| [2021] FWCFB 350 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Dr Daniel Krcho
v
University of New South Wales T/A UNSW Sydney
(C2020/6873)
DEPUTY PRESIDENT ASBURY |
BRISBANE, 29 JANUARY 2021 |
Appeal against decision [[2020] FWC 4435] of Commissioner Johns at Sydney on 21 August in matter number C2020/1574 – permission to appeal refused.
Introduction and background
[1] Dr Daniel Krcho (the Appellant) seeks permission to appeal and appeals a decision of Commissioner Johns, described by the Commissioner as an interim decision, issued on 21 August 2020. 1 The decision concerns an application (unlawful termination application) made by the Appellant under s. 773 of the Fair Work Act 2009 (the Act) asserting that his employment was unlawfully terminated by the University of New South Wales t/a UNSW Sydney (the Respondent) and a jurisdictional objection by the Respondent. In summary the Respondent asserted before the Commissioner that the Appellant’s unlawful termination application was barred by s. 723 of the Act, because it could have been made under s. 365 of the Act.
[2] In his unlawful termination application, the Appellant asserted that his employment was terminated for seven reasons or grounds proscribed by s. 772 of the Act. In the decision, the Commissioner found that the Appellant’s s. unlawful termination application was competent in respect of only one of those grounds and that the Appellant was barred by s. 723 of the Act from making an unlawful termination application in respect of the other six grounds. The Commissioner gave the Appellant an opportunity to amend his unlawful termination application to include only the ground that he determined was not statute barred. It is from this decision that the Applicant appeals.
[3] The Appellant sought a stay of the decision which was refused by the presiding member on the basis that a stay would have no utility. 2 The appeal was listed for hearing on 21 October 2020. The Appellant was unable to prepare an Appeal Book in accordance with Directions for the appeal and was provided with assistance from staff of the Fair Work Commission (the Commission). The Appellant was also granted extensions for filing his material in the appeal due to difficulties accessing an electronic version of the appeal book. On 19 October 2020 the Appellant sought an adjournment of the appeal and that it be determined on the papers. The Respondent objected. The hearing proceeded by telephone on the basis that we were of the view that it would be more efficient to have an oral hearing having regard to the complexity of the appeal grounds and the Appellant’s submissions. The Appellant was represented by his wife, Mrs Andrea Krcho. The Respondent was represented by its internal legal counsel, Ms Helen Carter who did not require permission.
[4] Ms Krcho was distressed during the hearing of the appeal and stated on a number of occasions that she was on strong medication related to pain control. Ms Krcho also stated that she was unable to engage with questions posed to her by the Full Bench and requested that the Full Bench rely on the written submissions of the Appellant, stating that the submissions had been carefully prepared and confirming that they contained all of the material the Appellant relied on in support of the appeal. We have considered the written submissions filed by the Appellant and other material relied on in the appeal.
The decision
[5] In the decision, the Commissioner set out the history of litigation conducted by the Appellant in the Commission between October 2018 and January 2020, including several applications for interim orders relating to an application made by the Appellant for an order to stop bullying in which the Appellant sought to prevent the Respondent carrying out alleged threats to dismiss him. The second such application was dismissed by Deputy President Sams in July 2019 3 and an extension of time to appeal that decision was refused by a Full Bench of the Commission in a decision issued on 10 December 20194. The Commissioner also records that a third application for interim orders was made and refused5 and that this refusal was also subject of an appeal6. The present appeal is the third by the Appellant in respect of proceedings in the Commission brought by him against the Respondent.
[6] The Commissioner observed that due to the long history of litigation, the application for an order to stop bullying had not been heard and would possibly not be heard, because the Respondent terminated the Appellant’s employment on 20 February 2020, after he lodged his second appeal in relation to that matter. The Commissioner records that the termination letter given by the Respondent to the Appellant, states that the reason for dismissal was misconduct said to have arisen out of alleged factual circumstances that caused the Respondent to believe that it would not receive the Appellant’s co-operation to explore a return to work following an absence from work on medical grounds. The Commissioner records that the Respondent formed the view that the Appellant:
a) failed to attend a scheduled independent medical appointment (IME) thereby failing to comply with lawful and reasonable directions of his employer; and
b) indicated on multiple occasions an unwillingness to co-operate in the Respondent’s endeavours to achieve a return to work including refusing to participate in a facilitation process.
[7] The Commissioner also records that the Appellant disputes that he failed to comply with lawful and reasonable directions and that the Appellant contended in his Form F9 Application for the Commission to deal with an unlawful termination dispute, that the termination of his employment was because of:
1. Temporary absence from work because of illness or injury;
2. The filing of a complaint against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
3. The participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
4. Discrimination – age;
5. Discrimination – physical or mental disability;
6. Discrimination – political opinion; and
7. Discrimination – national extraction or social origin.
[8] The Commissioner stated that it was not his role to make any finding about the substantive and operative reason for the termination of the Appellant’s employment and that this was a matter for a court. The Commissioner then turned to consider the jurisdictional objection advanced by the Respondent and the Appellant’s submissions in response to that objection. The Respondent’s jurisdictional objection, as summarised by the Commissioner, was on the basis that:
• it is a national system employer and the Appellant was a national system employee;
• the grounds relied on by the Appellant in his Form F9 application fall within ss. 341, 351 and 352 of the FW Act and are prohibited grounds as defined with the result that the Appellant could have commenced proceedings under s. 365 by making an application for the Commission to deal with a general protections dispute involving dismissal;
• the ground of political opinion is not available to the Appellant under s. 351 of the Act because of the operation of s. 352; 7 and
• where the majority of the reasons for dismissal fall within Part 3-1 of the Act the Appellant is not able to bring an unlawful termination claim under Part 6 – 4 or alternatively the Appellant can only pursue the political opinion ground in his unlawful termination application.
[9] Because of these matters, the Commissioner found that the starting point for any unlawful termination application arising out of prohibited grounds or discrimination is Part 3 – 1 of the Act (the general protections provisions). The Commissioner also observed that if an employee can make a general protections claim under Part 3 – 1 of the Act, the employee must do so and there is a legislated preference in favour of such claims over Part 6 – 4 claims (unlawful termination).
[10] In reaching this conclusion the Commissioner applied the decision of Commissioner Cambridge in McIntyre v Special Broadcasting Services Corporation T/A UNSW Corporation 8 (McIntyre). This decision was cited by the Appellant at first instance, and in the appeal, as authority for him being able to continue with his unlawful termination claim in its present form. The Commissioner determined that McIntyre did not support the Appellant’s position. Relevantly, the Commissioner observed that the applicant in that case mistakenly commenced a general protections application under s. 365 of the Act (found in Part 3 – 1) in circumstances where he was not entitled to make such an application, with the result that he was not barred from making an unlawful termination application under s. 773.
[11] The Commissioner analysed the Appellant’s characterisation of the reasons for termination of his employment and concluded that other than the Appellant’s claim that his employment had been terminated on the ground of political opinion, proscribed by s. 772(1)(f) of the Act, all reasons asserted by the Applicant for the termination of his employment would have entitled the Appellant to make a general protections appliation under Part 3 – 1. Because the Appellant could advance those claims under Part 3 – 1 of the Act, the Commissioner concluded that he could not advance the claims in an unlawful termination application made under s. 773. The Commissioner went on to conclude that, as presently drafted, the Appellant’s unlawful termination application is:
a) incompetent in large measure; but
b) competent insofar as it seeks to prosecute a claim that “political opinion” was the basis for UNSW terminating the Appellant’s employment.
[12] The Commissioner noted that the unlawful termination application had been prepared by a person who was not legally trained and that as presently drafted, might deprive the Appellant of his day in court. The Commissioner also noted that he had the power to allow a correction or amendment of the application on any terms that were considered appropriate as provided in s. 586 of the FW Act. Further, the Commissioner noted that:
“[46] The Applicant has not made an application to correct or amend the Form F9 Application. If he did so, such that the answer to section 3.2 was confined to “political opinion”, it seems that no jurisdictional complaint could be made about it. Again, I am not expressing a view about the merits of the claim that the Applicant was dismissed because of his political opinion. But because all the other grounds are statute barred (because of the operation of s.723), “political opinion” is all that the Applicant is left with. He might well have been in a stronger position if he had commenced an application under s.365 of the FW Act in respect of all the other grounds except political opinion. But he made an election about which kind of application to make on 12 May 2020 and he is stuck with the decision he made. But, presently, there are difficulties with that application.”
[13] The Commissioner went on to provide the Appellant with an opportunity to correct or amend his unlawful termination application and stated that if the Appellant did not make such an application by 28 August 2020, he would issue a final decision in relation to the Respondent’s jurisdictional objection. The Commissioner stated that the Appellant was not required to make an application to correct or amend his unlawful termination application and that this was entirely a matter for the Appellant to decide.
[14] Subsequent to the release of the Commissioner’s decision, there was correspondence between the Appellant and the Commissioner’s Chambers. Some, but not all, of that correspondence was appended to submissions made by the Appellant in the appeal and the correspondence was referred to in the submissions in relation to allegations of bias made against the Commissioner. To assist in understanding the Appellant’s submissions about the correspondence and his assertions about the conduct of the Commissioner, the Full Bench has obtained the full email exchange from the Commission’s Case Management System. It indicates that on 23 August 2020, the Appellant – through his wife – emailed the Chambers of Commissioner Johns seeking a 14 day extension to the 28 August deadline identified in the decision on the basis that the Appellant wished to undertake further research and seek legal advice before responding. The email also indicated that amending the unlawful termination application in the manner canvassed in the Commissioner’s decision was not a trivial matter, if the Appellant wished to be fully heard.
[15] The response from the Commissioner’s chambers sent on 24 August 2020 stated that:
“If the Applicant intended to amend his original F9 such that the answer to section 3.2 in the original application dated 12 May 2020 is confined exclusively to “political opinion” then that is a relatively simple matter.
Attached is an example of a Form F1 that would likely facilitate the same.
Consequently the Commissioner does not see the need to allow a further 14 day extension of time.
However, he has not formed a definite view about the matter.
He asks that the Respondent indicate its position in relation to the requested extension of time.”
[16] Attached to the email was a Form F1 Application, into which details had been entered so that had the Appellant so elected, he could have signed and lodged the Form F1 Application to seek an amendment to his unlawful termination application in terms set out in the Commissioner’s decision. The Respondent also corresponded with the Commissioner by email stating its agreement with the Commissioner that the amendment of the Form F9 to be confined exclusively to an application based solely on “political opinion” is a relatively simple matter, particularly noting that the Commission had provided to the Applicant a partly completed application and that it did not see the need for a significant extension of time.
[17] The Applicant responded to the correspondence from the Commissioner’s chambers expressing thanks for the response and “pre-filled F1 form”. In that response the Appellant also stated that:
“…not being legally educated or represented, also now experiencing some difficulties, as well as being exhausted – feels strongly that the extra time is necessary to enable him to seek professional help and assistance with proper re-formulation (which he has rights to receive), to ensure success of his application – beyond just simple reduction of the reasons/grounds, but in order to ensure his right to be fully heard in Court, in compliance with FWA, ss.3, 557 & 578. The Applicant intends to have his original Form F9 Application professionally amended in a correct manner so that it achieves full compliance without unduly limiting his rights.”
[18] In response, the Commissioner’s Associate advised that the Commissioner had considered the Appellant’s request and had granted an extension until 4.00 pm on Friday 11 September 2020 for the Appellant to decide whether he wished to seek to amend his unlawful termination application. The Appellant lodged his notice of appeal on 10 September 2020. On 14 September 2020 a stay application made by the Appellant was refused by the Presiding member of this Full Bench. 9 On 14 September 2020 the Commissioner corresponded with the parties noting that the stay application had been refused and restating parts of his decision which dealt with the opportunity for the Appellant to amend his unlawful termination application. The email went on to point out that the Appellant had sought and been granted extensions of time to decide whether to file an amended application, and that no amendment had been sought. The email concluded by providing the Appellant with “a further opportunity to file any application he wants to make amend his original s. 773 application” and stating that if the Appellant chose to take this step he was required to do so by 18 September 2020.
[19] When the appeal was heard the Appellant had not sought to amend his application and the Commissioner had taken no further step to determine the Respondent’s jurisdictional objection.
Appeal grounds and submissions
[20] The Appellant’s grounds of appeal as stated in stated in the Form F7 Notice of appeal are as follows:
1. Question of law; under pars. [1]-[4] & [7]-[17] & [42]
2. Inconsistency with interpretations in other decisions; under pars. [21]-[22]
3. Making irrelevant considerations; under par. [28]
4. Significant errors of fact caused by:
a. Failure to properly report & consider facts; under pars. [33]-[34]
b. Misreporting of facts; under pars. [35]-[40]
5. Bias: due to being inappropriately influenced by the Respondent (& it’s obviously incorrect interpretation); under pars. [12]-[20] & [23]-[27]
6. Jurisdictional error of law producing ultra vires decision; under pars. [29]-[32] & [41]-[44]
7. Bias & unfair process: denying procedural fairness, removing opportunity to be fully heard; under pars. [1]-[3] & [8]-[32] & [42]
Ongoing communications with external legal representative of the Respondent, despite he allegedly no longer acts for the UNSW; under pars. [11]-[20] & [45]-[47]
[21] The Form F7 also contains material in the form of submissions which is both complex and convoluted. The Directions issued for the hearing in relation to permission to appeal and merits of appeal required the Appellant to file an outline of submissions that were prepared in accordance with the Fair Work Commission’s Appeal Proceedings Practice Note. The Directions referred to the requirements of the outline of submissions set out in the Practice Note and stated that such outlines of submissions must:
• clearly identify the grounds on which permission to appeal is sought and identify the legal or factual errors in the decision;
• list any authorities upon which the Appellant wished to rely;
• clearly identify why it is in the public interest to grant permission to appeal and identify any significant error(s) of fact in the decision subject to appeal;
• be generally limited to less than 10 pages;
• be produced on A4 size paper; and
• have type which is double spaced.
[22] The Appellant’s submissions were required to be filed by Wednesday 30 September 2020. Contrary to the Directions, the Appellant filed submissions on 16 September, 30 September and reply submissions on 19 October 2020. The Appellant also stated that his submissions needed to be read in conjunction with a complaint made on 18 September 2020 seeking an urgent parliamentary inquiry into what are said to have been procedural malfunctions by the Commission in breach of various legislative provisions. The material filed by the Appellant significantly exceeded the length stipulated in the Practice Note.
[23] The Full Bench was not assisted by the fact that the Appellant’s submissions do not correlate to the appeal grounds and raise matters that have no apparent relevance to the appeal, much less to the decision being appealed. Some of the matters referred to in the submissions post-date the decision appealed. The submissions also raise matters related to proceedings arising from an earlier application made by the Appellant for an order to stop bullying which were dealt with by another member of the Commission and are completely irrelevant to the present appeal.
[24] The Appellant’s submissions, to the extent they are comprehensible, can be summarised as follows. The central point is an assertion that the decision of the Commissioner constitutes an error of law because it incorrectly applied s. 723 of the Act thereby limiting the rights of the Appellant to be “fully heard” by requiring that he “devalues” his Form F9 Application by restricting the reasons for bringing an unlawful termination application. The Appellant also asserts that the decision erroneously labels his unlawful termination application as incompetent. The Appellant refers to s. 360 of the Act and contends that this section, read with ss. 577, 578 and 3, does not permit the Commission to limit the Appellant’s right to be fully heard by restricting the grounds in his application.
[25] A diagram in the Appellant’s submissions of 30 September 2020, depicts the Appellant’s argument that the ground of political opinion is an umbrella and that other grounds upon which he asserts the termination of his employment was unlawful are under that umbrella. In support of this submission, the Appellant refers to the decision in McIntyre 10 and maintains that the Commissioner’s decision is inconsistent with that case and that clarification from a Full Bench is required. Essentially the Appellant appears to assert that he is entitled to elect to make an unlawful termination application on the basis that his grounds include political opinion, which is a ground that he is not permitted to include in a general protections application under Part 3 – 1 of the FW Act. The Appellant also appears to assert that because the grounds upon which his unlawful termination application is made include a ground that cannot be asserted in a general protections application, he is permitted to include in the unlawful termination application, other grounds, notwithstanding that he can make a general protections application in relation to those other grounds.
[26] The Appellant repeats and elaborates upon these alleged errors of law under other headings in his appeal submissions. Under the heading of bias, the Appellant asserts that the Form F9 permits an unlawful termination application to be made on multiple grounds. The Appellant further asserts that the erroneous instruction to limit his grounds for unlawful termination was the result of the Commissioner being heavily influenced by what are said to be deceptive and untenable submissions by the Respondent’s then legal representative. In this regard, the Appellant submits that if the interpretation of the provisions of the Act decided by the Commissioner was accepted, the Appellant would have to pursue multiple actions under Part 3 – 1 and Part 6 – 4 of the Act to include all of the grounds he bases is claim on, and that multiple actions are prohibited by s. 723.
[27] The Appellant contends that the reasons for the Commissioner’s decision are unclear and the explanation as to why the Applicant could not pursue his unlawful termination application in the form it was made, was not linked to any evidence. The Appellant also raises a number of alleged factual errors in the decision which it is not necessary to detail and contends that evidence he presented indicating that the Respondent’s allegations were false, was not considered or was disregarded by the Commissioner.
[28] The Appellant also took issue with the email correspondence sent to him by the Commissioner after the decision was released including the email on 14 September 2020, which the Appellant referred to as an “ultimatum email”. The Appellant took further issue with the provision by the Commissioner of a “draft Form F1” to amend his F9 Application which the Appellant states was “partially pre-filled” by the Commissioner. 11 The Appellant stated that such “sudden and unexpected assistance” was perceived by him as “highly unusual, unorthodox, questionable and most likely untrustworthy” in light of what he viewed as consistent and profound bias against him by the Commissioner. The Appellant contends that the Commissioner provided incorrect legal advice by partially pre-filling the form, which severely limited his right to be fully heard. The Appellant states that he instituted the present appeal on a question of law relevant to and “informing the pending correct amendment of the Form F9 Application” which he says is being “prevented/restricted/constrained” by the Commissioner’s decision. The Appellant also asserts that the Commissioner erred by allowing the Respondent to be represented by a lawyer who was not employed directly by the Respondent and makes various allegations against the lawyer and the Respondent’s internal counsel.
[29] The Appellant made a range of other allegations including wage theft, the unlawful retention by the Respondent of his property and denial of access to employment records and other documents. Further, the Appellant made allegations about the integrity of the Commissioner and employees and representatives of the Respondent, which we reject and do not intend to dignify by detailing.
[30] The Respondent submitted that the Appellant has brought this appeal in respect of an interim decision which is interlocutory in nature and not a final decision in the relevant sense. Accordingly, there is no public interest in granting permission to appeal. The Respondent also submits that it is well established that appeals from interlocutory decisions are to be discouraged and referenced the decision in Finance Sector Union of Australia v Comsec Trading Limited and Others, 12 in support of this submission.
[31] The Respondent submitted that the history of the Appellant’s claims against the Respondent (including three appeals) illustrates the importance of the principles outlined by the Full Bench in Hutton v Sykes Australia Pty Ltd 13 to the effect that permitting appeals against interlocutory decisions may prolong proceedings or increase their costs, and why, in the public interest, such appeals should be strongly discouraged.
[32] The Respondent submitted that permission to appeal should not be granted as:
a. The decision under appeal had no operative effect other than it gave the Appellant an opportunity to apply to correct or amend the Form F9 application;
b. To the extent that it is a decision, it is an interlocutory, procedural decision and appeals from such decisions ought to be discouraged;
c. The Appeal raises no matter of public importance or of general application, nor does it raise a matter where there is a diversity of decisions at first instance so that guidance from the Full Bench is required; and
d. There is not otherwise an appealable error of such magnitude to warrant permission to appeal against the decision being granted.
[33] The Respondent noted that the Appellant was entitled to elect not to amend the Form F9 application and submitted that the appropriate course, in the public interest, is for the Appellant to wait for Commissioner Johns to issue his final decision in relation to the Respondent’s application to have the Appellant’s unlawful termination application dismissed. The Respondent submitted that if the Appellant is dissatisfied with that decision, he could then lodge a Notice of Appeal against that final decision.
[34] In relation to the Appellant’s allegations of error in the decision subject of the appeal, the Respondent submitted that it is difficult to determine the grounds of appeal and the basis for those grounds, in the Appellant’s material and that because of this its submissions should be read with that limitation.
[35] The Respondent stated its understanding that the Appellant asserted the Commissioner’s decision was impacted by the following errors:
a. That the decision is contrary to the decision of Commissioner Cambridge in McIntyre v Special Broadcasting Service Corporation SBS Corporation 14 (McIntyre);
b. Commissioner Johns did not properly apply ss. 3, 586, 587 and 578 of the Act in making his decision;
c. That the Appellant has the right to amalgamate causes of action (general protections and unlawful termination) which has not been recognised in the decision;
d. Commissioner Johns failed to provide proper reasons for his decision;
e. There are omissions in the report of facts contained in the decision; and
f. the decision demonstrates bias and was a result of an unfair process.
[36] The Respondent submitted that the Appellant has not identified any appealable errors and made the following submissions in relation to each of the errors it had identified as having been asserted in the appeal grounds. In relation to the decision in McIntyre the Respondent said that it does not understand the Appellant’s submission regarding any inconsistency with that decision. The Respondent submitted that the Commissioner “expressly and fully accepted” the reasoning of Commissioner Cambridge in McIntyre, and found, consistent with McIntyre, that the Appellant was entitled to bring an unlawful termination action in respect of any ground he was precluded from pursuing as part of a general protections claim because of the operation of s.351(2)(a) of the Act.
[37] The Respondent submitted that as to s. 3 Object of the Act, there is nothing in the Notice of Appeal or Submissions of the Appellant which suggest that the Commissioner failed to consider the objects of the Act in deciding which of competing interpretations of the legislation he should adopt. The Respondent noted that the Appellant alleges that the Commissioner’s decision is contrary to ss. 586, 577 and 578 of the Act, however it submitted that this is misconceived. The Respondent submitted that the Appellant is entitled to have the Commission exercise functions in relation to the Unlawful Termination Application to the extent that it is within the jurisdiction of the Commission. It stated that these sections referred to by the Appellant are relevant to the manner in which the Commission exercises its functions under the Act, but none of the identified sections have the effect of creating jurisdiction where it does not exist.
[38] In relation to the Appellant’s asserted right to bring a combined general protections and unlawful termination claim, the Respondent submitted that the Appellant appears to consider that the provisions in Part 6 – 1 of the Act prevent a person from commencing two different claims, “but somehow preserve the right of the person to bring two different types of claim within one proceeding”. 15
[39] The Respondent submitted that this is a fundamental misunderstanding of the operation of Part 6 – 1. The Respondent also submitted that this Part requires a prospective applicant to elect which action to take, “not only procedurally but substantively” and which remedy to pursue, and these alternatives have potential consequences for the prospective applicant, including limiting the prospective applicant’s right to bring other claims. The Respondent submitted that in this matter, the Appellant was required to make an election to either bring a general protections application in which he could pursue all claims other than political opinion, or to bring an unlawful termination application regarding political opinion only.
[40] As to the Appellant’s assertion that the Commissioner failed to give reasons for his decision, and that this involves a jurisdictional error, the Respondent considers this submission to be entirely without substance. It submitted that the basis for the Commissioner’s finding that the unlawful termination application was incompetent is plainly set out in the Commissioner’s decision. In this regard, the Commissioner expressly accepted Commissioner Cambridge’s reasoning in McIntyre and then considered, as shown by the table contained in paragraph [38] of the decision, each of the alleged reasons for the termination of the Appellant’s employment (based on the Appellant’s characterisation). The Commissioner then held that some of the reasons the Appellant alleged were the reason for the termination of his employment “… would have entitled him to commence a general protections claim under Part 3 – 1 of the Act. The Commissioner went on to hold that if there was a claim under the general protections provisions, the right to bring an unlawful termination application in respect of those matters was extinguished due to the operation of s. 773. Consistent with McIntyre, the Commissioner held that the remaining matter, being the Appellant’s claim that he was dismissed in relation to his expression of political opinion, could be pursued as an unlawful termination claim. 16
[41] The Respondent submitted that the Appellant’s contention that the Commissioner’s decision involved a misreporting of facts resulting in errors of fact, is misconceived. The matter to be determined by the Commissioner was whether the Appellant’s unlawful termination application was competent, and the Commissioner made it clear at paragraph [18] that it was not his role to make a decision of fact in relation to the substantive and operative reason for the termination of the Appellant’s employment. Further, the Commissioner stated at paragraph [33] of the decision that the merits of the Unlawful Termination Application on the basis of political opinion was not relevant to his finding and specifically did not make any finding on facts, but rather based his decision on the contents of the unlawful termination application filed by the Appellant. 17
[42] The Respondent also submitted that the Appellant’s complaints of irrelevant considerations, bias and unfair process are misguided and that there is no evidence that the Commissioner did not provide the appropriate assistance to the Appellant as an unrepresented litigant. It noted that the Commissioner provided additional time for the Appellant to seek legal advice. The Respondent also submitted that no application for recusal was made by the Appellant to the Commissioner.
[43] As to the assertion that the Commissioner was “heavily and inappropriately influenced” by the Respondent or an external legal representative engaged by it, the Respondent submitted that this assertion is without evidentiary basis. The fact that the Appellant had a different view of events does not mean that the Commissioner’s objective view of the parties’ positions and his subsequent decision as to the appropriate next steps is wrong, or that the Commissioner was biased against the Appellant.
[44] In conclusion the Respondent submitted that:
“a. the Current Appeal is of an interlocutory decision and such appeals ought to be discouraged;
b. the Current Appeal raises no matter of public importance or of general application;
c. the Current Appeal does not raise a matter where there is a diversity of decisions at first instance so that guidance from the Full Bench is required; and
d. there is not otherwise an appealable error identified at all, let alone a serious appealable error”.
[45] The Respondent reiterated that if the Commissioner does make a decision dismissing the Appellant’s unlawful termination application for want of jurisdiction, then the Appellant may at that point seek to appeal such decision. Accordingly, permission to appeal should not be granted, and the appeal should be dismissed.
[46] In its oral submissions at the hearing of the appeal, the Respondent contended that the Appellant’s submissions made scandalous and unsubstantiated allegations against third parties, including the Commissioner, and that this was inappropriate. In this regard the Respondent referred to a decision of Deputy President Sams in Daniel Krcho (AB2018/637) 18 where the Appellant was warned about engaging in such conduct. The Respondent also submitted that it was unacceptable for the Appellant to make scandalous and unsubstantiated allegations and then not be prepared to attend a hearing. The Respondent explained that its objection to the appeal being dealt with on the basis of written submissions, was based on its view that the entire appeal was misconceived and its hope that an oral hearing is preferable to an appeal conducted on the basis of repeated unhelpful written submissions.19
Permission to appeal
[47] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 20 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.” 21
[48] Other than granting permission to appeal on a public interest basis, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if refused. 22
[49] Further, 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. 23 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.24
[50] It is also well established that it is in the public interest to discourage appeals from preliminary or procedural rulings and that this approach is generally adopted by the Commission. In this regard, a Full Bench of the Australian Industrial Relations Commission in Finance Sector Union of Australia v Comsec Trading Limited and Others 25 referred to the following passage in the judgement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.):
“...I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
[51] The Full Bench in Comsec went on to observe that permitting appeals against preliminary or procedural rulings may prolong the proceedings overall and favour well-resourced parties while working to the disadvantage of other parties and that given the number of procedural rulings which occur, the possibility of a multiplicity of appeals is one to be guarded against. 26 The observations in relation to litigious individuals are equally apposite. The Commission does not have the jurisdiction afforded to courts, to deal with vexatious litigants. Regrettably, the tactic of launching multiple applications including appeals against procedural decisions is used by some parties to wear down opposing parties.
[52] Further, as a Full Bench of the Commission observed in Milford v Coles Supply Chain 27 it is not desirable or in the interests of the efficient course of justice for appeals to be brought from interim or interlocutory decisions, or from substantive decisions that form part of a broader controversy, the totality of which might rationally be subject of a single appeal.28
Consideration
[53] At the outset, we note that the decision subject of this application for permission to appeal is an interim decision. It does not finally dispose of the Appellant’s unlawful termination application. This is a matter to which we will return. It is convenient to deal with appeal grounds 1 and 6 together. In those grounds the Appellant respectively alleges error of law and jurisdictional error of law producing a decision that is ultra vires. As we understand the Appellant’s submissions in relation to these grounds, he takes issue with the manner of the Commissioner’s application of s. 723 of the Act. That section provides that a person must not make an unlawful termination application in relation to conduct if the person is able to make a general protections court application in relation to the conduct. The Form F9 Application for the Commission to deal with an unlawful termination dispute asserts reasons for the employer terminating the Appellant’s employment which include political opinion.
[54] Section 351(1) of the Act establishes protection against discrimination by an employer against a person because of attributes, including political opinion. Section 351(2) provides that an employer does not discriminate and that s. 351(1) does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken. It was accepted before the Commissioner and not disputed in this appeal, that consistent with the decision in McIntyre, the Appellant cannot make a general protections application on this ground because anti-discrimination legislation in New South Wales does not prohibit discrimination on the ground of political opinion.
[55] As we have observed, the Commission has not dismissed the Appellant’s unlawful termination application. Rather, the Commissioner has provided the Appellant with an option to overcome the jurisdictional objection raised by the Respondent by seeking to amend his application. The Appellant is free to take up the option or not. If the Appellant does not opt to amend his unlawful termination application, the Commissioner has indicated that he will proceed to determine the Respondent’s jurisdictional objection. If the Appellant is aggrieved by a decision of the Commissioner determining the Respondent’s jurisdictional objection, the Appellant may appeal such decision.
[56] If the Appellant does decide to amend his unlawful termination application the Commissioner has indicated that he will hear from the Respondent as to its views about such an amendment before deciding whether to allow the amendment. It may be that the Respondent objects to the amendment. If the Commissioner was to allow the amendment over an objection by the Respondent, such decision may also be subject of an appeal by the Respondent.
[57] The Appellant has not elected either option suggested by the Commissioner but has instead lodged this appeal. In our view the appeal is premature. If the Appellant wishes to maintain the position advanced in the appeal, he need only inform the Commissioner that he declines to “devalue” his unlawful termination application by removing all grounds other than political opinion. If the Commissioner then proceeds to dismiss his unlawful termination application, the Appellant may lodge an appeal against that decision.
[58] There may be cases where an interim or provisional decision does affect substantive rights in a manner which cannot be redressed in an appeal against a final decision. Such cases may warrant a departure from the well-established position that appeals from preliminary or procedural rulings are discouraged. The present case is not one of these. The Commissioner has laid out some options and if the Appellant maintains the position he has adopted in the present appeal, and declines to amend his application, he will be entitled to appeal any final decision to dismiss his application. If such an appeal succeeds the Appellant will be permitted to advance his application in the form he seeks and will have lost no right in this regard which cannot be restored consequent on a successful appeal.
[59] Even if the decision is substantive, it forms part of a broader controversy, the totality of which may be the subject of a single appeal. Further, there is no substantive or procedural prejudice to the Appellant arising from a refusal of permission to appeal in circumstances where all his appeal grounds can be advanced in a later appeal against a final decision. In those circumstances, we do not consider that the present appeal enlivens the public interest, or that permission to appeal should otherwise be granted under s. 604(2).
[60] In refusing permission to appeal we do not necessarily agree that the options identified by the Commissioner were exhaustive. We also observe that ground 2 contends that the Commissioner’s decision is not consistent with the decision of Commissioner Cambridge in McIntyre. This ground appears to be misconceived. The factual situation in McIntyre was entirely different to that in the present case. McIntyre involved a case where the applicant made a general protections application and the only ground the applicant relied on as a contravention of Part 3-1 was political opinion. After the general protections application was made, the applicant’s legal representatives determined that he could not make a general protections application on that ground, because anti-discrimination law in New South Wales did not prohibit discrimination on the basis of political opinion. The applicant’s legal representatives in that case then sought to make an unlawful termination application under s. 773 of the Act, a course opposed by the Respondent. The Commissioner in that case found that the applicant could not make a general protections application under s. 365 of the Act and that he was therefore entitled to make an unlawful termination application under s. 773.
[61] The circumstances in the present case are entirely distinct. The Appellant is seeking to make an application under s. 773 which combines six grounds that would entitle him to make a general protections application and one ground (political opinion) which does not constitute discrimination in the State of New South Wales, and could arguably not be the subject of a general protections application. There is no inconsistency with McIntyre in the decision under appeal and permission to appeal on this ground is not warranted in the public interest. Ground 3 asserts “making irrelevant considerations” and refers to paragraph [28] of the decision. In that paragraph the Commissioner simply summarises the submissions made by the Respondent in relation to its jurisdictional objection. There is no error, much less appealable error, in the decision in relation to this matter and no basis for granting permission to appeal on this ground.
[62] Similarly, appeal ground 4 asserts errors of fact in paragraphs of the decision which simply recount the submissions of the parties and set out extracts from the decision in McIntyre. The Commissioner did not determine the substantive issue in dispute or any related facts. Rather, as part of the consideration of the jurisdictional objection, the Commissioner simply set out the positions advanced by both parties in relation to the termination of the Appellant’s employment and specifically stated that it was not his role to make findings about the substantive and operative reason for the termination. The fact that the Appellant takes issue with the manner in which the submissions of the parties are set out or summarised by the Commissioner, does not constitute appealable error, when there is no finding that is affected.
[63] Appeal ground 5 asserts bias on the part of the Commissioner and asserts that he was inappropriately influenced by the Respondent and its “obviously incorrect interpretation” simply because the Commissioner set out the Respondent’s submissions in his decision. Appeal ground 7 asserts bias and unfair process alleging that the Appellant was denied procedural fairness on the basis that his opportunity to be “fully heard” was removed and alleging ongoing communication – presumably by the Commissioner – with an external legal representative for the Respondent. As we have observed, the Appellant has also made numerous allegations in his submissions about the integrity of the Respondent and its staff and representatives.
[64] Our perusal of the Commission file indicates that there is no basis for any of the allegations made by the Appellant against the Commissioner or the Respondent and its staff and representatives. Appeal grounds 5 and 7 are without merit and the allegations raised by the Appellant in them are baseless and scurrilous. We observe that the Appellant has previously been warned about making unsubstantiated allegations of this kind against third parties and members of the Commission. In Daniel Krcho (AB2018/637) 29 Deputy President Sams set out in detail case law dealing with such conduct and the ramifications for the Appellant of continuing to engage in it. It was also made clear to the Appellant that the fact that he is unrepresented does not excuse such conduct.
Disposition of the Appeal
[65] The appeal is premature and for the reasons given above, we have decided that it is not appropriate to grant permission, either in the public interest or on discretionary grounds. Permission to appeal is therefore refused and the appeal is dismissed.
Orders
[66] We Order as follows:
1. Permission to appeal is refused.
2. The appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms A Krcho on behalf of the Appellant.
Ms H Carter for the Respondent.
Hearing details:
2020.
21 October.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR726398>
6 C2020/500.
7 This reference is erroneous and should be to ss. 351(1) and 351(2).
10 Op cit [2015
11 Appellant’s ‘complaints’ submissions filed 18 September 2020.
12 [2001] FCA 1613 (PR 945431).
15 Respondent’s outline of submissions, at [25]; referencing the Appellant’s submissions at page 19.
16 Respondent’s outline of submissions at [28].
17 Respondent’s outline of submissions at [30].
19 Transcript of proceedings 21 October 2020 PN42.
20 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].
21 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
22 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
23 Wan v AIRC (2001) 116 FCR 481 at [30].
24 GlaxoSmithKline Australia Pty Ltd v Making [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
26 Ibid at [11]. See also King & Deeney and Others v Patrick Projects Pty Ltd [2016] FWCFB 5069 at [42] and Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384.
28 Ibid at [17].