1 Fair Work Act 2009 s.604 - Appeal of decisions Mr Jacob Lye v Commonwealth of Australia as represented by the Bureau of Meteorology Trading AS Bureau of Meteorology (C2025/10939) DEPUTY PRESIDENT BINET COMMISSIONER SCHNEIDER COMMISSIONER LIM PERTH, 18 DECEMBER 2025 Appeal against decision [2025] FWC 3061 of Commissioner Redford at Melbourne on 15 October 2025 in matter number AB2025/468 – permission to appeal refused. [1] Mr Jacob Lye has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) against a decision of Commissioner Redford issued on 15 October 2025.1 In the decision, the Commissioner declined to recuse himself from dealing with Mr Lye’s anti-bullying application against his employer (the Bureau of Meteorology) and named persons. [2] The matter was listed before the Full Bench for permission to appeal only. The parties consented to the matter being determined without holding a hearing under s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused. Decision under appeal [3] The Commissioner’s decision sets out the lengthy procedural history of Mr Lye’s anti- bullying application, which included Mr Lye objecting to his employer seeking permission to be legally represented; the Commissioner conducting conferences and mentions; the matter being listed for substantive hearing; Mr Lye making an application for the production of documents and interim orders; the Commissioner listing the matter for mention to deal with Mr Lye’s position that he could not comply with the directions issued by the Commissioner; Mr Lye seeking “reasonable adjustments” in light of his disabilities and workplace injuries; and the process of the Commissioner dealing with Mr Lye’s request for adjustments. [4] The decision records that Mr Lye brought an application for the Commissioner to recuse himself after the Commissioner dealt with Mr Lye’s request for adjustments and issued new directions to deal with the substantive matter. [2025] FWCFB 291 DECISION [2025] FWCFB 291 2 [5] In the decision the Commissioner identified the principles that apply when determining a recusal application and the two step process as set out in Ebner v Official Trustee,2which requires firstly, the identification of the factor/s that might lead to a decision-maker to decide a case other than on its legal or factual merits, and secondly, articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits. [6] The Commissioner observed that Mr Lye’s submissions did not expressly address the Ebner test, and so went through each of Mr Lye’s contentions as follows: (a) Procedural unfairness and unbalance: Mr Lye objected to the directions for filing material on the basis he was unable to comply as he did not have access to his employer’s IT system. Mr Lye also submitted that his requests for reasonable extensions had been refused. The Commissioner found that this submission lacked a factual basis and noted that Mr Lye had been able to articulate many of his arguments to date in various interlocutory applications. Further, Mr Lye had been granted extensions of time and that the opportunity for him to seek orders for the production of documents was available to him. (b) Failure to consider disability and reasonable adjustments: the Commissioner found that he had considered Mr Lye’s requests; Mr Lye’s issue was that they had not been granted in full. The Commissioner found that a fair-minded lay observer would not have the view that the Commissioner had an “unconscious bias” against employees with mental health and neurodiverse disabilities. (c) Conduct suggesting bias and discriminatory treatment: Mr Lye’s submissions on this regard intersected with his other submissions. Mr Lye further contended that there had been inconsistent standards in the application of the directions and procedures. The Commissioner found there was no factual basis for this assertion. (d) Failure to uphold obligations under the Fair Hearings Practice Note: Mr Lye’s submissions regarding this point centred on the Commissioner’s refusal to grant his requests. The Commissioner pointed to his detailed assessment of Mr Lye’s requests and found that there was no indication of bias. (e) Continuing harm and urgent need for interim protection: Mr Lye took issue with the Commissioner’s refusal to grant his application for interim orders compelling the employer to provide Mr Lye with access to its system and supports and to stop ongoing disciplinary action. The Commissioner found that just because outcomes of previous decisions have gone against a party it does not indicate bias. [7] In going through Mr Lye’s contentions and considering the relevant principles that apply to recusal applications, the Commissioner found that Mr Lye had not established to the requisite standard that his application for stop bullying orders had been pre-judged, or that a fair minded lay observer might reasonably apprehend that he might not bring an impartial mind to the determination of his application. The Commissioner accordingly dismissed Mr Lye’s application that he recuse himself from hearing Mr Lye’s anti-bullying application. [2025] FWCFB 291 3 Since making the recusal application Mr Lye was dismissed from his employment at the Bureau. On 21 November 2025 the Commissioner issued a decision dismissing Mr Lye’s antibullying application on the grounds that it had no reasonable prospect of success because there could be no future risk that Mr Lye will continue to be bullied at work following the termination of his employment. Principles – permission to appeal [8] There is no right to appeal. An appeal may only proceed with the permission of the Commission. [9] Section 604(2) of the Act requires the Commission to grant permission to appeal if 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 judgement.3 The public interest is not satisfied simply by the identification of error, or a preference for a different result.4 The public interest might be attracted 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 that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.5 [10] It will rarely be appropriate to grant permission to appeal unless the appellant demonstrates an arguable case of appealable error. This is because an appeal cannot succeed in the absence of an appealable error.6 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. [11] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.7 [12] For there to be a legal error, it is not enough that a different member or an appellate body might have reached a different conclusion. The appellant must show that the Commissioner acted on a wrong principle; took into account irrelevant matters; mistook facts; or that the outcome is unreasonable or plainly unjust.8 Grounds of appeal and public interest [13] Mr Lye submits the following grounds of appeal: [14] First, the Commissioner failed to discharge his statutory duty under ss 577 and 578 of the Act to perform his functions and exercise his power in a manner that is fair and just and that takes into account equity, good conscience and the need to respect and value diversity by helping to prevent and eliminate discrimination on the basis of disability. This is on the basis the Commissioner failed to meaningfully consider Mr Lye’s repeated requests for reasonable adjustments. [2025] FWCFB 291 4 [15] Second, the Commissioner mischaracterised Mr Lye’s requests for adjustments as mere procedural preferences rather than requests made pursuant to the Disability Discrimination Act 1992 (Cth) or the Commission’s Fair Hearings Practice Note. [16] Third, the Commissioner failed to address the substantive issue of disability discrimination and reasonable adjustments forming the basis of Mr Lye’s bullying complaint. [17] Fourth, the Commission failed to engage with Mr Lye’s submissions regarding the Bureau’s decision to remove his access to work IT systems, which has unfairly impacted Mr Lye’s ability to prosecute his anti-bullying application. [18] Fifth, there has been apprehended bias and appearance of partiality due to the Commissioner’s consistent refusal to recognise disability-related obligations, selective reliance on portions of the Fair Hearings Practice Note, and unequal procedural treatment of the parties. A fair-minded observer would reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution oof the case. [19] In terms of the public interest, Mr Lye submits that this matter raises significant issues regarding the Commission’s obligations under ss 577 and 578 of the Act. Mr Lye further submits that his appeal has broader implications for access to justice and procedural fairness for self-represented parties with disabilities. [20] The Bureau submits that Mr Lye has not established any arguable case that there is error in the Commissioner’s decision. [21] We note for completeness that Mr Lye applied for a stay of the Commissioner’s decision, which was refused ([2025] FWC 3402). The parties made submissions regarding an observation in the stay decision that there was an apparent absence of utility in the appeal given the employment relationship between Mr Lye and the Bureau had ended. Consideration [22] In our opinion Mr Lye’s grounds do not identify or establish appealable error in the Commissioner’s decision. Mr Lye’s appeal grounds and the submissions seek to challenge the Commissioner’s factual findings, but it is well established that factual findings of a member at first instance should generally stand on appeal, unless they are shown to be wrong by incontrovertible facts or are glaringly improbable.9 No such facts have been established. [23] Mr Lye’s grounds are essentially a re-run of arguments that were well-ventilated before the Commissioner. Mr Lye is dissatisfied with the outcomes reached in the decision. However appealable error requires more than just preferring a different outcome. [24] Further, we observe that Mr Lye’s submissions that the Commissioner should have made findings on matters that tie into Mr Lye’s substantive allegations of bullying are without merit. Not only do such arguments fail to articulate how the Commissioner erred in his consideration of bias, but it would also have been entirely inappropriate for the Commissioner to make findings on the substantive application in an interlocutory recusal proceeding. [2025] FWCFB 291 5 There is also no utility in granting permission to appeal in circumstances where the original application seeking orders under s 789FC (to which the recusal application related) has since been dismissed. [25] We do not find that a reasonably arguable case has been advanced that the decision was attended by appealable error. [26] We have considered whether the appeal attracts the public interest, and we are not satisfied, for the purposes of s 400 of the Act, that: (a) there is a diversity of decisions at first instance so 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 manifests an injustice, or the result is counter intuitive, or (d) the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters. [27] It follows that we must refuse permission to appeal. [28] Permission to appeal is refused. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR795210> 1 [2025] FWC 3061. 2 [2000] HCA 63; (2000) 176 ALR 644 [74]. [2025] FWCFB 291 6 3 O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46]. 4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27], 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]. 5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266. 6 Wan v AIRC (2001) 116 FCR 481 at [30]. 7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]. 8 House v The King (1936) 55 CLR 499 at 505. 9 See: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29]; Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37] – [39];