[2021] FWCFB 3908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Dr Daniel Krcho
v
University of New South Wales
(C2021/893)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT ANDERSON
COMMISSIONER BISSETT

MELBOURNE, 7 JULY 2021

Appeal against decision [2021] FWCA 376 and order PR726560 of Commissioner Johns at Sydney on 1 February 2021 in matter number C2020/1574.

Introduction

[1] The appellant, Dr Daniel Krcho applies for permission to appeal and if granted, appeals a decision¹ and order² of Commissioner Johns made on 1 February 2021 dismissing the appellant’s application made under s 773 of the Fair Work Act 2009 (Act) for the Commission to deal with an unlawful termination dispute. The dispute concerned allegations that the termination of the appellant’s employment by the University of New South Wales (University) contravened s 772 of the Act. The appellant alleges there was a contravention because his employment was terminated for the following proscribed reasons:

• a temporary absence from work because of illness or injury (s 772(1)(a));

• having made a complaint of a relevant kind (s 772(1)(e));

• having participated in proceedings (s 772(1)(e));

• his age (s 772(1)(f));

• his disability (s 772(1)(f));

• his national extraction or social origin (s 772(1)(f));

• his political opinion (s 772(1)(f)).³

[2] The dismissal, as a form of adverse action, is also proscribed variously by ss 340, 351 and 352 of the Act, if taken because of the reasons set out in the first six dot points above.

[3] The appellant’s contention as set out in his unlawful termination application, is that his employment was terminated by the University for all of the reasons he has stipulated in his application. Although s 351(1) of the Act makes unlawful the taking of adverse action in the form of a dismissal against the person because of the person’s political opinion, discrimination on that ground is not unlawful under anti-discrimination law in force in New South Wales, where the action was taken. Therefore, by reason of s 351(2)(a), s 351(1) does not apply.

[4] The University raised an objection to the application on the basis that because (apart from the political opinion reason) the other reasons for the termination of the appellant’s employment he alleges are matters that engage with the general protections provisions of the Act in Part 3-1, the application was made contrary to the prohibition in s 723 of the Act and should be dismissed. In August 2020 Commissioner Johns issued an “interim decision”⁴ dealing with the University’s objection in which the Commissioner expressed a view that s 723 “does not operate entirely as a jurisdictional bar to [the application], as the applicant [appellant] is not a person who is entitled to make a general protections court application in relation to [some of] the conduct that he complains of, namely “political opinion”. However, the present application is much wider in its intent.”.⁵

[5] The Commissioner proceeded to discuss the Commission’s power to allow a correction or amendment of any application relating to a matter before the Commission on any terms it considers appropriate and, noting that the appellant had not made an application to amend or correct his application, the Commissioner made directions allowing the appellant to apply for a correction or amendment.⁶ The appellant lodged an appeal against the “interim decision” but permission to appeal was refused by a differently constituted Full Bench, principally on the ground that as the Commissioner had not made any decision or order dismissing the appellant’s application the appeal was premature.⁷

[6] Following the refusal of permission to appeal, the appellant did not apply to correct or amend the application and the Commissioner proceeded to finally determine the University’s objection and he dismissed the appellant’s application.

[7] Pursuant to s 607(1) of the Act, with the consent of the parties for the appeal to be conducted without a hearing and as it appeared that this appeal could be adequately determined on the materials filed by the parties without oral submissions, we proceed to determine the appeal on that basis.

The Decision

[8] In his decision, the Commissioner concluded that the appellant’s application was prohibited by s 723 of the Act and so was not made in accordance with the Act. The Commissioner then exercised his discretion to dismiss the application. As to the operation of s 723 on the appellant’s application, the Commissioner reasoned as follows:

[20] Because the Applicant has decided not to amend his Application it remains as it was when it was filed on 12 March 2020, that it to say, the Application is incompetent in large measure.

[21] Section 723 of the FW Act provides:

“723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

[22] A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to an alleged contravention of Part 3-1 of the FW Act. Applications under Division 2 of Part 4-1 are able to be made by national system employees with respect to alleged conduct by national system employers.

[23] There is little doubt that, and I find, UNSW is a national system employer. Consequently, I also find that the Applicant was a national system employee.

[24] Because the Applicant was a national system employee, I am satisfied that:

a) in respect of six out of the seven grounds he alleges in his s.773 Application, he could have made a general protections court application; and consequently,

b) he is, by virtue of s.723 statute barred from making a s.773 Application in relation to those matters.

[25] In circumstances were the Applicant has not made an application to amend or correct his s.773 Application, the substantive application has not been made in accordance with the FW Act.⁸ [Endnote omitted]

Grounds of Appeal

[9] The Appellant’s notice of appeal contains two grounds. The first contends that the Commissioner made errors which are said to be caused by a failure to properly report and consider the facts, a failure to consider the correct facts and taking into account irrelevant considerations. The second contends bias on the part of the Commissioner, engaging in an unfair process and a denial of procedural fairness, which appears to centre on allegations that the Commissioner did not provide the appellant with adequate support having regard to the appellant’s mental illness and the fact that the University was given permission to be represented by a lawyer.

[10] The appellant expands upon these appeal grounds (and often travels beyond them) in his written submissions. Although the first ground of appeal is couched in terms of significant errors of fact, taking into account that the appellant is neither legally trained nor represented and his mental illness, and making allowance for these matters, the substance of the first ground of appeal is essentially that the Commissioner wrongly concluded that s 723 was a bar to the application and therefore did not provide a proper foundation for the application to have been dismissed. So much is clear from [18] to [27] of the appellant’s submission on appeal.

Consideration

[11] It is convenient to deal with the second appeal ground first.

Ground 2

[12] Much of this ground of appeal was the subject of consideration by the Full Bench earlier mentioned in its decision in Krcho v University of New South Wales⁹ in which the Full Bench said:

[63] Appeal ground 5 asserts bias on the part of the Commissioner and asserts that he was inappropriately influenced by the Respondent and its “obviously incorrect interpretation” simply because the Commissioner set out the Respondent’s submissions in his decision. Appeal ground 7 asserts bias and unfair process alleging that the Appellant was denied procedural fairness on the basis that his opportunity to be “fully heard” was removed and alleging ongoing communication – presumably by the Commissioner – with an external legal representative for the Respondent. As we have observed, the Appellant has also made numerous allegations in his submissions about the integrity of the Respondent and its staff and representatives.

[64] Our perusal of the Commission file indicates that there is no basis for any of the allegations made by the Appellant against the Commissioner or the Respondent and its staff and representatives. Appeal grounds 5 and 7 are without merit and the allegations raised by the Appellant in them are baseless and scurrilous. We observe that the Appellant has previously been warned about making unsubstantiated allegations of this kind against third parties and members of the Commission. In Daniel Krcho (AB2018/637) Deputy President Sams set out in detail case law dealing with such conduct and the ramifications for the Appellant of continuing to engage in it. It was also made clear to the Appellant that the fact that he is unrepresented does not excuse such conduct.¹⁰ [Endnote omitted]

[13] A perusal of the appellant’s submission in the above appeal (first appeal submissions) which at various points deals with the question of bias (along with other contentions) and those filed in this appeal also dealing with the question of bias (and other contentions) discloses the attempt to reagitate appeal grounds described by the Full Bench as “without merit and the allegations raised by the Appellant in them are baseless and scurrilous”.¹¹ The matters raised at [24] of the appellant’s submissions in this appeal were raised at [34] of the first appeal submissions. The matters raised at [36]-[44] of the appellant’s submissions in this appeal were raised at [62]-[64] and [66]-[76] of the first appeal submissions. The matters raised at [45]-[46] of the appellant’s submissions in this appeal were raised at [77]-[79] and [66]-[76] of the first appeal submissions.

[14] We have for ourselves reviewed the submissions supporting the bias allegation and the material in the appeal book and can only but concur with the observations in the earlier Full Bench decision. The bias grounds are not arguable and permission to appeal is refused.

[15] As to the contentions that the Commissioner engaged in an unfair process and that there was a denial of procedural fairness, these are equally without foundation. The Commissioner went to great lengths to endeavour to assist the appellant including issuing an interim decision and allowing the appellant time to consider whether he should apply to vary his application to meet the University’s objection and the Commissioner’s view expressed in the interim decision. The unfair process contentions are without substance.

[16] So much of the appellant’s contentions as rely on the fact that the Respondent was legally represented are also without substance. By the time the Commissioner came to consider the matter, legal representation of the University was confined to advice and preparation of written submissions. Permission to be represented by a lawyer was not required for that kind of representation. Relevantly, the requirement for permission to be represented by a lawyer, under s 596 operates “[E]xcept as provided by . . . the procedural rules. Rule 12 of the Fair Work Commission Rules 2013 provides:

(1) For the purposes of subsection 596(1) of the Act, in any matter before the Commission, a person:

(a) must not, without the permission of the Commission, be represented in the matter by a lawyer or paid agent participating in a conference or hearing relating to the matter; but

(b) may otherwise, without the permission of the Commission, be represented by a lawyer or paid agent in the matter. [Our underlining]

[17] No arguable case of appealable error is disclosed by any of the matters raised in ground 2 of the notice of appeal and permission to appeal on the basis of the second appeal ground is refused.

Ground 1

[18] As we have already noted, the substance of this ground of appeal is essentially that the Commissioner wrongly concluded that s 723 of the Act was a bar to the application and therefore did not provide a proper foundation for the application to have been dismissed.

[19] Division 2 of Part 6-1 contains provisions which prevent certain application where other remedies are available.¹² Among these, is s 723 which provides:

723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

[20] Although “unlawful termination application” is not defined, the phrase clearly embraces both an "unlawful termination court application" defined in s 776(4) and the application made by the appellant which was an "unlawful termination FWC application" defined in s 730(2) as “an application under section 773 for the FWC to deal with a dispute that relates to dismissal”.

[21] The prohibition in s 723 prevents a person from making an unlawful termination application which alleges particular “conduct” if the person “is entitled to make” a “general protections court application” in relation to “the conduct”. The use of the definitive article makes clear the “conduct” is the same conduct in respect of both species of application with which s 773 is concerned.

[22] A “general protections court application” is defined in s 368(4) as “an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part” (that is, Part 3-1).

[23] Part 3-1 has application and effect relevantly to national system employers and national system employees. There is no dispute that the appellant was at the relevant time a national system employee and that the University was and is a national system employer or that Part 3-1 operated in respect of them.

[24] Contrary to the Respondent’s submissions, “conduct” with which the applications mentioned in s 723 must be concerned is not, relevantly the “dismissal” or “termination”.¹³ Dismissal as a species of “adverse action”, without more, is not proscribed by Part 3-1. The taking of adverse action (dismissal) is proscribed if it is taken for one or more of the reasons (or for reasons which include one or more of those reasons¹⁴) with which Part 3-1 deals. Similarly, the termination of an employee’s employment, without more, is not proscribed by s 772 of the Act. The termination of an employee’s employment is proscribed if the termination is for one or more of the reasons (or for reasons which include one or more of those reasons) set out in s 772. In other words, the “conduct” is the contravention that is alleged by the applications, not the dismissal simpliciter. The position under s 723 is to be contrasted with that which pertains to the provisions in subdivision B of Division 3 of Part 6-1 (ss 725-732) which prohibit a person who has been dismissed from making multiple applications “in relation to the dismissal”.

[25] Therefore, in the context of the application made by the appellant, the “conduct” with which s 723 is concerned, is the termination of the appellant’s employment (his dismissal) for one or more proscribed reasons or for reasons which include that or those proscribed reason(s). It is important at this juncture to understand the “conduct” that was the subject of the appellant’s unlawful termination application. As we earlier noted, the appellant alleges that the termination of his employment by the University was for “all” of the reasons he identifies in the application. One of those is the holding of a political opinion. The appellant does not contend in the alternative in relation to the reasons alleged, rather he says all of the reasons actuated his dismissal. The “conduct” in relation to which the unlawful termination application is made, is the termination of the appellant’s employment for all of the reasons identified including political opinion. That is the case the appellant wishes to advance. We will return to the significance of this shortly.

[26] Section 723 is engaged if, in relation to conduct, the person “is entitled to make” a general protections court application. That is, the person must be entitled to make such an application to “a court” under Division 2 of Part 4-1 for orders in relation to a contravention of Part 3-1.

[27] Section 539(2) provides that in relation to each civil remedy provision “the persons referred to in column 2 of the item may, subject to ss 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision”. The table which follows relevantly provides:


Standing, jurisdiction and maximum penalties
Item	Column 1 Civil remedy provision	Column 2 Persons	Column 3 Courts	Column 4 Maximum penalty

. . .


Part 3-1--General protections
11	340(1) 340(2) 343(1) 344 345(1) 346 348 349(1) 350(1) 350(2) 351(1) 352 353(1) 354(1) 355 357(1) 358 359 369(3)	(a) a person affected by the contravention; (b) an industrial association; (c) an inspector	(a) the Federal Court; (b) the Federal Circuit Court	60 penalty units

[28] As noted earlier some of the reasons for the termination of his employment identified in the appellant’s unlawful termination application could also amount to a contravention of ss 340, 351 and 352 of the Act, which are each a civil remedy provision.

[29] A dismissed employee who alleges conduct in contravention of ss 340, 351 and 352, would be a person affected by the contravention and would have standing to apply for an order in relation to such contraventions.

[30] On one construction, a person “entitled to make a general protections court application in relation to the conduct” in s 723 of the Act is only a reference to a person who can apply under Division 2 of Part 4-1 for orders in relation to a contravention of Part 3-1. Section 539(2) of the Act and the table therein is concerned with a person’s standing to make an application for an order. Thus, when s 723 speaks of a person’s entitlement to make a general protections court application, taking into account the meaning of that phrase ascribed by s 368(4), the section is speaking of a person’s standing to make such an application as set out in s 539(2). The person with standing is identified in s 539(2) as a person affected by the contravention. If the appellant wished to confine his allegation to the reasons identified other than political opinion, then doubtless he met that description when making his unlawful termination application.

[31] Such a construction, (that s 723 of the Act is concerned only with standing under s 539(2) to make a general protections court application) is consistent with explanation of the operation of the breadth of the prohibition in s 723 set out in the Explanatory Memorandum to the Fair Work Bill as follows:

“Clause 723 - Unlawful termination applications

2702. This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections in relation to the termination. The additional coverage in unlawful termination arises because these provisions rely on the external affairs power, as they give effect, or further effect, to the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer (Geneva, 22 June 1982) [1994] ATS 4.

[32] Similarly, s 719 of the Act which contains a guide to Part 6-1 (in which s 723 is found) also suggests a broad application of the prohibition in s 723. However, s 370 also deals with the circumstances in which a person is prevented from taking a general protections dismissal dispute to a court and provides:

370 Taking a dismissal dispute to court

A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a) both of the following apply:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

[33] Thus s 539(2) of the Act and indeed s 544 (which provides for a 6 year time limit within which an application for orders may be made) must be read in light of s 370. A person affected by a contravention of ss 340, 351 and 352 of the Act who has been dismissed will also be a person entitled to apply under s 365 for the Commission to deal with a dispute. Such a person must not make a general protections court application absent the circumstance in s 370(a) or (b).

[34] On this construction since the appellant (and putting to one side the political opinion reason) did not have a certificate and has not sought injunctive relief, he was prohibited from making a general protections court application by s 370 of the Act. He was therefore not “entitled to make a general protections court application” and so the prohibition in s 723 is not enlivened. Indeed, a person who was entitled to apply under s 365 but elected not to apply, could apply under s 773 in relation to the same conduct, and would not be barred from doing so by s 723 because of the operation of s 370. We can well imagine that this is not the result the drafters intended.

[35] Lest it be said that we have overlooked the effect of s 366 of the Act on the entitlement of a person to apply under s 365, the position we have described above under s 370 would pertain until the 21 day period within which an application may be made passed, unless of course the reference in s 370 to an entitlement to apply under s 365 is intended to be read without regard to the effect of s 366 on that entitlement. After the period had passed there would be no entitlement to apply under s 365, only a right to request the Commission to allow a further period within which such an application may be made. On this view, beyond the 21 day period, a person who has standing under s 539(2) would not be barred by s 370 from making a general protections court application because that person is not a person who is entitled to apply under s 365. Section 723 would in that case prohibit an unlawful termination application in relation to the conduct. Again, we do not image this is the result the drafters intended.

[36] There is an obvious tension between the operation of s 370 of the Act and the stated breadth of the operation of s 723 as found in the explanatory memorandum. The problem arises from the use in s 723 of the defined phrase “general protections court application” instead of the broader phrase “general protections application” which would capture both an application to a court under Division 2 of Part 4-1 for an order and an application to the Commission under s 365. But we need not express a view about how that tension can be resolved to determine the appeal because on any view of the operation of s 723 of the Act, the unlawful termination application brought by the appellant was not prohibited for the reasons explained below.

[37] As we have earlier indicated, the relevant unlawful termination application that is prohibited by s 723 of the Act, is one that is in relation to “conduct”, for which a person is also entitled to make a general protections court application. The Commissioner correctly identified that an allegation of dismissal (the taking of adverse action) because of the appellant’s political opinion (a contravention of s 351(1)) was one that could not be brought in a general protections court application because the conduct alleged occurred in NSW and is not unlawful in NSW under anti-discrimination law in force in that State. There is also no dispute about this.

[38] However, the Commissioner wrongly proceeded to dismiss the application because he failed to appreciate that the appellant’s application alleged termination of his employment by the University for all of the reasons identified including political opinion. It is not to the point that some of the proscribed reasons alleged for the termination would also engage with Part 3-1 of the Act. The appellant identified the conduct about which he complained as constituting termination of his employment for all of the reasons. Section 723 is concerned with “conduct” that can be the subject of both an unlawful termination application and a general protections court application and where that is so, it prohibits the former application.

[39] The allegation that termination of the appellant’s employment was because of several reasons including the appellant’s political opinion was conduct, in the appellant’s case, which could not be the subject of a general protections court application because it included political opinion as part of the conduct alleged. The appellant was therefore not entitled to make such an application. Section 723 of the Act places no barrier to making the unlawful termination application alleging the dismissal because of the reasons identified and his political opinion. That the unlawful termination application also complained of reasons which, viewed separately and without political opinion, could be the subject of a general protections court application, does not have the result of barring an unlawful termination application alleging conduct (dismissal for all of the reasons) which cannot be conduct the subject of a general protections court application. As we have already noted, s 723 directs attention to the “conduct” with which the species of applications are concerned and only bars an unlawful termination application in relation to conduct that can also be the subject of a general protections court application.

[40] By dismissing the application, the Commissioner erred. The power in s 587 of the Act to dismiss an application was not available. The appellant’s application was made in accordance with the Act.

[41] Because the error made was one of power, that is the Commissioner did not have power to dismiss the application, we propose to grant permission to appeal in relation to ground 1 of the notice of appeal.

[42] Before turning to deal with the disposition of the appeal it is necessary to deal with the appellant’s application for a de-identification order and a non publication order. 15 The appellant seeks orders applying either retrospectively not only to our decision but to all previous decisions of members of the Commission involving the appellant or at least prospectively. As to the basis for the application, the appellant contends that “far too many untrue and defamatory areas have been generated, mainly due to the respondent’s production of false and misleading information to” the Commission and other authorities, and there has been some consequential and adverse publication in the media.16

[43] The power to make an order or orders of the kind sought and the factors that guide the exercise of that power was correctly summarised by Bissett C in Justin Corfield. 17 These need not be repeated here. It is sufficient to observe that the exercise of the discretion will always involve a balancing between the interest of an applicant seeking a particular order and the protection sought by the order on the one hand and maintaining the principle of open justice on the other. The concerns raised by the appellant as to untrue and defamatory matters generated about the various proceedings in which he has been involved, really amounts to no more than a submission that his version of particular events ought to be preferred over those advanced by the University. These are the very issues that become the subject of any decision where there is a requirement to resolve disputed facts. Almost every contested proceeding before the Commission involving the exercise of arbitral power will invariably require a member of the Commission to resolve factual disputes. There is nothing unusual about factual disputes arising in proceedings much less is it unusual that one party has a righteous belief in his or its version of the facts.

[44] Moreover, it is not uncommon for proceedings and decisions of the Commission to be reported in the media. The requirement to publish decisions, public hearings and the capacity for the media to report is an important part of the process of open justice and transparency in decision-making. Nothing that the appellant has raised is particularly unusual. Although doubtless he is aggrieved by allegations that from time to time are made by the University in the context of proceedings in this Commission and he wishes to avoid publication of them, none of this outweighs the interests in maintaining the principle of open justice. Without more, neither the preference of the parties, or one of them, nor the fact that there may be some unwanted scrutiny or media attention because parties are identified or because of the allegations involving the appellant and the University provides a sound basis to conclude the orders sought should be made.

[45] The application is refused.

Disposition

[46] For the reasons given, permission to appeal on ground 1 should be granted, the appeal on that ground should be upheld and the decision and order dismissing the appellant’s unlawful termination application should be quashed. In so doing, we should not be taken to express any view about the merits of the course undertaken by the appellant but simply that s 723 of the Act does not present a bar.

Order

[47] We order as follows:

• Permission to appeal on ground 1 is granted but otherwise refused;

• The appeal is upheld;

• The decision in Krcho v University of New South Wales [2021] FWC 140 and the order in PR726560 are quashed; and

• The application is remitted to the Regional Co-ordinator for allocation so that the application may be dealt with in accordance with s 776 of the Act.