DECISION

Fair Work Act 2009
s.604—Appeal of decision

Dr Daniel Krcho
v
University of New South Wales T/A UNSW Sydney; Lucian Hiss; Phil Allen; Karen Scott
(C2020/500) (C2021/2443)

Appeal against decision [2020] FWC 181 of Deputy President Sams at Sydney on 23 January 2020 in matter number AB2018/637and appeal against decision [2021] FWC 1653 of Deputy President Bull at Sydney on 16 April 2021 in matter number AB2018/637 – permission to appeal refused.

[1] Dr Daniel Krcho (the Appellant) lodged two appeals under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision of Deputy President Sams and Deputy President Bull. The decisions under appeal relate to the same stop bullying application made pursuant to s 789FC of the Act. The decision of Deputy President Sams 1 (the Sams Decision) dealt with an interlocutory application made by the Appellant for certain orders to be made. The decision of Deputy President Bull2 (the Bull Decision) dealt with the substantive stop bullying application.

[2] The Appellant has filed two Notices of Appeal. The first seeks only to appeal the Sams Decision. The second Notice of Appeal is directed to both the Sams Decision and the Bull Decision. We will deal with the appeal against both decisions together.

[3] Directions were set for the parties to file their written submissions. The parties agreed to having the matter determined ‘on the papers’, namely on the written submissions of the parties without the need for an oral hearing. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on the basis of written submissions only.

[4] For the reasons that follow, permission to appeal is refused.

The Decisions under appeal

The Sams Decision

[5] As aforementioned, the Sams Decision related to an interlocutory application made by the Appellant. Deputy President Sams summarised the orders being sought by the Appellant as follows: 3

“[4] In short form, it is apparent that the applicant seeks at least four orders under the following headings:

(1) The deletion and/or variation of a significant number of paragraphs in the 31 July 2019 decision, which the applicant agrees with, or claims are errors of fact and law. (The Variation application);

(2) The reinstatement of the undertaking given by the University in earlier proceedings between Hampton C, in 2018, which I had released the University from in the 31 July decision. (The Undertaking application);

(3) That I disqualify myself from further dealing with the applicant’s matter if I refuse to grant (1) and (2) above, ‘in full or part of it (the ‘Recusal application’); and

(4) That I retrospectively order the anonymisation of the identity of the applicant and his wife and suppress the publication and distribution of their personal health and financial information, including removing all such references from my 31 July 2019 decision. (The Confidentiality application).”

[6] In relation to the Variation application, Deputy Presidents Sams relevantly found the following:

“[26] The applicant was previously reminded the decisions of the Commission are final, unless otherwise quashed or varied by a Full Bench of the Commission on appeal. The applicant availed himself of the opportunity to appeal the 31 July 2019 decision which was wholly unsuccessful. The appeal was dismissed with permission to appeal refused, pursuant to s 604 of the Act. This means the 31 July 2019 decision is final and stands on the record. It is not open for the applicant to seek to delete paragraphs or have paragraphs altered or rephrased to his liking, simply because he does not agree with the Decision. This must be a fortiori when his appeal of the 31 July 2019 decision was left intact and unscathed by the Full Bench. In my view, what the applicant seeks is improper and a waste of the Commission’s resources, paid for by the taxpayer, and which might otherwise be utilised in determining properly prosecuted cases.”

[7] Regarding the Undertaking application, Deputy President Sams refused to grant the application. Deputy President Sams found that the Appellant’s arguments as to why the application should be granted were not new and already decided upon in an earlier decision of the Deputy President. 4 Furthermore, for the same reasons he refused to grant the Variation application, Deputy President Sams refused to grant the Undertaking application.5

[8] Deputy President Sams also refused to grant the Appellant’s Recusal application. We will not repeat his reasons for doing so here. The Appellant has not made it clear what remedy he seeks in appealing Deputy President Sams’ refusal to recuse himself and in any case, the Deputy President is now retired.

[9] Deputy President Sams granted limited confidentiality orders in the following terms:

“[63] As to the applicant and his wife’s personal financial circumstances, I will grant limited confidentiality orders as to the disclosure of such information. I make the following order:

“1. The applicant and his wife’s personal financial circumstances and records relating thereto, unrelated to these proceedings, shall remain confidential to the parties and the Commission, unless otherwise ordered by the Commission.”

[10] In essence, Deputy President Sams dismissed the Appellant’s application for interim orders save for the confidentiality orders made at [63] of his decision.

The Bull Decision

[11] As aforementioned, the Bull Decision dealt with the Appellant’s substantive stop bullying application. Relevantly to the Bull Decision, the Appellant was terminated from his employment with the Respondent on 20 February 2020.

[12] The Respondent made an application pursuant to s 587(1)(c) of the Act that the Appellant’s claim be dismissed as the matter had no reasonable prospects of success. The Respondent submitted, inter alia, that the Appellant’s stop bullying application had no prospects of success because he had no prospect of being reinstated to his employment with the Respondent and therefore was at no risk of bullying at work. 6

[13] Deputy President Bull considered the legislative principles regarding the circumstances in which the Commission may make orders to stop bullying, noting that as per s 789FF(1)(b)(ii) of the Act, the Commission is only able to issue a stop bullying order when satisfied there is a risk that the worker will continue to be bullied at work. The Deputy President had regard to the decision in Bowker v DP World Melbourne Limited 7in which a Full Bench of the Commission stated the words “at work” are words of limitation.8

[14] Deputy President Bull then considered the Full Bench decision in Garth Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm and others 9 (Atkinson). Extracted below are the relevant parts of that consideration:

“[24] The fact that an applicant has filed a bullying application and is no longer employed at the workplace is not necessarily fatal to the application as the Full Bench observed in Garth Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm and others (Atkinson) in dismissing an appeal against a bullying application that was dismissed as the applicant was no longer employed:

“[35] In this decision, we are not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.”

[25] The employee in Atkinson in addition to his bullying application had made a General Protections application described by the member in the first instance in the following terms:

“[11] Mr Atkinson has made a section 365 General Protections application regarding his termination of employment. Whether Mr Atkinson is seeking reinstatement as a remedy is not known. If he is seeking reinstatement there is obviously no certainty as to the success or not of his application. Even if he is successful with his section 365 application there can also be no certainty that reinstatement would be ordered in any event; that would be a decision for the Court.

[12] If at some point in the future Mr Atkinson is indeed reinstated he is not prevented from making a new application under section 789FC of the Act if necessary. The fresh application could then properly consider what may well be changed circumstances given what in all likelihood will have been an extended period of time which has passed and could also take into account the significant new development being the decision of a Court to reinstate Mr Atkinson. As can be seen dismissing this application does not disadvantage Mr Atkinson. Adjourning this application indefinitely because of the remote possibility Mr Atkinson is reinstated at some time in the future is consequently not warranted.”

(My underline)

[26] In respect to this point the Full Bench stated at [22]-[23]:

“[22] The fact that, at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications, Mr Atkinson had an unfinalised general protections court application in respect of the termination of his employment on 3 June 2015 and the fact that a court has the power to make a reinstatement order in respect of a general protections court application, do not preclude the Commissioner’s conclusion. Those facts do not mean that at the time the Commissioner dismissed Mr Atkinson’s s.789FC applications there was “a risk that [Mr Atkinson] will continue to be bullied at work” by the individual or group against whom he made the s.789FC applications.

[23] As a consequence of concluding that one of the pre-requisites for making an order to stop bullying in respect of Mr Atkinson’s s.789FC applications was not satisfied, the Commissioner determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success. There is no error in that determination. The determination is not contrary to authority, including that of the High Court of Australia in Spencer v The Commonwealth.

[24] Having determined that Mr Atkinson’s s.789FC applications had no reasonable prospects of success the Commissioner then exercised his discretion under s.587(1)(c) of the FW Act to dismiss Mr Atkinson’s s.789FC applications. It is evident from the Commissioner’s decisions that, in exercising his discretion to dismiss Mr Atkinson’s s.789FC applications, the Commissioner was conscious of the discretionary considerations raised by Mr Atkinson as to why his s.789FC applications should not be dismissed, including his submissions for relief in respect of his s.789FC applications being constituted by something other than an order. However, the Commissioner was also conscious that Mr Atkinson had made a general protections court application and of the potential consequences of that on Mr Atkinson being able to make another s.789FC application. In the circumstances, it was reasonably open to the Commissioner to exercise his discretion under s.587(1)(c) of the FW Act as he did.”

(My underline)

[27] In this decision the Full Bench also addressed the decision of Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines 19 where Gostencnik DP held:

“[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success. I see no reason in the circumstances why I should not exercise my discretion to dismiss Mr Shaw’s application given my finding and I do so. An order dismissing Mr Shaw’s application has been made separately in PR550413. I would observe that, if as a consequence of Mr Shaw’s general protections application or any other remedy that he seeks, he is reinstated to his former position or another position with ANZ and at that point he has concerns about a risk of being bullied at work, it seems to me, and the ANZ seem to accept that he will be at liberty to make a fresh application at that time. That he has made this application and that it has been dismissed will not operate as a bar to any future application if the jurisdictional facts can be established in relation to that application.”

(My underline)

[28] The Full Bench in Atkinson held at [32]–[33] that they were not persuaded that the decision in Shaw was wrong.”

(Citations omitted)

[15] After considering Atkinson, Deputy President Bull found that the Commission lacked a jurisdictional basis upon which to issue any bullying orders given that the Appellant was no longer in the employment of the Respondent and therefore a risk that he would continue to be bullied did not exist. Deputy President Bull was therefore satisfied that the Appellant’s stop bullying application had no reasonable prospects of success. Accordingly, the application was dismissed.

Principles of Appeal

[16] An appeal under s 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. 10  There is no right to appeal and an appeal may only be made with the permission of the Commission.

[17] Subsection 604(2) 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. 11 The public interest is not satisfied simply by the identification of error,12 or a preference for a different result.13 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 issue 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...” 14

[18] 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. 15 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

Consideration

[19] The Appellant has filed a voluminous amount of material. We note that much of the material filed by the Appellant goes to matters that are irrelevant to the appeal at hand. Furthermore, the nature of the material and its density is such that it is near impossible to identify what grounds of appeal the Appellant is attempting to advance and what is the basis for any such grounds. In any event, we have read and considered the material filed by the Appellant.

[20] It is appropriate to deal first with the appeal against the Bull Decision despite it having followed the Sams Decision in time. In relation to the Bull Decision, the Appellant has failed to identify any appealable errors. Deputy President Bull identified the correct legal principles at [21] – [28] of his decision, which we have extracted above. Deputy President Bull applied those legal principles in an orthodox manner and correctly found that at the time, the Commission had no jurisdiction to issue any bullying orders because the Appellant had been dismissed from his employment with the Respondent.

[21] Furthermore, the Appellant has failed to identify any sustainable public interest grounds upon which permission to appeal should be granted. We note that Deputy President Bull’s decision to dismiss the Appellant’s stop bullying application does not prevent the Appellant from bringing further stop bullying applications if at some future point in time, he is reinstated to his employment with the Respondent.

[22] Given that we have found that permission to appeal against the Bull Decision should be refused, so too must permission to appeal against the Sams Decision be refused. As aforementioned, the Sams Decision related to an interlocutory application made by the Appellant in the course of his stop bullying application. With the dismissal of the substantive application by Deputy President Bull, there is no underlying application in which to redetermine the interlocutory application, even if we do accept, and we do not, that there is any error in the Sams Decision.

[23] For completeness, we will now briefly consider the appeal against the Sams Decision.

[24] We find no error in Deputy President Sams’ refusal to grant the four orders sought by the Appellant. Deputy President Sams correctly identified the principles confirming his inability to amend a previous decision he himself issued and was already subject to an unsuccessful appeal.

[25] The Appellant has also not identified an appealable error in Deputy President Sams’ refusal of the Undertaking application. In any event, the reinstatement of the undertaking would be of no use to the Appellant in the current circumstances.

[26] Deputy President Sams correctly identified and applied in an orthodox manner, the legal principles regarding the Recusal application. As aforementioned, it is unclear to us what remedy the Appellant seeks in appealing Deputy President Sams’ refusal to recuse himself. Deputy President Sams is now retired, and the Appellant’s substantive bullying application was reallocated to Deputy President Bull. There is no utility in appealing this part of the Sams Decision.

[27] There was no evidence before Deputy President Sams upon which he could reasonably reach the conclusion that it was necessary to make the confidentiality orders sought by the Appellant in the interests of the administration of justice. We find no error in Deputy President Sams’ dismissal of the Confidentiality application.

Conclusion

[28] For the above reasons, permission to appeal is refused.

VICE PRESIDENT

Hearing details:

Matter determined on the papers by consent.

Final written submissions:

Appellant’s submissions in reply dated 6 July 2021.

Printed by authority of the Commonwealth Government Printer

<PR732946>

 1  Application by Daniel Krcho [2020] FWC 181.

 2   Daniel Krcho v University of New South Wales T/A UNSW Sydney; Mr Lucian Hiss; Mr Phil Allen; Ms Karen Scott [2021] FWC 1653.

 3   Application by Daniel Krcho [2020] FWC 181 at [4].

 4   Ibid at [31].

 5   Ibid at [36].

 6   Daniel Krcho v University of New South Wales T/A UNSW Sydney; Mr Lucian Hiss; Mr Phil Allen; Ms Karen Scott [2021] FWC 1653 at [10].

 7   [2014] FWCFB 9227.

 8   Ibid ay [45].

 9   [2015] FWCFB 6503.

 10   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).

 11   O’Sullivan v Farrer (1989) 160 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].

 12   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

 13   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 14   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

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