Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [2017] FWC 1200 of Commissioner Gregory at Melbourne on 2 March 2017 in matter number U2016/11320 – Application determined ‘on the papers’ – matters involving contested facts – section 397 Fair Work Act 2009 (Cth) – conference or hearing required – permission to appeal only – permission to appeal granted – appeal upheld.

[1] On 2 March 2017, Commissioner Gregory issued a Decision, 1 which found that Mr Stif Sekirski (“the Appellant”) was not unfairly dismissed by his employer, Scope (Vic) Ltd (“the Respondent”).

[2] The Appellant lodged an appeal with the Commission on 23 March 2017 seeking permission to appeal the Decision of Commissioner Gregory. We heard the matter in relation to permission to appeal only on 3 May 2017. At the hearing, the Appellant represented himself, however, there was no appearance for the Respondent. We note that during the course of the permission to appeal hearing, it became apparent that the matter at first instance was heard on the papers and involved contested facts.

Grounds of Appeal

[3] The Appellant lodged 112 pages of material with the Commission. In this regard, we note the Appellant did not lodge an outline of submissions as required and the material was difficult to follow and largely pertained to the merits of the case.

[4] As noted above, it became apparent that the central matter for consideration was that this case involved contested facts and had been decided on the papers. As a result of this, we contacted the Respondent after the hearing by way of correspondence dated 3 May 2017, advising them that permission to appeal was granted. We also noted in that correspondence that submissions in relation to the appeal should be made; making it clear that the critical issue was the fact the matter had been decided on the papers when there were contested facts.

[5] On 16 May 2017, the Respondent filed submissions in relation to the appeal. We have read and considered those submissions and now summarise the salient aspects as follows:

● The Respondent submitted the Commissioner was right to determine the matter at first instance on the papers due to the security concerns raised by the Respondent in relation to being in the same room as the Appellant. The Respondent also contended that the Appellant sent “threatening, intimidating, distressing and nuisance messages in the form of emails, text messages and voice messages”. Further, the Respondent indicated that it had to implement safeguards for the safety and wellbeing of its staff.

Consideration

[6] This appeal is one to which section 400 of the Act applies. 2 Section 400 provides that:

“(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.”

[7] 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 section 400 as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 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.” 5

[8] 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. 6 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.7

The matter at first instance was determined on the papers with consent from the parties. However, the Act indicates that, in certain circumstances, a hearing or conference is required. The relevant provision in this regard is section 397 of the Act, which states:

“The FWC must conduct a conference or hold a hearing in relation to a matter arising under this part if, and to the extent that, the matter involves facts the existence of which is in dispute.”

[9] It is apparent from the terms of section 397 that where a matter arising under Part 3-2 of the Act involves contested facts, the Commission must conduct a conference or hold a hearing in relation to those contested facts. The Commission is not required to hold a hearing in respect of every matter arising under Part 3-2 of the Act. The Commission is only required to hold a hearing “as provided by [the] Act”. 8 In this regard, section 397 is one of the statutory exceptions to this general proposition.9 The Commission may determine a matter arising under Part 3-2 of the Act on the papers without having to conduct a conference or hold a hearing, provided that the matter does not involve “facts the existence of which is in dispute”.10

[10] This matter is clearly one that involved contested facts. The materials filed by both parties at first instance are relevant to questions of fact surrounding the incidents relating to the dismissal of the Appellant. The Commissioner at first instance made findings of fact in reaching his conclusion, and ultimately preferred the accounts put forward in the material of the Respondent.

[11] The Respondent submitted that the Commission was not required to hold a hearing or conference in this matter due to security concerns associated with the Appellant. However, a security concern is not a basis for the Commission to avoid conducting a hearing or a conference. This is because the Commission has the capacity to take appropriate steps to deal with security concerns.

[12] The fact that the parties consented to having the matter determined on the papers is irrelevant. The requirements of section 397 are clear and the statutory obligation upon the Commission cannot be abrogated by the consent or acquiescence of the parties. Moreover, previous Full Bench decisions have indicated it is not appropriate for matters involving contested facts to be determined on the papers 11 and there is no reason to depart from such decisions. We also note a conference or hearing would have also provided the Commission with an opportunity to examine the witnesses and assess the credibility of the evidence.

[13] In this matter, the relevant contested facts are a critical issue in the proceedings. The Commissioner failed to comply with section 397 of the Act and, as a result, this enlivens the public interest. The failure to comply with section 397 in this context is an error that warrants correction on appeal. Therefore, we must uphold the appeal and quash the Decision of Commission Gregory.

Conclusion

[14] Permission to appeal is granted.

[15] The appeal is upheld.

[16] The Decision of Commissioner Gregory is quashed.

[17] The matter is referred to another member of the Commission to rehear the matter.

VICE PRESIDENT

Appearances:

S. Sekirski for himself.

No appearance for the Respondent.

Hearing details:

2017

Sydney:

3 May.

 1   [2017] FWC 1200.

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

 3   (2011) 192 FCR 78 at [43].

 4   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].

 5   [2010] FWAFB 5343 at [27], 197 IR 266.

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

 7   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].

 8   Fair Work Act 2009 (Cth) s 593(1).

 9   Also see s.607(1) in relation to appeals and the obligation to provide procedural fairness, this may require the FWC to conduct a hearing in certain circumstances.

 10   Fair Work Act 2009 (Cth) s 397.

 11   Bronwyn Shields v The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd [2015] FWCFB 2945; Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy [2017] FWCFB 1405.

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