1
Fair Work Act 2009
s.604—Appeal of decision
Benjamen Gussen
v
Swinburne University of Technology
(C2024/9213)
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER LEE
COMMISSIONER CONNOLLY
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.
[1] 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 decision1 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.
[2] 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
[3] 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.
[4] 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.
[5] 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
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DECISION
AUSTRALIA FairWork Commission
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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
[6] Having regard to these findings, the Commissioner dismissed Dr Gussen’s application.
Grounds of appeal and public interest
[7] 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.
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(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.
[8] 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
[9] 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.
[10] 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
[11] 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.
[12] 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.
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Consideration
[13] 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 employment12 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.
[14] 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.
[15] 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 application15 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.
[16] 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 Milford17 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.
[17] 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.
[18] As to appeal grounds (6), (7) and (14), the decision records that the Commissioner
correctly applied paragraph [75] of the Full Bench decision in Navitas20 to his consideration of
s 386(1)(a) of the Act, and paragraph [47] of the Full Bench decision in Tavassoli21 (in addition
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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.
[19] 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
[20] 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.
[21] Permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
Printed by authority of the Commonwealth Government Printer
PR783819
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
OF THE THE SEAL WORK COMMISSION
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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
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
