Fair Work Act 2009

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

• [1] Mr Shahriar Bigdeli has been employed on a casual basis with IDP Education Pty Ltd (IDP) since 1 July 2023.[1] On 18 March 2024, Mr Bigdeli made an application to the Commission for an order to stop bullying under s 789FC of the Fair Work Act 2009 (Cth) (Act). The application named IDP as a respondent, in addition to six co-workers that Mr Bigdeli contends bullied him at work (collectively, the Persons Named).

• [2] Mr Bigdeli's application records a detailed series of incidents in respect of which Mr Bigdeli alleges unreasonable behaviour by IDP and the Persons Named. The Persons Named deny that they have engaged in bullying behaviour. Further, IDP objects to the application, including on the basis that the alleged bullying was reasonable management action, carried out in a reasonable manner.

• [3] This decision addresses a threshold matter concerning whether the Commission can be satisfied that there is a risk Mr Bigdeli will continue to be bullied within the meaning of

s 789FF(1)(b)(ii) of the Act. The decision does not deal with the question of whether Mr Bigdeli has been bullied at work.

• [4] Part 6-4B of the Act is titled Workers bullied at work. It is not in dispute that IDP is a constitutionally-covered business nor that Mr Bigdeli is a worker to whom the provisions of Part 6-4B are capable of applying.[2]
• [5] A person who reasonably believes that they have been bullied at work may apply to the Commission under s 789FC for an order under s 789FF of the Act. Section 789FF provides as follows:

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

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

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

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.

• [6] Both limbs of s 789FF(1) must be met for the Commission to consider the exercise of the discretion to make an order to stop bullying. If the second limb of s 789FF(1)(b) is not and will not be met, then an application for an order to stop bullying cannot succeed.[3] This decision deals with the question of whether s 789FF(1)(b) is, or will be, met.

• [7] Mr Bigdeli is employed by IDP as a casual IELTS operations assistant, or as the parties commonly refer to it, an invigilator. His place of work is referred interchangeably in this decision as the Melbourne office or the Melbourne test centre. The Persons Named comprise of the following:

(a) the Director of IELTS Operations Australasia and Japan, who has been based in New Zealand since on or about 12 December 2023;

• (b) the People Experience Manager, Corporate and Australasia, who is based at IDP's regional office[4] (which is located on a separate level from the test centre at which Mr Bigdeli performs work);

(c) the Acting Manager of IDP's Melbourne test centre;

(d) the Acting Assistant Manager of the Melbourne test centre;

(e) a casual IELTS operations assistant/invigilator based at IDP's Melbourne test centre; and

(f) a casual IELTS operations assistant/invigilator based at IDP's Melbourne test centre.

• [8] In this decision, I have chosen to identify the Named Persons as Mr J, Mr B, Ms C, Ms H, Mr H and Ms M respectively.

• [9] Mr Bigdeli's application records a detailed series of incidents,[5] commencing from on or about 10 November or 12 November 2023.[6] These incidents led Mr Bigdeli to form the view that IDP suffered from a hostile working environment, from which Mr Bigdeli felt compelled to absent himself to avoid the behaviour of the Persons Named, which he says IDP did not address.[7] In his first report to IDP about his concerns, Mr Bigdeli referred to a "disturbing pattern of bullying tactics" which led Mr Bigdeli to "request a transfer from this test centre to another location to ensure a healthier work atmosphere," in addition to seeking that he be rostered shifts on days when Mr H was not also working.[8]

• [10] In the absence of an agreed resolution, Mr Bigdeli says he reluctantly[9] returned to work on 17 December 2023 where he says that he was faced with "retaliatory actions," which pressured him to "leave the office once more."[10] Mr Bigdeli is critical of attempts made by IDP between mid-December 2023 and April 2024 to resolve his concerns and submits that IDP pulled Mr Bigdeli into its "toxic mobbing procedures by hinting at the possibility of a transfer, superficial promises, lies and deceptive acts." Mr Bigdeli contends that IDP's conduct resulted in him missing out on employment opportunities with other employers, and this has permanently damaged his life in circumstances where he is a temporary visa holder.[11] Further, Mr Bigdeli contends that IDP's conduct robbed him of any flexibility and created a "truly enslaving situation."[12]

• [11] On 3 March 2024, Mr Bigdeli submitted to IDP a worker's injury claim form and a certificate of capacity which did not contain any limitations on Mr Bigdeli's capacity.[13] Mr Bigdeli provided IDP with an updated certificate of capacity dated 15 March 2024, authored by Dr Lau which advised of a requirement that Mr Bigdeli "avoid direct contact" with his manager Ms C, "avoid interaction with administration staff" and "avoid reception duties."[14] The certificate of capacity specifies that Mr Bigdeli has a "capacity for suitable employment from 15 March to 15 April 2024."[15]

• [12] On 27 March 2024, IDP wrote to Mr Bigdeli, noting that the normal duties of his role included contact with his manager Ms C, interacting with administration staff, and reception duties. IDP said that based on the limitations identified by Dr Lau in the certificate of capacity, it could offer Mr Bigdeli casual shifts in the "computer test room" which would involve contact with an alternative manager, limited interaction with administrative staff and limited reception duties.[16]

• [13] Mr Bigdeli's responsive position was that IDP should provide him with casual shifts in accordance with his pattern of work prior to making his complaint.[17] Mr Bigdeli contends that IDP's offer was "a deliberate attempt" to evade accommodating his request while shifting the blame onto Mr Bigdeli "for allegedly declining shifts."[18] Furthermore, Mr Bigdeli contends that there has been a persistent exploitation of the expiration date in his certificate of capacity to deny him further shifts.[19]

• [14] Between 27 March and 10 April 2024, Mr Bigdeli's claim for compensation was investigated at the request of Allianz. On 10 April 2024, IDP received a letter from Allianz notifying it that Mr Bigdeli's claim for compensation had been rejected.[20] Allianz specified, inter alia, that Mr Bigdeli's injury did not arise out of, or in the course of, employment.

• [15] IDP submits that it made numerous requests of Mr Bigdeli to provide it with further information from his medical practitioner outlining his current capacity for work and what (if any) adjustments needed to be made at the Melbourne test centre to accommodate his return to work without restrictions. IDP contends that these requests were made of Mr Bigdeli on 24 April, 21 May, 22 May and 23 May 2024 in circumstances where it was noted that the identified limitations on Mr Bigdeli's capacity for work were said to persist until 15 April 2024. Despite requests of Mr Bigdeli to provide it with further information from Dr Lau as to whether he could return to his pre-injury duties, IDP submits that Mr Bigdeli "resisted all attempts for further information to facilitate a return to work at the Melbourne IELTS Test Centre."[21]

• [16] It is not in dispute that Mr Bigdeli did not, at any stage after provision of the 15 March 2024 certificate of capacity, provide IDP with updated medical information or further information about his capacity to work. On 22 May 2024, Mr Bigdeli's position was that he did "not intend to seek further medical assistance" and that IDP "may proceed" with what it has.[22] Mr Bigdeli contends that IDP's conduct in requesting further information from him "effectively amounts to constructive dismissal."[23] Mr Bigdeli further submits that IDP's requests for further information about his capacity to work amounts to a continuation of the harm done to him and an illegal retaliatory act perpetuated after his complaint.[24] Mr Bigdeli has not performed a casual shift for IDP since 29 February 2024.[25]

• [17] Mr Bigdeli's position remains that "IDP should acknowledge and comply with the limitations" in his certificate of capacity "regardless of the expiration date." Mr Bigdeli explains that this means that he should not be required to have direct contact with Ms C or any contact with the other Persons Named and that IDP should allocate him shifts fairly which adhere to the limitations in his certificate of capacity "without unjustified restrictions or obstructions."[26] IDP contends that Mr Bigdeli demands that he be given "his shifts" while simultaneously requiring IDP to be "mindful" of the limitations in his updated but expired certificate of capacity, while maintaining that he is still injured and not capable of performing his pre-injury employment.[27]

• [18] Mr Bigdeli filed his application for an order to stop bullying with the Commission on 18 March 2024. Upon allocation to my chambers on 1 May 2024, the application proceeded to conference on 15 May 2024 and but did not result in its resolution.

• [19] On 24 May 2024, Mr Bigdeli submitted further material to the Commission in support of his application and stated, inter alia, that the circumstances have "obliterated any trust in a safe return to the Melbourne office." Mr Bigdeli proposed a settlement resolution involving a transfer to the Perth office for the role of invigilator with at least three shifts per week, IDP to cover his relocation costs to Perth, and the payment of compensation for up to 70 casual shifts lost.[28]

• [20] IDP responded to Mr Bigdeli's settlement proposal on 31 May 2024. IDP offered to facilitate a transfer for Mr Bigdeli from IDP's Melbourne office to its Perth office on the following terms:[29]

"IDP is willing to facilitate Mr. Bigdeli's transfer to Perth IELTS office ([Address]) as a casual invigilator. However, IDP is not willing to guarantee Mr. Bigdeli shifts per week at office, nor is IDP willing to cover any of Mr. Bigdeli's relocation costs. IDP does not guarantee casual invigilators a certain number of shifts per week or pay them relocation costs. Further, IDP does not agree to pay Mr. Bigdeli any compensation."

• [21] Mr Bigdeli called IDP's offer a "pre-emptive attempt" in a "form of panic" to try to "capitalise on this ongoing vicious mobbing tactic." Further, Mr Bigdeli submits that this offer was accompanied by a legal threat, designed to "create a façade and shift focus" and create a "legal standoff using lawfare tactics to evade accountability for their malicious lies" since November 2023:[30]

"If Mr. Bigdeli does not accept the offer set out above, then IDP submits that, for the reasons set out below, Mr. Bigdeli's application has no reasonable prospects of success and should be dismissed by the Commission."

• [22] Mr Bigdeli submits that the offer does not guarantee him casual shifts in Perth, nor cover his relocation costs, making it impractical to accept. In summary, Mr Bigdeli's position is that IDP's offer capitalised on the continuous, malicious mobbing he experienced, to force him into an untenable position, or a "no win scenario" with no viable options other than choosing between accepting unfavourable terms or risking the dismissal of his application. Mr Bigdeli submits that the ongoing harm and hostility he has experienced arises from a toxic culture of mob-minded loyalty.[31] Mr Bigdeli submits that the offer is a "blatant attempt" to coerce him to give up his rights.[32] Mr Bigdeli rejected IDP's transfer offer.

• [23] The hearing before the Commission on 24 July 2024 was confined to the question of whether there is a risk that Mr Bigdeli will continue to be bullied at work within the meaning of s 789FF(1)(b) of the Act.

• [24] On the morning of the hearing, Mr Bigdeli filed submissions in which he contended that I had exhibited a consistent pattern of bias and strategic obstruction against his interests. While Mr Bigdeli submitted that it was not his intention to seek my recusal from hearing his application, I considered it necessary and appropriate to address Mr Bigdeli's concerns and explain why these matters would not lead me to recuse myself in any event. For reasons delivered ex tempore on transcript, I declined to recuse myself from hearing Mr Bigdeli's application.[33]

• [25] With respect to the consideration in s 789FF(1)(b)(ii) of the Act, Mr Bigdeli submits, in summary, as follows:[34]

(a) Constructive dismissal as bullying: IDP has failed to create a safe work environment for the purposes of pushing him out of the Melbourne office. IDP has obstructed Mr Bigdeli from securing casual shifts by "citing the expiration date" of the certificate of capacity, which is irrelevant. Mr Bigdeli contends that such conduct amounts to constructive dismissal and is a continuation of the bullying and mobbing tactics that Mr Bigdeli complains of.

(b) Transfer offer as a continuation of bullying: IDP's offer to transfer Mr Bigdeli to its Perth office is a pre-emptive manoeuvre designed to capitalise on the continuation of malicious mobbing and force Mr Bigdeli into an untenable position with no viable options. Further, the transfer offer was coercive with a threatening intent and constitutes a continuation of the same bullying and mobbing tactics and is further evidence of a constructive dismissal.

(c) Obfuscation as continued bullying: IDP's submissions in defending this application are a further attempt at constructive dismissal, including by misrepresenting Mr Bigdeli's medical limitations as set out in the 15 March 2024 certificate of capacity and denying Mr Bigdeli his "legal right to receive shifts."

(d) Request for interim order to stop bullying: Given the "temporary nature" of Mr Bigdeli's work visa, he seeks an interim order to prevent further harm or injustice while the substantive issues are being resolved. The interim order should require IDP to acknowledge and comply with the limitations specified in his certificate of capacity regardless of the expiration date, eliminate Mr Bigdeli's contact with his manager, allocate him casual shifts on Sundays and otherwise fairly in accordance with his certificate of capacity and when his manager is not in the office, and eliminate all contact with Mr B.

(e) Future risk of bullying by respondents: The potential for future bullying by the Persons Named remains a significant concern. There is an unavoidable interaction between Mr Bigdeli and the Persons Named in the work environment and a lack of appropriate measures by IDP to address Mr Bigdeli's concerns about their behaviour.

• [26] IDP's position is that Mr Bigdeli is no longer at work with any of the Persons Named and there is no reasonable prospect of that occurring in some capacity in the future for the following reasons.

• [27] First, noting Mr Bigdeli's statement that the circumstances have "obliterated any trust in a safe return to the Melbourne office,"[35] and his request on numerous occasions to be transferred to another test centre,[36] IDP submits that it is willing to facilitate transferring Mr Bigdeli to another of its five test centres, that have no affiliation with any of the Persons Named, provided that Mr Bigdeli is medically fit to return to work and there is a vacancy available. These test centres are located in Sydney, Brisbane, Adelaide, Perth and Canberra. IDP submits that the likelihood of a Person Named also requesting a transfer to the same interstate test centre chosen by Mr Bigdeli is extremely low and, in any event, IDP would not facilitate any later transfer request by a Person Named to the centre at which Mr Bigdeli is engaged.

• [28] Second, IDP submits that several circumstances have changed resulting in there being no risk that Mr Bigdeli will be bullied at work in the future by the Persons Named. IDP submits that the following changed circumstances (in addition to the offer to facilitate a transfer of Mr Bigdeli's employment to another IDP test centre in Australia) should not be controversial in circumstances where Mr Bigdeli has expressed a desire to only work when Ms C and Mr H are not working. Ms H works the same hours as Ms C so to not work with Ms C is also to not work with Ms H and further, Ms M only works one or two shifts per month:

(1) IDP undertakes to ensure that Mr J, who works in New Zealand and not at the Melbourne test centre, does not correspond with Mr Bigdeli in the future, noting that Mr J has not corresponded with Mr Bigdeli since 12 December 2023.

(2) IDP undertakes to ensure that Mr B, who does not work within the Melbourne test centre, does not correspond with Mr Bigdeli in the future, noting that Mr B has not corresponded with Mr Bigdeli since 5 April 2024.

(3) In the interests of ensuring a safe workplace for everyone involved, IDP will not offer Mr Bigdeli any shifts that would result in him having to work with any of Ms C, Ms H, Mr H or Ms M, resulting in there being no risk Mr Bigdeli will be bullied at work in the future by the Persons Named.

• [29] Third, Mr Bigdeli has been absent from work since 29 February 2024. In circumstances where IDP contends that it has fully complied with its obligations to Mr Bigdeli pursuant to the Workplace Injury Rehabilitation and Compensation Act 2023, IDP contends that it will not offer Mr Bigdeli any shifts until he provides an updated certificate of capacity or other information from his medical practitioner outlining his current capacity for work and what, if any, adjustments need to be made to the Melbourne test centre. IDP contends this is completely justified in circumstances where Mr Bigdeli claims to have suffered psychological harm.[37] IDP notes however Mr Bigdeli's stated position that he has no intention of seeking further medical assistance.

• [30] Fourth, Mr Bigdeli has on a number of occasions, noted his intention to leave Melbourne including previously foreshadowing that this may occur by the end of January 2024.[38] IDP contends that there is no reason to suggest Mr Bigdeli's comments in this regard were made insincerely. His multiple requests for a transfer interstate demonstrate otherwise. He has also previously lived and worked interstate. If Mr Bigdeli leaves his work in Melbourne, there is, for that reason alone, no risk that he will be bullied at work in the future.

• [31] Fifth, Mr Bigdeli appears to have formed the view that he has been "constructively dismissed" from his employment.[39] IDP submits that notwithstanding Mr Bigdeli's position, it regards Mr Bigdeli to remain employed by IDP as a casual employee and if his employment has ceased, it has done so at Mr Bigdeli's initiative.

• [32] Mr Bigdeli responded to these matters orally during the hearing. In summary, Mr Bigdeli explained his position as follows:[40]

(a) there is no guarantee that Mr J and Mr B will not have an impact upon Mr Bigdeli's working conditions;

(b) a decision by IDP to not allocate Mr Bigdeli shifts with one of the balance of the Persons Named would amount to a constructive dismissal;

(c) notwithstanding the restrictions in the certificate of capacity, Mr Bigdeli could work a Sunday shift despite Ms M usually working that day;

(d) the transfer offer has been made by IDP in bad faith and is a continuation of bullying. It would be unreasonable for Mr Bigdeli to accept it given there is no guarantee of casual shifts;

(f) IDP's approach to the certificate of capacity has been in bad faith, including its persistence for updated information from Mr Bigdeli;

(g) Mr Bigdeli is in dispute with Allianz arising from its rejection of his workers compensation claim;

(h) Mr Bigdeli does not intend to seek further medical assistance "at this point";

(i) IDP's 27 March 2024 offer of further shifts was not an offer but rather an assertion of power dynamics;

(j) the psychological harm Mr Bigdeli has suffered continues to be in effect;

(k) IDP has taken advantage of Mr Bigdeli's advice that he did intend to leave Melbourne and is still hoping to do so; and

(l) IDP's arguments are intended to dismiss Mr Bigdeli's case and avoid a full hearing.

• [33] Mr Bigdeli is employed by IDP on a casual basis. While Mr Bigdeli has been absent from work since 29 February 2024, I accept IDP's submission that it regards Mr Bigdeli to remain a casual employee.

• [34] Even if I were to conclude that Mr Bigdeli has been subjected to bullying at work by the Persons Named (a matter about which I have not heard any evidence and have not made any findings), I would not be empowered to issue an order to stop bullying in this matter. This is because I am not satisfied that there is a risk that Mr Bigdeli will continue to be bullied at work within the meaning of s 789FF(1)(b)(ii) of the Act. My reasons for reaching this conclusion follow.

• [35] The 15 March 2024 certificate of capacity contains restrictions upon Mr Bigdeli's capacity to work in IDP's Melbourne test centre. It is not in dispute that the certificate of capacity specifies that Mr Bigdeli has a "capacity for suitable employment from 15 March to 15 April 2024." Despite IDP's attempts to elicit further information from IDP regarding his capacity to work at the Melbourne test centre after 15 April 2024, Mr Bigdeli's position has been that:

(a) IDP should comply with the restrictions in the certificate of capacity "regardless of the expiration date";

(b) he does not intend to seek further medical assistance;

(c) IDP "may proceed" with the medical information it has;

(d) any requests by IDP for updated medical information effectively amounts to constructive dismissal; and

(e) he remains injured and is not capable of performing his pre-injury employment.

• [36] IDP requested that Mr Bigdeli provide it with updated medical information to enable it to understand his ongoing capacity beyond 15 April 2024. I do not consider that Mr Bigdeli has provided a reasonable explanation for his refusal to provide this information. Mr Bigdeli characterises IDP's efforts to understand his ongoing incapacity after 15 April 2024 as conduct that amounts to a constructive dismissal. I reject this contention, as there is no evidentiary support for it.

• [37] In the absence of updated medical information, it is appropriate to proceed on the basis that the restrictions in Mr Bigdeli's certificate of capacity continue to persist beyond 15 April 2024 (as Mr Bigdeli contends). Mr Bigdeli's firm position is that IDP should comply with the restrictions identified in the certificate of capacity (regardless of the expiration date) and should "proceed" with the medical information it has, in circumstances where Mr Bigdeli does not intend to supply IDP with any updated medical information. In these circumstances, I am satisfied that Mr Bigdeli cannot perform work at IDP's Melbourne test centre except in accordance with the stated restrictions in his certificate of capacity.

• [38] IDP offered Mr Bigdeli casual shifts on 27 March 2024 that were consistent with the limitations in the certificate of capacity. I do not regard the offers to have been insincerely made by IDP. On the contrary, I consider that IDP genuinely attempted to provide Mr Bigdeli with casual work in a manner consistent with the restrictions in the certificate of capacity, despite Mr Bigdeli having no ongoing expectation of work as a casual employee. Mr Bigdeli declined these offers of casual shifts, and this position did not alter at the hearing.

• [39] Consequentially, Mr Bigdeli has not performed a casual shift for IDP in over six months, he remains injured and there is no indication as to when Mr Bigdeli may be able to return to work at the Melbourne test centre given his stated position that he has no intention of seeking further medical assistance. IDP says that it will not offer Mr Bigdeli casual shifts that are not consistent with the limitations in his certificate of capacity. I consider this aligns with Mr Bigdeli's position. It follows that in the absence of an updated certificate of capacity which clears Mr Bigdeli to return to his usual duties or otherwise varies the conditions attached to Mr Bigdeli's return to work (which Mr Bigdeli firmly contends will not be forthcoming "at this point"), there is no risk that he will be at any future risk of bullying by the Persons Named because he will not return to work.

• [40] Mr Bigdeli describes that the circumstances of his case have "obliterated any trust in a safe return to the Melbourne office." Having considered Mr Bigdeli's concerns, I accept that this is a view that Mr Bigdeli genuinely holds.

• [41] Even if Mr Bigdeli, contrary to his stated position, obtains an updated certificate of capacity that clears him to return to his pre-injury duties at the Melbourne test centre, I am satisfied that there is no risk that Mr Bigdeli will "continue to be bullied at work" by the Persons Named, having regard to the following matters.

• [42] First, Mr J is now a resident of New Zealand and has not had any interactions with Mr Bigdeli since December 2023. I am satisfied, having regard to the evidence given by Mr J, that he undertakes not to communicate directly with Mr Bigdeli in the future, with the exception of any workforce-wide communications issued by Mr J to IDP employees to which Mr Bigdeli would also be copied if he were to return to the Melbourne test office or another IDP test centre in the future.[41]

• [43] Second, having regard to the evidence given by Mr B and the undertaking proffered to the Commission, I accept that Mr B does not intend to contact Mr Bigdeli in the future, with the exception of any workforce-wide communications issued by Mr B to IDP employees to which Mr Bigdeli would also be copied if he were to return to the Melbourne test centre or another IDP test centre in the future.[42] I further note that Mr B does not work within the Melbourne test centre where Mr Bigdeli performs his duties.

• [44] Third, I accept the evidence[43] that in the interest of ensuring a safe workplace for everyone involved, IDP will not offer Mr Bigdeli any casual shifts that would result in him working with any of the Persons Named. It follows that IDP would not offer Mr Bigdeli any casual shifts that would result in him having to work with any of Ms C, Ms H, Mr H or Ms M at the Melbourne test centre.

(a) each of the named persons, with the exception of Mr J who resides in New Zealand, are Melbourne-based;

(b) IDP will only facilitate a transfer of Mr Bigdeli to another IDP test centre upon the provision of updated medical evidence demonstrating Mr Bigdeli's fitness for work (which Mr Bigdeli does not intend to produce "at this point");

(c) IDP has committed to not facilitating transfers of any of the Persons Named to an IDP test centre in other Australian states or territories if Mr Bigdeli is performing work there; and

(d) Mr Bigdeli's position remains that in the absence of IDP providing him with guaranteed casual shifts and reimbursing him for relocation costs, Mr Bigdeli does not intend to accept a transfer offer from IDP to another Australian-based test centre.

• [46] IDP remains willing to facilitate transferring Mr Bigdeli to another of its five test centres that have no affiliation with any of the Persons Named (noting this matter arose at Mr Bigdeli's request), on the condition that he is medically fit to do so, and there is a vacancy available. I am satisfied that should this occur, IDP will not facilitate any later transfer request by a Person Named to the test centre at which Mr Bigdeli is engaged. It follows that the second limb of s 789FF(1)(b) is not and will not be met.

• [47] I have considered whether, despite all of the above matters, there are any other possible interactions that may give rise to a risk that Mr Bigdeli will "continue to be bullied at work" by the Persons Named within the meaning of s 789FF(1)(b)(ii) of the Act. I have not been taken to any other possible interactions by Mr Bigdeli. I note further Mr Bigdeli's advice to the Commission is that he holds a temporary work visa, which expires in late October 2024 (but which may be extended).[44]

• [48] Mr Bigdeli has not performed a casual shift for IDP in over six months. I am satisfied on the evidence that Mr Bigdeli remains incapacitated and there is no indication as to when he may return to work at the Melbourne test centre, given his stated position that he does not intend to seek further medical assistance. I have found that in the absence of an updated certificate of capacity (which Mr Bigdeli contends will not be forthcoming "at this point"), there is no risk that Mr Bigdeli will return to work. This is a matter that I regard to weigh strongly against a finding of any risk of future bullying within the meaning of s 789FF(1)(b)(ii) of the Act.

• [49] Even if there was a prospect of Mr Bigdeli returning to work (a matter about which I am not presently satisfied), I consider that the measures proposed to be put in place by IDP for any such return to work would remove any risk that Mr Bigdeli will "continue to be bullied" by the Persons Named. This is because I am satisfied that:

(a) should Mr Bigdeli return to work at the Melbourne test centre, there is no risk that Mr Bigdeli will "continue to be bullied at work" by Mr J or Mr B, given the undertakings given by them, or by Ms C, Ms H, Mr H or Ms M given that IDP will not offer Mr Bigdeli any casual shifts that would result in him having to work with these employees in the future.

(b) IDP has continued to express its willingness to facilitate Mr Bigdeli's transfer to another IDP test centre in Australia, as per his request. However, Mr Bigdeli has firmly, and repeatedly, declined the terms attached to IDP's offer. Regardless, should such a transfer occur, I accept IDP's submission that it will not facilitate any later transfer request by a Person Named to the test centre at which Mr Bigdeli is engaged.

• [50] Further, while not determinative, I note that Mr Bigdeli is working pursuant to a temporary visa, which is said to expire in late October 2024. While this visa may be extended, there is no evidence before the Commission demonstrating that it has been.

• [51] For the reasons given, I am not satisfied that there is a risk that Mr Bigdeli will "continue to be bullied at work" by the Persons Named within the meaning of s 789FF(1)(b)(ii) of the Act. Therefore, even if I were to find that Mr Bigdeli has been bullied at work by the Persons Named (which they deny), there is no jurisdiction to make an order to stop bullying. In these circumstances I am satisfied that I should exercise my discretion to dismiss the application pursuant to s 587(1)(c) of the Act as it has no reasonable prospects of success.

• [52] There are two final matters to note. First, Mr Bigdeli contends that he has been constructively dismissed by IDP. I understand Mr Bigdeli's position to be that IDP is trying to force him out of his casual employment by bullying him, and this informs his contention of constructive dismissal. I earlier rejected this argument, there being no evidence to support a finding of constructive dismissal. However, I observe that if Mr Bigdeli has been constructively dismissed by IDP, there can be no risk that he will "continue to be bullied at work" because he is not an employee and the second limb of s 789FF(1)(b) cannot be met.[45]

• [53] Second, Mr Bigdeli contends that given the temporary nature of his work visa, he requires an interim order. I hold reservations about the Commission's capacity to make interim orders in the context of an application for an order to stop bullying.[46] In any event, in this matter I have found that the jurisdictional requirement in s 789FF(1)(b)(ii) has not been established and it would not be appropriate to issue an interim order in these circumstances. Furthermore, it is not clear that an interim order would resolve the medical capacity issues in any case.

• [54] For the reasons given, Mr Bigdeli's application is dismissed.

[1] Exhibit 1 (Digital Court Book (DCB)) 690 at [1]; DCB 361 at [1]

[3] Appeal by Ms Anne Pilbrow [2020] FWCFB 4373 at [17]

[4] Transcript of proceedings dated 24 July 2024 (Transcript) PN91

[5] DCB 10-74, plus attachments and including amendments specified at DCB 201-204

[13] DCB 41 at [195]; DCB 151 (Attachment 29)

[29] DCB 8 at [18]; DCB 57-58 at [278]; DCB 362 at [6]

[30] DCB 8 at [19]-[20]; DCB 58 at [279]; DCB 363 at [8]

[36] Canberra request dated 22 January 2024 - DCB 108; Perth request dated 24 May 2024 - DCB 915. See also DCB 841 at [133], DCB 6 at [8], DCB 22 at [111] and DCB 61 at [283](2)(d) where Mr Bigdeli expresses a desire to be transferred to any place or role

[37] DCB 9 at [26], DCB 41 at [194], DCB 42 at [202]

[38] DCB 389, DCB 489, DCB 36 at [179](2)

[45] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank [2014] FWC 3408

[46] Ms Virginia Wills v Grant, Marley & the Government of New South Wales, Sydney Trains [2020] FWCFB 4514; 298 IR 254; cf Mayson v Mylan Health Pty Ltd [2020] FWC 1404

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