Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [2017] FWC 1139] of Commissioner Williams at Perth on 1 March 2017 in matter number U2016/12172.

[1] On 1 March 2017, Commissioner Williams handed down a Decision 1 and Order2 dismissing an unfair dismissal application made by Mr Colella (“the Appellant”) against Aroona P&T Pty Ltd T/A Aroona Alliance (“the Respondent”).

[2] On 22 March 2017, the Appellant filed a Notice of Appeal pursuant to section 604 of the Fair Work Act 2009 (Cth) (hereafter “the Act”). The grounds of appeal claimed that the Commissioner erred in a number of respects, including making findings in relation to data obtained from a device called a “personal digital assistant”, referred to in the Decision at first instance as a “PDA”.

[3] We heard the appeal on 1 May 2017 and reserved our Decision. At the hearing, Mr S. Heathcote, of Counsel, sought permission to appear for the Appellant and Mr N. Ellery, solicitor, sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to section 596 of the Act, permission was granted to both parties to be represented.

[4] Commissioner Williams found that data from the PDA carried by the Appellant while he was working showed that, on 21 occasions, the Appellant had been assigned tasks and, on each of these occasions, the data recorded by his PDA was not consistent with where he should have been if he was undertaking these tasks. 3 Having regard to this finding and other findings, the Commission found that there was a valid reason for termination of his employment.4

[5] The Appellant also sought to lead further evidence, this being a witness statement from Mr Chris Earls and a report provided by him, which analysed the PDA data relied upon by the Respondent and found that it was unreliable in various respects. During proceedings, we decided to admit the new evidence and asked for submissions to be put by the parties as to whether permission to appeal should be granted and whether the appeal should be upheld. We give reasons in relation to these three matters in this Decision.

[6] We note that it may be that the Commission was not assisted as it might have been in this matter by the legal representatives who appeared at first instance and who may have been in a position to alert the Commissioner to some of the difficulties discussed in this appeal.

Submissions

[7] The Appellant sought to put new evidence in support of his appeal and put a range of submissions, including the difficulty he had in responding to the Respondent’s submissions in the short time between service of the Respondent’s submissions and the hearing date. In particular, the Appellant submitted that he had only 3 working days to consider and respond to the 386 pages of evidence that the Respondent had filed.

[8] The Respondent submitted that the new evidence could have been obtained with reasonable diligence for use at the trial, and that the Appellant had known for months that the PDA data would be relevant and had “sat on his hands and did nothing.” 5 It dealt with each of the appeal grounds, the public interest and other matters.

Admission of New Evidence

[9] The usual principles for the admission of new evidence on an appeal are set out in Power Projects International Pty Ltd v AMWU 6 and Akins v National Australia Bank.7 In summary, first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Secondly, the evidence must be such that there is a high degree of probability that there would have been a different outcome and, thirdly, the evidence must be credible.

[10] In relation to the first principle, the issue is whether the evidence of Mr Earls or similar evidence had been tendered with reasonable diligence during the hearing on 31 January 2017. On 29 November 2016, the Commissioner issued directions, directing the Appellant to file and serve submissions and evidence by 4 January 2017, and the Respondent to reply by 24 January 2017. The matter was set down for hearing on 31 January 2017. The Appellant and Respondent complied with these directions. There was no provision in the directions for the Appellant to file a reply submission after the Respondent had filed its submissions on 24 January 2017. On 30 January 2017, the Commission refused an application for an Order that certain documents be produced. This Decision is not of great relevance, given that the PDA material had already been produced on 24 January 2017.

[11] The matter was then heard on 31 January 2017, seven days after the Respondent filed its submissions and a public holiday also intervened. It is not in contention that the Appellant did not have access to the PDA data and report until the Respondent’s submissions were filed on 24 January 2017. It is true that the Appellant was provided with the opportunity to read and consider the PDA data during the termination process. However, the PDA data and conclusions are of a highly technical nature, and we accept that the Appellant was not able to properly assess this material without some form of technical or expert assistance. The Appellant understandably asked for a copy of this material during the termination process, and the Respondent refused to provide this. This decision has natural justice consequences, which we discuss later. This is material of an unusual nature.

[12] The representative for the Appellant also claimed that he was not in a position to properly consider and respond to this material in the available time when the PDA data and report were made available to the Appellant. We agree with this submission. We note that Counsel for the Appellant did not seek an adjournment or raise his difficulties with the Commission during the hearing. On balance, however, the failure to raise the problem that he had, or to ascertain and act in relation to the problem that he had, is again a result of the difficulties and technical nature of the material, taking into account the short period available to consider the material, and the fact that many other issues in the Respondent’s lengthy submission also had to be assessed. It does not detract from the failure to provide the Appellant with the opportunity to put a case on an important issue.

[13] Given the limited time available to the Appellant, we find that the new evidence could not have been tendered during the proceedings with reasonable diligence.

[14] In relation to the second principle, the issue is whether the evidence is such that there is a high degree of probability that there would have been a different outcome. As already indicated, the PDA data was clearly relevant to the Decision made by the Commissioner that there was a valid reason for termination of employment. It is true that the PDA data was not the only basis on which the Commissioner found that there was a valid reason for termination of employment. The Commissioner also referred to other matters including correlation of this data with swipe card data, 8 the procedures for testing chlorine analyser trends,9 and the credibility or lack thereof of the Appellant’s evidence.10 However, in our view, the importance of the PDA data placed by the Commission leads us to conclude that there was the required degree of probability that the Commissioner’s conclusions would have led to a different outcome.

[15] Finally, in relation to the third principle, we also consider that the evidence is credible.

[16] For these reasons, we admitted the new evidence.

Authorities on Appeal

[17] This matter was listed to consider the issue of permission to appeal, and whether or not the appeal should be granted. In relation to permission to appeal, a Full Bench of the Commission said in GlaxoSmithKline Australia Pty Ltd v Makin: 11

“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although 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, it seems to us that none of those elements is present in this case.”

Permission to Appeal and the Appeal

[18] As indicated earlier, having admitted the new evidence, we invited the parties to put submissions in relation to whether or not permission to appeal should be granted, and whether or not the appeal should be upheld, having regard to this Decision.

[19] The Appellant put further submissions in support of each of the grounds of appeal, which we do not repeat. The Respondent submitted that it was not possible to determine that the new evidence would necessarily mean that a different determination would have been made by the Commission in relation to a valid reason, and in the overall assessment of whether or not the termination was harsh, unjust or unreasonable. We also note that the Respondent put a range of other submissions.

[20] In relation to permission to appeal, the High Court said in Stead v State Insurance Commission 12 that there is an obligation to provide natural justice with respect to a contest of facts:

“… The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board, in these terms:

‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’

That general principle is, however, subject to an important qualification which Bollen J. Plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial …”

[21] In this case, the Appellant did not have the benefit of a provision for a reply submission in the directions. Further, the period between the Appellant receiving the PDA data and the hearing was short. The PDA material was of a highly technical nature, and it was included in a lengthy submission from the Respondent which included many other matters which required the Appellant’s attention. Given these circumstances, in our view, the time available to the Appellant after receiving the PDA material was not sufficient to allow him to properly put his case and he did not receive his day in court. We repeat our earlier observations about the conduct of the matter by his representative. Accordingly, we grant permission to appeal on the basis that there was a failure to provide the Appellant with natural justice.

[22] Secondly, again, because of this failure to provide natural justice, we grant the appeal and quash the decision under appeal.

[23] We refer the matter to be reheard by Commissioner Riordan. He will shortly issue directions for hearing the matter.

[24] We note that the directions issued in this matter were of a somewhat unusual nature. The problems discussed in this appeal would have been avoided if a reply submission had been provided for in the directions, and if a longer period between written submissions and the hearing date was also provided for.

VICE PRESIDENT

Appearances:

S. Heathcote, of Counsel, for the Appellant.

N. Ellery for the Respondent.

Hearing details:

2017.

Sydney:

1 May

 1   [2017] FWC 1139.

 2   PR590568.

 3   [2017] FWC 1139, [28].

 4   Ibid [75].

 5   Respondent’s submissions dated 28 April 2017, [23].

 6   [2011] FWAFB 1327, [12]. 

 7   (1994) NSWLR 155, 160.

 8   [2017] FWC 1139, [32]-[35].

 9   Ibid [39]-[43].

 10   Ibid [41].

 11   [2010] FWAFB 5343, [27].

 12   (1986) 161 CLR 141, 145-146. 

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