Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2024] FWC 2548 of Deputy President Millhouse at Melbourne on 17 September 2024 in matter number AB2024/185 - Application for orders to stop bullying - Deputy President was not satisfied there was a risk that worker will continue to be bullied at work for the purposes of s 789FF(1)(b)(ii) - Application dismissed under s 587(1(c) - Whether risk that the appellant would continue to be bullied at work - Whether arguable case of appealable error - Permission to appeal refused.

[1] Mr Shahriar Bigdeli has lodged an appeal, for which permission is required, against a decision of Deputy President Millhouse in Re Bigdeli [2024] FWC 2548. The decision relates to an application for an order to stop bullying under s 789FC of the Fair Work Act 2009 (Cth) (the Act). The application had named the Mr Bigdeli's employer, IDP Education Pty Ltd (IDP or the respondent), as a respondent to the proceeding, along with six co-workers that Mr Bigdeli alleged had bullied him at work (the Persons Named).

[2] In the decision, the Deputy President dealt with what was described as a threshold matter, namely, whether the Commission could be satisfied that there was a risk that Mr Bigdeli would continue to be bullied at work within the meaning of s 789FF(1)(b)(ii) of the Act. Under s 789FF(1), that is one of the matters that the Commission must be satisfied of before an order can be made to stop bullying. The Deputy President concluded that the Commission could not be satisfied that there was a risk that Mr Bigdeli would continue to be bullied at work and dismissed the application.

[3] The present matter was listed to deal with the question of permission to appeal and the merits of the appeal. The parties to the appeal consented to the matter being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to the matters in s 607(1)(a), that the matter can be adequately determined without the need for oral submissions. The parties were advised accordingly, and the appeal has been determined on the basis of the written material.

[4] For the reasons that follow, we have determined that permission to appeal should be refused.

[5] After setting out the statutory context in which the application was to be determined, the Deputy President recorded the factual background to the application and the respective positions advanced by the parties. The Deputy President noted that Mr Bigdeli was employed on a casual basis as an operations assistant at IDP's Melbourne premises.

[6] In summary, the Deputy President's decision records that Mr Bigdeli had alleged that a series of bullying incidents had occurred in the workplace commencing in November 2023. Mr Bigdeli thereafter absented himself from the workplace and complained to IDP about the alleged incidents. Mr Bigdeli returned to work on 17 December 2023 and alleged that he then faced "retaliatory actions" which "pressured him to leave the office once more". The Deputy President noted that the last shift worked by Mr Bigdeli was on 29 February 2024.

[7] The decision recorded that Mr Bigdeli had provided IDP with an updated certificate of capacity dated 15 March 2024 as part of a workers compensation claim process in which it was stated that he should "Avoid direct contact with his manager" Ms C, "avoid interaction with administration staff" and "avoid reception duties". It was noted that the certificate specified that Mr Bigdeli had "capacity for suitable employment from 15 March to 15 April 2024."

[8] The Deputy President then noted that after receipt of the certificate of capacity, IDP offered to adjust Mr Bigdeli's working arrangements in a different part of the workplace with an alternative manager, limited interaction with administrative staff and limited reception duties. Mr Bigdeli responded by claiming that he should be provided with the casual shifts that he had been allocated prior to the making of the complaint.

[9] The Deputy President went on to note that Mr Bigdeli's workers compensation claim was rejected and that despite multiple requests from IDP for updated information as to his fitness to return to work, no such information was provided beyond the certificate of capacity dated 15 March 2024. The decision records that Mr Bigdeli resisted providing further information and characterised these requests as amounting to an illegal retaliatory act on the part of IDP. The Deputy President noted that Mr Bigdeli appeared to adopt the position of having no intention of seeking further medical assistance and invited IDP to proceed with what it had.

[10] After setting out the submissions of the parties in relation to the issue of the risk that Mr Bigdeli would continue to be bullied at work, the Deputy President concluded that she was not satisfied that there was such a risk. The Deputy President explained that this conclusion arose from the fact that in the absence of updated medical information as to Mr Bigdeli's fitness for work it was to be assumed that he could only perform work in a manner that was consistent with the certificate of capacity dated 15 March 2024. The Deputy President was persuaded that, on 27 March 2024, IDP had offered Mr Bigdeli casual shifts consistent with the limitations in the certificate of capacity in a genuine attempt to provide him with work, but he had refused to accept them. In those circumstances and taking into account the fact that Mr Bigdeli had stated that he would not provide updated information about his capacity for work, the Deputy President concluded that it followed that Mr Bigdeli's position was that he will not return to work and therefore no risk of continued bullying could arise.[1]

[11] The Deputy President noted that Mr Bigdeli had not performed a casual shift for IDP in over six months, on the evidence he remained incapacitated and there was no indication as to when he would return to work at the Melbourne test centre. The Deputy President found that, in the absence of an updated certificate of capacity which Mr Bigdeli did not intend to seek, there was no risk that Mr Bigdeli would return to work. This was a matter that weighed strongly against a finding of any risk of future bullying within the meaning of s 789FF(1)(b)(ii) of the Act.[2]

[12] The Deputy President then noted that even if Mr Bigdeli did obtain an updated certificate of capacity that cleared him to return to his previous duties, the Deputy President was nonetheless satisfied that there was no risk that Mr Bigdeli would continue to be bullied at work by the Persons Named because:

• Mr J had become a resident of New Zealand, had had no interactions with Mr Bigdeli since December 2023 and had undertaken not to communicate with Mr Bigdeli save for workforce-wide communications to all employees;

• Mr B did not work in the Melbourne test centre where Mr Bigdeli had worked and had undertaken not to communicate with Mr Bigdeli save for workforce-wide communications to all employees; and

• IDP had provided evidence that in the interests of ensuring a safe workplace, they would not offer Mr Bigdeli casual shifts that would result in him having to work with any of the remaining Persons Named at the Melbourne test centre.

[13] The Deputy President further considered the prospect of Mr Bigdeli being provided with work at locations other than the Melbourne test centre (an issue which had arisen at the Appellant's request) and came to a view that, if such a situation arose, IDP would not facilitate the transfer of any of the Persons Named to such location. The Deputy President also considered the possibility of any other potential interactions between Mr Bigdeli and the Persons Named and pointed out that there was no evidence suggesting that such interactions would occur.

[14] The Deputy President rejected Mr Bigdeli's contention that he was being forced out of his casual employment, and thereby constructively dismissed, as a result of the conduct alleged and went on to note that if Mr Bigdeli had been constructively dismissed, there was no risk that he would continue to be bullied at work because he would no longer be an employee. Finally, the Deputy President noted that Mr Bigdeli held a temporary work visa which was to expire in late October 2024 and the absence of evidence to indicate that the visa was to be extended.

[15] Having considered the matters above, the Deputy President concluded that she was not satisfied that there was a risk that the Appellant would continue to be bullied at work by the Persons Named and that in the exercise of her discretion, the application should be dismissed under s 587(1)(c) of the Act as having no reasonable prospects of success.[3]

[16] Mr Bigdeli advances five grounds of appeal. The grounds are far from clear.

[17] The first ground is that the Deputy President made a significant error of fact in relation to Mr Bigdeli's medical capacity as reflected in the certificate of capacity. This ground maintains that there was a failure by the Deputy President to take into account IDP's non-compliance with the certificate of capacity and an erroneous conclusion that Mr Bigdeli had determined to insist on compliance with the certificate beyond its expiry date.

[18] The second and third grounds of appeal are related. They refer to "legal error" but in substance allege that the decision at first instance contains a factual inaccuracy or "fabrication" in relation to a submission by Mr Bigdeli that he was able to work Sunday shifts even though one of the Persons Named, Ms M, mainly worked on a Sunday. Reliance on that submission, as we understand it, was said by Mr Bigdeli to have resulted in the rejection of his claim that he had been constructively dismissed as a result of IDP denying him access to Sunday shifts.

[19] The fourth ground alleges a failure on the Deputy President's part to consider a relevant fact, namely that Mr Bigdeli had the capacity to apply for a "Workplace Justice Visa" which would allow him to remain in the country to pursue an application of this kind.

[20] In the final ground of appeal, Mr Bigdeli said that he had obtained new evidence to support his claim of workplace bullying which although not available at the time of the proceedings at first instance, would "influence the outcome" and "justify reconsideration" of his application on appeal.

[21] In support of the proposition that it was in the public interest to grant permission to appeal, Mr Bigdeli maintained that the matter raised important issues in relation to "mobbing" as a form of workplace bullying and said that it was desirable to create a clear legal framework for dealing with such claims. Further, Mr Bigdeli said the appeal highlighted the use of constructive dismissal as a means of avoiding legitimate bullying complaints and contended that granting permission to appeal would provide clarity and justice in relation to workers subject to visa insecurity.

[22] Section 604(1) of the Act permits a person who is aggrieved by a decision of the Commission to appeal the decision. However, there is no right to appeal. An appeal may only be brought with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. In addition, the Commission has a general discretion as to whether to grant permission to appeal even if it is not satisfied that the public interest requirement has been met.

[23] As is well-known, the task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest might be attracted, for example, 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 because the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5]

[24] Aside from the special circumstance in s 604(2) in which permission to appeal must be granted, grounds which have been traditionally considered in granting leave include whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. 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 an appealable error.[6] 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.[7]

[25] If permission to appeal is granted, an appeal under s 604 of the Act is an appeal 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.[8] In conducting an appeal by way of rehearing, the Full Bench is bound to conduct a "real review" of the evidence given at first instance and of the reasons of the member of the Commission at first instance to determine whether the member has erred in fact or law.[9] However, an appeal exists for the correction of error. It is not a hearing de novo. There are natural limitations that apply to the hearing of an appeal by a Full Bench and the member at first instance is usually in a better position than the appeal bench to make findings of fact.[10]

[26] We have considered the written submissions of the parties in their totality. It is unnecessary to set those submissions out in full. For present purposes, the submissions are set out in summary form below.

[27] In support of the first appeal ground, Mr Bigdeli submits that the Deputy President had, prior to the final hearing, "directed" IDP to treat the limitations referred to in the certificate of capacity as valid until such time as further information was provided. Mr Bigdeli maintained that the purpose of this "guidance" or "direction" was to ensure that he would not be pressured into seeking unnecessary updates or forced into an unreasonable position regarding shift allocation. He said that notwithstanding this "direction", IDP alternated between recognising the limitations imposed by the certificate and denying shifts based on the expiration date. He maintained that the "direction" of the Commission shaped his position and misled him in his approach to the proceedings and that the Deputy President ignored this context and, at various points in her decision, inferred that his expectation that IDP would respect the limitations in the certificate of capacity was unreasonable.

[28] Mr Bigdeli also argued that the Deputy President made other "misrepresentations" of the evidence. These included that the Deputy President had erred by incorrectly recording the contents of the certificate of capacity as "avoid interaction with administration staff"[11] when it in fact said "limit interaction with administration staff", misquoting remarks made by Mr Bigdeli during the hearing to the effect that he could work a Sunday shift despite one of the Named Persons working that day,[12] and that by selectively quoting Mr Bigdeli's submissions by omitting reference to the Deputy President's alleged "direction" in relation to the limitations in the certificate of capacity.[13]

[29] IDP submits that there was no such "direction" given and that Mr Bigdeli was expressly advised on no fewer than three occasions that no "directive" had been issued, including by confirmation in writing from the Deputy President's chambers that the Commission could not provide advice in relation to certificates of capacity. IDP said that Mr Bigdeli had ample opportunity to change his position in relation to the certificate of capacity and the provision of further information but chose not to do so. Further, IDP submits that, although the decision misstates the words of the certificate of capacity at one point, paragraphs [12] and [38] of the decision made it clear that the Deputy President had considered the relevant requirement as it appeared in the certificate of capacity and that no relevant error had been disclosed.

[30] As to the second and third appeal grounds, Mr Bigdeli contended that the Deputy President has misrepresented his submissions and even 'fabricated' a fact in relation to his capacity to work Sunday shifts having regard to whether one of the Persons Named also worked Sunday shifts. Mr Bigdeli contends that the relevant Named Person, Ms M, did not work on Sundays. According to Mr Bigdeli, this error had an impact upon what he described as his "constructive dismissal claim" in which he claimed that IDP had improperly denied him shifts as a method of forcing him out of the employment.

[31] IDP submits that there was no such error and that the Deputy President had simply recorded the submission that had been put by Mr Bigdeli. IDP said that Mr Bigdeli's assertion that he had been constructively dismissed because he had been obstructed from securing casual shifts was wrong. IDP pointed out that there was no evidence of Mr Bigdeli having resigned, let alone being forced to resign and maintained that it was open to the Deputy President to conclude on the evidence, as she did, that IDP had genuinely attempted to provide casual work consistent with the certificate of capacity despite Mr Bigdeli having no ongoing expectation of work as a casual employee.

[32] As to the fourth ground of appeal, Mr Bigdeli submits that the introduction of a new class of visa allowing visa holders to pursue legal action relating to workplace issues meant that the impending expiry of his work visa should not have weighed against a claim that there was a risk that a worker will continue to be bullied at work. IDP submits that the relevant visa Subclass 408 (Temporary Activity (Workplace Justice)) visa commenced on the day of the hearing and was not raised by Mr Bigdeli at the hearing. It submitted that, in any event, it was clear from the reasons of the Deputy President that Mr Bigdeli's visa status was not the primary reason for the ultimate conclusion reached as to the risk of Mr Bigdeli continuing to be bullied. IDP contends that the claim that the Deputy President placed inappropriate reliance on this factor was plainly wrong.

[33] Mr Bigdeli's submissions in relation to the final ground of appeal refers to documentation allegedly withheld by IDP in response to an order for production and a further document being the "Circumstance Investigation Report" in his WorkCover case which Mr Bigdeli said showed IDP's "confrontational intent" in their dealings with him. IDP submits that neither of these matters were relevant to the threshold issue with which the Deputy President was dealing, namely, the risk that Mr Bigdeli would continue to be bullied. It says that, at best, the document could bear upon the issue of whether Mr Bigdeli had been bullied under s 789FF(1)(b)(ii). IDP submits that no error could have occurred in relation to this material since it had only come to light after the hearing.

[34] We are not persuaded that it is appropriate to grant permission to appeal in this matter. The appeal grounds advanced by Mr Bigdeli do not, in our opinion, disclose any arguable basis on which it can be said that there was an appealable error in the decision of the Deputy President.

[35] As best as we are able to ascertain, the first ground of appeal contends that Mr Bigdeli had been misled by the Deputy President at an earlier stage of the proceeding as to the status of the certificate of capacity dated 15 March 2024 and that this somehow influenced his approach to the balance of the proceedings to his own detriment. Mr Bigdeli alleges that the Deputy President informed him that the restrictions in the certificate would be taken to apply on an ongoing basis until further medical evidence was supplied, even though the certificate specified an end date of 15 April 2024. It is then alleged that the Deputy President subsequently erred by failing to take into account that IDP had repeatedly rejected the certificate and thereby failed to comply with the Commission's "directive" as to the ongoing application of the certificate.

[36] The Deputy President's chambers provided a clear written communication to Mr Bigdeli that the Commission "cannot provide you with advice regarding the certificates of capacity".[14] The Deputy President did not issue any "directive" or determine the status of the certificate of capacity prior to the hearing. In any event, it is clear from the decision that the Deputy President proceeded to deal with the matter on the basis that the restrictions in the certificate persisted beyond 15 April as Mr Bigdeli himself urged should be the case.[15] The Deputy President noted that Mr Bigdeli insisted on compliance with the certificate of capacity at all times, including after the expiry date of the certificate, and was satisfied that IDP was genuinely trying to offer casual shifts consistent with the limitations in the certificate.[16] That approach was open to the Deputy President on the basis of the evidence and submissions of the parties. Even if Mr Bigdeli had been led to believe the restrictions in the certificate of capacity continued to apply, it is apparent that the Deputy President proceeded on that basis in her decision. The Deputy President did not ignore the contention that IDP had rejected the certificate or refused to offer work on the basis that the certificate had expired. She simply did not accept that submission on the evidence. No arguable case of appealable error arises under Appeal Ground 1.

[37] We also do not believe Mr Bigdeli has demonstrated an arguable case of appealable error by referring to the certificate of capacity stating that Mr Bigdeli should "avoid interaction with administrative staff" rather than "limit interaction with administrative staff". There is no reason to infer that the Deputy President misunderstood the nature of the restrictions on Mr Bigdeli's capacity for work or that, even if she had, the difference in wording would have made any difference to the decision. As we have recorded, the Deputy President found that IDP had offered Mr Bigdeli casual shifts that were consistent with the limitations in the certificate of capacity which had been declined and that, given Mr Bidgeli's position that he had no intention of seeking further medical assistance, there was no indication as to when he would be able to return to work at the Melbourne test centre.[17] In those circumstances, even if the Deputy President had regarded the restrictions on Mr Bidgeli's capacity to work as being somewhat more strict than is reflected in the certificate of capacity, it could have made no difference to the question of whether there was a risk that Mr Bidgeli would continue to be bullied at work for the purposes of s 789FF(1)(b)(ii).

[38] The second and third grounds of appeal relate to a reference in the decision to the position put by Mr Bigdeli as to his own capacity to work Sunday shifts, notwithstanding the restrictions in the certificate of capacity. The Deputy President recorded that Mr Bigdeli said he could work Sunday shifts despite the fact that Ms M, one of the Persons Named, is "usually working on that day."[18] The transcript of the proceedings at first instance includes the following submission by Mr Bigdeli (emphasis added):

Then it comes to the matter of not giving me shift with member, which I do believe this still would amount to the constructive dismissal, particularly regarding the shifts for Sundays, that is still permissible, even under current development and the term, the full term that they put forward that they're not going to give me shift, in order to avoid being further bullied. On Sundays none of these people usually work, except maybe for (Ms. M), which I think we can work around that. So if that's the part that they argue that they are not going to have any contact with these people then it also proceeds to say that I would be able to get Sunday shifts.

[39] Given the content of that submission as to the working arrangements of Ms M, it was open for the Deputy President to record as she did, that Mr Bigdeli said he could work a Sunday shift, despite Ms M usually working that day. The Deputy President did not say that Ms M "mainly worked on Sundays" as Mr Bigdeli asserted in the notice of appeal and the Deputy President did not fabricate any fact.

[40] The assertion that this aspect of the decision involved an error of fact which contributed to the dismissal of his constructive dismissal claim is entirely misconceived. The Deputy President was dealing with a threshold issue as to whether orders to stop bullying could be made, not a constructive dismissal application. In any event, the Deputy President had concluded, in our opinion correctly, that the evidence provided no basis for a constructive dismissal claim and noted, again correctly, that had Mr Bigdeli established that he had been constructively dismissed, there would be no basis upon which a successful application for orders to stop bullying could be brought. Put plainly, if Mr Bigdeli had been constructively dismissed, there would have been no risk that he would continue to be bullied at work because his employment would have ended. No arguable appealable error is disclosed under Appeal Grounds 2 or 3.

[41] In relation to Ground 4, Mr Bigdeli contends that the Deputy President erred by taking into account his temporary visa status as a factor in assessing the risk of future bullying. The Deputy President set out the primary basis on which the Appellant's application was dismissed at paragraphs [48] and [49] of the decision. At paragraph [50], the Deputy President said (emphasis added):

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.

[42] It is readily apparent that the Deputy President did not rely on this consideration alone (or even heavily), as Mr Bigdeli contended, to dismiss the application. The Deputy President did take the matter into account and was entitled to do so. The fact that Mr Bigdeli's existing work visa would shortly expire was potentially relevant to an assessment of whether there was a future risk of bullying. The possibility that Mr Bigdeli might have been entitled to apply for a Workplace Justice visa was not raised before the Deputy President and could not have been a source of error. The ground raises no arguable case of error in the conclusion of the Deputy President as to the risk of the Appellant continuing to be bullied at work.

[43] In relation to Ground 5, no error could have arisen in the decision at first instance by reason of matters that were not before the Deputy President. However, we have considered the new evidence sought to be relied upon by Mr Bigdeli in support of Ground 5. We agree with the submission of IDP that to the extent the further documents provided by Mr Bigdeli contain any matters of any relevance at all, they could, at most, be relevant to the question of whether bullying had occurred, not whether there was a risk of continuing bullying. This ground also does not provide an arguable case of appealable error.

[44] For these reasons, the Full Bench is not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Deputy President was attended by appealable error. We are not satisfied it is in the public interest that permission to appeal be granted for the purposes of s 604(2) of the Act or that there is any other basis upon which permission to appeal should be granted.

[45] The Full Bench orders that permission to appeal is refused

[1] Re Bigdeli [2024] FWC 2548 at [39].

[2] [2024] FWC 2548 at [39] and [48].

[3] [2024] FWC 2548 at [51].

[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

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

[6] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481at [30]; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [11]- [12].

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, at [26]-[27]; [2010] FWAFB 5343; (2010) 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].

[8] 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

[9] Robinson Helicopter v McDermott (Robinson Helicopter) [2016] HCA 22; (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).

[10] Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [38].

[11] [2024] FWC 2548 at [11].

[12] [2024] FWC 2548 at [32](c).

[13] [2024] FWC 2548 at [32](h).

[14] Email from associate of the Deputy President addressed to Mr Bigdeli dated 11 May 2024.

[15] [2024] FWC 2548 at [37].

[16] [2024] FWC 2548 at [37]- [38].

[17] [2024] FWC 2548 at [39] and [48].

[18] [2024] FWC 2548 at [32](c).

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