Benjamen Gussen v Swinburne University of Technology
[2025] FWCFB 17
•11 FEBRUARY 2025
| [2025] FWCFB 17 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Benjamen Gussen
v
Swinburne University of Technology
(C2024/9213)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER LEE | MELBOURNE, 11 FEBRUARY 2025 |
Appeal against decision [2024] FWC 3316 of Commissioner Redford at Melbourne on 2 December 2024 in matter number C2024/7228 – permission to appeal refused.
Dr Benjamen Gussen has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] of Commissioner Redford issued on 2 December 2024. In the decision, the Commissioner dismissed Dr Gussen’s s 365 general protections application made against the respondent, Swinburne University of Technology (Swinburne). The Commissioner upheld Swinburne’s jurisdictional objection, finding that Dr Gussen was not dismissed.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
Dr Gussen was employed by Swinburne as a senior lecturer. On 18 September 2024, in connection with a disciplinary process commenced by Swinburne, the parties entered into a deed of release (deed) by which Dr Gussen resigned from his employment and released Swinburne from, amongst other things, all ‘suits, actions, claims and/or demands arising out of, or in connection with’ the circumstances recited in the deed and the disciplinary process.
On 7 October 2024, Dr Gussen made a general protections application in the Commission pursuant to s 365 of the Act. Swinburne objected to the application, contending that Dr Gussen resigned from his employment and was not dismissed within the meaning of the Act. Further, Swinburne sought the dismissal of the application having regard to the release in its favour pursuant to the terms of the deed.
In the decision, after setting out the factual history of the matter, the Commissioner considered Dr Gussen’s arguments that he had been dismissed pursuant to either s 386(1)(a) or s 386(1)(b) of the Act. The Commissioner rejected each of Dr Gussen’s contentions, finding in summary that:
(a)there had been no termination at Swinburne’s initiative (s 386(1)(a)) and the ‘critical action’ that led to the employment cessation was Dr Gussen’s execution of the deed which provided for his resignation;[2]
(b)Dr Gussen had not been forced to resign from his employment (s 386(1)(b)) and the disciplinary process instigated by Swinburne did not leave Dr Gussen with no effective or real choice but to resign. Nor was Dr Gussen’s resignation procured by coercion or the result of Swinburne’s unconscionable conduct, or in circumstances where Dr Gussen was under duress;[3]
(c)to the extent it was argued, Dr Gussen’s resignation was not ‘in the heat of the moment,’ rather the terms of his resignation were negotiated over a period of approximately two weeks with the support of his representatives;[4]
(d)the Commissioner could not conclude as a matter of fact that Swinburne had engaged in repudiatory conduct.[5]
Having regard to these findings, the Commissioner dismissed Dr Gussen’s application.
Grounds of appeal and public interest
By way of Attachment 1 to the Form F7 Notice of Appeal, Dr Gussen advances numerous contentions of error, which are explained in submissions attached to the appeal notice and addressed in our analysis below. Having regard to these submissions, we discern that the grounds of appeal may be summarised as follows:
(1) Denial of procedural advice by the Commission in relation to the imminent termination of Dr Gussen’s employment.
(2) Incorrect characterisation of the claim in the headnote to the decision.
(3) Incorrect reliance upon the decision in Coles Supply Chain Pty Ltd v Milford.[6]
(4) A failure to advise Dr Gussen of the Commissioner’s intention to use the hearsay rule despite s 591 of the Act.
(5) The Commissioner ‘failed to apply the proper test for evidence’ in the decision.
(6) The Commissioner misapplied the principles under s 386(1)(a) of the Act.
(7) The Commissioner applied an incorrect test in respect of the issue of constructive dismissal.
(8) The Commissioner failed to consider critical evidence that supports Dr Gussen’s claims.
(9) The Commissioner applied an unreasonably high standard of proof.
(10) The Commissioner failed to view the evidence in its totality.
(11) The Commissioner improperly dismissed Dr Gussen’s evidence based on speculative reasoning.
(12) The conclusion in the decision is inconsistent with undisputed facts.
(13) The Commissioner failed to provide adequate reasons and thereby failed to provide procedural fairness.
(14) The decision is inconsistent with legal precedent.
(15) The Commissioner failed to draw reasonable inferences from the evidence particularly regarding the temporal and causal connections between Dr Gussen’s workplace rights and whistleblowing activities and Swinburne’s adverse actions.
(16) The decision contains a lack of sufficient reasoning.
Dr Gussen submits that it is in the public interest to grant permission to appeal including because the appeal involves allegations of fraudulent practices, affecting the public’s confidence in the legal profession and the judiciary which relies upon properly trained legal practitioners. Further, Dr Gussen submits it is in the public interest to protect whistleblowers, ensure procedural fairness, protect employment rights and examine the use of deeds of release to undermine employees’ workplace rights. Dr Gussen also contends that allowing the appeal would assist to ensure public institutions remain accountable, uphold the integrity expected of them in serving the community and protect employees from unconscionable conduct.
Principles – permission to appeal
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error or a preference for a different result.[8] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[10] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
At the outset, we note that consistent with the well-established position set out by the Federal Court in Australian Postal Corporation v Gorman,[11] it appears that the settlement reached between the parties in respect of Dr Gussen’s employment[12] operates as a complete answer to Dr Gussen’s general protections application, being a valid and effective accord and satisfaction that extinguished Dr Gussen’s general protections application and replaced it with a new cause of action based on the deed. Consequently, it seems that Dr Gussen no longer had a valid claim under the general protections provisions of the Act that could be pursued in the Commission. To the extent that there is a potential residual dispute between the parties as to the enforceability of the deed,[13] that is not a matter that the Commission is empowered to deal with.
We are not otherwise persuaded that the Notice of Appeal or Dr Gussen’s written submissions disclose any arguable appealable error. Our reasons may be briefly stated.
As to appeal grounds (1) and (2), any alleged failure to provide Dr Gussen with procedural advice that ‘could have obviated the need for the decision that is being appealed from’[14] does not disclose any arguable error in the decision itself. Further, the contention that the Commissioner misunderstood Dr Gussen’s application[15] is not arguable. While the decision headnote contains a typographical error by referring to ‘unfair dismissal,’ the first paragraph of the decision makes it clear that Dr Gussen’s application was made pursuant to s 365 and concerns the general protections provisions of the Act involving dismissal.
The contention advanced by appeal ground (3) that the Commissioner ‘should have proceeded directly to a conference and then issued a certificate if there was no agreement’[16] is incorrect, as the decision of the Full Court of the Federal Court in Coles Supply Chain Pty Ltd v Milford[17] makes clear. The question of whether Dr Gussen had been dismissed within the meaning of the Act is the antecedent issue that must be resolved before the Commission may exercise the powers conferred by s 368 of the Act.[18] The Commissioner’s approach was consistent with this authority.
Appeal grounds (4), (5), (8) to (12) and (15) broadly concern the Commissioner’s treatment of the evidence before him and disclose no arguable error. While the rules of evidence do not apply in the Commission (s 591 of the Act), such rules and procedure are not completely disregarded. Concerns about the weight attributed to certain evidence was a matter for the Commissioner and does not, of itself, provide a basis for appellate review. In resolving the preliminary issue of jurisdiction, the Commissioner was not determining Dr Gussen’s substantive general protections case, including the allegations of fraud or whistleblowing activities which were said to be ‘central to establishing adverse action.’[19] In these circumstances, the contention that the Commissioner ignored or dismissed material evidence, applied erroneous standards or failed to view the evidence in totality in his consideration of the jurisdictional issue is not made out. Nor does the material disclose an arguable contention that Dr Gussen was not afforded a sufficient opportunity to present his evidentiary case or that he was denied the opportunity for a fair hearing.
As to appeal grounds (6), (7) and (14), the decision records that the Commissioner correctly applied paragraph [75] of the Full Bench decision in Navitas[20] to his consideration of s 386(1)(a) of the Act, and paragraph [47] of the Full Bench decision in Tavassoli[21] (in addition to other relevant authorities) to his consideration of s 386(1)(b). We are not persuaded that an arguable case of error has been made out in relation to the Commissioner’s consideration of whether Dr Gussen had been dismissed.
Appeal grounds (13) and (16) allege that the Commissioner’s reasons were inadequate. We disagree. As stated, the Commissioner engaged with the principles established by the relevant authorities in respect of the threshold question. He made findings that appear to have been reasonably available on the evidence before him, including by reference to the evidence that supported the conclusions reached. It is not reasonably arguable that the Commissioner gave inadequate reasons for his decision.
Conclusion and disposition
For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 604(2) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application.
Permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
[1] [2024] FWC 3316
[2] Decision at [24]
[3] Decision at [38]-[43]
[4] Decision at [25]
[5] Decision at [26]-[34]
[6] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591
[7] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[11] Australian Postal Corporation v Gorman [2011] FCA 975; 196 FCR 126
[12] Decision at [18]
[13] Decision at [19]
[14] Appellant’s outline of submissions at [2](9)
[15] Appellant’s outline of submissions at [3](13)
[16] Appellant’s outline of submissions at [4](19)
[17] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591
[18] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; 279 FCR 591 at [67]
[19] Appellant’s outline of submissions at [10](138)
[20] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162; 273 IR 44
[21] Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941; 271 IR 245
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