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.

Introduction

Mr Shahriar Bigdeli has lodged an appeal, for which permission is required, against a decision of Deputy President Millhouse in ReBigdeli[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).

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.

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.

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

Decision under appeal

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Shahriar Bigdeli [2025] FWCFB 31
Case: [2025] FWCFB 31
Decision Date: 10 FEBRUARY 2025

CaseChat Overview and Summary

The case involves an appeal by Shahriar Bigdeli against a decision made by Deputy President Millhouse. The original decision dismissed Mr Bigdeli's application for an order to stop workplace bullying under the Fair Work Act 2009. The appeal pertains to whether there was a risk that Mr Bigdeli would continue to be bullied at work, a requirement for the Commission to grant an order under the Act. The Full Bench of the Fair Work Commission, consisting of Vice President Gibian, Deputy President Clancy, and Deputy President Roberts, was tasked with determining whether permission to appeal should be granted.

The legal issues in the appeal centered on whether the Deputy President's decision contained any appealable errors and if it was in the public interest to grant permission to appeal. Mr Bigdeli advanced five grounds of appeal, which included alleged factual and legal errors in the Deputy President's assessment of his medical capacity, misrepresentation of his submissions, and failure to consider the availability of a Workplace Justice Visa. The Full Bench examined these grounds to determine if they demonstrated an arguable case of appealable error.

The Full Bench found that Mr Bigdeli had not demonstrated any arguable case of appealable error in the Deputy President's decision. They concluded that the Deputy President's findings were supported by the evidence and submissions, and any alleged errors did not impact the outcome. The Full Bench further found that the Deputy President appropriately considered the risk of continued bullying, taking into account factors such as Mr Bigdeli's medical capacity, his refusal to provide further information, and his visa status. They also noted that the new evidence presented by Mr Bigdeli was irrelevant to the threshold issue of future risk of bullying.

Therefore, the Full Bench determined that it was not in the public interest to grant permission to appeal. They ruled that there was no appealable error in the Deputy President's decision and refused permission to appeal under section 604 of the Fair Work Act 2009.

Orders