FWCFB 5834
FAIR WORK COMMISSION
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER
SYDNEY, 20 SEPTEMBER 2013
Appeal against decision [ FWC 1836] of Commissioner Gregory at Melbourne on 14 June 2013 in matter number U2012/12667 - no case to answer.
 On 24 August 2012 Mr Andrew Townsley filed an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy concerning the termination of his employment on 16 August 2012 by the Department of Education and Early Childhood Development (the Department).
 On 14 June 2013 Commissioner Gregory handed down a decision 1 (Decision) in which he granted an application made by the Department under s.587(1)(c) of the Act dismissing the application. He dismissed the application after the conclusion of Mr Townsley’s evidentiary case. No witness evidence was led by the Department. On 2 July 2013 Mr Townsley lodged an appeal against the decision under s.604 of the Act.
 The grounds of appeal and submissions are many, and included amongst them are two principal issues. The first concerns the procedure followed by the Commission in dismissing Mr Townsley’s application for an unfair dismissal remedy, and the associated question of whether Mr Townsley had an entitlement to cross-examine the Department’s witnesses. Secondly, Mr Townsley made a number of challenges to the Commissioner’s finding that there was a valid reason for his dismissal based on his failure to comply with three lawful and reasonable directions, and in particular contended that the second of the three directions was not lawful or reasonable because he was on sick leave at the time it was issued.
 On 15 August 2013, before the hearing of the appeal commenced, Mr Townsley and the Department agreed pursuant to s.607(1)(b) that the appeal should be determined on the basis of written submissions without the need for a hearing, and we determined pursuant to s.607(1)(a) that the appeal could be adequately determined in this way. Written submissions had earlier been filed in accordance with the Commission’s directions, and we permitted further written submissions in reply to be filed. The Department was granted permission to appear through a lawyer pursuant to s.596(2)(a), after the parties were given an opportunity to put written submissions on the issue.
The Decision at First Instance
 Commissioner Gregory firstly discussed at some length the evidence and submissions concerning three directions to Mr Townsley issued by the Principal of the school at which he worked 2. These were firstly a direction to Mr Townsley dated 14 September 2011, in which he was directed by the School Principal to provide certain assessment records for a number of classes, and to provide lesson plans for all of his lessons for the week beginning 19 September 2011. Secondly, on 18 September 2011 he was again directed to provide specified assessment records and lesson plans. Thirdly, on 16 May 2011 he was directed not to approach any of the students named in a complaint against him.
 Commissioner Gregory concluded in relation to s.387(a):
“ I do not accept the Applicant’s submissions on this point. I am satisfied that in all the circumstances the Principal gave lawful and reasonable directions to the Applicant. I am also satisfied they were appropriate directions to provide to a teacher in circumstances where concerns about that teacher’s work performance were being explored and investigated. In that context a fundamental part of any process of review and evaluation would be to seek from the teacher what plans or structure were in place for the forthcoming lessons the teacher was to provide to students at the school. In these circumstances and in the face of the Applicant’s failure to provide what was requested I am satisfied the Principal’s directions to the Applicant were entirely appropriate.
 I am also satisfied that the evidence indicates those directions were not complied with. It is acknowledged that different teachers may prepare and use different lesson plan formats, but this does not remove the obligation to produce that documentation to a person with the requisite authority to make such directions in circumstances where the teacher’s work performance is being reviewed and evaluated.
 The second direction was given to the Applicant by the Principal following complaints made about him by two year eight students. Those complaints were made in writing to the Principal in May 2011. Upon receipt of those complaints the Principal wrote to the Applicant on 16 May detailing the complaints and setting up a process to enable the Applicant to respond. The letter concluded with a direction that the Applicant was not to approach any of the students named in the complaint. However, later in that year the Applicant did approach both students on separate occasions and did raise the issue of the complaint that each had made to the Principal. The first occasion occurred in October when the student was in a detention class being supervised by the Applicant. The second occasion occurred in the following month when the Applicant raised the issue in a discussion with the student during a lesson. The Applicant did eventually acknowledge in cross-examination that if he had his time over things would have been handled differently, and the issue should not have been raised with the two girls. However, the submission made on his behalf in response to this application do not reflect those acknowledgements. It questions the veracity of the complaints made by the students involved and submits there was no evidence of discomfort or intimidation when the students were approached by the Applicant about the complaints they had made. Those submissions also suggest there was no specific direction in place stating that the Applicant was prevented from speaking to the students about the complaints some five or six months after they were first made. The Applicant’s witness statement also questions the motivation of the students who had made the complaint and takes issue with how many were involved. However, it does not make reference to the breach of the direction from the Principal to not approach those students about the complaint they had made.
 In my view these submissions are at odds with the Applicant’s own evidence adduced in cross-examination and ignore what should be clearly evident to a teacher in a position of power and authority with an appropriate understanding of his/her role and responsibilities. I am satisfied it should be evident to any teacher in that situation that it is inappropriate in any circumstances to approach a student in this way. It is a consequence that stems from the imbalance in the relationship between the teacher on the one hand and the student on the other. It is a situation that should apply regardless of whether the teacher has been given a specific direction by a Principal or not, and regardless of when it occurs. Ironically in this context the Applicant subsequently sought to rely on the fact he made a complaint against the Principal as reason why the Principal should not be in any form of contact with him.
 The Applicant’s representative also responded to a question from the Commission by indicating the directions were “a stunt” and in no way, under any circumstances, could they be considered to be lawful or reasonable. Again, I do not accept this submission. I am satisfied the so-called document and investigation directions given by the Principal to the Applicant were in the circumstances lawful and reasonable. I am also satisfied the evidence indicates they were received and understood by the Applicant in terms of what was being asked of him. I am also satisfied that despite them being lawful and reasonable they were either not complied with or deliberately disobeyed. Further, they deal with matters of fundamental importance in a relationship involving a principal and teacher.
 Having considered the evidence provided in this matter I am satisfied that the Respondent had a valid reason to dismiss the Applicant related to his conduct based on the evidence adduced in cross-examination about the issuing of those directions and the failure of the Applicant to either comply with or obey them. I am also satisfied that finding can be made at this point based on the evidence adduced in cross-examination without further testing of the Respondent’s evidence.”
 After making the required findings in relation to ss.387(b)-(g), which are not in contention, he turned to deal with the procedure he followed in determining the matter in making findings about s.387(h). He concluded:
“ I am satisfied that both the requirements of natural justice and “a fair go all round” have been provided to the Applicant. He has had the opportunity to make submissions and provide the evidence he relies on in support of his unfair dismissal application. I am also satisfied that during the testing of that evidence it has been established that on three occasions he failed to comply with lawful and reasonable directions given to him by the Principal of his school without providing plausible explanations in response for this failure. In these circumstances and having considered all the submissions and evidence in this matter, and the considerations in s.387 I am required to have regard to, I am satisfied it is not possible to find the Applicant’s dismissal was harsh, unjust or unreasonable. I am satisfied in those circumstances it is appropriate to now dismiss the matter in accordance with s.587(1)(c) on the basis that the application has “no reasonable prospects of success”. The application is accordingly dismissed.”
Appeal Grounds and Submissions
 The grounds of Mr Townsley’s appeal against the Decision under s.604 of the Act included that the Decision was “manifestly unjust”, that the full case should be heard including cross examination of the Department’s witnesses, that there were significant errors of fact in the decision, and other matters. He claimed that the decision raised issues of public interest such that permission to appeal should be granted.
 Mr Townsley submitted in his first written submission that the decision was “wrong in law” 3, that the decision engaged in “reductionism”, reducing a lengthy issue to one or two “assumed essentials”4, that Mr Townsley was misled and misrepresented in various respects, and that proper procedure was not followed5, that the decision was an “affront to rights” given the medical certificate and other matters6, that “due process” was not followed7, that there was error and repetition in cross-examination of Mr Townsley8, that Mr Townsley committed “no crime”9, and that the Department engaged in inappropriate conduct in various respects10. He alleged that there were a large number of “significant errors of fact” in the decision11. He attached a range of documents in his appeal book which included what he described as ignored audio recordings about his teaching, the schools agreement, complaint outcomes June 27 2011, VCAA audit fraudulent document, admission the Principal condones falsifying documents, Principal’s Merit Protection Board submission, the lawful direction letter and emails, the 3rd complaint outcome letter, the 15 June 2012 “preliminary view letter”, the termination letter, the investigation report, the respondent’s letters by Ms Petrony, the s.587 submission by the respondent, extracts of evidence concerning alleged intimidation and repetition by Mr Townsley, and other matters.
 In a second written submission Mr Townsley submitted that he had a right to cross- examine the Department’s witnesses, that the decision under appeal was contrary to the public interest, that s.587 could not be used to stifle the opposition’s chance to cross examine, that his five days sick leave in September 2011 should be taken into account and that the Principal had not acted correctly, and dealt with other matters.
 In a third written submission Mr Townsley submitted that the first, second and third complaints process conducted by the Principal was in error 12, the performance procedure was in error13, the directions issued by the Principal to Mr Townsley were in error14, the medical certificate was ignored, the Commissioner supported the Principal’s directions and erred15, and other matters.
 The Department submitted that the public interest test required for the grant of permission to appeal under s.400(1) of the Act is a substantial one, not simply satisfied by the identification of error or a preference for a different result. The decision at first instance did not manifest an injustice, Mr Townsley was permitted to call his evidence and advocate his case. His representative had the opportunity to re-examine Mr Townsley. He was assisted by a lawyer for the first three days of the hearing. Mr Townsley was given an opportunity to resist the s.587 application, an adjournment was granted, and he was given fair warning of the matters to be advanced. Mr Townsley did not “dispute the underlying factual substratum on the issue of each of the lawful and reasonable directions”. Mr Townsley’s submission that the directions were not lawful and not reasonable was wrong both in fact and law. The Commission should not grant permission to appeal. There was no error identified by Mr Townsley. It put a number of other submissions in relation to each of the grounds of termination relied on by the Department. The Department submitted that Commissioner Gregory took into account the medical certificate, and other matters. In relation to the conduct of the Commissioner, the Department submitted that he gave Mr Townsley every opportunity to present his factual and legal case, and his conduct was ‘exemplary’.
 In a second submission the Department dealt with a number of other matters. It said that Mr Townsley had been afforded natural justice, and that there is no “explicit statutory right to cross-examine”.
 In a third submission the Department submitted that Mr Townsley had breached the Commission’s direction that its third submission be a reply submission only, and had put new submissions as to the merits of his application, and referred to new material not before Commissioner Gregory. It said that these new submissions were inimical to the due administration of justice and should not be permitted on appeal.
 Section 587(1) “Dismissing Applications” of the Act provides:
“(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.”
 Section 587(2) is not relevant in the context of this matter. Section 587(3) provides:
“The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
 The first issue raised on appeal relates to the procedure followed by the Commissioner in determining the matter. In Micheletto v. Korowa Anglican Girls’ School 16 a Full Bench of the Commission said:
“The Right to a Hearing
 It is implicit in the statutory provisions which we have referred to that once an applicant has elected to have his or her application determined by arbitration he or she acquires a right to have the case heard. There is a corresponding duty in the Commission to hear the applicant's case. The nature of the applicant's right is, in the time-honoured phrase, a right to their day in court. The right to a hearing is not unqualified. Circumstances may render it just that something less than a full hearing is appropriate. For example, the Act specifically provides for summary dismissal of an application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case (s.170CIB). There may be other circumstances in which an application might be dismissed without a full hearing and without infringing the rules of procedural fairness. It is necessary to explore in some detail what those circumstances might be.
No Case Submissions
 In civil proceedings an application might be struck out at the conclusion of the plaintiff's case in response to a submission on behalf of the defendant that there is no case for the defendant to answer, a no-case submission. Except in a narrow class of cases the defendant would be required to elect between making a no-case submission and calling evidence. Accordingly, if the no-case submission were to fail the defendant would not be permitted to call evidence. Whether the respondent is put to its election is a matter in the discretion of the judge.
 There is no reason why a no-case submission should not be permitted in s.170CE proceedings, subject to the same limitations. As just indicated, in civil proceedings a no-case submission is normally made at the end of the plaintiff's case. At that stage the issues in the case and the evidentiary questions which may require resolution have been exposed through examination in chief and cross-examination. For that reason in our view in the arbitration of claims made under s.170CE(1)(a) a no-case submission should generally only be permitted at the end of the applicant's case, unless the case is one in which the conclusion can be reached at the outset that the respondent has no case to answer.
 In civil litigation there are circumstances in which a no-case submission may be made at the outset of proceedings and before the plaintiff's evidence commences. The court has a discretion to dismiss an application before any evidence is heard on the basis of the pleadings and other material filed by the plaintiff. In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel), Barwick CJ accepted that "the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."”
 These conclusions are consistent with those of Full Bench decisions in Govender 17 and Ghalloub18. Those authorities made it clear that under the previous Workplace Relations Act 1996 it was open to the Commission to make the required findings of fact and the ultimate decision in relation to an unfair dismissal application pursuant to a “no case to answer” submission made by the respondent at the conclusion of an applicant’s case and without hearing any evidence from the respondent.
 The power to undertake that course under the Act is now confirmed by s.587(1)(c), which expressly empowers the Commission to dismiss an application that has no reasonable prospects of success. Thus there is no doubt that the Commissioner had the power to dispose of Mr Townsley’s application in the way that he did once he had formed the view that the application had no reasonable prospects of success. Alternatively, he could simply have made the findings he was required to make in relation to each of the matters set out in s.387 on the basis of the material before him. For the reasons explained in Micheletto, it was open to the Commissioner to take either approach without having heard the Department’s evidentiary case.
 Mr Townsley objects to the procedure followed by the Commissioner. He submits that he was denied the right to cross-examine the Department’s witnesses and thereby advance his case. This submission is, with respect, misconceived. The Department did not call any witnesses, nor was it obliged to do so. In that circumstance no issue of Mr Townsley’s right to cross-examine could arise because there were no witnesses for him to cross-examine.
 The Commissioner allowed Mr Townsley to put the full evidentiary and merit case that he wished to put. He had his “day in court”, and was afforded natural justice. When his case concluded, the Department submitted that the application should be dismissed on the basis of the evidence before the Commission. On the basis of that evidence, the Commissioner was able to and did make findings about each of the matters set out in s.387, and gave them due weight as he was required to do: ALH Group Pty Ltd trading as the Royal Exchange Hotel v Mulhall 19, Edwards v Giudice20. He dismissed the application for an unfair dismissal remedy. No appellable error occurred in the Commissioner taking this course.
 For completeness, we note that in his decision the Commissioner made reference to a number of documents appended to the statements of evidence which the Department filed in connection with the matter but did not tender. We do not consider that in doing this the Commissioner impermissibly entered into the evidentiary case which the Department foreshadowed by filing the statements but never ran. The documents referred to in the decision consisted of communications between the Department (in its various manifestations) and Mr Townsley. There was no issue that the documents had been sent and received. Mr Townsley was cross-examined about these documents, and his evidence in that connection was relied upon by the Department. It is evident from the Decision that the Commissioner had regard to the documents only as evidence of the fact of the communications between the Department and Mr Townsley, and not as to the truth of their contents. Having regard to the way in which the proceedings went forward, it was open to the Commissioner under s.590(1) to inform himself by reference to these documents even though they were never formally put into evidence.
 We further note that in allowing the Department to put what was effectively a no-case submission after the close of Mr Townsley’s case, the Commissioner did not appear to have required the Department to elect not to call any evidence. Indeed, the Commissioner appears to have taken the view that if the Department’s no-case submission was unsuccessful, “the original application simply proceeds from where we left off”. 21 As the Full Bench stated in Micheletto, the usual rule in civil proceedings is that a party desiring to have a matter determined on the basis of a no-case submission must elect not to call any evidence. The rationale for this approach was stated in Australian Competition & Consumer Commission v Amcor Printing Papers Group Ltd22 as follows:
“The general rule of practice is that a decision will not be given on a no case submission unless the moving party elects to give no evidence: Rasomen, at 223; Compaq Computer, at 6-7 (and cases cited there). There are good reasons for the rule, in particular the difficulty that if a judge rules in favour of a no case submission and the judgment in favour of the moving party is overturned on appeal, it would usually be necessary to order a new trial: Compaq Computer, at 7. A further problem is that a no case submission may require the judge to consider the evidence twice during the trial, namely, in connection with the submission and, if the submission fails, at the conclusion of all the evidence. This problem may be particularly acute if the no case submission requires an evaluation of the credit of witnesses.”
 In our view this rationale is fully applicable to unfair dismissal proceedings. The just and convenient disposition of an unfair dismissal application would usually require a respondent to elect not to call evidence if it wishes the application to be determined on the basis of a submission made at the close of the applicant’s case that the application has no reasonable prospects of success. However, the fact that the Department was not put to the election did not have any effect upon the outcome here, given that the Commissioner dismissed Mr Townsley’s application for an unfair dismissal remedy. It is not necessary for us to deal with this issue further given the conclusions we have reached as to the disposition of this appeal.
 Mr Townsley also challenges the Commissioner’s conclusion that there was a valid reason for Mr Townsley’s dismissal, as well as a number of other findings made by the Commissioner. In relation to s.387(a), the Commissioner found that Mr Townsley breached three reasonable and lawful directions issued to him by the Principal and that this constituted a valid reason for his dismissal. The fact of the directions and Mr Townsley’s breach thereof was in effect conceded by Townsley in the hearing before the Commissioner. The main complaint of Mr Townsley on appeal is that the breach of directions did not justify termination of employment, for various reasons, including that the directions were not reasonable 23. These and other submissions are in substance an attempt to have us determine afresh the merits of the matters which were required to be determined by the Commissioner. It is not open to us to re-determine the matter unless an error in the decision has been established of the type identified in House v The King24 and permission to appeal has been granted. We do not consider that any such error has been established, nor do we consider that the appeal raises any public interest issue which would permit us to grant permission to appeal under s.400(1) of the Act.
 One submission that loomed large in Mr Townsley’s case on appeal was that the Commissioner erred in finding that the second of the three directions which he breached was lawful or reasonable because Mr Townsley was on sick leave at the time the direction was issued and therefore could not reasonably be expected to comply with it. We do not consider that any error has been demonstrated in this respect. The first direction was issued by way of a letter dated 14 September 2011 25. In that letter, the Principal reminded Mr Townsley that he had not provided assessment records or lesson plans as he had been previously asked to do, and directed him to provide her with specified assessment results, and all lesson plans for the week commencing 19 September 2011, by 4.00pm on 15 September 2011.
 There was no factual issue that this direction was not complied with by Mr Townsley. No assessment results or lesson plans were provided to the Principal. Solicitors representing Mr Townsley wrote to the Principal advising her that the requested documents could be “made available” at the solicitors’ office, but the Principal (in our view justifiably) informed the solicitors that Mr Townsley was required to produce the documents to her, that if he failed to do so he may be committing an act of misconduct, and that she would not be attending the solicitors’ office to view any documents.
 Not having received anything, the second direction was issued by the Principal in a letter dated 19 September 2011. It noted that Mr Townsley had not complied with the first direction, and directed him to provide four categories of documents by 4.00 pm on 21 September 2011, the fourth of which were lesson plans for that week (i.e. the week commencing 19 September 2011) and the week beginning 10 October 2011. At the very least, that aspect of the direction requiring the production of lessons plans for that week did not involve any requirement for Mr Townsley to perform work, since those lesson plans clearly should already have been prepared and should already have been produced pursuant to the 14 September 2011 direction. The evidence does not suggest that Mr Townsley’s medical condition was such as to prevent him from simply producing documents already in existence, since his evidence was that he did produce the first three categories of documents required by the second direction. Therefore, at least to the extent that Mr Townsley failed to produce the lessons plans for the week beginning 19 September 2011 in response to the second direction, he failed to comply with a lawful and reasonable direction, and Mr Townsley’s challenge to the Commissioner’s finding to that effect must fail. It is not necessary in the circumstances for us to go further and examine whether that aspect of the second direction requiring the production of the lesson plans for the week beginning 10 October 2011 was also lawful and reasonable. We simply note that the evidence did not make it clear whether those lesson plans should already have been prepared by that time or not, and we further note that in any event there was no suggestion by Mr Townsley in his evidence that he produced those lesson plans at any time, even after the end of his period of sick leave.
 No error of fact or law has been established, let alone a significant error of fact 26. The public interest test in s.400(1) is not satisfied by advancing a case for the preference for a different result: Barwon Health - Geelong Hospital v Colson27. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Tribunal identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 28
 The procedure followed in this matter to determine the outcome does not raise any new issue of legal principle. There is no public interest in granting permission to appeal. We refuse permission to appeal.
Mr A Townsley on his own behalf with Mr J Townsley
Mr N Harrington of counsel for the respondent
Final written submissions:
1  FWC 1836
2 Ibid, paragraphs 12-33
3 Appeal Submission, paragraphs 5-12
4 Appeal Submission, paragraphs 13-17
5 Appeal Submission, paragraphs 22-41
6 Appeal Submission, paragraphs 42-53
7 Appeal Submission, paragraphs 54-65
8 Appeal Submission, paragraphs 66-69
9 Appeal Submission, paragraphs 70-79
10 Appeal Submission, paragraphs 80-90
11 Appeal Submission, ‘Significant errors of fact’, paragraphs 1-98
12 Appeal Submission, 6 September 2013, paragraphs 177-202; paragraphs 216-223
13 Appeal Submission, 6 September 2013, paragraphs 203-215
14 Appeal Submission, 6 September 2013, paragraphs 222-235; paragraphs 244, 260-287
15 Appeal Submission, 6 September 2013, paragraphs 288-307
16  AIRC 1391, Giudice J, President, Hamilton DP, Deegan C, 11 November 2003
17  AIRC 1145, 12 September 2003
18  AIRC 238, 21 March 2005
19  AIRC 329
20  FCA 1836
21 Transcript 12 March 2013 PN40
22  FCA 17; 169 ALR 344
23 Eg. Appeal Submission, 6 September 2013, paragraph 233-234; ‘Significant Errors of Fact’, paragraphs 14, 24, 28, 29, 32, 51, 52, 63
24 (1936) 55 CLR 499 at 505
25 It is set out in paragraph  of the Decision.
27  FWCFB 4515
28 (2010) 197 IR 266 at paragraph 27
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