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A law lecturer told the Fair Work Commission that his employment with a Melbourne university came to an unfair end.
A month after entering a deed of release that provided for his resignation, Dr Benjamin Gussen, an institutional and constitutional law jurist, made a general protections application against Swinburne University of Technology in the Fair Work Commission.
The application was tossed out by the commission last December, but Gussen has requested permission to bring an appeal.
Gussen submitted it was in the public interest to do so “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”.
He added it was 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”.
Further, according to the 11 February decision, Gussen contended 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”.
At the heart of a dispute is a deed entered into by both parties, by which Gussen resigned from his employment and released Swinburne from all “suits, actions, claims and/or demands arising out of, or in connection with” the circumstances of a disciplinary process.
In the December decision, commissioner Benjamin Redford determined the “critical action” that led to the cessation of Gussen’s employment was the execution of this deed.
Redford found Gussen was not forced to resign, “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 of the result of Swinburne’s unconscionable conduct, or in circumstances where Dr Gussen was under duress,” Redford’s summary said.
Numerous grounds of appeal were advanced, including claims that Gussen was denied procedural fairness, there was an incorrect reliance on citations, and an incorrect test in respect of constructive dismissal.
Gussen also claimed Redford failed to consider critical evidence, proceeded with an unreasonably high standard of proof, had speculative reasoning, came to a conclusion inconsistent with undisputed facts, and was inconsistent with legal precedent.
Deputy president Amber Millhouse, together with commissioners Tim Lee and Scott Connolly, said they were not persuaded the notice of appeal or submissions had “disclosed any arguable appealable error”.
“At the outset … it appears that the settlement reached between the parties in respect of Dr Gussen’s employment operates as a complete answer to Dr Gussen’s general protections application, being a valid and effective accord with satisfaction that extinguished Dr Gussen’s general protections application and replaced it with a new cause of action based on the deed,” the commissioners said.
“Consequently, it seems that Dr Gussen no longer had a valid claim under the general protections provisions of the act.”
Millhouse, Lee, and Connolly said that to the extent there was a “potential residual dispute” between the parties as to the enforcement of the deed, it was not a matter the commission has the power to deal with.
In a brief summary, the commissioners said they disagreed with Gussen’s submissions about Redford’s reasons.
“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,” they said.
“It is not reasonably arguable that the commissioner gave inadequate reasons for his decision.”
The case is Dr Benjamin Gussen v Swinburne University of Technology - [2025] FWCFB 17.
