Application by Mr Jacob Lye - [2025] FWC 3061

[2025] FWC 3061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Mr Jacob Lye

(AB2025/468)

COMMISSIONER REDFORD

MELBOURNE, 15 OCTOBER 2025

Application for an FWC order to stop bullying – recusal application – whether actual or apprehended bias – application dismissed

On 7 June 2025, an application was made by Mr Jacob Lye pursuant to s 789FC of the Fair Work Act 2009 (Cth) (the Act) for an order to stop bullying at work. The application seeks orders be made against Mr Lye’s employer, the Bureau of Meteorology (the Bureau) and alleges bullying against four named persons.
The matter was allocated to my chambers on 20 June 2025, and on 23 June 2025 I listed the matter for a conference to be held on 8 July 2025.
Earlier, on 18 June 2025, Norton Rose Fulbright solicitors filed a Form 53 Notice indicating that the Bureau was represented by a lawyer, and that it would be seeking permission for its lawyer to participate in a conference or hearing. On 23 June 2025 Mr Lye contacted my chambers, advising that he objected to the Bureau being granted permission to be represented at the conference. I directed the Bureau to file a short submission in support of its request for permission to be represented, which it filed on 26 June 2025. I asked Mr Lye to respond to those submissions, if he wished to do so, and he filed submissions on 1 July 2025 opposing the request for permission. On 3 July 2025 I advised parties that permission was granted to the Bureau to be represented by a lawyer at the conference, pursuant to s 596 of the Act, because I considered that it would enable the matter to be dealt with more efficiently, taking into account a degree of complexity in relation to the matter arising from the manner in which the complaint was framed and an application for interim orders, which had been made by Mr Lye and was on foot at the time.
I conducted a conference in relation to the matter on 8 July 2025. The matter was not resolved at conference. Taking into account Mr Lye’s application for interim orders, I indicated to parties that I intended to list the substantive application for hearing and determination pursuant to an expedited program. On this basis, Mr Lye withdrew his application for interim orders on 9 July 2025.
On 17 July 2025, Mr Lye filed an application pursuant to s 590 of the Act seeking the production of documents. He also sought an extension of time to file materials in relation to the substantive application which was granted.
Some of the documents sought by Mr Lye’s application for production of documents were provided to him by the Bureau. He nevertheless pressed his application and on 28 July 2025 sent my chambers an email outlining his submissions in support of his application for production of documents. On 29 July 2025, I advised parties that Mr Lye’s application for the production of documents was declined for reasons as outlined in that communication. In that email I said the following, referring in particular to Mr Lye’s submissions:
“In relation to these submissions:
a. At the heart of Mr Lye’s application for orders to stop bullying at work, as set out in his amended application, is the contention that his requests for accommodations to be provided at work for his disabilities were refused and this constituted bullying within the meaning of the Act. He also claims to have been belittled and treated inappropriately. He also claims that a recent decision to suspend his employment amounts to workplace bullying.
b.   As I have expressed previously, I do not consider that being taken to large amounts of documentary material will assist me in determining this matter, as it is put by Mr Lye. I do not agree that simply because an application concerns events spanning over period of time, a broad evidentiary base is necessary.
c.   I note that in any event, Mr Lye has been provided with significant documentary material by the Bureau as part of his request.
d.   I do not agree that all of the documents Mr Lye has sought appear to be relevant to his substantive application or that without access to all of these materials he is significantly disadvantaged in presenting his case.
e.   In terms of whether the material sought will assist me to inform myself in relation to this matter, in order to determine it, I do not consider it relevant that Mr Lye has had his access to the Bureau’s systems revoked.
f.    I do not agree that that procedural fairness is undermined by a significant imbalance created by the Bureau’s refusal to produce the documents coupled with its control over all relevant records.
I note further that at this stage Mr Lye has not seen the Bureau’s materials which will be filed in this matter. The Varied Directions I have made will require Mr Lye to file an Outline of Submissions, Statements of Evidence and any documentary material relied upon, on Friday 8 August, and for the Bureau to do the same on Friday 22 August. It may be that after this time Mr Lye is better informed as to whether there is further documentary material not before the Commission that will assist in the determination of this matter. If that is the case, the matter can be dealt with then.”
On 18 July 2025, Mr Lye filed another application pursuant s 589 of the Act seeking interim orders. The orders sought were:
“Withdrawal of the suspension notice issued by Astrid Heward on 16 June 2025.
Backpay to the commencement of the order, as of Monday 16 June 2025
Disclosure of all emails and notes leading to the suspension of employment decision.
Removal of all current directives issued against me in my employment.
The prevention of further action being taken against me in this manner by any complaints to be dealt with fairly and transparently by an independent third party.”
I heard the application on 22 July 2025, and it was dismissed for reasons delivered on transcript. Following the determination of this application, I listed Mr Lye’s application for stop bullying orders for a hearing to be conducted on 28 August 2025.
On 23 July 2025, I made amended directions for the conduct of the matter, requiring both parties to file and serve Outlines of Argument and Statements of Evidence. Mr Lye was to file his material on 8 August 2025 and the Bureau on 22 August 2025. On 8 August 2025, Mr Lye advised the Commission that he was unable to comply with directions that he file and serve material that day. In response to this, I listed the matter for mention to take place on 12 August 2025.
On 11 August 2025, Mr Lye sent correspondence to the Commission. In this correspondence he raised several issues, including claiming that he had been subjected to adverse action since his application, that medical and workplace supports previously in place had been removed by the Bureau, that in refusing to make interim orders, the Commission failed to give weight to evidence that his suspension from employment was adverse action rather than a legitimate management response “allowing the harm to continue”, and that “given the lack of reasonable adjustments, the ongoing obstruction of access to evidence and the significant deterioration in my health, I have serious concerns about my ability to fairly represent myself at the hearing scheduled for Tuesday 12 August 2025”. The correspondence also said:
“From the outset of my application, I have requested reasonable adjustments in light of my disabilities and workplace injuries. The Workplace Disputes Team indicated that these would be addressed by the Commissioner. To date, I have not seen any evidence that these adjustments have been considered or implemented. Without them, I am unable to participate on an equal footing, which is inconsistent with the Commission’s obligations under the Disability Discrimination Act and its own Fair Hearings Practice Note.”
A response was sent to Mr Lye from my chambers the following day which said:
“This matter has been listed for mention, via Microsoft Teams, to take place at 4:00PM today, 12 August 2025.
In recent correspondence sent to chambers, Mr Lye refers to “reasonable adjustments” sought, relating to his “disabilities and workplace injuries”. It is unclear what “adjustments” Mr Lye is referring to.
This proceeding has been conducted and will continue to be conducted in accordance with the Act, and the Commission’s usual practices (see for example the Fair Work Commission Rules 2024 and practice notes issued by the Commission, such as the Fair hearings practice note).
In the event Mr Lye has a specific request in relation to the conduct of the proceeding, this should be made clear so that its accommodation can be considered.
In his recent correspondence, Mr Lye refers to, among other things, the obstruction of access to documents and a “requested interim order”. In so far as these comments relate to procedural applications that Mr Lye has made, such as his application for an order to produce documents, or an application for an interim order, it is not appropriate that these matters continue to be agitated now that they have been determined by the Commission.
The hearing which has been listed to occur today arises from Mr Lye’s failure to comply with Directions issued by the Commission. It is necessary that this hearing occur to determine how his application should now be dealt with, taking into account his non-compliance. It is therefore expected that all parties are in attendance at the hearing this afternoon.
In the event Mr Lye wishes to make a specific request for this matter to be conducted in a way that accommodates challenges he may be experiencing engaging in the proceedings, this request should be made in clear terms by email sent to chambers (copying in the other party) so it can be considered.”
Later, on 12 August 2025, Mr Lye sent a further email to chambers which attached a list of “reasonable adjustment requests”. These are as follows (numbered for reference):
“1. Access to Evidence & Work Systems
Immediate reinstatement of read-only access to my work email, MS Teams, OneDrive, and all relevant files/notes required for my case preparation.
2. Flexible Evidence Submission
Ability to provide evidence progressively rather than in a single deadline, to accommodate cognitive load and anxiety triggers.
3. Modified Communication Protocol
Commission communications to be sent in clear, plain language, with bullet points where possible, and at least 3 business days to respond.
4. Additional Time in Hearings
Scheduled short breaks every 45–60 minutes during hearings to manage anxiety and PTSD symptoms.
5. Access to Justice
Given my unrepresented status and communication difficulties arising from ADHD, anxiety, and PTSD, I require tailored measures as contemplated under the Fair Hearings Practice Note to ensure equal participation. This includes additional explanation of procedural steps, confirmation of understanding, and clear written follow-up to verbal instructions
6. Structured Questioning
Questions in hearings to be asked one at a time, avoiding rapid-fire or multi-part questions to accommodate ADHD and anxiety processing limitations.”
During the mention that occurred on 12 August 2025, I advised parties I considered it appropriate that Mr Lye furnish the Commission with information from his doctor or relevant medical professional that he can participate in these proceedings in a safe manner, taking into account the assertions he had recently made in relation to his health, and ability to participate in proceedings. I also advised parties that Mr Lye’s list of requested adjustments would not be dealt with without both parties having an opportunity to address them, once it was confirmed that it was safe for Mr Lye to participate in proceedings.
On 18 August 2025, Mr Lye provided a certificate from his Doctor however this note did not confirm that Mr Lye could participate in proceedings in a safe manner. I provided Mr Lye with additional time to obtain further medical information. On 1 September 2025, he provided another note from his Doctor which said Mr Lye “would be fit to participate fairly if the proposed reasonable adjustments could be provided”. In providing this certificate to chambers, Mr Lye said:
“Please find attached a medical certificate from my GP, stating that I am fit to participate in the proceedings with reasonable adjustments.
As always with reasonable adjustments, the ones recommended by my doctor are the preferred identified ones, but as long as the needs behind them are met they are open to discussion.”
On 4 September 2025, I issued a Statement[1] outlining my provisional views in relation to Mr Lye’s list of requested adjustments. In summary, I indicated (on a provisional basis) that I considered some of Mr Lye’s requests had been and could continue to be accommodated and some were not appropriate. Both parties were invited to respond to those provisional views if they wished to.
Mr Lye sought an extension of time to respond to my provisional views, and both parties were granted this extension. Responses were received from Mr Lye and from the Bureau on 19 September 2025.
On 24 September 2025, I advised the parties that after having considered their responses, my provisional views as to Mr Lye’s list of requested adjustments were confirmed, and the proceeding would be conducted on that basis. I issued Directions for the further conduct of the matter.
On 24 September 2025, Mr Lye advised my chambers that the response filed by the Bureau in relation to my provisional views had not been served upon him. I directed the Bureau to immediately serve that response upon Mr Lye, which it did.
On 29 September 2025, Mr Lye sent correspondence to my chambers in which he sought to “raise serious concerns in relation to the handling of this matter” and requested that my decision to grant permission to the Bureau to be represented by a lawyer, and “the refusal to grant Mr Lye’s reasonable adjustment request in full” be reconsidered.
The Bureau was invited to respond to these requests and filed submissions opposing them being granted on 30 September 2025. On 30 September 2025 Mr Lye sent a further submission in support of his requests.
On 1 October 2025, I advised the parties that:

a.The request that I reconsider the decision to grant the Bureau permission to be represented by a lawyer was declined.
b.The request that I reconsider my decision to confirm my provisional views was granted, to allow Mr Lye to provide me with any further submission in relation to those matters, on the basis that he had not been served with the Bureau’s response.

Mr Lye was invited to provide any further submission by 3 October 2025. He sent an email to my chambers on 1 October 2025 in relation to the matter. On 8 October 2025 I advised parties that after having considered Mr Lye’s further responses, my provisional views as to his list of requested adjustments was confirmed. I issued fresh Directions for the conduct of the proceeding and listed it for hearing to take place on 27 November 2025.
On 8 October 2025, Mr Lye sent correspondence to my chambers. The nature and tone of the correspondence at times lacks the requisite level of respect expected in communications with the Commission, and I extract it in full, as follows:
“Dear Commissioner Redford,
I cannot comply with the directives listed due to disability discrimination in the form of refusing to supply or even discuss medically supplied reasonable adjustments, requested under both the fair hearings practice note and the requirements to provide such adjustments under the Disability Discrimination Act (1992). Failing to consider these adjustments is discrimination under the act.
My requirement to provide them and relate them to why I need them due to disability has been met, and the fact that I literally cannot participate without them clearly illustrates the negative result of not supplying them. I also note that you have medical evidence backing the adjustments.
Your requirements to either provide the adjustments as requested , or collaborate on a reasonable comprise to meet my needs, or otherwise prove how they cause an unreasonable hardship have definitely not been met. I also note that you have continued to refuse to even mention your requirements under the DDA, which shows to me an attempt to avoid the issue.
I also point to your failure to address or even question the actions of my employer to prevent justice in this matter, by directly suspending me from employment and remove all access I have to the evidence and files I need for the matter a day after the matter was served on the respondents. This allegation was supported by a number of other facts showing clearly on the balance of probabilities that the actions were deliberately fabricated to prevent a fair hearing:
·The timing of the suspension, 1 day after the respondents were served with the matter, and 2 days after the principal was served with the matter.
·The evidence provided that the suspension was based on fabricated complaints.
·The direct conflict of interest of those who took the action, being the same person who had received my PID not long before the Dodson, and who had completely failed to follow to PID Act and Bureau procedure required to protect me from reprisals like this.
·The refusal to address my needs and health as a person with an accepted Comcare workplace injury claim, despite their direct relevance to the matters in the suspension and bullying complaint.
·The complete failure of the respondent to show any evidence of an investigation prior to the serving of the FWC matter on them.
·The deliberate redaction of the top of a number of emails provided to me as evidence used for the suspension decision, which would have clearly shown whether they were solicited before or after the FWC matter being served. I note the refusal to provide the unredacted versions strongly suggests that they were solicited after the serving of the FWC matter.
·The content of the suspension allegations, which are all centered around me making complaints of improper action by the respondent including protected actions which make the suspension and following process criminal under both the DDA and PID act, as victimisation and reprisals respectively.
This is an ongoing concern, over a case which should have been handled quickly with clear evidence. The evidence above makes it clear that the delays are on both the commission and my employer , and not on me.
I hope that the actions above, while very serious, are simply oversight and possibly an unconscious assumption that I was just raising the stop bullying complaint due to in progress disciplinary action. I have shown you clearly now that the disciplinary action was taken immediately after this matter was served on the respondent, and hope that this awareness lets you see things in a different light. To show your own good faith and dedication to a fair hearing, I ask that you do the following immediately:
1.   Immediately implement the requested adjustments, either as they stand through email directly or after a conference discuss the best way to implement them. The conference should be held within a week. The initial conference should be between myself and the commissioner, as the reasonable adjustment request is made by me to the commissioner. Any resultant agreement, where it may impact on the respondent, of course would be open to their input after the conference.
2.   Vacate any current direction until the matters of reasonable adjustments can be addressed.
3.   Reconsideration of own motion over past failures to address the adverse actions taken by the respondent in an attempt to pervert the course of justice in this matter.
Failing the above, I ask that you vacate all directions and decisions made in the case to date, and recuse yourself from the case due to what appears to be unconscious bias against employees with mental health and neurodiverse disabilities.
I have included Justice Hatcher in this email, as complaints have been made against your current handling of the case, but hope that your reconsideration and corrections of several miscarriages of justice show the Presidents intervention is not required.”

On 9 October 2025, I responded to this correspondence indicating that I did not intend to grant Mr Lye’s numbered requests and advised that his apparent application that I be recused from the proceeding would be listed for hearing and determination. I directed Mr Lye to file written submissions in support of his application by 4:00PM on 10 October 2025, and the Bureau, if it wished to respond, to file written submissions by 10:00AM on Monday 13 October 2025.
The hearing was conducted in person in the Commission at Melbourne on 13 October 2025. Mr Lye appeared for himself. I granted the Bureau permission to be represented by a lawyer, pursuant to s 596 of the Act, particularly because, taking into account the complexity of matters associated with Mr Lye’s recusal application, it would enable the matter to be dealt with more efficiently. Ms Lucas of Counsel appeared for the Bureau.
At the conclusion of the hearing, I indicated that Mr Lye’s application that I be recused from this proceeding was denied. The following sets out my reasons for that decision.

Permission to be represented by a lawyer or paid agent

I consider it may assist in the more efficient conduct of this proceeding to make a brief comment in relation to the circumstances in which a party may be represented by a lawyer in proceedings before the Commission.
Section 596 of the Act says:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non‑English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2‑3 or 2‑6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.

As the Act makes clear, permission is required if a person seeks to be represented by a lawyer or a paid agent. The Commission’s Practice Note: Lawyers and paid agents, provides that the meaning of “represent” as is used in s 596 of the Act is narrower than the concept of when a lawyer or a paid agent acts for a person. As a result, Rule 13(1) of the Fair Work Commission Rules 2024 provides that in any matter before the Commission, permission to be represented is required where the lawyer or paid agent is “participating in a conference or hearing relating to the matter” but is not otherwise required.
In other words, in this matter, the Bureau, who has given notice that a firm of solicitors acts for it, and has also sought permission to be represented, permission is only required in relation to an appearance by a lawyer at a conference or hearing conducted in relation to the matter.
On 3 July 2025, I granted permission, pursuant to s 596 of the Act, to the Bureau to be represented by a lawyer at the conference held on 8 July 2025. The Bureau was also represented by a lawyer, with permission, at a hearing to determine Mr Lye’s application for interim orders on 22 July 2025 and at a mention conducted on 12 August 2025. Permission was also granted in respect to the hearing conducted on 13 October 2025 to deal with Mr Lye’s recusal application, for reasons mentioned above.
Mr Lye has persistently complained about the Bureau being represented by a lawyer in this proceeding. These complaints have confused, to some extent, the fact that it is entitled, if it wishes, to be so represented and only requires permission to be granted by the Commission when seeking to be represented at conferences or hearings.
This means – to put it plainly – that if the Bureau wishes to continue to avail itself of legal assistance from its lawyers in this proceeding, such as in relation to the preparation of submissions or Statements of Evidence, in the lead up to the hearing of Mr Lye’s substantive application, it may do so, and does not require my permission.
I have not yet granted it permission to be represented by a lawyer at the hearing of this matter, presently listed for 27 November 2025. Consistent with my customary practice, I will advise parties as to whether permission (which appears clearly to be sought) is granted before the hearing. When I make this decision, I will have careful regard to the submissions made by the Bureau, the multiple submissions made by Mr Lye opposing the request, and the relevant statutory provisions.

Mr Lye’s submissions

A summary of the basis upon which Mr Lye says I should recuse myself follows.

Actual or apprehended bias

Mr Lye describes the grounds of his application that I be disqualified as “actual”, “or apprehended” bias and also mentions “procedural unfairness”. He also refers to “repeated failure to comply with obligations under the Fair Hearings Practice Note (2024) and the Disability Discrimination Act 1992 (Cth) (DDA)”. He also says I have “consistently refused to investigate or intervene, including by denying interim injunctions and orders necessary to maintain the status quo and safeguard procedural fairness.”
My Lye says further:
“A fair-minded observer would reasonably apprehend that Commissioner Redford cannot bring an impartial mind to the determination of this matter, given: the consistent disregard for disability-related obligations; the refusal to engage with the DDA or apply the Fair Hearings Practice Note in full; the continual preference for administrative efficiency over substantive fairness; and the pattern of decisions that have enabled, rather than restrained, retaliatory conduct by the respondent.
These matters together demonstrate apprehended bias and discrimination contrary to law and to the fundamental requirements of procedural fairness.”

Unconscious bias against employees with mental health and neurodiverse disabilities

In the correspondence sent to my chambers which I am treating as Mr Lye’s application that I be recused from the proceeding, he referred to “what appears to be unconscious bias against employees with mental health and neurodiverse disabilities”. He did not make reference to this assertion in his oral submissions at hearing.

Procedural unfairness and imbalance

In relation to “procedural unfairness and imbalance”, Mr Lye submits that:
“3.1 The Commissioner has repeatedly required the applicant to meet filing deadlines knowing that the respondent had removed access to all relevant workplace systems and materials.
3.2 The respondent has continued to enjoy full evidentiary access and both in-house and external legal representation, while the applicant, disabled and self-represented, has been denied even minimal access to documents essential for the case.
3.3 Requests for reasonable extensions on medical and disability grounds have been refused in the name of “efficiency”, effectively prioritising administrative expedience over fairness.
3.4 The Commissioner’s directions and decisions have entrenched a profound imbalance between the parties and denied the applicant a fair opportunity to present the case.”

Failure to consider disability and reasonable adjustments

In relation to his allegation that there has been a failure to consider disability and reasonable adjustments, Mr Lye submitted that “from the original filing onwards”, he has “consistently identified disabilities and injuries and made medically supported requests for reasonable adjustments under the” Disability Discrimination Act 1992 (Cth) (DD Act).
Mr Lye says:
“The Commissioner has repeatedly re-framed these requests as mere “procedural requests” for assistance to a self-represented person, disregarding their statutory character as disability adjustments.”
He also says
“This refusal to recognise the proper legal basis of the requests breaches both the DDA and the Fair Hearings Practice Note (2024), which require that Members identify and address barriers arising from disability and illness and take proactive steps to ensure equitable participation.
The Commissioner’s handling of these matters demonstrates a systemic failure to comply with the duties of respect, fairness and accessibility that underpin the Commission’s statutory functions under section 577(a) of the Fair Work Act 2009 (Cth).”
At hearing, Ms Lye placed emphasis on the proposition that his requests for what he describes as “reasonable adjustments” has not been referred to as such by the Commission, in some correspondence. In this regard Mr Lye likely refers, at least, to references made by the Commission to what he has sought as “procedural requests”. He submits that the Commission failed to apply a test of “unjustifiable hardship” in relation to his requests. He submits that the Commission has dealt with these requests in the context of his status as an unrepresented party, not as a person appearing before the Commission who has a disability.
Mr Lye also claims to have made his requests at the commencement of the proceeding, and they were not dealt with by the Commission until he “forced” the Commission to deal with them.

Conduct suggesting bias and discriminatory treatment.

Mr Lye also submits there has been “conduct suggesting bias and discriminatory treatment”. He says:
“The Commissioner’s pattern of rulings and communications displays a continuing unwillingness to acknowledge or apply the DDA, despite clear statutory obligations.
The refusal to consider the respondent’s retaliatory conduct—particularly the suspension that immediately followed service of the application—gives rise to a reasonable apprehension of bias.
The Commissioner has applied inconsistent standards: reprimanding the applicant for minor procedural lapses while excusing serious defaults by the respondent, including failures to copy the applicant on submissions.
This unequal treatment, coupled with repeated denials of disability-based accommodation, amounts to discriminatory conduct in the exercise of a public function and has destroyed the applicant’s confidence in the impartiality of the proceedings.”

Failure to Uphold Obligations Under the Fair Hearings Practice Note

Mr Lye submits that the “Commissioner has cited only those portions of the Fair Hearings Practice Note (2024) dealing with assistance to self-represented parties, omitting all references to the sections addressing disabilities, discrimination and individual circumstances”. In this regard, Mr Lye appears to reference the Statement I issued in relation to this matter on 4 September 2025[2], in which I excerpted several parts of the Fair Hearings Practice Note. Mr Lye says that by “disregarding these obligations, the Commissioner has denied the applicant the very procedural fairness and equality before the law that the Practice Note seeks to guarantee”.

Continuing Harm and Urgent Need for Interim Protection

Mr Lye’s employment with the Bureau was suspended after he filed his application for stop bullying orders on 7 June 2025. He says this has deprived him of income, access to medical supports, and workplace systems needed to prepare his case. He submits that the Commission as presently constituted has “refused” to address these matters.
Mr Lye reiterated this submission at the hearing. It was not entirely clear about precisely what action he considers the Commission should have taken, or could have taken, in relation to these matters. As I discuss below, to some extent, this submission appears to have manifested in interim Orders Mr Lye now seeks in relation to the reinstatement of his access to the Bureau’s systems, such as email systems. Mr Lye was not able to say whether he had formally made a request for an Order that his access be reinstated, as his earlier application for Orders to produce related to the production of documents. It is the case that Mr Lye has made references in his various correspondence with the Commission that he considers he should be granted access to the Bureau’s systems so he can access his emails and other documents. It is also the case that in response, the Bureau has indicated that it is not prepared to grant this access. This matter has now crystalised in an application made for interim Orders, which I deal with below.

Other orders sought

A slight complicating factor in relation to Mr Lye’s recusal application is that he also appears to seek particular orders not associated with recusal. In his submissions, Mr Lye seeks Orders as follows:
“… immediate protective orders requiring the respondent to cease all disciplinary or adverse actions arising since the filing of this application, and to restore the applicant to the condition and status held as at 7 June 2025, when the Stop Bullying Application was lodged”
and
“… reinstatement of access to workplace systems and medical and welfare supports necessary to ensure a fair and accessible hearing”.
After the hearing was concluded on 13 October 2025, on 14 October 2025 Mr Lye made a more formal application for what he described as interlocutory orders pursuant to ss 577, 578, 589 and 590 of the Act. The Orders sought are:
Restoration of Employment Status – That the Respondent immediately restore the Applicant to the state of employment (including pay, system and building access, and all pre-existing workplace facilities) that existed immediately prior to the adverse action of 13 June 2025.
Implementation of Welfare, Rehabilitation and Disability Supports – That the Respondent, in consultation with the Applicant and consistent with the medical advice already provided to the Commission, immediately reinstate and maintain appropriate welfare, rehabilitation and reasonable adjustment measures required by the Applicant’s accepted workplace injuries and disabilities, pending final determination of this matter.
Ancillary Directions – That the Commission issue any further procedural directions necessary to give effect to these orders and to ensure that both parties may participate on an equal and fair basis.
I have made Directions that the parties file Submissions in relation to this Application, after which time I will determine whether the application, apparently seeking interim orders pursuant to either ss 589 or 590 of the Act, can be dealt with on the papers, or whether a hearing is required.

The Bureau’s submissions

The Bureau submits that Mr Lye’s application that I recuse myself in this matter not be granted. It says that:
“the Commissioner’s conduct does not, on any view of it, mean that the fair minded lay observer might reasonably have apprehended that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of the questions before him.”
This submission is based on propositions including that some of the matters Mr Lye complains of are simply circumstances in which the Commission does not agree with him about what he has sought. It also asserts that “the mere fact that the Applicant would prefer that the Commissioner use different language to describe the requests made by the Applicant does not give rise to an apprehension of bias”. It also says “the mere fact that the Commissioner has made a decision that is purportedly adverse to the Applicant’s interests does not give rise to an apprehension of bias.
The Bureau also asserts that Mr Lye’s submissions contain scandalous allegations that should be disregarded by the Commission in this matter.

Consideration

Principles used to determine recusal applications

I have dealt with this matter consistent with the manner in which applications that a member of a Court or Tribunal are recused from a proceeding are dealt with in Australia[3].
The principles relating to an application that a member of an Australian Court or Tribunal recuse themselves as a result of actual or apprehended bias are well established. To establish actual bias on the basis of pre-judgement, it must be demonstrated that there is a commitment to a “conclusion already formed” of such a nature that it is incapable of alteration “whatever arguments may be presented”[4]. The test in relation to apprehended bias is whether a fair minded lay observer might reasonably apprehend that the Judge or Tribunal member might not bring an impartial mind to the resolution of the question they are required to decide[5].
This test involves a two step process. First, the factor which is said might lead to a Judge or a Tribunal member to decide a case other than on its legal or factual merits must be identified. Second there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits[6].
These tests are based on important public policy considerations associated with the proper administration of justice[7]. Parties involved in litigation before a Court or Tribunal are entitled to expect that the person presiding will be independent and judicial independence “must be predicated of any influence that might tend, or be thought reasonably to tend, to a want of impartiality in decision making” [8], including subconscious (or unconscious) bias[9]. As has often been said “justice should both be done and be seen to be done”[10]. Or, as Isaacs J put it:
“ … if the person whose presence is challenged can fairly be said to be biassed, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him from these disqualifications”[11].
The test in relation to apprehended bias is based on the apprehension of a hypothetical “fair minded lay observer”. Thus, bias need not necessarily be actual, or probable, but possible[12] – based on the fair minded lay observer’s perspective. This “lay” person is “not to be assumed to have a detailed knowledge of the law or the character of a particular judge”, but:
“may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” …”[13]
The fair minded observer is also taken to have knowledge of the material facts of the case and relevant context, including the fact that the Commission is a specialist tribunal established to deal with matters in a practical, expeditious and effective manner and is required to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities[14].
Disqualification on the ground of apprehended bias must must be “firmly established”, and a finding of apprehended bias is not to be reached lightly[15]. Members of the Commission have a duty to sit[16] and substantial grounds must be established if this is otherwise to be the case[17]. Or as the High Court has said:
“… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”[18]

It is well established that apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially[19].
It is a “fallacious argument” that because the outcomes of previous decisions have been adverse to a party that there is bias against that party[20].

Actual or apprehended bias

Mr Lye made reference in his submissions to “actual or apprehended bias”[21]. However, the way in which his application was framed seemed to place emphasis on the proposition that it is apprehended bias that should cause me to disqualify myself in this matter. No direct submission seems to have been made that the application for stop bullying orders has been pre-judged.
Mr Lye did not frame his application around the test in Ebner. Thus it is necessary to some extent, to divine from his submissions the “factor” (or factors) envisaged by the first limb of the test in Ebner, which he says might cause me to decide his case other than on its merits and in relation to the second limb, the logical connection between those factors and how I might deviate from deciding the case on its merits . I have therefore addressed each of Mr Lye’s grounds below.
In the correspondence I have taken as Mr Lye’s application that I be recused from this matter, he referred to “what appears to be unconscious bias against employees with mental health and neurodiverse disabilities”. While he did not address this assertion at hearing, this may be the factor, or one of the factors he says may cause me to decide the case other than on its merits and I have had regard to that assertion in my consideration of Mr Lye’s various grounds, taking into account that unconscious bias may form part of the consideration to which the test of apprehended bias is directed.

Procedural unfairness and imbalance

A basis for Mr Lye’s submission as to bias in this matter is that, as he puts it, Directions have been issued requiring him to “provide materials”, “knowing that I was physically and administratively unable to comply because the respondent had revoked my system and document access”. He also submits that his requests for reasonable extensions on medical and disability grounds have been refused.
This submission lacks a factual basis. The Directions that have been made require Mr Lye to file an Outline of Submissions, Statements of Evidence, a statement setting out the Orders he seeks and copies of any document he wants me to have regard to. He has been told that I do not consider that being taken to large amounts of documentary material will assist me in determining this matter. He has also been advised that, after the Bureau files its material in this matter (which will naturally occur after he files his material), he may be better informed as to whether there is further material not before the Commission that he wants me to have regard to which may, conceivably, be the subject of a further application for documents to be produced.
I do not accept there is a factual basis supporting the contention that Mr Lye cannot articulate the basis upon which he says the Commission has jurisdiction in this matter, the Orders he seeks, why the Commission should make those orders and why he cannot articulate the factual basis of his claims by setting them out in a statement in his own words. He has done this, effectively, in the various interlocutory applications he has made during the proceeding.
Further, on several occasions, Mr Lye has sought and been granted extensions of time or the variation of Directions in relation to the conduct of the matter. After it became apparent the matter would require determination, Directions were first issued on 10 July 2025 for the conduct of the matter. These have since been required to be varied or replaced over half a dozen times, often at Mr Lye’s request.
I do not consider that through his complaints as to the manner in which this proceeding has been conducted, Mr Lye has established to the requisite standard that a fair minded lay observer would apprehend that I might not determine his application on its factual and legal merits

Failure to consider disability and reasonable adjustments

Whilst this is the way in which Mr Lye frames his submission, it must be that Mr Lye submits, as part of his contentions as to bias, a failure to provide disability and reasonable adjustments, rather than consider them. In so far as he submits there has been a failure to consider his requests for what he describes as “reasonable adjustments”, there is no factual basis for this submission. He was invited to make clear what adjustments he sought, and then a process was adopted whereby I considered his submissions in relation to those matters, the Bureau’s submissions in response, then expressed provisional views in relation to them, affording both parties the opportunity to make further submissions in relation to those provisional views. Indeed, even after I confirmed those provisional views, Mr Lye was afforded a further opportunity to address them after the Bureau’s failure to serve upon him their response. I once again gave consideration to those further submissions, before again confirming my original provisional views about his requests.
Part of Mr Lye’s contention in this regard is the characterisation of what he describes as “reasonable adjustments” as “procedural requests”. He also claims that they have not been assessed in accordance with the requirements of the DDA and have been dealt with in the context of his status as a self-represented party, not as a person with a disability.
Mr Lye made six requests. The first of those requests relates to the reinstatement of his access to “evidence and work systems”, now further articulated in an application for interim orders to relate to the reinstatement of his access to the Bureau’s systems so that he can access his work email and other documents. The second of those requests was to be permitted to “provide evidence progressively rather than in a single deadline, to accommodate cognitive load and anxiety triggers”. The further requests he made related to the manner in which the Commission communicates with him, time allowed for him to respond, being provided with breaks during hearings, being provided with explanation of procedural steps and having questions put to him in a structured manner (this is a summary of his requests numbered 3 – 6 which are attached in full in Annexure 1 to this decision).
At the hearing of Mr Lye’s application that I be recused from this matter, it appeared evident to me that the refusal of the first of these requests was a particular focus of his grievance, noting that I have indicated that several of his other requests will be accommodated where appropriate.
In relation to this first request, it is appropriate to note that in circumstances where the Bureau has made it clear it is not prepared to provide Mr Lye with access to its systems, it would be necessary for the Commission to exercise some form of compulsive power over it to grant Mr Lye’s request. This request is now the subject of an application for interim orders made by Mr Lye, possibly pursuant to ss 589 or 590 of the Act, and I will have careful regard to his and the Bureau’s submissions in relation to whether a compulsory power of this nature exists (and if it does, whether it is appropriate for me to exercise it). Plainly, the DDA does not confer power on the Fair Work Commission to make an order of a kind compelling the Bureau to grant Mr Lye access to its systems. In these circumstances, it is difficult to understand how there is a factual basis for Mr Lye’s claims the refusal of this request underpins the existence of apprehended bias.
The second request made by Mr Lye, apparently to be permitted to file material progressively and not pursuant to a single deadline, was refused on the basis that it would be unfair to the other party to the proceeding, who must, in the preparation and filing of its own materials, be able to understand the case being put against it.
Mr Lye is correct that my provisional views, later confirmed, did not disclose an assessment of this request based on the concept of making “reasonable adjustments”, as it exists in ss 4 and 5(2) of the DDA.
I am not however convinced that not having made specific reference to this legislation would cause a fair minded lay observer to apprehend that I might not, having refused this request, determine his application for stop bullying orders on its factual and legal merits. The requirement that the Bureau file in the Commission materials relevant to this matter before the hearing, informed by and based on an understanding of Mr Lye’s contentions, those having been properly outlined by him in his material (which is to be filed first), strikes me as entirely reasonable, in both parties’ interests and anything to the contrary is likely unreasonable.
Mr Lye’s complaint as to the characterisation of his requests as “merely procedural”, or something other than “reasonable adjustments” within the meaning of the DDA belies an assumption that simply by having made his requests, they are necessarily “reasonable adjustments” within the meaning of that legislation and must be referred to as such. I do not accept this contention. The considerations going to whether an adjustment sought in respect to a person with a disability is a “reasonable adjustment” within the meaning of the DDA can be complex[22]. What has been sought are however plainly “requests”, and they do largely relate to the procedure by which this matter will be determined.
I do not consider there is a factual basis for Mr Lye’s assertion that his requests were not dealt with by the Commission until he “forced” me to deal with them.
Ultimately, I take Mr Lye’s submission to be that the Commission’s process to consider his requests, the refusal to grant some of them, their characterisation using language other than “reasonable adjustments” and the time apparently taken to deal with them is indicative of a possibility of bias against persons with a disability, or as Mr Lye put it originally, an “unconscious bias against employees with mental health and neurodiverse disabilities”. For the reasons set out above I do not consider it has been established to the requisite standard that a fair minded lay observer would adopt this view.
In these circumstances I do not agree it has been established that the various language used in description of Mr Lye’s requests gives rise to an apprehension of bias.

Conduct suggesting bias and discriminatory treatment

To a large extent Mr Lye’s submissions in relation to “discriminatory treatment” interact with his other submissions.
He contends that there have been inconsistent standards applied to the conduct of the matter, during which he has been reprimanded for minor procedural lapses while serious defaults by the Bureau, including failures to copy him on submissions have been excused. The factual basis for this assertion is not clear: the Bureau’s failure on one occasion to serve upon Mr Lye a copy of its response to my provisional views about his requests caused me to immediately direct the Bureau to rectify its failing, agree to reconsider my views and allow Mr Lye an additional opportunity to address them.

Failure to uphold obligations under the Fair Hearings Practice Note

The nub of Mr Lye’s contention in relation to my application of the Fair Hearings Practice Note in this matter appears to be my refusal to grant some of his requests. The explanation for the refusal to grant some of these requests was set out in the Statement[23] I issued, to which parties were invited to make submissions, and to which I have referred above.
Mr Lye complains that the Statement extracts parts of the Fair Hearing Practice Note which deals with the manner in which the Commission will provide assistance to self-represented litigants, and does not extract references in the Practice Note to, for example, the obligation of Commission members to “identify the difficulties experienced by a party, whether due to lack of representation, literacy difficulties, ethnic origin, religion, disability or any other cause, and find ways to overcome those difficulties and assist them through the Commission process”[24]. He says further that these obligations were “disregarded”. Thus, notwithstanding his complaints about the construction of the Statement or the parts of the Practice Note that were extracted in the Statement, Mr Lye’s submission is based on the complaint that not all of his requests were granted.
In circumstances where the basis for my response to Mr Lye’s requests were outlined in the Statement, for reasons similar to those expressed above I do not consider a fair minded lay observer would consider that the refusal of some of the requests indicates bias.

Continuing harm and urgent need for interim protection

As I have described above, as part of his recusal application, Mr Lye agitated in part his allegation of a failure on the part of the Commission to act in relation to his complaint that he has been deprived of access to the Bureau and its systems and supports, and that I should do so, including by reinstating his access to the Bureau’s systems. As I have further explained, this is now the subject of a formal application for interim orders made by Mr Lye, which I will deal with in due course.
As part of his submissions, Mr Lye also appeared to seek Orders requiring the cessation of any disciplinary action against him by the Bureau, and his reinstatement to “the condition and status held at 7 June 2025 when the Stop Bullying Application was lodged”. This was similar to what was sought by Mr Lye in his second application for interim orders in this proceeding (the first having been withdrawn), which I dismissed on 22 July 2025.
In so far as Mr Lye submits that the Commission’s refusal to grant the interim orders he sought, or to act in some other manner (perhaps on its own motion) in relation to his allegations (outside of dealing with the application he has filed) I do not accept that a fair minded lay observer would consider this conduct indicates bias. As is mentioned above, simply because outcomes of previous decisions have been adverse to a party is not indicative of bias against that party.

Allegations made by Mr Lye described by the Bureau as scandalous

The Bureau asked me to disregard submissions made by Mr Lye in support of his recusal application it described as scandalous, such as that it had taken action to “subvert the course of justice”. It submits there are no reasonable grounds for those allegations. I accept that submission.

Conclusion

I do not consider that Mr Lye has established to the requisite standard that his application for stop bullying orders has been pre-judged, or that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of his application. As I observed above, it is well established that substantial grounds must be established if a member of a Court or Tribunal is to disqualify themselves on the basis of apprehended bias. These have not been made out.
Mr Lye’s application that I be recused from this matter is refused, and an Order[25] will be issued to reflect such.

COMMISSIONER

Appearances:

Mr Jacob Lye on behalf of himself

Ms Julia Lucas of Counsel for the Respondent

Hearing details:

Melbourne
2025
Monday 13 October

ANNEXURE A

[1] Annexure A

[2] Annexure 1

[3] Ebner v Official Trustee [2000] HCA 63; (2000) 176 ALR 644 [74] (Ebner); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15 [88]; [121] – [130] (QYFM)

[4] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [71] – [72]

[5] Woodside Energy Ltd v The Australian Workers’ Union[2022] FWCFB 192 [38] (Woodside); Ebner [6]

[6] Woodside [38]; Ebner [8]

[7] QYFM [219]

[8] Ibid [70]

[9] Ibid [70]; [117]; [248]; [266]

[10] Woodside [38]; Ebner [6]

[11] Dickason v Edwards (1910) 10 CLR 243 [260]

[12] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 [435

[13] QYFM [48]

[14] Application by Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 779 [32] (Mining and Energy Union)

[15] Woodside [39]

[16] Mining and Energy Union [22]

[17] Ebner [19] – [20]

[18] Re JRL; ex parte CJL (1986) 161 CLR 342 [352]

[19] Woodside [39]; QYFM [328]

[20] Rindeklev v Commonwealth of Australia (Recusal Request) [2025] FCA 354 [18]; citing Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]

[21] Submissions of Mr Lye [1.1]

[22] See for example Watts v Australian Postal Corp [2014] FCA 370 [32]

[23] Annexure 1

[24] Fair Work Commission, Practice Note: Fair Hearings [38]

[25] PR792605

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