[2019] FWCFB 6094
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2019/4615)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER GREGORY

SYDNEY, 6 SEPTEMBER 2019

Appeal against decision [2019] FWC 4819 of Deputy President Kovacic at Canberra on 10 July 2019 in matter number U2017/11691.

Introduction and background

[1] Mr Ross Kennedy has applied for permission to appeal (in five separate appeal notices) against three interlocutory rulings made by Deputy President Kovacic in a single decision issued on 10 July 2019 1 (Decision). The rulings were made in connection with Mr Kennedy’s application for an unfair dismissal remedy against Qantas Ground Services Pty Ltd (QGS). Mr Kennedy contends that it would be in the public interest to grant permission to appeal in respect of each ruling.

[2] The circumstances which gave rise to Mr Kennedy’s unfair dismissal remedy application were summarised in a decision concerning a previous application by him for permission to appeal from an earlier interlocutory decision in his matter:

“[3] … Mr Kennedy commenced employment with QGS as a ground crew member at Canberra Airport on 13 March 2013. On 31 May 2016 Mr Kennedy went off work because of mental health issues after complaints had been made about his performance and he had complained of bullying and harassment by supervisors. On 2 June 2016 Mr Kennedy made an application to this Commission for an order to stop bullying at work pursuant to s 789FC of the FW Act. He made a claim for workers’ compensation and appears to have received workers’ compensation payments until approximately 15 December 2016, at which time liability was denied. QGS arranged for an external provider to conduct an investigation into Mr Kennedy’s claims of workplace bullying, but there is a dispute about the independence of the investigation and its outcome.

[4] On 16 December 2016 QGS wrote to Mr Kennedy to advise that it required him to attend a medical examination with Dr Kipling Walker, a Forensic Psychiatrist. It is apparent that QGS provided Dr Walker with considerable background information and documents concerning Mr Kennedy’s personal and medical history for the purpose of the examination. Mr Kennedy attended for the examination with Dr Walker on 1 February 2017.

[5] Dr Walker prepared a “Fitness for Work Assessment and Report” (Report) concerning Mr Kennedy dated 27 March 2017. The Report concluded that Mr Kennedy was unfit now and in the future for work for QGS. The Report summarised a number of matters concerning Mr Kennedy’s personal, employment and litigation history as well as his “History of Presenting Complaints”. It is not necessary for present purposes to set out Dr Walker’s diagnosis of Mr Kennedy’s condition except to note that the Report included the following conclusion:

“Mr Kennedy is permanently unfit for any role with Qantas. Given his history of perceived mistreatment at different workplaces, and his assessment of a ‘high risk’ of being bullied at Qantas, he is likely to feel bullied and/or harassed in any role at Qantas. As has occurred previously, perceived bullying and/or harassment will precipitate another episode of depression.”

[6] Arising from the Report, on 27 September 2017 QGS issued Mr Kennedy with a “show cause” letter concerning the continuation of his employment. On 2 November 2017 QGS dismissed Mr Kennedy on the ground that he had “no capacity, and will not have capacity in the foreseeable future, to safely perform the inherent requirements of any role with the Company”. Mr Kennedy filed his unfair dismissal remedy application the following day.” 2

[3] The basis upon which Mr Kennedy contends that his dismissal was unfair was set out in an outline of submissions filed by him on 1 October 2018. He identified 14 grounds as follows:

“Ground 1

That the dismissal of the Applicant was unfair because the medical and lay evidence before the decision-maker QGS Head Brett Hardy at the time of the dismissal was heavily conflicted and the evidence did not support a clear finding that there was a valid reason for the dismissal in the circumstances.

Ground 2

That the dismissal of the Applicant was unfair because the report of medical assessor Dr Kipling Walker of 27 February 2017 that Mr Hardy preferred and relied upon to dismiss the Applicant was not sound, defensible or well-founded.

Ground 3

That the Applicant was not given a reasonable opportunity to respond to reasons provided by Mr Hardy in his “show cause” letter of 27 September 2017 to dismiss the Applicant.

Ground 4

That the dismissal of the Applicant was unfair because the Applicant was not afforded procedural fairness in respect to procedures, policies and terms put in place by QGS on two Fitness-for-Duty Examinations conducted on the Applicant by Dr Walker and General Practitioner Dr Najat Kushada.

Ground 5

That the dismissal of the Applicant was unfair because a reasonable adjustment to the Applicant’s substantive role to enable him to return to work as proposed by medical assessor Dr Robert Gertler was not considered by Mr Hardy in his dismissal of the Applicant.

Ground 6

That the dismissal of the Applicant was unfair because QGS did not manage the Applicant’s return-to-work process and plan in a reasonable manner, failed to adequately support the Applicant whilst he was on sick leave, raised unreasonable and unsupported impediments to enable the Applicant to be returned to work and failed to take all reasonable steps to return the Applicant to work in accordance with QGS’ return-to-work policies.

Ground 7

That the Applicant was not afforded procedural fairness in respect to his return-to-work process and plan given that Recovery Partners’ Case Manager Pieter Ruyters was not of a reasonable level of competency to satisfactorily complete the return-to-work of the Applicant.

Ground 8

That the dismissal of the Applicant was unfair because the Applicant received differential treatment from QGS compared to the treatment given to other employees in a similar or same situation as that of the Applicant.

Ground 9

That the size of QGS, QAL and Qantas was not a valid reason which may have compromised its ability to dismiss the Applicant in a fair manner.

Ground 10

That the extensive human resources and legal specialists and expertise in QGS, QAL and Qantas was not a valid reason which may have compromised its ability to dismiss the Applicant in a fair manner.

Ground 11

That the dismissal of the Applicant was unfair because the Applicant was not afforded procedural fairness given that Dr Walker was not an objective or competent assessor of the capacity of the Applicant to complete the inherent requirements of the role.

Ground 12

That the dismissal was harsh on the Applicant due to the economic and personal consequences of the Applicant resulting from his dismissal.

Ground 13

That the dismissal of the Applicant was not consistent with the statutory imperative of ensuring ‘a fair go all round’.

Ground 14

That the dismissal of the Applicant was not fair given the consideration of other relevant matters raised by the Applicant to support his unfair dismissal application.”

The Decision and appeal grounds

[4] We summarise the rulings the subject of the current applications for permission to appeal, and Mr Kennedy’s contentions with respect to each ruling, as follows. As earlier noted, the proceedings before us arise from five separate appeal notices, each of which states numerous grounds of appeal and grounds upon which it is said permission to appeal should be granted in the public interest. In response to directions issued by the presiding member, on 28 August 2019 Mr Kennedy filed an outline of submissions in relation to the five applications for permission to appeal contained in the appeal notices. That outline was in two parts: Part A was entitled “Background”, and set out a chronology of the matter; and Part B was entitled “Leave to Appeal – Grounds”, and set out in respect to each of the three rulings the grounds upon which the ruling was said to be attended by significant error, the grounds upon which Mr Kennedy contends that the grant of permission to appeal would be in the public interest, and also the bases upon which Mr Kennedy contends that the rulings manifested substantial injustice. We will proceed on the basis that Part B of Mr Kennedy’s outline of submissions constitutes his perfected formulation of the grounds upon which he seeks to appeal.

[5] The first ruling concerned an application made by Mr Kennedy for orders requiring identified persons to attend the hearing of his substantive application and give evidence (although no date for the final hearing has yet been set). The application was made pursuant to s 590(2)(a) of the Fair Work Act 2009 (FW Act). Mr Kennedy initially sought that orders be made in respect of some 22 persons, but in the form finally pressed by Mr Kennedy before the Deputy President, the application sought the attendance of the following six persons:

[6] The Deputy President granted the application with respect to Mr Arancio, and rejected it with respect to the remaining five persons. In the Decision, the Deputy President referred to the 14 grounds upon which Mr Kennedy contended his dismissal by QGS was unfair in his outline of submissions filed on 1 October 2018, and then assessed whether the evidence which Mr Kennedy sought to adduce from each person was likely to be relevant to those grounds or would deal with matters that were factually in dispute. The Deputy President also took into account whether Mr Kennedy could himself give evidence about the matters that he sought to have these persons give evidence about, or whether he could adduce evidence from other available sources. In the case of Ms Millen, the Deputy President took into account that she was acting as QGS’s lawyer at relevant times and accordingly that any evidence she might give would be subject to legal professional privilege.

[7] Mr Kennedy’s appeal challenges the refusal to issue orders requiring Mr Brown, Mr Carney, Ms Denne and Ms Millen to attend and give evidence. It also appears that he challenges an alleged failure by the Deputy President to “address discussions” at the hearing concerning two other persons in relation to whom he did not press for an order.

[8] Mr Kennedy contends that the Deputy President’s ruling (referred to by Mr Kennedy as “Decision 1”) was attended by “significant errors” in 13 respects. It is difficult to attempt any form of summary of these grounds, so they are attached in full in Attachment A to this decision. They raise issues concerning an alleged failure to take into account Mr Kennedy’s complaints of bullying, matters arising from a previous determinative conference, whether evidence which Mr Kennedy hoped to adduce from Mr Brown and Ms Denne could alternatively be adduced from Mr Arancio, whether it was premature to reach conclusions about the evidence that Ms Millen might give, and whether the Decision was “infected” with apprehended bias having regard to an application which Mr Kennedy had made that the Deputy President recuse himself from further dealing with his unfair dismissal remedy application.

[9] Mr Kennedy contends that it would be in the public interest to grant permission to appeal in respect of the first ruling because:

“1. The appeal of Decision 1 raises important wider issues concerning proper and correct decision-making by the FWC; relevance and sufficiency of evidence relied upon for discretionary and interlocutory decision-making; rights of employees to be returned to work in accordance with enterprise agreements, employer’s HR policies, worker’s compensation legislation and medical advice; FWC member ‘conflicts’ and the requirement to disclose ‘conflicts’; and need for clear establishment of FWC procedures on decisions that are infected with apprehended bias as alleged by a party.

2. It is in the public interest to expose the apparent ploy of QGS and Jetstar Airways to direct employees for a consultation with Dr Walker for a paid and unreliable FFDE report that the employer then relies upon for the termination of the employee. The Appellant is the 2nd possibly 3rd employee of QN to suffer this fate recently.

3. It is in the public interest to address the outsourcing and oversight of investigations by the FWC of bullying claims made by persons in anti-bullying applications to the FWC in good faith, and when the investigation is subsequently not held in a fair, open and transparent manner by a small, far-flung nondescript consulting firm.

4. It is in the public interest to highlight that the bullying complaints made by an employee to his employer during his employment should not a relevant factor in determining the employee’s capacity to complete the inherent requirements of the role, and is not a valid reason for the employee’s termination.

5. It is in the public interest to clarify if an application for a person to attend is required of witnesses whom have voluntarily submitted affidavits in proceedings.

6. It is in the public interest to adjust ‘the bar’ in permission to appeal applications from discretionary and interlocutory decisions when it is clear that significant consequences will result to an Applicant in the finalised substantive decision. The FWCFB appears to have adopted a somewhat ‘blanket-approach’ to not permit appeals from discretionary decisions made.

7. Given Kovacic’s failure to address the recusal application in the first instance and his further disclosure of 2 ‘conflicts’, it is in the public interest for the appeal to be heard (after Kovacic addresses the bias claim) to establish a guiding authority for FWC members who receive gifts and hold memberships with private companies whom are parties in proceedings before them.

8. An appeal and guiding authority is also required for public respect and confidence in the FWC, reputation of FWC members including Kovacic, and proper administration of justice.”

[10] The references to the recusal application and the disclosure of “conflicts” in ground 7 above (which is also referred to in the grounds upon which Mr Kennedy contends that permission to appeal should be granted in respect of the second and third rulings) require some further explanation as to their background. On 16 June 2019 Mr Kennedy filed an application for the Deputy President to recuse himself from the proceedings on the basis of apprehended bias. The application as filed did not specify any grounds for the recusal that was sought. It was filed after the Deputy President had already conducted the hearing in relation to the matters that were the subject of the Decision. On 14 August 2019 Mr Kennedy filed an outline of submissions concerning the recusal application which set out the grounds for the application. These grounds did not include any reference to any “conflicts” on the part of the Deputy President. The recusal application has been listed by the Deputy President for hearing on 14 October 2019. On 16 August 2019 Mr Kennedy sent an email to the Deputy President’s chambers requesting advice as to whether the Deputy President held “any current membership or affiliations with any program with Qantas Airways Limited” including, for example, “1) Qantas Airways Limited ‘Frequent Flier Program’; and 2) Qantas Airways Limited ‘Chairman’s Lounge’ facilities and services”. On 20 August 2019 Mr Kennedy was advised that the Deputy President was a Frequent Flyer and a Chairman’s Lounge member. Having received this response, Mr Kennedy sent an email the same day to the Deputy President which stated (omitting formal parts):

“Given your Associate's email of 4.53pm today, could you please advise me firstly, of any reason that you may wish to offer for not declaring that you enjoy two memberships with the Respondent in matter U2017/11691 and why your failure to declare the memberships would not breach the Fair Work Commission's Member Code of Conduct.

[11] On 21 August 2019 Mr Kennedy also sent in a further inquiry as to whether the Deputy President currently holds shares in Qantas Airways Limited or has done since April 2017. Mr Kennedy has been advised that the Deputy President is currently on leave and will respond to these matters when he returns. It is not clear to us whether these matters will be raised in the context of Mr Kennedy’s recusal application.

[12] Returning to Mr Kennedy’s contentions concerning the first ruling, he finally contends that the ruling manifested a substantial injustice in that to “not allow” the persons to attend the hearing would mean he would be “unable to obtain testimony” with respect to various issues.

[13] The second ruling concerned an application by QGS for permission for legal representation in the proceedings pursuant to s 596(2)(a) of the FW Act. QGS had earlier made such an application (referred to by Mr Kennedy as the “1st application”), which the Deputy President had refused in a decision issued on 28 March 2018. 3 On this occasion the Deputy President determined to grant the application (“2nd application”). In the Decision at paragraphs [28]-[30], the Deputy President referred to the issues raised by Mr Kennedy in his case requiring determination as including the correctness of a diagnosis of Mr Kennedy as suffering a personality disorder contained in the medical report of Dr Walker (upon which QGS relied in deciding to dismiss Mr Kennedy), whether QGS complied with its own return to work policies, whether Mr Kennedy was denied procedural fairness in respect of a fitness for duty examination, and QGS’s obligations under the Disability Discrimination Act 1992 (Cth). The Deputy President then stated his conclusions concerning permission for legal representation as follows:

“[33] … I am satisfied that this matter now involves a degree of complexity which far exceeds that which either existed or could have been anticipated at the time of the Commission’s 28 March 2018 decision to refuse QGS permission to be represented by a lawyer or which exists in many unfair dismissal cases. Against that background, I consider that were permission granted it would enable the matter to be dealt with more efficiently. For all these reasons, I am satisfied that the requirement in s.596(2)(a) of the Act is met in this case.

. . .

[35] In circumstances where I am satisfied that the requirement in s.596(2)(a) of the Act is met, I turn now to consider whether it is appropriate to exercise the discretion available to the Commission to grant QGS permission to be represented in this matter. To that end, I note firstly that QGS has to date been represented by Mr O’Neil who is a lawyer and that QGS has been able to and would continue to be able to draw on the services of Herbert Smith Freehills in this matter irrespective of whether or not permission to be represented was granted. Against that background, drawing on the language in Warrell, I consider it unlikely that granting permission for QGS to be represented would fundamentally change the dynamics and manner in which the hearing of Mr Kennedy’s unfair dismissal application and any further interlocutory matters is conducted. I do not accept Mr Kennedy’s contention that granting permission in this case would be likely to protract and side-line the Commission proceedings in this matter. This consideration weighs in favour of the Commission exercising the discretion available to it to grant permission for QGS to be represented.

[36] On the other hand, my conclusion above that I am not satisfied that QGS is unable to represent itself effectively in this matter weighs against the Commission exercising the discretion available to it to grant permission for QGS to be represented.

[37] Further, I do not consider that granting permission for QGS to be represented in this case will result in any unfairness to Mr Kennedy. A relevant factor in coming to that view is my conclusion above that granting permission is unlikely to fundamentally change the dynamics and manner in which this matter proceeds.

[38] Finally, in my view significant weight should be attached to the prospect that this matter will be dealt with more efficiently were permission to be granted, particularly when regard is had to the potential for the proceedings to be highly contested and the complexity of some of the issues to be determined by the Commission in this matter. In attaching significant weight to this factor I am very mindful of the fact that these proceedings have now been on foot for almost two years with the matter still to be listed for substantive hearing.

[39] Weighing up the above considerations and in circumstances where the requirement in s.596(2)(a) is satisfied, I have decided to exercise the discretion available to the Commission under s.596 of the Act and grant QGS permission to be represented by a lawyer in these proceedings.”

[14] Mr Kennedy advances 19 contentions of error with respect to this second ruling. Again, it is not practicable to attempt a proper summary of these grounds, which raise a wide range of diverse matters. They include that: the issues of complexity relied upon were known at the time of the 1st application; the decision on the 2nd application was inconsistent with that concerning the 1st application; the matters said to be complex were routinely dealt with by members of the Commission; QGS had the internal resources to deal with issues of this nature; it was not yet clear the extent to which there would be contested evidence; the Deputy President was “in error to rely upon ‘contested evidence” since Dr Walker had been found in other Commission proceedings to have prepared a report which was unreliable and highly controversial; the Deputy President’s reliance on other identified decisions of the Commission on the issue of permission for legal representation was misplaced; the Deputy President’s conclusion that the grant of permission would not change the dynamics and way in which the matter was conducted had been disproved by subsequent events; and Mr Kennedy had not been given a fair hearing because the Decision had been “infected with apprehended bias given the recusal application”. The grounds of error in full are set out in Attachment B to this decision.

[15] Mr Kennedy contends that permission to appeal should be granted to appeal the second ruling in the public interest because:

“1. The circumstances that a party has filed 2 applications for representation in the same unfair dismissal matter are highly unusual and possibly unprecedented.

2. The appeal of Decision 2 raises important wider issues concerning relevance and sufficiency of evidence relied upon for discretionary and interlocutory decision-making including reliance upon authorities. The Appeal will raise issues of conduct of solicitors in proceedings given the behaviour thus far by Mr Doyle and Mr Lambert.

3. It is in the public interest to identify if the 5 ‘complexities’ as relied upon by Kovacic to allow the 2nd application were before him at the time that he refused the 1st application. If the 5 ‘complexities’ were before Kovacic for the 1st application, Decision 2 must be quashed.

4. It is in the public interest for the FWC to better define what constitutes ‘complexity’ and if HR policies, legislation, enterprise agreements and established guiding authorities like Jetstar reduces ‘complexity’ to the point that an application for representation must be refused. Also, it is in the public interest to identify if the 5 ‘complexities’ relied upon by Kovacic to allow the 2nd application are routinely dealt with on a daily basis by FWC members without the need for representation.

5. It is in the public interest to settle the disharmony between the 1st application and the 2nd application including the contradiction of Kovacic as he stated in opposing the granting of the 1st application that: ‘However, the prospect of such disputed matters being hotly contested does not of itself make the matter more complex’.

6. It is in the public interest to clarify if the ‘dynamics and manner in which this matter proceeds’ relates to the dynamics of the Courtroom proceedings and how does the introduction of Counsel for the first time impact upon the Courtroom dynamics. It is the Appellant’s contention that it would be inevitable that the dynamics of Courtroom proceedings would change given the presence of J Forbes.

7. It is in the public interest to determine if it is fair for Kovacic, of his own volition, to introduce ‘complexities’ that QGS had failed to plead in its 2nd application’s written and oral submissions.

8. It is in the public interest for the FWCFB to demonstrate that it is futile for any Member to base a decision on the prediction of human behaviour.

9. It is in the public interest for the FWCFB to adjust ‘the bar’ in permission to appeal applications from discretionary and interlocutory decisions when it is clear that significant consequences will result to an Applicant in the finalised substantive decision.

10. Given Kovacic’s failure to address the recusal application in the first instance and his further disclosure of ‘conflicts’, it is in the public interest for the appeal to be heard (after Kovacic addresses the bias claim) to establish a guiding authority for FWC members who receive gifts and hold memberships with private companies whom are parties in proceedings before them.

11. A guiding authority is also required for public respect and confidence in the FWC, reputation of FWC members including Kovacic, and the proper administration of justice.”

[16] Mr Kennedy also contends that the second ruling manifested injustice because it would not lead to him receiving a fair hearing and, without an appeal, would “contain apprehended bias” and would mean that the hearing would not be held in accordance with the principles of procedural fairness.

[17] The third ruling involved the Deputy President upholding objections made by QGS as to the admissibility of certain documents sought to be relied upon by Mr Kennedy. QGS objected to the admission of the documents on various grounds, including that they were not relevant to the issues required to be determined.

[18] In assessing the relevance of the documents at issue, the Deputy President considered whether it would be necessary for him to determine whether Mr Kennedy had actually been bullied and harassed at work, as he alleged he had been, in order to determine his unfair dismissal remedy application. In this respect, the Deputy President said (footnotes omitted):

“[50] With regard to the first point at paragraph [46] above, I note that in his Outline of Submissions Mr Kennedy contends that:

‘As the Applicant had claimed to Mr Hardy, the bullying complaints made by the Applicant during his employment were inextricably linked to the reasons put forward by Mr Hardy to dismiss the Applicant.’

[51] With regard to that contention, I note firstly that Mr Kennedy has not provided any further detail in his submissions to support that contention, nor has he provided any evidentiary material to support the contention. More importantly in the context of considering QGS’ objections to aspects of Mr Kennedy’s evidentiary material, I note that determining that issue does not require the Commission to determine whether or not Mr Kennedy was bullied at work whilst employed by QGS. While it is patently clear from the proceedings to date that Mr Kennedy vehemently maintains that he was bullied at work whilst employed by QGS and is strongly desirous of a finding to that effect, I note that in his Outline of Submissions Mr Kennedy contends that:

2 …his dismissal was unfair because the medical and lay evidence at the time of his dismissal was heavily conflicted and the evidence did not overall support a clear finding that there was a valid reason for his dismissal.

4. As concluded in CSL Limited T/A CSL Bearing v Chris Papaiaonnou (C2017/6287) (CSL) and Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes (C2013/5863) (Jetstar) in a dismissal relating to incapacity of an employee to perform the inherent requirements of a role, s.387 of the FW Act requires the FWC to consider and make findings as to whether or not at the time of dismissal the Applicant suffered from the alleged incapacity based upon the medical and lay evidence. This should be the task of the Fair Work Commission in these proceedings.

5. As stated at [77] by Justice Ross in CSL:

‘The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical evidence and other evidence before the Commission.’

[52] I agree with Mr Kennedy’s description of the Commission’s task in these proceedings. While the Commission is likely to have to determine whether Mr Kennedy’s allegations of bullying and harassment were a factor in QGS’s decision to terminate his employment, for the reasons outlined above I do not consider that this will require the Commission to determine whether or not Mr Kennedy was bullied at work whilst employed by QGS.”

[19] The Deputy President then used the above conclusion as the yardstick by which he assessed QGS’s objections to individual documents. The Deputy President made rulings with respect to each document in question. Where he upheld the objection, he did so on the basis that the document was not relevant.

[20] Mr Kennedy contends in his appeal that the Deputy President erred in making the third ruling in 10 respects, including that: at paragraph [51] of the Decision the Deputy President mistook the grounds of his termination by QGS that were based on the bullying complaints; the Deputy President disregarded Dr Walker’s findings as accepted by QGS in the termination that were based upon Mr Kennedy’s bullying complaints; the Deputy President made a “falsehood” at paragraph [51] of the Decision; the Deputy President substantially disregarded Mr Kennedy’s submissions and evidence which provided a reasonable basis for inquiry as to whether there had been bullying; there was a lack of adequate reasons; the third ruling was “infected with apprehended bias given the recusal application”; and disclosures of “conflicts” made by the Deputy President on 20 August 2019 increased the likelihood that the third ruling contained bias. The alleged errors are set out in full in Attachment C to this decision. The grounds upon which Mr Kennedy contends that permission to appeal against the third ruling (referred to by Mr Kennedy as “Decision 3) should be granted in the public interest are as follows:

“1. The appeal of Decision 3 raises important wider issues concerning requirement of FWC members to give adequate reasons for decisions for proper and correct decision-making; application of rules of evidence; rights of employees to be returned to work in accordance with employer’s HR policies, worker’s compensation legislation and medical advice; reasonableness of FFDEs held; and FWC member ‘conflicts’, requirement to disclose ‘conflicts’ and establishment of FWC procedures on decisions that are infected with apprehended bias as alleged by a party.

2. It is in the public interest to uncover and highlight the ploy of QGS and Jetstar Airways to direct employees for a FFDE with Dr Kipling Walker of Sydney for a paid and unreliable FFDE report that the employer then relies upon for the termination of the employee.

3. It is in the public interest to address the outsourcing and governance of investigations by the FWC of persons who make an anti-bullying application to the FWC in good faith, and the investigation is not held in a fair, open and transparent manner by a small, far-flung and nondescript consulting firm.

4. It is in the public interest to highlight that the bullying complaints made by an employee to his employer during his employment should not a relevant factor in determining the employee’s capacity to complete the inherent requirements of the role, and not a valid reason for the employee’s termination.

5. It is in the public interest for the FWCFB to adjust ‘the bar’ in permission to appeal applications from discretionary and interlocutory decisions when it is clear that significant consequences will result to an Applicant in the finalised substantive decision.

6. Given Kovacic’s failure to address the recusal application in the first instance and his further disclosure of ‘conflicts’, it is in the public interest for the appeal to be heard (after Kovacic addresses the bias claim) to establish a guiding authority for FWC members who receive gifts and hold memberships with private companies whom are parties in proceedings before them.

7. A guiding authority is also required for public respect and confidence in the FWC, reputation of FWC members including Kovacic, and the proper administration of justice.”

[21] Mr Kennedy also contends that the third ruling manifests a substantial injustice given that the exclusion of certain documents would mean that Mr Kennedy would be unable to demonstrate the unfairness of his termination, that he was bullied during his employment, and other specified matters said to be relevant in the determination of his unfair dismissal remedy application. He further contends that “Without an appeal, Decision 3 will contain apprehended bias and the Appellant’s unfair dismissal application will not be held in accordance with the principles of natural justice and procedural fairness”.

Consideration

General principles

[22] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.4 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[23] In respect of appeals from decisions made under Pt 3-2 of the FW Act, s 400 provides:

400 Appeal Rights

(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.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[24] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or 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.” 6

[25] The Decision the subject of the applications for permission to appeal here concerned an application for a remedy made pursuant to the provisions of Pt 3-2 of the FW Act. However, at least with respect to the first and second rulings, the Decision concerned the exercise of power pursuant to s 590(2)(a) and s 596(2)(a) - provisions which lie outside Pt 3-2. A question might therefore arise as to whether s 400(1) applies to Mr Kennedy’s applications for permission to appeal against these rulings. In an earlier decision concerning an application for permission to appeal against an interlocutory decision made in Mr Kennedy’s matter, a differently constituted Full Bench said:

“[10] The Deputy President’s decision was made under s 590, which allows the Commission to inform itself in relation to any matter before it in such manner as it considers appropriate, including by requiring a person to provide copies of documents or records.[11] Section 590 is in Part 5-1 of the Act and on this basis it might be contended that s 400 does not apply to decisions made under that provision. However, the Decision was made in relation to an application brought under Part 3-2 of the Act, namely Mr Kennedy’s unfair dismissal application. In Australian Postal Corporation v Gorman ([2011] FCA 975, 196 FCR 126 at [37]), Besanko J concluded that an appeal from a decision to dismiss an unfair dismissal proceeding under s.587 of the Act was a decision to which s 400 applied. Section 587, like s 590, is found in Part 5-1 of the Act. Further, in Asciano Services Pty Ltd v Hadfield ([2015] FWCFB 2618), a Full Bench of the Commission decided that s 400 applied to an appeal from a decision not to grant permission for representation under s 596 of the Act in respect of an unfair dismissal application. 


[11] The apparent purpose of s 400 is to confine the circumstances in which unfair dismissal applications can be appealed so as to promote the finality of litigation with respect to such claims. It would be contrary to this purpose if the limitation applied to substantive decisions made under Part 3-2, but not to procedural or interlocutory decisions concerning those same matters. In our view, the present appeal is one from a decision made under Part 3-2 of the Act. The Decision dealt with applications for the production of documents in an unfair dismissal proceeding brought before the Commission under that part of the Act. Accordingly, we consider that s 400(1) of the Act applies to the matter before us.”  7

[26] We agree with this approach, and we note that Mr Kennedy did not submit that any different approach should be taken. However for an abundance of caution we will alternatively state the conclusion we would reach in respect of the applications for permission to appeal if s 400(1) was not applicable.

[27] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.8 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.9

[28] 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. 10 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

First ruling

[29] We are not satisfied that the grant of permission to appeal in relation to the first ruling would be in the public interest, for two reasons. First, the Deputy President’s decision not to issue orders requiring Mr Brown, Mr Carney, Ms Denne and Ms Millen to attend the hearing to give evidence was an interlocutory procedural one. It would not usually be the case that the grant of permission to appeal from a decision of this nature would be in the public interest, not least because this would be likely to disrupt the efficient and expeditious disposition of the matter in question and such decision may later be altered in any event. 11 The ruling was made in the course of the Deputy President’s case management of Mr Kennedy’s unfair dismissal remedy application, and an appellate body would rarely intervene in case management issues. The appeal grounds do not raise any question of jurisdiction, statutory interpretation or general principle that might attract the public interest. There is no basis to conclude that the ruling would entirely deprive Mr Kennedy of the ability to adduce evidence concerning any matter relevant to his unfair dismissal remedy application, as he suggests in his grounds of appeal; it seems to us that he himself can give evidence about all of these matters. There is equally no basis for the conclusion that the first ruling would deny Mr Kennedy the capacity to have his own evidence “corroborated” by the persons in question giving evidence favourable to his case. It is entirely unknown at this stage whether the first ruling will have any effect on the ultimate outcome of the proceedings adverse to Mr Kennedy’s interests, but if it does, Mr Kennedy can challenge the ruling in an appeal from the final decision.12 In any case, we note that the evidence which Mr Kennedy proposed to adduce from these persons was considered by the Deputy President not to be relevant to Mr Kennedy’s own contentions as to why he considered his dismissal to be unfair.

[30] Second, the grounds of appeal are without merit. Under s 590(1) of the FW Act, except as otherwise provided the Commission “may … inform itself in relation to any matter before it in such manner as it considers appropriate”. This is a discretionary general power conferred in the broadest of terms. The specific power in s 590(2)(a) to require a person to attend before the Commission is effectively an example of the way in which the general power may be exercised, and is equally exercisable (or not) at the discretion of the Commission. Mr Kennedy’s appeal grounds do not disclose any appealable error in the Deputy President’s refusal to exercise the discretion in respect of Mr Brown, Mr Carney, Ms Denne and Ms Millen of the type identified in House v The King 13, but in substance merely contend that a different result ought to have pertained.

[31] The grounds relating to Mr Kennedy’s recusal application, an alleged apprehension of bias and the alleged “conflicts” require some brief separate consideration (noting they are also raised in relation to the second and third rulings and may conveniently be dealt with conjointly). The proposition that there was a “failure to address the recusal application” by the Deputy President is completely without merit. As earlier stated, the recusal application was filed after the hearing of the matters the subject of the Decision. There is no indication that Mr Kennedy requested that the Deputy President not issue his decision concerning those matters prior to dealing with the recusal application. The Deputy President has programmed the recusal application for hearing, and the Commission’s file indicates that he had communicated to Mr Kennedy and QGS that he does not intend to make any further interlocutory decisions until he has determined the recusal application. It is apparent therefore that the Deputy President is appropriately dealing with the recusal application.

[32] The basis upon which the Decision is said to have been “infected with apprehended bias” has not been specified other than by reference to the alleged “conflicts” concerning the Deputy President’s disclosure of his membership of the Qantas frequent flyer program and Chairman’s Lounge. There appears to be an assumption on Mr Kennedy’s part that these are matters which would automatically disqualify the Deputy President from hearing his case and necessitate the conclusion that any decision the Deputy President has made in the matter has been affected by an apprehension of bias. The proposition that any particular interest on the part of a court or tribunal member will be automatically disqualifying was rejected by the High Court majority in Ebner v Official Trustee in Bankruptcy. 14 The appeal grounds do not articulate any contention as to the basis upon which the reasonable observer might consider that the Deputy President’s membership of the Qantas frequent flyer program and Chairman’s Lounge (or any prior non-disclosure of such) might possibly divert him from deciding Mr Kennedy’s case on its merits.15 The facts are that Commission members are frequently required to travel throughout Australia, and Qantas is the dominant player in a very restricted domestic aviation market. This makes some form of association with Qantas difficult to avoid. Knowledge of these matters may reasonably be attributed to the ordinary fair-minded layperson. Without more, there cannot be an arguable case that the Decision was vitiated by an apprehension of bias.

[33] If it were available to us to grant permission on discretionary grounds, we would not do so for the same reasons stated above.

Second ruling

[34] The grant of permission for legal representation under s 596(2)(a) of the FW Act requires a decision-making process consisting of two steps. First, the Commission must make an evaluative judgment as to whether the circumstances referred to in the provision, namely that representation “would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter”, exist. Second, the Commission must determine to exercise its discretion in favour of the grant of permission. This decision-making process at each step involved the exercise of a discretion in the sense discussed in Coal and Allied v AIRC. 16

[35] The Deputy President determined to grant permission for legal representation to QGS according to this two-step decision-making process, as the relevant passage in the Decision we have earlier set out demonstrates. The matters he took into account in the exercise of his discretion are clearly set out in the Decision. It is not contended in terms that he took any irrelevant matter into account or failed to have regard to any relevant matter. Mr Kennedy’s grounds of appeal do not disclose in substance any allegation of appealable error of the House v The King type but merely seek to re-agitate the issue of permission afresh. Many of the grounds raise matters not relevant to s 596(2)(a) or concern matters which occurred after the Decision was issued. We have already dealt with the issue of the recusal application and the alleged “conflicts”. We are not satisfied that the grounds of appeal have sufficient merit to justify the grant of permission to appeal in the public interest. No issue of novelty or general application is raised by the grounds of appeal such as might attract the public interest. In particular, we do not consider that the fact that the Deputy President re-visited his earlier rejection of permission for legal representation in light of the development of the proceedings over time raises any particular issue worthy of appellate review. We do not consider that the grant of permission to appeal the second ruling would be in the public interest, or could be justified on discretionary grounds if that alternative course was available.

Third ruling

[36] The third ruling concerned determinations as to whether certain documents should be admitted into evidence. This was also an interlocutory procedural decision in respect of which permission to appeal would not usually be granted in the public interest or otherwise.

[37] The main theme of Mr Kennedy’s grounds of appeal in respect of the third ruling appears to be that the Deputy President erroneously treated the question of whether Mr Kennedy had, as a matter of fact, been bullied and harassed by other employees prior to him going off work in May 2016, as being not relevant to the determination of Mr Kennedy’s unfair dismissal application, and accordingly rejected documents going to that issue. The Deputy President adopted the approach of assessing the relevance of the documents objected to by QGS by reference to Mr Kennedy’s contentions as to why his dismissal was unfair in his outline of submissions of 1 October 2018, as the relevant part of the Decision extracted above shows. This was an entirely appropriate course. Mr Kennedy’s outline of submissions does not contain any contention that his dismissal was unfair on the basis that, as a matter of fact, the bullying and harassment which he alleged actually occurred. Mr Kennedy has from time to time advanced the contention that QGS’s reasons for dismissing him illegitimately included that he had made a complaint about alleged bullying and harassment. That is obviously a proposition of a quite different nature, although it is unclear to us whether Mr Kennedy appreciates the distinction.

[38] Mr Kennedy has adopted somewhat of a shifting sands approach to the question of whether he was advancing a contention that he was actually bullied by fellow employees before he went off work in support of his case that his dismissal was unfair. In an earlier decision concerning an unsuccessful application by Mr Kennedy for permission to appeal an interlocutory decision in his matter, 17 a differently constituted Full Bench noted that Mr Kennedy had advanced a submission to the effect that “if permission to appeal was not granted, it would be likely … that Mr Kennedy would not be permitted to adduce evidence concerning bullying at work, which was foundational to his case for unfair dismissal”18 (emphasis added). The Full Bench went on to say:

“[23] Mr Kennedy’s primary concern in seeking permission to appeal appears to be that paragraph [27] of the Decision foreshadows a refusal by the Deputy President to allow Mr Kennedy to adduce evidence of actual bullying at work during his employment with QGS. It is sufficient to say the Decision contains no determination of this issue and makes clear that the Deputy President intends to afford Mr Kennedy a further opportunity to be heard as to this matter. Mr Kennedy was dismissed on the ground of medical incapacity, and we consider that the Deputy President has appropriately signalled to Mr Kennedy that he will need to demonstrate the relevance of the evidence of bullying which he wishes to adduce to the question of whether dismissal on that basis was unfair. It of course remains open to Mr Kennedy to challenge the validity of Dr Walker’s conclusion about Mr Kennedy’s medical state at the time of his dismissal, and evidence relevant to that challenge will no doubt be admitted.”

[39] After this decision was issued, Mr Kennedy applied to the Commission for certain “errors” in this decision to be corrected, including the statement that he had submitted that whether he had been bullied at work was “foundational” to his case for unfair dismissal. Mr Kennedy denied that he had ever submitted this. The correction request was rejected, but when it was raised with him in the context of the current applications for permission to appeal, there was a degree of prevarication on Mr Kennedy’s part as to whether it was consistent with his current position. Ultimately he submitted (in an email addressed to us dated 3 September 2019) that “the bullying complaints he had made” were “in the top 6-8 grounds that are covered in the Outline of Submissions that I filed on 1 October 2018”. That response dealt with a different matter, namely the fact of his complaints of bullying rather than whether bullying actually occurred, but in any event it is apparent that the grounds set out in Mr Kennedy’s outline of submissions of 1 October 2018 do not make any reference to bullying, contrary to Mr Kennedy’s assertion.

[40] The documents in respect of which the Deputy President upheld QGS’s objections were plainly not relevant to Mr Kennedy’s own grounds of unfairness in the dismissal. Mr Kennedy has demonstrated no arguable case of appealable error. Most of the other matters raised in Mr Kennedy’s appeal grounds and grounds for permission to appeal are simply irrelevant to the third ruling. We have already rejected as unmeritorious the recusal and conflicts grounds. We do not consider that the grant of permission to appeal would be in the public interest. Nor would we grant permission to appeal on discretionary grounds, if we had a discretion to do so.

Conclusion

[41] For the reasons given, we refuse permission to appeal.

Addendum

[42] On the morning of 3 September 2019, the day after we conducted a hearing in relation to Mr Kennedy’s applications for permission to appeal and reserved our decision, he electronically filed in the Commission’s Canberra registry a Form F1 application seeking an order that “any and all Decisions made by the FWCFB (Members Hatcher, Clancy and Gregory) on 2 September 2019 in matter C2019/4615 be quashed or set aside”. It is not clear whether Mr Kennedy wishes us to consider this application, nor can we identify the decision(s) said to have been made by us on 2 September 2019 to which Mr Kennedy’s application is directed. The gravamen of the application, as revealed by the grounds stated in the application, appears to be that we should not determine Mr Kennedy’s applications for permission to appeal prior to the Deputy President determining Mr Kennedy’s recusal application. We decline to take this course. We do not consider that there is any logical basis for us to defer dealing with the applications for permission to appeal merely because Mr Kennedy has filed his recusal application in the circumstances we have earlier described. The applications before us are patently without merit, for the reasons stated above, and the outcome of the recusal application cannot alter that position.

al of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT

Appearances:

R Kennedy on his own behalf.

Hearing details:

2019.

Melbourne with video link to Canberra:

2 September.

Printed by authority of the Commonwealth Government Printer

<PR711919>

Attachment A

Decision 1:

Significant errors of DP Kovacic:

1. Decision 1 is in error given Kovacic disregarded the 2 Grounds (‘a’ & ‘d’) of the Appellant’s termination relied upon by Mr Hardy that were based upon bullying complaints made by the Appellant during his employment. Hence, Decision 1 has not been determined according to the ‘substantial merits of the case’.

2. Kovacic disregarded Dr Walker’s 11 Findings as accepted by Mr Hardy in the Appellant’s termination that were based upon bullying complaints made by the Appellant.

3. Kovacic relied upon an irrelevant determination made at the Determinative Conference. It is illogical and irrational for Kovacic to apply the determination made at the Determinative Conference in the manner that he has in Decision 1.

4. Kovacic relied upon a falsehood made from the Determinate Conference.

5. Kovacic’s claim that Mr Arancio can substitute for Mr Brown and Ms Denne is misconceived.

6. Kovacic substantially disregarded the Appellant’s submissions failing to provide the Appellant with a ‘fair hearing’.

7. Kovacic disregarded evidence before him including a Witness Statement of Mr Carney that requires contemplation by him if Mr Carney had bullied the Appellant making Dr Walker’s report as unreliable as a basis for termination.

8. Kovacic’s refusal for Ms Millen to attend is based upon conclusions that have not been heard or determined by the FWC (privilege claims).

9. Kovacic’s refusal for Ms Millen to attend is based upon an Outline of Submissions and evidentiary evidence that QGS has yet to file.

10. Kovacic’s refusal for Ms Millen to attend is based upon a falsehood that the Appellant’s Outline of Submissions does not claim that it is not a valid reason for QGS to terminate the Appellant based upon bullying complaints made by him during his employment.

11. Kovacic failed to address discussions held at hearing as to the attendance of Mr Chalker and Mr Mackonnis. At the hearing, the Appellant withdrew the applications for Mr Chalker and Mackonnis to attend on the basis that Kovacic advised that given that each had filed affidavits, an application was not required. No mention of these discussions were made by Kovacic in his Decision.

12. Decision 1 has been alleged by the Appellant as infected with apprehended bias given the recusal application. FWCFB should have ensured that Kovacic dealt with bias claims prior to any review by the FWCFB. In this respect, the Appellant was not given a ‘fair hearing’ and Decision 1 was not determined in a ‘fair and just’ and ‘impartial’ manner.

13. Disclosures of 2 ‘conflicts’ made by Kovacic on 20 August 2019 increase the likelihood that Decision 1 contains bias.

Attachment B

Decision 2:

Significant errors of DP Kovacic:

1. Decision 2 of Kovacic to allow the 2nd application is in error given that the ‘complexities’ (1 ~ 5) as claimed (refer ANNEXURE B) by Kovacic as a basis to allow the 2nd application were well-known to him at the time that he refused the 1st application.

2. Decision 2 of Kovacic to allow the 2nd application is not consistent with the 1st application. In refusing the 1st application, DP Kovacic stated at [16] that contested matters by itself provide no basis for granting an application for representation on the basis of complexity:

‘Based on the material presently before the Commission and the two hearings held to date in respect of the Applicant’s application, it is clear that there are a number of factual matters in dispute in this case and that those matters are likely to be strongly contested. For instance, as foreshadowed in the Applicant’s submissions regarding permission to represent, I anticipate considerable debate regarding the medical evidence which QGS contends in its Form F3 – Employer Response to Unfair Dismissal Application supports that there was a valid reason for the Applicant’s dismissal. However, the prospect of such disputed matters being hotly contested does not of itself make the matter more complex. The absence of any particular legal complexities or jurisdictional objections associated with the Applicant’s application is also a relevant consideration in the context of considering whether or not permission to be represented should be granted

3. Kovacic is in error to rely upon ‘contested evidence’ as a basis to allow the 2nd application given that FWC members routinely deal with the 5 matters as outlined in ANNEXURE B on a daily basis. There appears nothing complex about the 5 matters even to a lay-person. None of the 5 ‘complexities’ relate to jurisdictional objections or technicalities nor was the Appellant terminated for misconduct or performance. QGS has access to a large, dedicated industrial relations (‘IR’) section and HR department including access to the capacity of Michael O’Neil, Ms Millen and 9 industrial relations managers. Mr O’Neil and Ms Millen have adeptly managed the proceedings since 3 November 2017. Neither Mr O’Neil or Ms Millen or any other IR or HR officer will attend to give testimony. QGS has the clear capacity to manage the 5 ‘complexities’ as proposed by Kovacic without HSF and J Forbes.

4. Kovacic is in error to rely upon ‘contested evidence’ given that QGS has yet to file an Outline of Submissions and evidentiary evidence.

5. Kovacic is in error to rely upon ‘contested evidence’ given that he has permitted only Mr Arancio to attend for cross-examination severely limiting the amount of contestation of evidence. The Appellant has not advised the Commission that he seeks to forensically cross-examine Dr Walker, Mr Hosegood or Mr Hardy, and Kovacic has provided no evidence in this regard. Further, as a lay unrepresented person, the Appellant does not have the required high-level cross-examination skills.

6. Kovacic is in error to rely upon ‘contested evidence’ given that he has disregarded the guiding FWCFB authority Jetstar Airways Pty Limited v Monique Neeteson-Lemkes19 (‘Jetstar’) that he himself has recognised in these proceedings he must follow. Further, the circumstances of Jetstar and the Applicant are strikingly similar given that Ms Neeteson-Lemkes was granted an unfair dismissal application by the FWCFB on the basis that Dr Walker’s report was determined as unreliable and ‘highly controversial’ after Commissioner McKenna had determined in the earlier decision that Dr Walker’s report was ‘troubling’.

7. Kovacic is in error to rely upon ‘contested evidence’ given that QGS’s RTW and FFDE policies and other HR policies, worker’s compensation legislation and QGS Ground Handling Agreement make it clear as to the rights and responsibilities upon QGS in respect to the Appellant’s employment.

8. Kovacic’s reliance upon Ganesh Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul20 (‘Changan’) is misconceived as the Appellant was not terminated on the basis of ‘serious misconduct’ for breaching safety procedures and abusing equipment as Mr Changan was, and Mr Changan was represented by the Transport Worker’s Union.

9. Kovacic reliance upon Changan is misconceived given that QGS has not raised the Appellant’s credibility in its 1st or 2nd application submissions.
10. Kovacic’s reliance upon Daniel King and others v Patrick Projects Pty Ltd21 (‘King’) is misconceived given that he refers to the contested evidence flowing from ‘summonses to give evidence have been foreshadowed to current and former employees of the respondent’. Kovacic has overlooked that the Appellant’s orders to attend have already been determined with Kovacic allowing just Mr Arancio to attend to support the Appellant’s case.

11. Kovacic’s reliance upon King is misconceived as he refers to ‘Mr Strauss’ own submission, the proceedings are likely to run for many days’. The Appellant has not made any prediction as to the length of proceedings.

12. Kovacic’s reliance upon King is misconceived given that King is dissimilar to the Appellant’s case in the following manner;

13. Kovacic’s claim at [37] that: ‘a relevant factor in coming to that view is my conclusion above that granting permission is unlikely to fundamentally change the dynamics and manner in which this matter proceeds’ is, with respect, a narrow-minded, baseless prediction. It also disregards that J Forbes will give oral proceedings of behalf of QGS in all future hearings and conferences. J Forbes’ presence in the Courtroom must alter the dynamics of the proceedings in the Courtroom.

14. Kovacic’s prediction at [37] runs counter to Warrell v Walton24 as Flick J stated: ‘A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted’.

15. Kovacic’s claim at [37] has already proven incorrect given that the Appellant felt intimidated by a threatening letter provided to him on 19 August 2019 by HSF’s Rohan Doyle (Partner) and Adam Lambert (Senior Associate). HSF has threatened to file a new interlocutory application if the Appellant does not withdraw his appeal application. In this regard, the Appellant claims that the granting permission to HSF/J Forbes has proven comprehensively that it will likely ‘protract and sideline’ the proceedings even at this early stage. Kovacic substantially disregarded the Appellant’s submissions filed for the 2nd application failing to provide the Appellant with a ‘fair hearing’.

16. Kovacic’s claim at [37] has further been proven incorrect given that Mr Doyle and Mr Lambert made false allegations of the Appellant by letter on 19 August 2019.

17. Kovacic substantially disregarded the Appellant’s submissions filed for the 2nd application failing to provide the Appellant with a ‘fair hearing’.

18. Decision 2 is infected with apprehended bias given the recusal application. FWCFB should have ensured that Kovacic dealt with the bias claims prior to any contemplation by the FWCFB. In this respect, the Appellant was not given a ‘fair hearing’ and Decision 2 was not determined in a ‘fair and just’ and ‘impartial’ manner.
19. Disclosures of ‘conflicts’ made by Kovacic on 20 August 2019 increase the likelihood that Decision 2 contains bias.

Attachment C

Decision 3:

Significant errors of DP Kovacic:

1. Decision 3 is in error given Kovacic mistook at [51] the 2 Grounds (‘a’ & ‘d’) of the Appellant’s termination relied upon by Mr Hardy that were based upon bullying complaints made by the Appellant during his employment. Hence, Decision 3 was not determined according to the ‘substantial merits of the case’.

2. Kovacic disregarded Dr Walker’s 11 Findings as accepted by Mr Hardy in the Appellant’s termination that were based upon bullying complaints made by the Appellant.

3. Kovacic made a falsehood at [51] as a basis to allows QGS’ objections.

4. Kovacic substantially disregarded the Appellant’s submissions in Decision 3 failing to provide the Appellant with a ‘fair hearing’.

5. Kovacic disregarded evidence before that should have provided a reasonable basis for him to inquire if the Appellant was bullied during his employment.

6. Kovacic relied upon an irrelevant determination made at the Determinative Conference. It is illogical and irrational for Kovacic to apply the determination made at the Determinative Conference in the manner that he has in Decision 3.

7. Kovacic relied upon a falsehood made from the Determinate Conference.

8. Kovacic failed to provide adequate reasons for allowing objections including disregarding the Appellant’s email of 29 May 2019 as a basis allow objections on 3 occasions.

9. Decision 3 is alleged by the Appellant to be infected with apprehended bias given the recusal application. FWC should have ensured that Kovacic dealt with the bias claims prior to any contemplation by the FWCFB. In this respect, the Appellant was not given a ‘fair hearing’ and Decision 1 was not determined in a ‘fair and just’ and ‘impartial’ manner.

10. Disclosures of ‘conflicts’ made by Kovacic on 20 August 2019 increase the likelihood that Decision 3 contains bias.

 1   [2019] FWC 4819

 2   [2019] FWCFB 2151

 3   [2018] FWC 1818

4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

5 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 6   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

 7   [2018] FWCFB 4552

8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 10   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 11   Applicants S335/2003 v RRT & Anor [2006] HCATrans 399 (3 August 2006); Finance Sector Union of Australia v Comsec Trading Limited and others PR945431, (2004) 131 IR 237; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Daniel King and others v Patrick Projects Pty Ltd [2016] FWCFB 5069; Visy Board Pty Ltd v Rustemovski and Ahmadyar [2018] FWCFB 1255 at [33]

 12   Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478; United Firefighters' Union of Australia v Country Fire Authority [2013] FWCFB 8165 at [19]

 13   [1936] HCA 40, 55 CLR 499 at 505

 14   [2000] HCA 63, 205 CLR 337 at [54] per Gleeson CJ, McHugh, Gummow and Hayne JJ at [54], with whom Callinan J agreed at [182]

 15   See ibid at [30]

 16   [2000] HCA 47, 203 CLR 194 at [19]

 17   [2019] FWCFB 2151

 18   Ibid at [14]

19 Jetstar Airways Pty Limited v Monique Neeteson-Lemkes (C2013/5863) [2014] FWCFB 8683

20 Mr Ganesh Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul (U2013/16326 [2014] FWC 2790

21 Daniel King v Patrick Projects (C2016/3987) [2016] FWCFB 5069

22 Jason Deeney, Richard Park, Christopher Hughes, Denis Seiffert, Christiopher Strauss and Mr Daniel King
v Patrick Projects Pty Ltd (U2014/982, U2014/983, U014/1008, U2014/1059, U2014/5970, U2014/7097), [2016] FWC 4189, Senior Deputy President Drake at [6]

23 Jason Deeney, Richard Park, Christopher Hughes, Denis Seiffert, Christiopher Strauss and Mr Daniel King
v Patrick Projects Pty Ltd (U2014/982, U2014/983, U014/1008, U2014/1059, U2014/5970, U2014/7097), [2016] FWC 4189, Senior Deputy President Drake at [6]

24 Warnell v Walton [2013] FCA 291 at [24]