Fair Work Act 2009
s.604—Appeal of decision

Appeals against decisions [2015] FWC 5853 and [2015] FWC 5993 of Deputy President Asbury at Brisbane on 26 November 2015 in relation to matter number U2014/16541.

[1] Ms Woolston (the appellant) has applied for an unfair dismissal remedy in relation to the termination of her employment by the Uniting Church in Australia Property Trust (Q.) trading as Blue Care Bli Bli Aged Care Facility (the respondent).

[2] The appellant’s application (the unfair dismissal application) was referred to Deputy President Asbury for hearing and determination. The Deputy President conducted hearings on 13 and 14 May and 21 July 2015. Following the conclusion of the hearing on 21 July 2015 the appellant sent an email to the Deputy President’s chambers asking, in effect, that the Deputy President remove herself from deciding her application on the grounds of both apprehended and actual bias (the recusal application).

[3] The Deputy President issued two decisions on 26 November 2015. The first declined the appellant’s recusal application 1 and the second rejected her unfair dismissal application2.

[4] On 8 December 2015 the appellant lodged a notice of appeal in which she sought permission to appeal and appealed both decisions.

Consideration

[5] An appeal under s.604 of the Fair Work Act 2009 (FW Act) is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[6] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

[7] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.

[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 3 This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.4

[9] With regard to the decision by the Deputy President not to recuse herself, the appellant submitted that the Deputy President was in error in “investigating” herself. As she put it:

“Public expectation is rife these days about people who cannot investigate themselves without being inept and corrupt.” 5

[10] We are satisfied that the Deputy President dealt with the recusal application appropriately. It is incumbent on a member of the Commission, on receiving an application such as the one made by the appellant, to hear the application and consider whether there are grounds to recuse oneself from dealing with the matter. In the Australian legal system, any application that a decision-maker, whether a judge of a court or a member of an arbitral or administrative tribunal or a person conducting an inquiry, should recuse himself or herself from hearing and deciding a matter on the ground of actual or apprehended bias is to be made and determined in the first instance by the decision-maker. 6 The Deputy President acted consistently with this practice. Moreover we are satisfied that the Deputy President made no errors in making her decision to dismiss the application. We are not satisfied that the grant of permission to appeal the Deputy President’s decision regarding the appellant’s recusal application would be in the public interest. To the extent that s.400(1) may not be applicable to the recusal decision, we do not consider that there is any discretionary basis to grant permission to appeal. Permission to appeal is therefore refused.

[11] With regard to the decision by the Deputy President regarding the unfair dismissal application the appellant in effect submitted that the hearing had been conducted in a manner that was unfair to her. We do not agree. A fair reading of the transcript indicates that the Deputy President went to considerable lengths to ensure that the appellant, as an unrepresented litigant, had a fair opportunity to present her case. This was despite the appellant repeatedly behaving in a manner that was rude and aggressive. We are not satisfied that the grant of permission to appeal the Deputy President’s decision regarding the appellant’s unfair dismissal application would be in the public interest. Accordingly permission to appeal must be refused in accordance with s.400(1).

VICE PRESIDENT

Appearances:

L. Woolston on her own behalf.

T. Longwill and S. Fryer solicitors for the Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility.

Hearing details:

2016.

Sydney:

19 January.

 1   [2015] FWC 5853

 2   [2015] FWC 5993

 3   Wan v AIRC (2001) 116 FCR 481 at [30]

 4   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [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 288, 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   Transcript at PN24

 6   Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [74]

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