DECISION

Fair Work Act 2009
s.604—Appeal of decision

Steric Solutions Pty Ltd
v
Minas Trialonas
(C2017/5799)

Appeal against decision [2017] FWC 5068 of Commissioner Johns at Sydney on 29 September 2017 in matter number U2016/15558.

[1] Steric Solutions Pty Ltd has appealed the decision¹ and order² of Commission Johns where he found that Mr Minas Trialonas was unfairly dismissed and ordered that Steric Solutions pay Mr Trialonas $25,765.22 gross less taxation as required by law.

Preliminary matters

[2] Steric Solutions sought a stay of the decision and that application was dismissed.³

[3] Mr Trialonas sought permission to be represented by a lawyer/paid agent. We granted permission for Mr Trialonas to be represented as we were satisfied that Mr Trialonas was unable to represent himself effectively. We decided to exercise our discretion to grant permission. While noting that Steric Solutions is a small business and was representing itself, we did not consider that there would be any unfairness to Steric Solutions if we permitted Mr Trialonas to be represented.

[4] On 10 November 2017, Mr Trialonas filed an application that the appeal be stayed under section 589 or alternatively be dismissed under sections 589 or 587(1)(b) of the Fair Work Act 2009 because Steric Solutions had failed to comply with the order to pay Mr Trialonas the monies payable under the order and had failed to file submissions in relation to the appeal. The Full Bench advised that the matter would proceed to hearing and it would issue its reasons for not staying the appeal with this decision.

[5] Section 589 of the Act provides as follows:

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC's power to make decisions.

[6] It is not necessary for us to determine if section 589 enables the Commission to permanently stay a proceeding or to stay a proceeding until such time as a party has complied with orders of the Commission because, even if it were a source of such power, we decided in our discretion to proceed with the appeal hearing. We did so because we considered that in these circumstances it was preferable that the appeal be heard and determined, particularly in light of the decision on the stay that there was an arguable case that Steric Solutions had been denied natural justice. Further, we had regard to the fact that Steric Solutions is a small business and represented itself at the hearing at first instance and at the stay. We have had regard to the fact that Steric Solutions’ conduct in not complying with the order is unacceptable and should not be rewarded.

[7] While we accept that Mr Trialonas is disadvantaged by the failure of Steric Solutions to comply with the order, we consider that it is preferable that the appeal be heard and determined and the parties will then be able to pursue their rights without the prospect that the appeal decision will impact on those rights.

Background

[8] Mr Trialonas made an unfair dismissal application and named 3D Scaffolding as his employer. Steric Solutions filed an employer response to that application and advised that, at all relevant times, it was Mr Trialonas’s employer. Mr Trialonas did not accept that he was employed by Steric Solutions and the preliminary question of who was Mr Trialonas’ employer was heard. An issue had also been raised as to whether there was in existence a settlement agreement.

[9] Directions were issued to Mr Trialonas to file material in relation to the alleged settlement agreement and the merits of his claim. 3D Scaffolding was directed to file material in relation to the alleged settlement agreement and in opposition to the application.

[10] Subsequently, after a mention hearing, directions were issued requiring a representative of 3D Scaffolding Pty Ltd to attend and give evidence in relation to its claim that it was not the employer. The Commissioner also requested a representative of Steric Solutions attend to give evidence in support of its claim that it was Mr Trialonas’ employer. That direction noted that Mr Trialonas’ application against 3D Scaffolding would proceed and as part of that hearing, the Commissioner would decide if 3D Scaffolding was the true employer. If he found 3D Scaffolding was the employer, the matter would proceed on that day.

[11] At that hearing, Mr James Docherty represented 3D Scaffolding⁴ and Ms Leanne Docherty, the Director of Steric Solutions, was present as requested by the Commissioner.⁵

[12] Mr Trialonas’ witness statement was tendered into evidence⁶ and further evidence in chief about the dismissal was led. In addition, Mr Trialonas gave evidence in chief about the identity of his employer. Ms Docherty was directed by the Commissioner to remain outside of the hearing room whilst Mr Trialonas was giving evidence.⁷

[13] Mr Docherty, at the commencement of his cross examination of Mr Trialonas said “I thought we were deciding whether he worked for 3D Scaffolding or not.” The Commissioner relied “yes, we are. We are and this is his evidence about all of that so this is your opportunity to ask him any questions about that.”⁸

[14] Mr Docherty cross-examined Mr Trialonas about the identity of his employer and about his dismissal. He was also asked about safety related issues. The questions asked about the safety issues were objected to on the basis that they were being raised for the first time.⁹ As a result, the Commissioner advised that Mr Docherty could cross examine Mr Trialonas about the identity of the employer but not in relation to the termination.¹⁰

[15] Mr Docherty then gave evidence and was cross examined.

[16] Ms Docherty gave evidence about Mr Trialonas’ employment and was crossed examined. In addition, the Commissioner asked her questions about the events that led to Mr Trialonas’ termination. After those questions the Commissioner asked Ms Docherty if there was “anything that [she] wanted further to say that you think I need to understand about the employment arrangement, corporate arrangements, or whatever?” She replied no. 11

[17] Mr Docherty sought to question Ms Docherty to clear things up but the Commissioner ruled that he was not permitted to.¹²

[18] During closing submissions, the Commissioner asked Ms Docherty if she would object to Mr Trialonas being given an extension of time to commence proceedings against Steric Solutions.¹³ Ms Docherty advised that she did object to this proposal because she had advised at the start that Mr Trialonas had named the wrong employer.¹⁴

[19] Subsequently the Commissioner raised whether he was able use section 586(a) of the Act to amend the application to change the name of the employer to Steric Solutions.¹⁵ He advised that Mr Trialonas and Steric Solutions would be given a further opportunity to address him on this proposition.

[20] Mr Docherty made closing submissions about the true identity of the Mr Trialonas’ employer. He also made submissions about Mr Trialonas’ work performance.¹⁶ Mr Docherty complained that he had been prevented from asking Ms Docherty about the safety issues.¹⁷

[21] Neither party made any submissions or called any evidence in relation to the alleged settlement agreement.

[22] At the conclusion of the hearing, the Commissioner gave Mr Trialonas and Steric Solutions one week to make further submission about the Commission’s power to correct the original application to insert the name Steric Solutions.¹⁸

[23] Steric Solutions filed submissions opposing the amendment. It did not address the issue of whether the Commission had the power to make the amendment. Mr Trialonas filed submissions as did 3D Scaffolding.

[24] Commissioner Johns issued a decision on the preliminary issue on 23 June 2017 in which he found that Mr Trialonas’ employer was Steric Solutions.¹⁹ He further determined to correct the application to identify Steric Solutions as the employer.²⁰

[25] As part of that decision, he made findings about what had occurred at the workplace from 6 December 2016.²¹ Relevantly he said that “it seems that, more likely than not, the reason for the termination of Mr Trialonas’ employment was not the vulgar language that he directed at Ms Docherty on 6 December 2016, but a direction given be James Docherty to his niece. It seems that the reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. This put her in a difficult position, but she obliged.”²²

[26] That decision has not been appealed.²³

[27] Directions were then issued and Mr Trialonas was directed to file material in support of his application and Steric Solutions was directed to file material in opposition to the application.

[28] Steric Solutions filed a statement in which Ms Docherty said “Minas Trialonas was dismissed for serious misconduct including but not limited to language, intimidation, bullying and serious safety breaches as admitted by Mr Trialonas in the last hearing.” Steric Solutions relied upon the definition of serious misconduct found in the Act.

[29] The Commissioner sent the parties an email on 25 July 2017 advising that the matter would be listed for a further hearing. In that email the Commissioner noted that:

“The Commissioner has questions for Ms Docherty arising out of her statement of 14 July 2017.

In particular, noting:

● that Ms Docherty reinstated Mr Trialonas into his employment on 8 December 2016 (see para [26](n) of the Jurisdiction Decision); and

● the evidence referred to at paragraphs [26](o) – (s) of the Jurisdiction Decision,

it is difficult to reconcile what Ms Docherty now contends occurred.

It might be that Ms Docherty (having reinstated Mr Trialonas) changed her mind.  There are a number of decisions of the Commission where employees have been able to change their mind (in relation to resignation) and it might be that the respondent will urge the Commissioner to apply similar principles in the present matter.

The Commissioner has questions about what was the valid reason for dismissal under s.387(a) of the FW Act.  Acting under direction from a client, may constitute the same.

Ms Docherty, as a self-represented litigant, ought properly, as a matter of procedural fairness, be provided with an opportunity to explain these matters. 

That will be the focus of the hearing on Friday.”

[30] The matter was heard on 28 July 2017 and Ms Docherty represented Steric Solutions.

[31] Mr Trialonas was recalled to the witness box and gave further evidence about his activities post termination. Ms Docherty was asked if she wished to cross examine Mr Trialonas and she declined.²⁴

[32] Ms Docherty gave evidence and denied that Mr Trialonas was reinstated on 8 December 2016.²⁵ She gave evidence about her reasons for dismissing Mr Trialonas.²⁶ Ms Docherty then raised issues about safety breaches and that evidence was objected to on the basis that no evidence had been filed by Steric Solutions about safety breaches.²⁷

[33] When the Commissioner put to her that she had had the opportunity to file material and that it would be procedurally unfair to allow her to give further evidence when the other party was not on notice, Ms Docherty said “in the last hearing I was brought here to find out – you told me it was to determine who Minas was employed by so I didn’t really get a fair hearing. I didn’t get to explain anything and now I’ve left it open to explain it today and you’re telling me you don’t want to hear it.”²⁸

[34] The Commissioner noted that had Steric Solutions wished to raise new matters it could have filed witness statements and it did not.²⁹ He refused to allow Ms Docherty the opportunity to give additional evidence.³⁰ The Commissioner noted that Steric Solutions had had the opportunity to appeal his earlier decision.³¹

Permission to appeal

[35] An appeal under section 604 of the Act 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.³² There is no right to appeal and an appeal may only be made with the permission of the Commission.

[36] This appeal is one to which section 400 of the Act applies. 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.”

[37] In Coal & Allied Mining Services Pty Ltd v Lawler and Others, the Federal Court characterised the test under section 400 as ‘stringent’.³³

[38] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.³⁴ 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.”³⁵

[39] Alternatively, the second ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.³⁶

[40]  In relation to permission to appeal, the High Court said in Stead v State Insurance Commission ³⁷ 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.”

[41] We are satisfied that there is an arguable case that Steric Solutions was denied procedural fairness because of the manner in which the matter proceeded. As this matter involves important questions of procedural fairness and the fair and just determination of a matter before the Commission particularly when the matter involves a self-represented litigant we grant permission to appeal.

Grounds of appeal

[42] We have not addressed all of the grounds of appeal made by Steric Solutions because we have formed the view that Steric Solutions was denied procedural fairness.

[43] In its appeal ground 6, Steric Solutions complained that it had been denied the opportunity to question Mr Trialonas. In its written submissions, Steric Solutions expanded this ground and submitted that the way the matter proceeded resulted in Steric Solutions being denied natural justice. It submitted that it was told that the first hearing would only deal with the identity of Mr Trialonas’ employer. Steric Solutions also thought that it would have a further opportunity at the second hearing to read Ms Docherty’s statement about Mr Trialonas’ safety breaches. Steric Solutions said it was denied the opportunity to refer back to the initial hearing. Steric Solutions submitted that its representative was not permitted to be present when Mr Trialonas was cross-examined and she was not permitted to cross examine Mr Trialonas. Further, Mr Docherty was not permitted to cross-examine Mr Trialonas.

[44] It was not disputed that it was a very small business.

[45] We are satisfied that Steric Solutions was denied procedural fairness when Mr Trialonas was permitted to give evidence about the dismissal at the first hearing in circumstances where Steric Solutions was not on notice that this evidence would be given. It was advised that the hearing was held to determine the identity of the employer.

[46] We are satisfied that Steric Solutions was denied procedural fairness as it was denied the opportunity to cross-examine Mr Trialonas at that hearing as Ms Docherty, who was the representative of Steric Solutions, was excluded from the hearing during his evidence.

[47] Further we are satisfied that Steric Solutions was denied procedural fairness as Ms Docherty was questioned about the dismissal of Mr Trialonas without being provided with the opportunity to lead evidence about the events in circumstances where she had been called by the Commission to give evidence only about the identity of the employer. The Commissioner then made findings of fact about the dismissal which were relied upon in his second decision.

[48] We have considered whether these defects were overcome by the provision to Steric Solutions of the first decision; the transcript; an opportunity to call further evidence; and the opportunity to cross examine Mr Trialonas at the second hearing.

[49] We accept that by the provision of the transcript and the decision, Steric Solutions was aware of what was said at the first hearing. Further Steric Solutions was provided with an opportunity to call further evidence.

[50] We note that Steric Solutions was provided with a further opportunity to cross examine Mr Trialonas after he was recalled to give evidence about his post termination attempts to find work. However Steric Solutions was not advised that the evidence given in the first hearing would be relied upon in the second hearing. Nor was Steric Solutions advised that it could cross examine Mr Trialonas about the totality of evidence he had given at the first hearing.

[51] Given Steric Solutions was represented by its director, it should have been given this information, or at least advised that if it chose not to cross examine Mr Trialonas, his evidence in total would be accepted. This is particularly so given that the Commissioner, in his decision concerning Steric Solutions, imported what he described as “non-contentious matters” set out in his earlier decision concerning 3D Scaffolding. Those “non-contentious matters” included not just findings of fact but also conclusions drawn from those facts. It is clear from the transcript of the second hearing that some of those conclusions (particularly the reasons for dismissal) were in contention as far as Steric Solutions were concerned. Yet Ms Docherty, on behalf of Steric Solutions was not put on notice that those facts and conclusions, about which she had not been permitted to cross examine Mr Trialonas at the first hearing, were capable of being so imported. As such, the employer did not have the opportunity to test the evidence of Mr Trialonas on all issues relevant to merit. We have concluded that as a result Steric Solutions was denied procedural fairness.

[52] Because we have concluded that Steric Solutions was denied procedural fairness as set out above it is not necessary for us to determine whether the other grounds of appeal relied upon by Steric Solutions have been made out.

Conclusion and disposition of the Appeal

[53] We have concluded above that Steric Solutions was denied procedural fairness. As we are unable to conclude that the denial of procedural fairness did not impact on the outcome of the hearing we consider that the best course is to allow the appeal and quash the decision and order of the Commissioner and remit the matter to a different Commissioner to be re-determined. An order giving effect to our decision will issue with this decision.

DEPUTY PRESIDENT

Appearances:

L Docherty and D Docherty for the Appellant.

A Jenshel for the Respondent.

Hearing details:

2017.

Melbourne and Sydney via video link:

30 November.

<PR599763>

1 [2017] FWC 5068

2 PR596481

3 [2017] FWC 5647

4 Transcript PN 13

5 Ibid PN 44-45

6 Ibid PN 80

7 Ibid PN 46

8 Ibid PN 112-113

9 Ibid PN 381

10 Ibid PN 425

 11   Ibid at PN 1005

12 Ibid PN 1007-1015

13 Ibid PN 1084

14 Ibid PN 1089

15 Ibid PN 1111-1112

16 Ibid PN 1133

17 Ibid PN 1146

18 Ibid PN 1165

19 [2017] FWC 3138

20 Ibid at [60]

21 Ibid at [26](i)-(r)

22 Ibid at [26](s)

23 On 28 July 2017 Commissioner Johns noted that Mr Docherty had every opportunity to appeal the decision. Transcript PN 15

24 Transcript PN 84-85

25 Ibid PN 103-104

26 Ibid PN 105-110

27 Ibid PN 114-117

28 Ibid PN 118

29 Ibid PN 119

30 Ibid PN 118

31 Ibid PN 120-122

32 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

33 (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)

34 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per French CJ, 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]

35 [2010] FWAFB 5343, 197 IR 266 at [27]

36 Esso Australia Pty Ltd v AMWU and ors [2015] FWCFB 210 at [7]

37 (1986) 161 CLR 141, 145-146

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