attendance Notice Decision notes that the Commission has a duty to assist unrepresented parties to put their arguments, where those arguments would otherwise be unclear, and asserts that the Commissioner has not assisted the Appellant. We do not accept this contention. The Commissioner, via correspondence from his Chambers and in the hearing, provided significant assistance to the Appellant to formulate her case and to focus on relevant matters. Regrettably, the Appellant did not avail herself of that assistance or take advantage of the opportunities she was given, and was intent on advancing submissions that dealt with matters not relevant to those the Commissioner was required to determine. We cannot identify any additional step the Commissioner could have reasonably taken to assist the Appellant to put the argument she was required to advance to address the jurisdictional issue. In our view, any frustration the Commissioner expressed to the Appellant and Mr Naylor in the face of their persistent failure to engage with the issue he was determining, is understandable. We are also of the view that the Appellant's grievance is simply that the Commissioner refused to receive irrelevant submissions and to allow her to call evidence that was irrelevant to the jurisdictional issue. This does not constitute error on the part of the Commissioner.

[112] Ground 26 of the appeal against the Attendance Notice Decision and ground 25 of the appeal against the Dismissal Decision simply state that regardless of not being requested by the Commissioner to do so, the Appellant filed submissions in response to the Respondent's objection to the notices being issued, which included the assertion about the Respondent providing "significant false information" to the Commission. This assertion is the subject of grounds 26 - 28 of the appeal against the Attendance Notice Decision and grounds 25 - 27 of the appeal against the Dismissal Decision. The Appellant also contends by those grounds that the Respondent conceded it had provided false information and "instructed the Commission to remove that information" and questions whether the Commissioner had regard to that information despite the Respondent's "instruction".

[113] The difficulties with these appeal grounds are considerable. The Appellant does not detail the "significant false information" she refers to in the appeal grounds. As discussed in paragraphs [19] and [30] above, during the proceedings before the Commissioner, there were two allegations that the Respondent provided false evidence or information to the Commission. We assume that the allegation raised in the appeal grounds relates to the appeal against the Attendance Notice Decision. The information said to be false is that the Respondent's submissions objecting to the attendance notices being issued, stated that the directions issued by the Commissioner on 29 April 2024, included a hearing date of 23 May for the jurisdictional issue to be determined. When the Appellant pointed out that the hearing date had not been set when the directions were issued, the Respondent conceded that the submission was incorrect and withdrew it. We accept that the submission was no more than a simple error on the part of the Respondent's representative, not properly described as providing significant false information to the Commission.

[114] We do not accept that the Commission was misled by the submission. The relevance of this contention by the Respondents was not central to their submissions about whether the attendance notices should be issued. The part of the Respondents' submission that was centrally relevant was that the Appellant was seeking to call evidence from witnesses about the merits of her stop bullying and general protections applications, that had no bearing on the question for determination: whether the stop bullying application should be dismissed, because no order could be made in circumstances where the Appellant's employment had been terminated. The Respondents' submissions about the relevance of the evidence and the effect that issuing the attendance notices would likely have in terms of inconveniencing the witnesses and delaying the hearing, were valid points independent of the incorrect assertion that the Appellant had known of the hearing date since 29 April 2024. The only possible relevance of the Respondents' incorrect assertion, was to suggest that the Appellant had made the application for the attendance notices on 17 May 2024, only six days before the scheduled date of the hearing on 23 May, in circumstances where she had known of the hearing date since 29 April, when the directions were issued, and that this delay should weigh against the issuing of the attendance notices.

[115] The reasons given by the Commissioner for refusing the application for the attendance notices to be issued, make no reference to the Respondents' incorrect assertion and are based on relevance of the evidence the Appellant had indicated she would attempt to adduce from the witnesses to the matters for determination, weighed against the inconvenience to the witnesses of being required to attend, and the Commission in terms of programming the hearing. Ground 28 of the attendance notice appeal and ground 27 of the Dismissal Decision invite the Full Bench to hypothesise about whether the Commissioner took the erroneous assertion into account in deciding to refuse to issue the attendance notices. In the absence of any indication that the Commissioner did so and in circumstances where there is no error in the decision to refuse the application to issue the notices. We reject those grounds of appeal.

[116] Grounds 29 and 30 of the appeal against the Attendance Notice Decision and grounds 28 and 29 of the appeal against the Dismissal Decision assert that the decision of the Commissioner to refuse to issue the attendance notices significantly affected the Appellant's opportunity to present a case regarding the merits of her application and that this decision was related to the tight timeframes created by the short notice periods given by the Commissioner. We reject these grounds of appeal. It is apparent that the Appellant was seeking the attendance of the persons named in the Form F51 to provide evidence about the merits of her stop bullying application and her general protections application. But as the Appellant had been clearly informed, the merit of those applications was not relevant to the matter the Commissioner was required to determine. In any event, the Appellant's assertions that she had been bullied at work and that her dismissal was not a case of genuine redundancy were contested by the Respondent and in a hearing dealing with the question of whether the application for a stop bullying order should be dismissed under s. 587(1)(c) on the basis of the jurisdictional issue that no order could be made at that time, the merits of the bullying claims were irrelevant.

[117] As we have stated, the time frames set by the Commissioner (referred to in ground 30 of the Attendance Notice appeal and ground 29 of the Dismissal Decision appeal) were unexceptional and other than asserting a denial of procedural fairness based on the Commissioner preventing her from calling evidence that we accept was irrelevant, the Appellant has pointed to nothing that deprived her of an opportunity to advance her case against her stop bullying application being dismissed. We reject those grounds of appeal. We likewise reject grounds 31 of the Attendance Notice appeal and 32 of the Dismissal appeal asserting that the Appellant had grounds for "real fears" (which we interpret as a reasonable perception) of bias on the part of the Commissioner. There is no basis for us to consider such assertions, much less make a finding about them. A reasonable person would perceive that the Commissioner took appropriate steps to assist the Appellant to conduct her case by identifying the relevant issues for determination and making clear that aspects of the case the Appellant sought to conduct were not relevant to those issues. The remaining grounds 33 - 36 of the appeal against the Attendance Notice Decision are no more than statements of the Appellant's views and intentions and we reject those grounds.

[118] We also reject grounds 32 - 41 of the appeal against the Dismissal Decision. Ground 32 takes issue with the Commissioner "refusing the [Appellant's] desire to present in formation (sic) that was specific, admissible and relevant to the matter". While the Appellant may have desired to present evidence she believed was relevant, procedural fairness did not require that the Commissioner receive that evidence when it was in fact, irrelevant. The Commissioner did not err by drawing "too tight a noose around the evidence" as asserted in ground 33 of the Dismissal Decision appeal, and his insistence that only relevant evidence be received, was appropriate and did not constitute a denial of procedural fairness. Nor did the Commissioner misapply rules or make errors in relation to relevant evidence as asserted in grounds 38 - 41. The Commissioner took the same approach to evidence given by Mr Buchbinder and submissions made on behalf of the Respondents and indicated that he would not have regard to evidence about the merits of the Appellant's application for stop bullying orders or her general protections application. Contrary to the assertion in ground 40, the transcript indicates several occasions when the Commissioner upheld objections made by the Appellant or overruled objections made by the Respondent.

[119] The Commissioner upheld objections to questions put to the Appellant by Mr Naylor in oral evidence in chief on the grounds that the questions related to the substantive issue of the genuineness of the redundancy or were clearly impermissible.[64] The Commissioner also overruled objections to Mr Naylor's questions to Mr Buchbinder about the Appellant working from home on the basis that Mr Buchbinder had been asked questions on the same subject. [65] The Commissioner allowed questions to be put to the Appellant in cross-examination, which while touching on the allegations made in her stop bullying application, were relevant to whether it is realistic that the Appellant would return to the workplace if she was reinstated in light of the state of her relationship with Mr Buchbinder and Mr Vilensky.[66] Other questions the Commissioner allowed were about the circumstances in which a document purporting to be a record of a discussion between the Appellant and a former work colleague was prepared and when the document was prepared, rather than its contents. The objections made on behalf of the Appellant about those questions being permitted were misconceived. That the Commissioner allowed those questions is unexceptional and does not demonstrate error nor indicate bias.

[120] We agree that the Commissioner had an obligation to provide a measure of assistance to the Appellant as an unrepresented party. However, contrary to the Appellant's submissions, we conclude that the Commissioner did his best to comply with this requirement, in the face of considerable difficulties created by the Appellant's failure to engage with the matters that were relevant to the issue the Commissioner was required to determine and the attitude of opposition to the Commissioner's rulings demonstrated by Mr Naylor during the hearing. These issues manifested most significantly in the Appellant's reaction to what was referred to appeal grounds 36 and 37 as the "requirement to take the stand" and to give "forced testimony". The context for these grounds of appeal can be summarised as follows.

[121] The Appellant did not make a witness statement in the first instance proceedings. We accept that the first Directions issued by the Commissioner at the point he considered determining the matter based on the material filed, did not refer to the parties' filing statements of evidence from witnesses. The Appellant filed submissions containing both legal arguments and assertions of fact. The Respondents filed a submission addressing legal arguments and a witness statement made by Mr Buchbinder setting out facts they relied on. The Commissioner decided to conduct a hearing and issued further Directions on 13 May 2024, which while not requiring the Appellant to file witness statements, gave the Appellant an opportunity to do so. Regrettably, instead of making a witness statement on her own behalf dealing with relevant issues and responding to the witness statement made by Mr Buchbinder, the Appellant focused her attention on seeking that the Commissioner issue notices requiring other persons to attend to give evidence, going to the merits of her applications. The Appellant also filed further submissions reiterating matters she had raised in her initial submissions. Leaving aside questions of relevance, the factual matters canvassed in the Appellant's submissions would have been more appropriately included in a witness statement made by the Appellant without the need to call four additional witnesses.

[122] The transcript of the first instance hearing records that at the outset, the Commissioner informed the parties that the purpose of the hearing was for the Commission to consider the jurisdictional issue - that it may not be able to make any kind of order in relation to bullying, noting that the Appellant was no longer employed by the employer party. The Commissioner also indicated that some time would be allowed for both parties to give evidence and make submissions. Mr Naylor on behalf of the Appellant stated that she relied on her submissions and that they were sufficient to show that the matter should not be dismissed or that if the jurisdiction issue could not be resolved, the application should be adjourned sine die. The Respondent parties relied on their submissions and called Mr Buchbinder to give evidence. Mr Buchbinder was asked some brief questions by way of further evidence in chief going to the Appellant being allowed to work from home during the COVID-19 outbreak in 2020 and confirming that her role while employed by the Respondent was Receptionist.

[123] Mr Buchbinder was cross-examined by Mr Naylor who asked a series of questions about the Appellant's working hours generally, and during the period she was absent on sick leave or instructed to stay at home while allegations were investigated. Objections made by Mr Lethbridge to questions going to the genuineness of the Appellant's redundancy were upheld by the Commissioner. Those questions concerned whether a job share colleague undertook the Appellant's role while she was suspended and whether that person had also been made redundant. We agree that these questions were irrelevant to the matters the Commissioner was determining and there is no error in the line of cross-examination not being allowed. Mr Naylor did not seek to pursue any other line of cross-examination. At the conclusion of the cross-examination of Mr Buchbinder, Mr Lethbridge made the following submission:

MR LETHBRIDGE: I suppose my question is whether Ms Greenan intends on giving evidence. Certainly we would object to - or any factual statements made by her in any of her documents being accepted as fact, unless she is prepared to take the stand and be cross-examined.[67]

[124] As a lawyer with a duty to assist the Commission, this was an appropriate issue for Mr Lethbridge to raise before the conclusion of the hearing. The transcript indicates that the Commissioner attempted to explain the distinction between submissions and evidence to the Appellant and that she was being offered an opportunity to swear to the truth of aspects of her submission that would have been more appropriately included in witness statement made by her, and to be cross-examined in relation to those matters. Mr Naylor on behalf of the Appellant responded by stating that given that the refusal to issue attendance notices to the Appellant's witnesses, she believed the refusal also applied to her, and that "no instruction" had been received from the Commissioner in this regard.[68] As we have noted, this assertion is incorrect. The Notice of listing and further directions issued by the Commissioner on 13 May 2024 gave the Appellant an opportunity to file witness statements, including a statement made by her, and reply submissions.

[125] There was then an exchange in which the Commissioner continued to attempt to explain the distinction between evidence and submissions to the Appellant and her representative. That explanation included that the Respondents' case was comprised of submissions in the form of legal argument and conclusions that should be drawn based on the non-contentious facts and the evidence given by Mr Buchbinder. The Commissioner sought to contrast this with the Appellant's case which was comprised of submissions including legal argument and statements about factual matters the Appellant believed, saw, heard or did, in relation to which she had not given evidence. In response to Mr Naylor's questions about why the Appellant was being asked whether she was prepared to give evidence, the Commissioner stated that statements about factual matters in submissions, could not be given the same weight as evidence.[69] It is apparent from the transcript that the Commissioner's explanation of this point became somewhat convoluted, and that Mr Naylor did not understand some of that explanation. While this was not an ideal situation, it is also apparent that Mr Naylor was intent on arguing with the Commissioner about whether he should be permitted to reopen his cross-examination of Mr Buchbinder for the purpose of challenging submissions made by the Respondents, relitigating the decision of the Commissioner to refuse to issue the attendance notices sought by the Appellant, and with establishing inequity in the way he perceived that the Appellant was being treated compared to the treatment of the Respondent.

[126] In this regard, Mr Naylor said that the Appellant did not believe she should give evidence about conversations she had participated in when the Commissioner had refused to issue notices requiring other participants in those conversations to attend the Commission to give evidence. Mr Naylor framed his questions to the Commissioner on the basis of asserting in relation to a witness the Appellant had sought to call that: "You said she couldn't appear so therefore you've denied us the right to have the person come here to say that that occurred and give evidence to that."[70] The Commissioner stated that he was not requiring that the Appellant give evidence and that it was a matter for her.[71] In response to the proposition that the Appellant could have given the evidence that had been sought to be adduced from a witness the Appellant sought to call, Mr Naylor asked why that witness could not give the evidence.[72] The transcript then records that Mr Naylor requested that the Commissioner give him a five minute adjournment to have a discussion with the Appellant. The Commissioner granted the request. After the adjournment, which extended from 2.23 pm to 2.35 pm, Mr Naylor asked further questions in which he repeated his earlier assertions that witnesses had been "denied" by the Commissioner and then stated: "Okay. So therefore Ms Greenan is more than happy to give evidence today, on the judicial matter. Thank you."[73]

[127] Other than making broad (and incorrect) assertions that the evidence given by the Appellant was "forced" and that rulings about evidence that could or could not be admitted were arbitrary, the Appellant has not pointed to any evidence that the Commissioner received or did not receive, that constitutes error. Nor has the Appellant identified how the matters she complains constituted a denial of procedural fairness, had a material effect on her case or deprived her of the realistic possibility of a different outcome. To the contrary, had the Appellant not been permitted to give sworn evidence, she would have been denied an opportunity to challenge any relevant assertions of fact in Mr Buchbinder's evidence or give evidence about aspects of the Respondents' submissions she disagreed with or other evidence relevant to the case that was contained in her submissions.

[128] We are also of the view that contentions in the Appellant's written submissions filed on 29 November 2024 are directly contradicted by the transcript of the hearing before the Commissioner. In those submissions it is asserted that: the Commissioner "required" the Appellant to provide testimony[74] and in oral submissions in the appeal, that she was forced to "take the stand" or did so under duress. It is clear from the transcript of the hearing before the Commissioner that the Appellant chose to give evidence and be subjected to cross-examination after being provided with an explanation of the implications of not doing so. There is also a clear statement from the Commissioner that it is the Appellant's choice whether she gives evidence.[75] There is no basis for the Appellant to contend that she was under duress or was forced to do anything. It is concerning that in written submissions in the appeal, the Appellant asserted that: "Commissioner Schneider himself required an adjournment to collect his thoughts and re-explain the position he took in relation to any requirement for the Applicant to provide direct testimony." As we have set out above, the adjournment during the part of the hearing where the question of whether the Appellant would give evidence, was granted by the Commissioner at the request of Mr Naylor. There were no other adjournments during the hearing. The assertion that the Commissioner initiated the adjournment is at best disingenuous and at worst, untruthful, and should not have been made.

[129] We are satisfied that the Commissioner correctly exercised his discretion to dismiss the Appellant's application for a stop bullying order. At the time the Commissioner dismissed the application, the Appellant was not employed in the workplace where the alleged bullying occurred and was not required to be in proximity to the alleged bullies. The Appellant made an application for the Commission to deal with a general protections dispute involving dismissal on 3 May 2024. On 23 May 2024 when the Commissioner conducted the hearing, this was all that had occurred in connection with the general protections application.

[130] At the point the appeal was heard, the following events had occurred in connection with the general protections application. A notice of listing for a conciliation conference was issued by the Commission on 19 June 2024 and the conference was conducted on 27 June. The Appellant filed a general protections court application on 15 July 2024. In the hearing of the appeal the Appellant informed the Full Bench that a hearing had been conducted before Judge Vasta in the Federal Circuit Court, the matter was listed again in November and would be heard "earlier next year". Mr Lethbridge for the Respondents said that the Judge had indicated that the matter would be programmed, the Respondent would file a defence, both parties would file affidavit material and the matter would be listed for hearing when his Honour returned to Perth in 2025. The Appellant asserted that his Honour had expressed a view that the hearing would be in a shorter time frame because he had decided that mediation would not occur as it would not be helpful.

[131] On the basis of information known to the Commissioner at the time he dismissed the Appellant's stop bullying application, his conclusion that her general protections application will not be finalised for "quite some time" was reasonably open to him and is not a matter about which evidence was required. As matters have developed, that view has been confirmed. On perusal of the Federal Circuit Court Website, it appears that the application will be mentioned on 12 May 2025 and a mediation has been programmed for 11 June 2025. At the point we heard the appeal, the same finding could be made in relation to the general protections application.

[132] In conclusion, we find no error in the Commissioner's decisions to refuse the application to issue attendance notices and to dismiss the Appellant's general protections application. The decisions were discretionary. The Attendance Notice Decision refusing to allow the Appellant to call evidence from witnesses that was not relevant to her case, after giving her a reasonable opportunity to respond to the refusal does not involve an error in approach or principle. The Dismissal Decision does not involve error of the kind identified in House v The King in relation to the exercise of the discretion in s. 587(1)(c). The Commissioner considered relevant matters in deciding to dismiss the Appellant's stop bullying action and was unable to be satisfied that the matters in favour of the application being held in abeyance outweighed the matters favouring it being dismissed. These included that the general protections application made by the Appellant would not be finalised for a lengthy period and that reinstatement is not the primary remedy in such applications. The first conclusion has been borne out by subsequent events and the second is correct.

[133] The Appellant's submission that the Commissioner failed to have regard to the fact that the general protections application would operate as an investigation within the meaning in s. 789FF(2)(a) is misconceived. As the chapeaux to that section makes clear, the matters listed in (a) - (d) of that section arise only when the Commissioner has decided to make an order to stop bullying and is considering the terms of the order. In the present case, where there was no jurisdiction to make an order to stop bullying at the time the Commissioner dismissed the Appellant's application, s. 789FF(2) was not enlivened. Even if there had been jurisdiction to make an order, it is arguable that a general protections application involving dismissal, is not an investigation into "the matter" of a stop bullying application - that is whether the alleged bullying occurred. In the present case, the general protections application filed by the Appellant asserts that she was dismissed via a "sham redundancy" because she made a complaint of bullying including by applying to the Commission for a stop bullying order. The general protections application is based on the application for an order to stop bullying being made and could be determined without consideration of whether the allegations of bullying have merit.

[134] We are satisfied that the grant of permission to appeal is in the public interest. For reasons we articulate in this decision, we consider that the appeal raises issues of general application in respect to the exercise of the discretion under s. 587(1)(c) to dismiss an application for an order to stop bullying on the ground that it has no reasonable prospects of success, in circumstances where the employment of the applicant for such an order is terminated before the application is determined.

[135] However, for the reasons set out above, we dismiss both appeals because we do not accept that there is any appealable error in either of the decisions that are the subject of the appeals.

[1] The Attendance Order Decision of the Commissioner was issued by email of 21 May 2024.

[2] [2024] FWC 1754.

[3] Email from Carole Greenan to Chambers of Vice President Asbury and Emma Edmands, dated 09 September 2024.

[4] Neither of those entities was the employer, and as persons named, Mr Lethbridge and Mr Mackin should have responded to the stop bullying application using Form F74, although nothing turns on this.

[8] [2024] FWC 1360.

[9] [2014] FWC 3408.

[10] [2010] HCA 28.

[11] [2014] FWC 3408 at [16].

[13] [2014] FWC 8828.

[14] [2014] FWCFB.

[18] [2019] FWC 4530.

[20] [2020] FWC 758.

[21] [2020] FWCFB 6896.

[22] [2015] FWCFB 6503.

[23] [2015] FWC 4980 and [2015] FWC 5038.

[29] [2016] FWC 2088.

[30] [2017] FWC 1976.

[33] [2019] FWC 4530.

[34] [2019] FWC 3055.

[37] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[38] 5 O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 at [216]- [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 at [44]- [46]

[39] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

[40] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

[41] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[42] (2000) 203 CLR 194.

[43] Ibid at [19] per Gleeson CJ, Gaudron J and Hayne J

[45] House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan J

[47] [2001] FamCA 1470.

[50] [2000] HCA 40; (2000) 203 CLR 172.

[53] Nathanson v Minister for Home Affairs [2022] HCA 26 per Kiefel CJ, Keane and Gleeson JJ at [1], [33].

[56] Ibid at [32] citing MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 449 [2], 462 [85]; 390 ALR 590 at 592, 610.

[57] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39].

[59] Ibid [59] - [60], subsequently cited in Wilson Transformer Co Pty Ltd v Anti-Dumping Review Panel [No 2] [2022] FCAFC 30 at [25]; National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [70]; Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 at [54]; Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 at [39]; Dunn v Minister for Immigration and Border Protection [2018] FCAFC 233; 267 FCR 246 at [57]- [58]; BSX15 Minister for Immigration and Border Protection [2017] FCAFC 104; 249 FCR 1 at [58]- [59].

[64] An example of such a question is found at PN157 where the Appellant was asked to comment on the likelihood that a participant in a telephone conversation with the Appellant would recall a conversation with the Appellant.

[67] Transcript of hearing 23 May 2024 PN65.

[75] Transcript of hearing 23 May 2024 PN112.

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