Lianne Ridha v Swinburne University of Technology
[2025] FWCFB 115
•1 JULY 2025
| [2025] FWCFB 115 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lianne Ridha
v
Swinburne University of Technology & Others
(C2025/3672)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER PLATT | MELBOURNE, 1 JULY 2025 |
Appeal against decision [2025] FWC 1022 and order PR786098 of Commissioner Fox at Melbourne on 16 April 2025 in matter numbers AB2024/797; AB2024/819; AB2024/820; AB2024/821 and AB2024/822 – permission to appeal refused.
Dr Lianne Ridha 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] and order[2] of Commissioner Fox issued on 16 April 2025. The Commissioner dismissed five applications made by Dr Ridha pursuant to s 789FC of the Act for orders to stop bullying in relation to Swinburne University of Technology (Swinburne) and named persons with whom Dr Ridha interacted while at work.
The Commissioner dismissed the applications pursuant to s 587(1)(c) of the Act. The Commissioner was satisfied that the applications had no reasonable prospects of success in light of her finding that Dr Ridha’s employment with Swinburne had ceased on 21 February 2025. The Commissioner was not satisfied that Dr Ridha was at risk of continued bullying at work by the persons named in her applications as required by s 789FF(1)(b)(ii) of the Act.
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.
Grounds of appeal
The following summarises the appeal grounds that Dr Ridha relies upon in support of her application for permission to appeal:[3]
Dr Ridha contends that the decision contains mistakes and errors of fact including by omitting hearing dates, erroneously recording that Dr Ridha’s employment cessation was not in dispute, failing to consider the damage caused to Dr Ridha’s health, safety, reputation and career, unfairly recording that the respondents denied the allegations and failing to treat Dr Ridha fairly or equally.
Dr Ridha contends that mistakes and errors occurred in protecting her privacy, confidential information, safety and special circumstances in managing five applications, with her information shared with all of the respondents.
Dr Ridha contends that the Commission’s Stop Bullying Benchbook encourages victims of bullying to apply to the Commission for a stop bullying order and it was shocking and devastating to receive the decision dismissing the applications.
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.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] 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.[6]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 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.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
The Commissioner reached a state of satisfaction that Dr Ridha’s employment ended on 21 February 2025, having regard to the termination letter before her. The Commissioner considered, and rejected at paragraph [10] of the decision, Dr Ridha’s contention that her challenges to the dismissal raised the possibility of reinstatement and this should weigh against the dismissal of her applications. The contention that the Commissioner incorrectly interpreted Dr Ridha’s submissions regarding the effect of her unfair dismissal application and pursuit of reinstatement is not arguable. We note that, should Dr Ridha be successful in obtaining an order for reinstatement through her unfair dismissal claim, and retains concerns about a risk of being bullied at work, she is at liberty to make a further application for stop bullying orders.[8]
The Commissioner’s conclusion that Dr Ridha’s applications had no reasonable prospects of success, in circumstances where her employment with Swinburne had ceased, discloses no arguable error. A finding that there was a risk that Dr Ridha would continue to be bullied at work by the persons named in her applications (s 789FF(1)(b)(ii)) is one of the pre-requisites for making a stop bullying order, and the Commissioner concluded that she could not be satisfied of this matter. That determination is consistent with Full Bench authority.
The Commissioner proceeded by exercising her discretion under s 587(1)(c) of the Act to dismiss the applications, having given the parties an opportunity to address her on the matter. The exercise of that discretion was reasonably open to the Commissioner. It is apparent from the decision that in exercising the discretion, the Commissioner considered the matters advanced by Dr Ridha as to why the applications should not be dismissed.
The appeal grounds advanced by Dr Ridha do not give rise to an arguable contention of appealable error. The decision dealt with the specific issue requiring determination in light of the cessation of Dr Ridha’s employment. It was not necessary that the decision traverse the various matters advanced by Dr Ridha’s material. We are not persuaded that Dr Ridha was subjected to inequitable treatment by the Commissioner, or that her privacy was compromised by reason of Swinburne’s legal representatives also acting for the persons named, nor is this matter connected to any arguable error in the Commissioner’s decision.
For these reasons, an arguable case has not been advanced that the decision was attended by appealable error. Nor are we persuaded that it would be in the public interest to grant permission to appeal. Specifically, we are not satisfied for the purposes of s 604(2) of the Act that:
(a) there is a diversity of decisions at first instance such that guidance from an appellate body is required of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Commissioner were disharmonious with other decisions dealing with similar matters.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
[1] [2025] FWC 1022
[2] PR786098
[3] Appeal Book, file 200 (updated) Grounds for Appeal and Public Interest
[4] 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]
[5] 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]
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[8] Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank [2014] FWC 3408 at [17]
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