| [2022] FWCFB 1 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Glenn Charles Baughen
v
Bawinanga Aboriginal Corporation
(C2021/6656)
VICE PRESIDENT CATANZARITI |
SYDNEY, 5 JANUARY 2022 |
Appeal against decision [2021] FWC 5918 of Commissioner Spencer at Brisbane on 14 September 2021 in matter number C2020/6851 - permission to appeal granted - appeal upheld - matter remitted.
Introduction and background
[1] Mr Glenn Charles Baughen (the Appellant) lodged a Notice of Appeal, for which permission to appeal is required, against a decision of Commissioner Spencer (the Commissioner) issued on 14 September 2021 (the Decision). 1 The Decision concerned the consent arbitration, pursuant to s.369 of the Fair Work Act 2009 (Cth) (the Act), of a general protections dismissal application brought by the Appellant (the Application), a former employee of Bawinanga Aboriginal Corporation (the Respondent). In the Decision, the Commissioner determined that the Application made pursuant to s.365 of the Act had not been made out, and she dismissed the Application.2
[2] The background to this matter is as follows. The Respondent is a not-for-profit Aboriginal Corporation based in Maningrida, a remote Aboriginal community located in Arnhem Land approximately 500 kilometres east of Darwin.
[3] The Appellant was employed on a contract by the Respondent as a Plumber/Gasfitter on a full-time basis. There was a dispute between the parties as to whether the Appellant’s contract was for a one or two-year period. The Appellant alleged that adverse action was taken against him, (after he made various workplace inquiries) and his employment was dismissed in contravention of the general protections provisions in Part 3 – 1 of the Act. The Respondent refuted this and submitted that the Appellant’s employment ended when the one-year contract finished.
[4] The Appellant alleged that the Respondent took adverse action against him by denying him a pay rise in June 2019, and then terminating the Appellant's employment on 25 October 2019, or, in the alternative, by not renewing his employment contract.
The Relevant Provisions of the Act
[5] Part 3-1 of the Act is titled “General Protections.” Section 340(1) relevantly provides that a person must not take “adverse action” against another person because the other person has exercised (or proposes to exercise) a “workplace right.” Adverse action is taken by an employer against an employee if the employer (relevantly) dismisses the employee, and that action is not authorised by law: s.342(1), Item 1; s.342(3). There are other defined adverse actions that do not involve dismissal.
[6] Section 12 defines the word “dismissed” by reference to s.386. It relevantly provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[7] Division 8 of Part 3-1 is titled “Compliance.” It establishes two regimes for dealing with disputes in which allegations of contravention of general protection provisions are made: a regime for dismissal disputes (Subdivision A) and a regime for non-dismissal disputes (Subdivision B).
[8] Section 365 of the Act is contained in Subdivision A. It provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
[9] Section 368 of the Act confers authority on the Fair Work Commission (the FWC) to deal with a dismissal dispute in the event that an application is made under s.365. It provides:
Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
[10] If a certificate is issued under s.368(3), the parties may agree to the FWC arbitrating the dispute, in accordance with s.369. In that event, the FWC may deal with the dispute by arbitration and may make orders affecting the substantive rights of the parities, including orders for reinstatement, and for the payment of compensation. 3 Section 369(3) prohibits a person from contravening an order made under s.369(2).
[11] Section 370 of the Act provides that “A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) 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.
[12] Division 3 of Ch 5 applies to all matters before the FWC. It contains provisions:
(1) requiring that applications to the FWC be made in accordance with procedural rules made under s.609 (see s.585);
(2) conferring powers on the FWC to inform itself in relation to any matter before it in such a manner as it considers appropriate (see s.590);
(3) requiring and conditioning the conduct of a hearing in certain circumstances (see s.593);
(4) authorising the FWC to compel a person to attend a conference, for the purpose of performing a function or exercising power conferred upon it, at which the FWC may mediate or conciliate or make a recommendation or express an opinion (see s.592); and
(5) authorising the FWC to direct that a conference under s.368 be conducted in public (see s.592(3)), a power that does not exist in relation to non-dismissal disputes (see s.374(2)).
[13] Section 587 provides:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
[14] A person who is aggrieved by a decision of the FWC (other than a decision of the Full Bench) may appeal the decision, with the permission of the FWC: s.604(1). Except in cases of unfair dismissal, the FWC must grant permission if it is satisfied that it is in the public interest to do so: s.604(2). If permission is granted, the appeal is to be heard by the Full Bench of the FWC: s.613(1)(b).
The Decision
[15] In the Decision, the Commissioner commenced her “Consideration” of the merits of the Application, 4 with an adoption of a significant extract from the first instance decision of Deputy President Asbury in Liu v Compuworld Pty Ltd,5 (Compuworld), a decision not disturbed on appeal,6 where the Deputy President outlined the principles relevant to the consideration of general protections matters and the discharge of the reverse onus.7 The Commissioner had earlier in the Decision adopted an extract from the judgment of Wigney J from Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited,8 where the principles in relation to the application of s.361 of the Act, regarding the presumption of reason for action unless proved otherwise and the reverse onus, that were outlined in the judgments of the High Court in Board of Bendigo Regional Institute of TAFE v Barclay,9 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,10 were distilled, though we note that extract was also reproduced in full in the significant extract from Compuworld.
[16] The Commissioner then considered whether the Appellant was exercising a workplace right. In a brief consideration the Commissioner:
(a) Noted the Respondent’s concession that a pay query constituted the exercise of a workplace right; 11 and
(b) Summarised the evidence, but did not make a finding as to whether the request that the Appellant pay a motor vehicle infringement notice, and presumably the Appellant’s refusal to do so, constituted the exercise of a workplace right. 12
[17] Regarding the question of whether the Respondent took adverse action against the Appellant, the Commissioner observed the issue was whether the Appellant was dismissed, and noted that the matter turned on whether the contract of employment was for one year or two years. 13 The part of the Commissioner’s decision that dealt with the determination of that issue was as follows:14
Was the Applicant’s contract of employment for one year or two years?
[121] Several versions of the contract have been provided by the Applicant and Respondent. The contract ostensibly initialled by the Applicant and signed by Ms Dobbie is in evidence.
[122] The Applicant strongly denied initialling the contract, and said that the initials (which were by way of a signature) do not resemble his signature, as present on the signature page of the document, his drivers’ license, or anywhere else. The Applicant provided minimal evidence to support the two year contract, except the repetition in evidence that he and Ms Cooper believed it to be a two year contract and they would not have moved particular gear out for a 1 year contract.
[123] The Respondent relied on an email from Ms Dotty Repu, who said she saw the Applicant initial the documentation. Ms Repu’s evidence is in the form of email correspondence sent on 20 March 2020, presumably provided in response to the Applicant’s general protections claim.
[124] The contract the Applicant ultimately signed and worked under contained the “1 year” annotation. The dispute between the parties is what that annotation’s effect is, and whether the document was ultimately initialled in confirmation.
[125] It is plausible that a genuine mistake has occurred in this instance. The Applicant considered the contract, and then wrote a lengthy and detailed email querying a great many terms in the contract, (including whether a 1 year contract was available). In doing so, he may have written on the contract. Other clauses in the contract are highlighted which were then questioned in the correspondence to Ms Dobbie. Ms Dobbie wrote a detailed response, which the Applicant replied to saying he “accepted the contract”. On the material, the Applicant, having considered the responses may have intended to accept the contract as provided to him, without amendments. The Respondent, seeing the correspondence, and marking of 1 year, considered the Applicant was accepting the amended contract of 1 year, given he himself had annotated the document, and queried the 1 year period, and not repudiated this.
[126] The Applicant had a copy of the Agreement with highlighting and the “one year” annotation written on it. However, the Applicant’s evidence was that he didn’t initial the contract, and in the F8 application, he stated that he didn’t sign it. This submission contradicts the signature on the last page of the contract, which, on the evidence appeared to be a fairly close match to the initials he used in the amendments. Further there was no direct corroborating evidence of the two year contract.
(Emphasis added)
[18] Moving then to the question of whether the Respondent took adverse action against the Appellant for a prohibited reason or reasons, the Commissioner dealt separately with the three forms of adverse action alleged, being termination of employment, refusal of a pay rise, and non-renewal of the contract. Regarding termination of employment, the Commissioner observed: 15
In examining each of the workplace rights, regardless of whether the Applicant’s contract expired or was terminated at the Respondent’s initiative, the evidence is not persuasive, that the Applicant’s employment was terminated due to the exercise of the Applicant’s workplace rights.
(Emphasis added)
[19] At the conclusion of dealing with the second proscribed reason for adverse action allegedly being taken, being the refusal of a pay rise request, the Commissioner returned to the issue of whether the Respondent in fact took adverse action against the Appellant, and stated:
The Applicant argued that the Respondent took adverse action against him within the meaning of section 342(1)(a), in three predominant areas. Firstly, the denial of a pay rise and the premature termination of his employment against the contract term or the nonrenewal of that contract. Secondly, the denial of the pay rise in connection with the workplace right the Applicant exercised seeking applicable pay rates on public holidays. Thirdly, the dismissal of the Applicant being the alleged adverse action taken by the Respondent as the Applicant exercised a workplace right to raise that the employer should pay the infringement incurred whilst driving a company vehicle that was unregistered. Each of these matters are dealt with below.
[20] Under the heading “Non-renewal of contract,” the Commissioner returned to recitation and consideration of evidence regarding whether the Appellant’s contract was for one or two years. After providing voluminous extracts of transcript, the Commissioner concluded: 16
Whilst this evidence demonstrated imperfect document management, it cannot be concluded that adverse action was taken on the finalisation of the fixed term contract. …
And: 17
The employer, who holds the reverse onus in a General Protections case, has discharged such to demonstrate on an evidentiary basis that they relied on the terms of the contract as agreed between the parties (the contract being for a period of one year) as the clear basis on which the Applicant’s employment was brought to an end by the effluxion of time. The Applicant and his partner were understandably frustrated with regard to emergence of the infringement notice and the employers position taken in response to that. However, the case that this brought about the end of the employment contract has not been made out. It was also not established that the end of the contract was related to the pay (or other) inquiries. The terms of the contract were exercised by the employer, to finalise the employment. In relation to the wage review enquiry, it had been explained that where the work had changed, or the scope of the job altered, it was within the discretion of the CEO to review the position. Neither of those issues had been made out, in relation to the Applicant’s work or job to provide for a pay adjustment. However, the wage increase under the agreement applied.
(Emphasis added)
[21] The Commissioner then went on to deal with whether the Respondent took adverse action against the Appellant because of the denial of the pay rise in connection with pay rates on public holidays, and because the Appellant exercised a workplace right to raise a query in relation to whether the employer should pay the infringement notice incurred whilst driving a company vehicle that was unregistered.
[22] In a final analysis titled “Conclusion,” the Commissioner summarised her reasons for decision. As to the question of the Appellant’s contract and whether he had been dismissed, the Commissioner stated: 18
As set out in the reasons, the circumstances of this matter do not align with the facts of the case of Downes v The Uniting Church in Australia Property Trust (Q.), as referred to by the Applicant.
The Applicant’s contract was not unilaterally finished, and the remainder of the contract was paid out. In contrast to Downes, the Applicant’s contract finished due to the anticipated effluxion of time, as per the contract and as is set out in the detail in the decision, the Applicant was permitted two weeks’ notice of paid time without the requirement to work, to accommodate the organisation of his belongings for relocation.
Whilst some time has been devoted in the hearing and the submissions in this case and the evidence of the Applicant to endeavour to muddy the waters as to the terms of the contract, the evidence was clear that agreed contract terms were founded between the parties at the outset and were not varied after the terms that were agreed. The Applicant has only argued ambiguity well after the agreement was made, and argued a preferred construction according to the terms of ‘contra preferentim’ and has cited Fraser v ACT for Kids. In submitting this argument of a ambiguity, allegations of introducing false annotations to the contract were made against the Respondent. In support of the annotations and contract of one year term that was made between the parties the Respondent provided witness evidence in relation to the verbal discussions, email evidence and corroborating evidence, regarding implementation of the terms associated with the one year contract, being the length of the contract, the relocation costs associated. In contrast, the Applicant has not provided supporting evidence in relation to a two year contract.
As set out in the reasons, the contract was provided originally as a two year contract. The evidence demonstrated that the Applicant enquired about a one year contract provided reasons as to why a one year contract was sought, made notations to that effect. The notations were later initialled, and the contract as amended was signed; a verbal agreement was reached, a written agreement was reached, corroborating evidence in terms of the reduced relocation costs were discussed consistent with a one year contract and the contract was confirmed in clear terms, on the amended basis of one year. Email evidence supporting the one year contract was persuasive, even taking into account the transgression Ms Dobby identified on the altered date on the email, as part of the email trail she had forwarded to herself for collating the records in relation to this case.
It was conceded by the Respondent that the contract was not a true fixed term contract, but a maximum term or an outer limit contract and the Applicant was not dismissed but as pre-organised between the parties prior to taking up his position and the accommodation with the employer, the contract had been agreed for one year and then finished on the completion of the one year on the provision of notice.
In the alternative to the effluxion of time argument for the end of the contract. With regard to the renewal of the contract after that term, the employer held a discretion in relation to the exercise of a renewal, as indicated by the use of the term may agree. No mandatory terms for an extension for a lengthy period or a safety net in relation to funding was applicable.
(Footnotes omitted)
[23] The Commissioner then dealt with the alleged breaches of workplace rights before finally summarising as follows: 19
The nature of the dismissal dispute and contraventions relied on, in terms of the provisions of the Act, evolved during the course of the pleadings.
It is not accepted on the evidence that the Respondent took adverse action against the Applicant in relation to the various allegations of contraventions of workplace entitlements. However, the Respondent has presented that if the onus was to shift to the Respondent, in response to the allegations of adverse action, they have in terms of the evidence, discharged that no related adverse action occurred.
Grounds of Appeal
[24] The Notice of Appeal filed was approximately 50 pages in length, contained extensive extracts from transcript, evidence and submissions from the proceedings before the Commissioner, and outlined 19 discrete grounds of appeal. Those grounds can be refined and summarised as being:
1. The first significant error of law and significant appealable error was the decision that the employment of the Appellant was not a dismissal ended on account of an effluxion of time, erroneously in making non-factual commentary rather than relying on facts agreed by all parties (Decision at paragraphs [162], [163], [164], [165], [166], [167], [168] and [169]) (Grounds 1 and 10);
2. The second error of law and significant appealable error was the decision that the employment of the Appellant was for a fixed term contract for 52 weeks, additionally failing to mathematically substantiate that the “on completion of the one year (52 weeks)” is Monday 11 November 2019, when mathematically one year (52 weeks) has an end date of Monday 18 November 2019. (Decision at paragraphs [141] and [142] and [143]) (Grounds 2, 3 and 11);
3. The Commissioner fell into further significant errors of law and significant appealable error after observing “Whilst this evidence demonstrated imperfect document management” (Decision at [141]), by failing to apply and ignoring the doctrines of ‘contra proferentem’ (Ground 4)
4. The Commissioner fell into further significant errors of law and significant appealable error by accepting hearsay claims from employees who did not give direct evidence in this matter and erroneously made findings that are contradicted by the direct evidence of the Applicant and Respondent on transcript (Ground 5);
5. The Commissioner fell into further significant errors of law and significant appealable error by erroneously describing the Human Resources Manager’s alleged tampering and doctoring of evidence as an “administrative error” (Decision at [137]) (Grounds 18 and 19); and
6. The Commissioner fell into further significant errors of law and significant appealable error by misapplying the authorities:
(a) Eleanor Downes v The Uniting Church in Australia Property Trust (Q) trading as Wesley Mission Brisbane ([2013] FWC 8890) (Grounds 6, 7 and 8);
(b) Ms Kirsty Fraser v Act for Kids ([2016] FWC 5052), and by failing to correctly apply and ignoring the doctrines of ‘contra proferentem’(Ground 9);
(c) Mr Gerardo Papalia v Italian Assistance Association trading as Co.As.It ([2013] FWC 7996), as the Appellant’s contract was not a true fixed term contract or maximum term contract (Grounds 12, 13 and 14);
(d) Magdalini Nesci v The Playford Hotel ([2018] FWC 5777) (Ground 15);
(e) Ms Rosemary White v Sydney College of English Pty Ltd ([2010] FWA 7644) (Ground 16); and
(f) Fisher v Edith Cowan University ([1997] IRCA 98) (Ground 17).
Consideration
Permission to Appeal
[25] The appeal before us is brought pursuant to s.604 of the Act. An appeal under s.604 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. As noted above, there is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) requires that permission to appeal be granted if the Commission is satisfied that it is in the public interest to do so.
[26] In addition, because the Decision was made pursuant to s.369 of the Act, s.375A applies to this appeal. Section 375A provides:
375A Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) 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 subsection 369(2) 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.
[27] Section 375A is expressed in terms relevantly identical to s.400, which applies to appeals from decisions made pursuant to Pt 3-2 of the FW Act. We consider that decisions made concerning the proper interpretation and application of s.400 are relevant for that reason. In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 20 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.21 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:22
[28] “… 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…”
[29] 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. 23 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.24
Dismissal
[30] The Application alleges various contraventions of the general protections contained in Pt 3-1 of the Act involving dismissal. The Commission has jurisdiction to entertain the Application only if the Appellant has been dismissed (Coles Supply Chain Pty Ltd v Milford25(Milford)).
[31] In Milford, the Full Court of the Federal Court identified preliminary observations regarding the literal and grammatical meanings of ss.365, 366 and 368 of the Act. The Full Court found: 26
The second observation that may be made is that s 365 contains two criteria conditioning a person’s entitlement to make an application. The first criterion is expressed in objective terms: the person has been dismissed. The second criterion is also expressed in objective terms, albeit by reference to the fact that an allegation has been made that “the dismissal” was in contravention of a provision of Pt 3-1. The word “alleges” is found in the criterion in s 365(1)(b), but not in the criterion in s 365(1)(a). In its ordinary meaning, the criterion in s 365(1)(a) will be fulfilled if there has been a dismissal in fact. It will not be fulfilled merely because an applicant asserts that he or she has been dismissed. The words “the dismissal” to which subs (b) refers is clearly a reference back to subs (a) and so refers to “the dismissal” that has occurred in fact.
That construction accords with the nature of the prohibitions with which Subdiv A of Div 8 of Pt 3-1 is concerned: it is not a contravention of the FW Act to dismiss a person from his or her employment. Rather, it is a contravention to (relevantly) dismiss a person for a prohibited reason.
(Original emphasis)
[32] In determining the Application, the first criteria requiring satisfaction was whether the Appellant had in fact been dismissed. That involved determining whether the Appellant was engaged pursuant to a one year or two-year maximum term contract, and whether the contract terminated by the Respondent or ended due to the effluxion of time. The Commissioner’s whole consideration of those issues is extracted at paragraph [17] above. In those extracts the Commissioner finds that a genuine mistake was “plausible,” and that the Appellant “may” have written on the contract, and “may have intended to accept the contract as provided to him, without amendments,” being a two-year contract as maintained by the Appellant. Importantly, however, the Commissioner did not express a finding that the Appellant was engaged pursuant to a one-year maximum term contract, and so was not dismissed, nor did she provide reasons that could have supported reaching such a conclusion.
[33] The Commissioner’s later observations referred to at paragraphs [18] and [20] above confirm that the Commissioner did not a make a finding that the Appellant was engaged pursuant to a one-year maximum term contract, and so was not dismissed. Rather, the Commissioner made inconclusive statements regarding whether the Appellant’s contract expired or was terminated at the Respondent’s initiative and offered observations about the Respondent’s “imperfect document management.”
[34] In the final analysis titled “Conclusions” the Commissioner set out to record findings “set out in the reasons”. As demonstrated above, there were no such conclusions previously expressed or recorded. The conclusions she does eventually reach are not made with any express reasons given.
[35] A Member of the Commission is obliged to provide adequate reasons for reaching conclusions on matters that fall for determination in a proceeding. 27 The obligation to give reasons arises from the Commission’s duty to afford parties procedural fairness and to act judicially.28 Whilst there is no imperative for a decision-maker to provide elaborate or extensive reasons, reasons must identify the basis for the decision reached and detail the extent to which parties’ submissions have been understood, accepted or rejected.29 The essential grounds for reaching a decision must be articulated and need to address material questions of fact and law in a manner disclosing the steps that led to a particular result.30 A decision-maker is bound to engage with the issues raised by the parties.31 However it is not necessary for a decision-maker to refer to every piece of evidence and every contention made by a party,32 and reasons for decisions are not to be scrutinised with an eye to discerning error where none truly exists.33
[36] Should there be a failure to give reasons, parties will be left unable to discern what it was that informed a decision. A failure to give adequate reasons may amount to a denial of procedural fairness and jurisdictional error, resulting in the quashing of a decision. 34 But there remains no unqualified and universally applicable legal requirement to refer to every submission advanced by a party. Much is dependent on the importance of the submissions to the issue or issues requiring determination.35 A failure to address a submission which is significant and touches upon the core duty being discharged or which is centrally relevant to the decision being made may, in some circumstances, found a conclusion that the submission has not been taken into account and may thereby expose jurisdictional error.36
[37] The determination of whether a dismissal had occurred was a key jurisdictional fact that had to be determined before the Application could be entertained. The Commissioner did not satisfactorily undertake that task, and subsequently, when expressing “conclusions,” outlined such conclusions without expressing reasons for the formation of those conclusions. The Appellant was denied procedural fairness and deprived the possibility of a successful outcome.
[38] We have upheld the first summarised ground of appeal outlined at [24] (being grounds 1 and 10 of the Notice of Appeal). We are persuaded that permission to appeal should be granted because error in the Decision has been established and the nature of the error identified raises for consideration the proper exercise of the FWC’s jurisdiction to determine general protections applications.
[39] It is necessary for the issue of whether Appellant has been dismissed to be properly considered in the disposition of the Application.
[40] For the reasons given we uphold the appeal on the grounds identified, and set aside the Decision. The Application will be allocated to another Member of the FWC for re-determination.
Order
[41] We order that:
(a) permission to appeal is granted;
(b) the appeal is upheld on the grounds identified in grounds 1 and 10 of the Notice of Appeal; and
(c) the Decision in [2021] FWC 5918, is quashed and remitted for rehearing.
VICE PRESIDENT
Appearances:
Mr G Baughen on his own behalf.
Ms M Arrowsmith for the Respondent
Hearing details:
2021.
Sydney by video.
5 November.
Printed by authority of the Commonwealth Government Printer
<PR737274>
2 Decision at [174].
3 s.369(2).
4 The Decision, at [115].
7 S.361 of the Act.
8 [2017] FCA 1046
9 (2012) 248 CLR 500.
10 (2014) 253 CLR 243.
11 The Decision, at [116].
12 The Decision, at [117].
13 The Decision, at [120].
14 The Decision, at [121] to [126].
15 The Decision, at [128].
16 The Decision, at [141].
17 The Decision, at [142].
18 The Decision, at [162] to [167].
19 The Decision, at [172] and [173].
20 [2011] FCAFC 54, 192 FCR 78, 207 IR 177, at [43].
21 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 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]
22 [2010] FWAFB 5343, 197 IR 266 at [27].
23 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
24 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].
25 [2020] FCAFC 152 at [74]-[75].
26 Ibid at [54] and [55].
27 P R Barach v UNSW [2010] FWAFB 3307 at [16]; Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [43] and [48]; Pinawin v Domingo (2012) 219 IR 128 at [21].
28 CFMEU v Fair Work Commission [2014] FWCFB 2709 at [182]; Edwards v Justice Giudice and Others [1999] FCA 1836 at [44].
29 Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [48].
30 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279-280.
31 Ainger v Coffs Harbour City Council [2005] NSWCA 424 [48].
32 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]; Reece v Webber [2011] FCAFC 33 at [67], (2011) 192 FCR 254 at 277.
33 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
34 CFMEU v Fair Work Commission [2014] FWCFB 2709 at [182].
35 Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at [47].
36 Ibid; see also Fox v AIRC [2007] FCAFC 150 at [39]; WAFP v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21]; Soliman v University of Technology, Sydney [2012] FCAFC 146 at [55]-[56], (2012) FCR 277 at 295.