DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ms Inessa Barkhazen
v
Conair Australia Pty Ltd T/A Conair Australia
(C2016/6056)

Appeal against decision [[2016] FWC 6520] of Commissioner Cambridge at Sydney on 16 September 2016 in matter number U2016/201 – permission to appeal refused

[1] Ms Inessa Barkhazen has applied for permission to appeal and appealed against a decision 1 issued by Commissioner Cambridge on 16 September 2016 (Decision). In that Decision the Commissioner found that Ms Barkhazen’s dismissal by Conair Australia Pty Ltd (Conair) was not harsh, unjust or unreasonable. The Commissioner made an order2 dismissing Ms Barkhazen’s unfair dismissal application.

[2] The matter was listed for hearing of Ms Barkhazen’s application for permission to appeal on 9 November 2016. At that time Mr P. King, counsel, appeared with permission for Ms Barkhazen and Ms K. Jones, counsel, appeared with permission for Conair.

Appeal lodged out of time

[3] Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules 2013) deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The Notice of Appeal was lodged by Ms Barkhazen on 10 October 2016. The Decision and order the subject of that notice were made on 16 September 2016. Ms Barkhazen’s appeal was instituted three days outside of the time prescribed. 3 Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.

[4] The authorities 4 indicate that the following matters are relevant to considering whether to exercise the Commission’s discretion under Rule 56(2)(c):

•  whether there is a satisfactory reason for the delay;

•  the length of the delay;

•  the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

•  any prejudice to the respondent if time were extended.

[5] Ms Barkhazen relies on a statutory declaration made by her solicitor, Mr Bruno Gelonesi, in support of her application to extend time for the institution of the appeal. Conair did not require Mr Gelonesi for cross examination. Although Mr Gelonesi does not say so in express terms, the effect of his statutory declaration is that representative error is the reason for the delay in instituting the appeal, and Ms Barkhazen is not responsible for that delay. That is a satisfactory reason for the delay and it weighs in favour of granting an extension of time.

[6] The period of the delay was short (three days). This factor weighs in favour of granting an extension of time.

[7] In light of the short period of delay and the fact that Conair has not adduced any evidence of any particular prejudice it would suffer if time were extended, we consider that prejudice to Conair is a neutral factor in this case.

[8] As to the likelihood of permission to appeal being granted and the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time were extended, we are of the view that this factor weighs against granting an extension of time, for the reasons set out in paragraphs [13] to [30] below.

[9] Having regard to the matters set out in paragraphs [4] to [8] above, we are satisfied that the interests of justice favour an extension of the time within which to lodge the appeal. 5  Accordingly, we exercise our discretion pursuant to Rule 56(2)(c) of the FWC Rules 2013 to extend the time for Ms Barkhazen to lodge her appeal to 10 October 2016.

Permission to appeal principles

[10] This appeal is one to which s.400 of the Fair Work Act 2009 (FW Act) applies. 6 Section 400 provides:

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

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

[11] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 7 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment8. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 9

[12] 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. 10 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.11

Grounds of Appeal

[13] Ms Barkhazen submits that permission to appeal should be granted because the Decision manifests an injustice upon principles of procedural fairness. 12 In particular, Ms Barkhazen contends that the Commissioner erred by not recusing himself on the basis of apprehended bias. In connection with this ground of appeal, Ms Barkhazen points to passages in the transcript where the Commissioner made comments during opening submissions about Ms Barkhazen not coming to the Commission with “clean hands” and Ms Barkhazen “stealing” her human resources file.13 Ms Barkhazen also contends that the Commissioner applied the wrong test in deciding whether or not to recuse himself and “then changed his position and stated that he would recuse himself if the Applicant agreed to pay the costs”.14

[14] The Commissioner raised a number of issues with counsel for each of the parties at the commencement of the hearing on 30 May 2016. One of those issues related to the admitted fact that Ms Barkhazen had removed her human resources file from Conair’s offices on 3 December 2015 15 and did not return it to Conair until the first day of the hearing, notwithstanding that a number of written requests had been made by Conair for the return of her human resources file. It was in that context that the Commissioner raised with counsel for Ms Barkhazen whether she had come to the Commission with “clean hands”.16 Further, in response to an opening submission from counsel for Ms Barkhazen that “the suggestion and the submission of the respondent that somehow or other she stole the file is just complete nonsense …”17, the Commissioner asked: “Well, what else do you describe it as?”18 There then followed an interchange between counsel for Ms Barkhazen and the Commissioner in which terms such as “steal”, “larceny” and “theft” were used by each of them.19

[15] No doubt because the Commissioner was dealing with an unfair dismissal application and not a charge of larceny, the Commissioner made the comment during opening submissions that the parties were not going to be “testing” whether the elements of larceny were present. 20 After some further discussion on the point, counsel for Ms Barkhazen submitted that “the problem was that she was dismissed whilst she was under suspension in relation to a different matter. That’s the problem and it requires an examination of the real facts of the case.”21 The Commissioner responded by saying: “All right, well perhaps we need to do that”22 and counsel for Ms Barkhazen proceeded to identify part of the evidence on which his client sought to rely. Shortly after that, the first recusal application was made by counsel for Ms Barkhazen.

[16] Importantly, the relevant comments made by the Commissioner during opening submissions on which counsel for Ms Barkhazen relied to make his application for recusal were qualified. For example, the Commissioner stated:

•  “… I suppose in simple terms – and I don’t want to jump to any hasty conclusions, but when I read the material and I looked at the repeated documented requests for the return of the employer’s property, which apparently until today had gone without response, there had been no acknowledgement in any form, I was concerned that there may have been some difficulty for the Commission in good conscience to proceed. It’s an old concept, you must come to the Tribunal that you seek relief from with clean hands. How do I reconcile the position where unless I’ve got something – and I could well have this completely misunderstood but from before Christmas last year there are documented requests from the solicitors for the employer…”; 23 [emphasis added]

•  “… ‘Could we have our property back please?’ and until today there is not even an acknowledgement of that apparently, unless I’ve misunderstood all of this.” 24 [emphasis added]

[17] The test for disqualification on the basis of a reasonable apprehension of bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. 25 A fair-minded lay observer will recognise that a professional judge or member of the Commission is capable of departing from an earlier expressed opinion.26 Further, a judge or member of the Commission is not expected to “sit in silence, Sphinx-like while arguments are presented and will often form tentative opinions on matters in issue”.27 Counsel are ordinarily assisted by hearing those opinions and can respond to them.28 It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.29

[18] There is no doubt that observations from a judge or member of the Commission can exceed what is proper and a reasonable expression of tentative views. Whether that has happened in a particular case is a matter of judgment taking into account all of the circumstances of the case. However, the expression of tentative views during the course of argument in relation to matters on which the parties are permitted to make full submissions does not manifest partiality or bias. 30

[19] In the present case, the debate between bench and bar was robust and, at times, the Commissioner used emphatic language. However, in our view, this would be readily understood by the fair-minded lay observer as part of the process of understanding and testing both the admitted facts and counsel’s arguments with a view to reaching the right decision on the application before the Commissioner. 31

[20] In our view, it is apparent from a reading of the whole of the transcript of the interchange between the Commissioner and counsel for the parties at the commencement of the hearing, including the qualified comments set out in paragraph [16] above, that the views in question were expressed by the Commissioner in both a non-conclusive way and at a time when the evidence had not been adduced, and “there is nothing to indicate that they represented concluded views whatever course the proceedings might thereafter take”. 32

[21] The transcript does not support the conclusion that a fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the question the Commissioner was required to decide. Accordingly, we are satisfied that there is not an arguable case of error in relation to the Commissioner’s decision not to recuse himself on the ground of apprehended bias.

[22] The Commissioner gave short reasons on transcript for his decision not to recuse himself from further hearing the matter. 33 Although it is arguable, as counsel for Ms Barkhazen contends, that the Commissioner erred in applying the wrong test and he should not have had regard to whether Ms Barkhazen was prepared to pay any costs in deciding the recusal application, we are not satisfied that it would be in the public interest to grant permission to appeal on those grounds in circumstances where we are satisfied that there is neither an arguable case of error in relation to the Commissioner’s conclusion that he should not recuse himself on the ground of apprehended bias, nor is there, for the reasons set out below, an arguable case of error in relation to any other part of the Decision.

[23] Ms Barkhazen contends that the Commissioner made a number of significant errors of fact, including finding that:

(a) Ms Barkhazen was unaware of the direction for her to return her human resources file prior to her summary dismissal on 4 January 2016;

(b) Ms Barkhazen failed to return her human resources file until the first day of the hearing; and

(c) Conair’s internal inquiry into Ms Barkhazen’s whistleblower complaints ended in February 2016.

[24] The Commissioner found that Ms Barkhazen was unaware of the letters from Conair dated 21 and 23 December 2015 prior to her dismissal on 4 January 2016. 34 However, the Commissioner also made reference to Conair’s letter dated 14 December 2015 in the context of his finding that Conair had a valid reason for the dismissal “because it was reasonable for it to assume that the absence of any response … represented a deliberate refusal to comply with the directions”.35

[25] There is no doubt that Ms Barkhazen received the letter dated 14 December 2015 prior to her dismissal on 4 January 2016. 36 That letter required Ms Barkhazen’s solicitors to inform the solicitors for Conair “immediately if your client has this HR file in her possession, control or custody. If Ms Barkhazen does have or know the whereabouts of the HR file this information needs to be provided to us urgently.”37 Accordingly, we are not satisfied that there is an arguable case of error that the Commissioner found, or ought to have found, that Ms Barkhazen was unaware of the direction to return the human resources file before she was dismissed on 4 January 2016.

[26] Ms Barkhazen contends that the Commissioner found that she failed to return her human resources file until the first day of the hearing, “which was false as the evidence was the Applicant offered to Conair’s representative in this Commission on the first return of the matter in February 2016 to return it, but they stated she may retain it eg to assist her in the preparation of her case”. 38 We are of the view that there was no appealable error in the finding that Ms Barkhazen failed to return the human resources file until the first day of the hearing.39 Ms Barkhazen agreed to give the human resources file back to Conair as part of a proposed settlement at conciliation, but the settlement “fell over”.40 We are not satisfied that there is an arguable case of error in relation to this part of the Decision.

[27] Ms Barkhazen submits that the Commissioner erroneously found at paragraph [69] of the Decision that Conair’s internal inquiry into Ms Barkhazen’s “whistleblower complaints ended in February, yet it continued long after the dismissal of the Applicant”. 41 No such finding was made in paragraph [69] of the Decision. In paragraph [32] of the Decision the Commissioner referred to the fact that a communication was sent to Ms Barkhazen on 24 February 2016, informing her, inter alia, that the investigation into her claims had been completed. The Commissioner had regard to Ms Barkhazen’s contention that she was dismissed in breach of the whistleblower provisions of the Corporations Act 2001 in deciding whether her dismissal was harsh, unjust or unreasonable.42 We are not satisfied that there is an arguable case of error in relation to this part of the Decision.

[28] Ms Barkhazen contends that the Commissioner erred because her “summary dismissal without notice on 4 January 2016 was itself a repudiation of the contract by Conair, entitling the Applicant to damages in contract and under FW Act …” 43 It is also contended that Conair failed to provide Ms Barkhazen with 28 days’ written notice of any proposed termination in accordance with clause 7 of her contract of employment.44 Whether there was a breach or repudiation of the contract by Conair is not determinative of the questions the Commissioner was considering under Part 3-2, Division 3 of the Act, including whether there was a valid reason for dismissal and, ultimately, whether the dismissal was harsh, unjust or unreasonable. The Commissioner considered the terms of Ms Barkhazen’s contract in deciding those matters.45 Accordingly, we are not satisfied that there is an arguable case of error in relation to this part of the Decision.

[29] We are not satisfied that there is an arguable case of error in relation to any other ground for appeal asserted by Ms Barkhazen.

[30] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required in an appeal of this kind;

(b) the appeal raises issues of importance and/or general application;

(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or

(d) the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[31] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the FW Act, that it would be in the public interest to grant permission to appeal.

[32] Permission to appeal is not granted.

[33] The appeal is dismissed.

VICE PRESIDENT

Appearances:

Mr P. King, of counsel, appeared for the applicant;
Ms K. Jones, of counsel, appeared for the respondent.

Hearing details:

2016.
Sydney:
November, 9.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR587440>

 1   [2016] FWC 6520

 2   Ibid at [97] and PR585294

 3   21 days after 16 September 2016, not including 16 September 2016, is 7 October 2016. 10 October 2016 is three days after 7 October 2016.

 4   See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410

 5   Jobs Australia v Eland [2014] FWCFB 4822

 6   See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]

 7   (2011) 192 FCR 78 at [43]

 8   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

 9   [2010] FWAFB 5343 at [27], 197 IR 266

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

 11   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 12   Ms Barkhazen’s submissions on permission to appeal dated 31 October 2016 at [1]-[8]

 13   Ms Barkhazen’s submissions on permission to appeal dated 31 October 2016 at [4]

 14   Ms Barkhazen’s submissions on permission to appeal dated 31 October 2016 at [4]

 15   Appeal Book (AB) at 306 [108]

 16   See, for example, AB at 37 [PN36]

 17   AB at 38 [PN44]

 18   AB at 38 [PN45]

 19   AB at 38-44, see, for example, [PN56, 57, 62, 98 & 99]

 20   AB at 43 [PN99]

 21   AB at 43 [PN104]

 22   AB at 43 [PN105]

 23   AB at 37 [PN36]

 24   AB at 37 [PN38]

 25   Crossman v Sheahan [2016] NSWCA 200 at [22], applying Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337 at [6]

 26   GlaxoSmith Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [39]

 27   GlaxoSmith Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [36]

 28   Johnson v Johnson [2000] HCA 48 at [13]

 29   GlaxoSmith Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [36]

 30   Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 283 at [112]

 31   GlaxoSmith Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [47]

 32   Re Morling; Ex parte Australian Meat Industry Employees Union (1985) 11 IR 299 at 301

 33   AB at 44-48

 34   Decision at [68]

 35   Decision at [68]

 36   AB at 309 [139]; AB at 92 [PN643-5]; AB at 97-8 [PN712-5]; AB at 39 [PN61]

 37   AB at 196

 38   Ms Barkhazen’s submissions on permission to appeal dated 31 October 2016 at [17]

 39   AB at 38 [PN48]

 40   AB at 41-2 [PN80 – PN94]

 41   Ms Barkhazen’s submissions on permission to appeal dated 31 October 2016 at [18]

 42   See, for example, Decision at [28], [31], [32], [36], [54], [55], [74]-[78] & [92]-[94]

 43   Ms Barkhazen’s submissions on permission to appeal dated 31 October 2016 at [12]

 44   Ms Barkhazen’s submissions on permission to appeal dated 31 October 2016 at [13]

 45   See, for example, Decision at [87]-[91]