PN1

VICE PRESIDENT CATANZARITI: Yes, good morning. I have on the Bench with me this morning, Deputy President Easton and Commissioner Bissett. I'll take the appearances. Mr Corry? You're on mute at the moment, Mr Corry.

PN2

MR C CORRY: Yes, I'm in attendance, thank you.

PN3

VICE PRESIDENT CATANZARITI: Thank you, and Mr Kemppi?

PN4

MR S KEMPPI: Thank you, Vice President. Kemppi, initial S, appearing for the respondent. Also from the ACTU is Mr Michael Flinn, not appearing, just observing.

PN5

VICE PRESIDENT CATANZARITI: Thank you. The confidentiality orders made by Deputy President Masson in relation to certain material do remain in place for the purpose of this appeal. So, we'll now turn to the appeal proper. The Full Bench has had the opportunity to read the extensive material that has been filed, including the very detailed written submissions that have been made.

PN6

This morning is an opportunity for any oral submissions that the parties wish to make. Mr Corry, you may wish to address the material of Mr Kemppi because there's been no opportunity to date to have a reply. Otherwise we are prepared to rely upon the written material. So, Mr Corry, it's over to you to give us any oral submissions you wish to make.

PN7

MR CORRY: Thank you. Yes, I'll proceed with the submissions, thank you. I'll try and make it as brief as possible. I seek permission to appeal the decision that's been handed down from Masson, Deputy President, on 15 February 2022, that found there was a valid reason for my dismissal from the ACTU on 22 September 2021, and that found the decision of the ACTU to terminate my employment was not harsh, unjust, unreasonable or unfair, and as a result did not award any relief from unfair dismissal.

PN8

I am seeking to appeal this decision on the basis that there are significant errors of fact in Mason, DP's decision, and also that an appeal of the decision in this matter is of significant public interest. There is also a potential constitutional issue in regards to implied rights to political communication that all subjects of the Crown in this Commonwealth should have which should have guided the decision. I have already presented detailed written submissions around my arguments that there are errors of fact in the Deputy President's decision and the reasons that an appeal being granted is in the public interest. Please keep in mind I am not a lawyer or a trained legal professional in any way. I am self-represented, so yes. Fundamentally it is impossible for anybody objectively viewing or deciding on this matter to find that there was any valid reason for my termination of employment from the ACTU. The only way to come to a decision that the termination of my employment was somehow valid and not unfair, is it one makes serious errors of fact in such a decision.

PN9

Such errors of fact include a combination of ignoring key facts about the matter and ignoring key evidence and submissions; misunderstanding key facts about the matter and misunderstanding evidence and submissions; relying on the application of various irrelevant factors in the decision-making process as to what obligations were owed to the employer under the contract of employment in spite of overwhelming evidence and the actual conditions of the contract itself; taking hyperbolic and conspiratorial claims that have no basis in reality from the respondent on face value without requiring evidence of such claims or weighing such serious and wide-sweeping claims against facts and possibility; failing to apply key aspects of the Fair Work Act itself; failing to apply the actual conditions of the contract of employment I was under, including the ACTU Staff Agreement and the protections I had to express my political and religious beliefs on my personal publication platforms of social media; failing to apply the implied rights of political communication that subject to the Crown are granted under the constitution and the Commonwealth parliamentary democracy; and misunderstanding the nature of reality of social media and its processes and mechanisms.

PN10

If one looks at the actual facts of the matter, the submissions and evidence it can only be found that the termination of my employment from the ACTU was unfair, as that is what the overwhelming evidence points to. It is also clear that the termination of employment was malicious and motivate by political, religious and cultural discrimination against me as an employee, and the ACTU lacked any evidence to support their serious, albeit fanciful allegations that my conduct could fit the criteria for serious misconduct under Fair Work reg. 1.07; or that the conduct actually breached any valid policy, obligation or any other actual condition of my employment under my contract of employment.

PN11

It is only by relying on the bevy or errors of fact, and potentially law that a decision to find that there was a valid reason for the termination of my employment can be arrived at. The errors of fact of the Deputy President include applying invalid policies under the contract Masson, Deputy President applied. What the submissions and evidence established for a suite of invalid policies under my contract of employment, the 2016 suite of policies and code of conduct were never part of my contract of employment as they were not brought in or brought about under required processes outlined in the staff agreement and thus my contract of employment. The contract document states all other conditions of employment are set out in the staff agreement which you have already received.

PN12

It is impossible for invalid policies to apply to a contract of employment where the conditions of that contract of employment invalids such alleged policies even applying to the contract. In any case, the respondent failed to show evidence that the consultative committee under clause 5.2 of the staff agreement was consulted and they failed to show how the introduction of change clause 25 was implemented as per the staff agreement in order to satisfy the actual conditions of the contract of employment that would allow such a policy suite and code of conduct to become valid under the contract of employment.

PN13

Long story short, for the policies and code of conduct from 2016 to be valid they needed approval from the consultative committee in order to be adopted under the explicit terms of the contract, something that evidence shows did not happen. And if such policies were approved by some clandestine way outside the scope of the contract of employment, an introduction of change process needed to take place if a gross intrusion and level of control over the personal lives of staff was being sought by the ACTU, or was theoretically to be put in place. It would have required unambiguous wording if that were the case.

PN14

It is unfathomable how alleged policies in a code of conduct that are in the first instance, invalided by a contract of employment could then actually apply and override the conditions in a contract of employment signed by two parties in the absolute terms in which it was signed. All other conditions are outlined in the staff agreement which you have already received it reads. As has been detailed in my written submission there was no evidence provided by the ACTU to suggest these policies were actually valid, and they failed to contest my evidence that the policies were never valid under the express terms of my contract of employment.

PN15

It is an error of fact for the Deputy President to find the policies did apply under the contract. If a decision is allowed to stand wherein valid policies, invalidated by the explicit terms of the contract in the first instance, could form a valid reason for termination then it can set a precedent that a worker's contract, staff agreement or enterprise bargaining agreement no longer matter in their relations with their employer. It means the National Employment System and EBA system set up under the Fair Work Act is a sham and is simply in place to provide cover for the fact that every employee is in complete subordination to the political whims and cultural fetishes of their employer, and their employer can change the goalposts, or even add some in on employees at any time without having to follow agreed processes under explicit terms in a contract of employment or enterprise agreement. It is a matter of public interest that this decision is appealed as this has wide-sweeping and general principle application.

PN16

There is also no scope for invalid or valid policies to apply to this case. The Deputy President was in error to apply the 2016 policies in addition to them being invalid under the contract of employment, as the policies and code of conduct including the valid anti-discrimination policy under the staff agreement lacked the scope and scale to reach an employee's personal political communications, which are publications of political and religious beliefs on social media publication platforms. The content of the conduct of my Facebook publications are political communication. It does not fit any criteria required to meet a breach of these policies, both the valid and the 2016 invalid suite. In any case, these policies and code of conduct were of a workplace, and workplace adjacent scope only and the material in the Facebook publications did not breach them, in any case. Once it's rightly seen that the policies from 2016 and the valid policy have no scope to interfere or restrict the political communications I made, the political communications can't be a valid reason for termination of employment under the written scope and intention of the policies.

PN17

There are also errors of timeline and other errors of fact. There are errors of fact relating to various timelines and facts around interpretations of words and definitions, and these are detailed in my written submissions. Some relate to the Deputy President ignoring facts around timelines. Others relate to his decision getting the timelines completely wrong. To get such elements wrong is revealing in how this matter was handled at the hearing and in the decision-making. Some errors of fact are in relation to malicious interpretations of contested terms. There are also errors of fact around the two warning letters. There is also the matter of the fact that the Deputy President admitted he had no familiarity with social media as a phenomenon or mechanism of publication, see PN99 of the hearing transcript, and 184-188 of my appeal submissions. It is a matter of public interest to grant an appeal based on such significant errors of fact leading to an injustice manifesting in the decision.

PN18

There is also the matter of protections of political and religious belief and expression under the explicit terms of the contract of employment. The Deputy President ignored my submissions that there were, or are primordial contractual protections afforded to me for my political and religious beliefs and expressions and publications of those beliefs under the contract of employment. This includes the staff agreement and the actual valid policies in the staff agreement. These relate to clause 29 of the ACTU staff agreement anti-discrimination, and the harassment discrimination and workplace bullying policy. This should have been obvious in an objective reading of the staff agreement and the valid policies, and the documents should have spoken for themselves in this regard. It is an error of fact to ignore or maliciously overlook these clauses in the staff agreement that protect an employee from political and religious discrimination and protect their right to be respected for their diversity of religion and politics, as well as protect their right to publish expressions of their political and religious beliefs as part of their contract of employment.

PN19

Also, the Deputy President drew incorrectly on the authority of Blythe v Bushnell Chemicals without the appropriate criteria being met by my conduct for such authority to provide valid reasons for a termination of employment. The conduct did not actually breach any implied or explicit contractual obligation to the ACTU that I had. No implied, unwritten or contractual obligation can override the implied or explicit right supported to a subject of the Crown under the constitution. Nor an implied contractual obligations trump explicit terms in a contract of employment such as protections for an employee from the employer, injuring the employee for his political and religious beliefs and expression of those beliefs. In any case, an unlawful or unenforceable term in a contract of employment, implied or explicit, is still an unlawful or unenforceable term and thus invalid under a genuine contract of employment. You cannot sign away your fundamental rights without that being inexplicitly stated in unambiguous terms to the contract, and even then such a document would likely have no legal weight. This also applies to unlawful, unreasonable or unenforceable workplace directions. You cannot direct an employee through clandestine policies, team meeting chatter or an actual oral or verbal direction, none which were received, or via the ACTU Twitter Facebook feed, or of valid policy gestures to only engage in behaviour that limits the employee's implied constitution rights, and breaches the contract of employment by specifically limiting and discriminating against that employee, or injuring that employee due to their political opinions and religious beliefs and expressions of those beliefs through political communication by a publication platform such as Facebook.

PN20

As an example, a senior ACTU officer directing me to do something that strips me of rights that are in place under my contract of employment, is not a reasonable direction. It is likely unlawful and certainly would not be an enforceable direction in a proper parliamentary democracy. There is no evidence that I went against ACTU narratives or policies or public positions in the course of doing my work, and there is no evidence of complaints from the public in regards to information I gave to them or assistance I provided, my attitude, demeanour or conduct. There is no evidence I did anything wrong in my work or through my dissemination of information to people I came into contact with whilst working at the ACTU. There is no nexus between the political communications I made and the ACTU. There is no nexus between the ACTU's public positions or campaigns and the actual political communications on Facebook as they're written and intended.

PN21

It is not a disobedience to the employer or a breach of obligation of fidelity and honesty for me to follow the explicit terms of the contract of employment as an employee, a contract the ACTU as the employer agreed to. Nor is it disobedience to exercise implied constitutional rights of political communication in a manner that is not unlawful, defamatory, or inciting violence. As the actuality in the Facebook political communications the Deputy President decided were valid reasons for termination reveal when viewed objectively, these communications did not breach any obligation I had to the ACTU as an employee. None of the posts mention the ACTU or could be seen to cause them harm or damage, at all, to them or anyone else.

PN22

It is an error of fact to find that in my posting political communications on Facebook I breached any implied obligations I had for the ACTU as an employee under my contract.

PN23

The implied rights of a subject of the Crown under the Australian constitution, another area of fact and possibly an error of law, was how the Deputy President failed to consider the primordial importance of a subject of the Crown's implied constitutional rights to political communication in this country. The Commonwealth Constitution and the explicit and implied rights it affords subject to the Crown sit higher in authority than any abhorrent abstracts of social engineering agenda the ACTU says it's pursuing under the pretence of workplace rights. Whether this is the ACTU support for the transgender or the ACTU being in favour of union members and other works losing their jobs because those workers would not be injected with experimental pharmaceutical products issued via global pharmaceutical corporations, the ACTU despite what those occupied at senior positions might believe, is not sovereign over the Commonwealth and the Australian constitution to that set up the Commonwealth parliamentary democracy.

PN24

ACTU publications promoting abstract social engineering agendas, and mere chatter and team meetings from ACTU leadership do not subordinate a worker and tether that worker to their social engineering agendas in a way that undermines implied rights granted by the constitution. There is no evidence I counter-signalled any of the ACTU's so-called public positions whilst engaged in the job or outside of the work. Such chatter or ACTU Facebook posts for alleged public positions cannot legally deprive the worker of their implied rights to political communication in this Commonwealth's parliamentary democracy. The social media posts and chatter and meetings is not a direction of such unambiguous language as to be considered a direction to not engage in expressing legal, religious or political beliefs and ideas via an online publication platform such as Facebook. Note that the ACTU itself and other political organisations use Facebook and other social media to engage in their implied rights to political communication.

PN25

The ACTU failed to show where a specific workplace direction was made, that one cannot engage in parliamentary democracy by engaging in political communication. Just because the ACTU are interested in promoting various social agendas does not mean I as an employee can't be critical of some of those social agendas. I never said I was against trans rights in the workplace in any of my posts, but I did criticise the agenda for the harm it does to people, especially children. It is not possible to draw the connection between the torrent of Facebook and Twitter memes the ACTU social media team make, or a barrage of media releases the ACTU churn out, and a legitimate workplace direction to not engage in protected political communication, (audio malfunction) ambiguous language exists in which to act as a direction either.

PN26

Whether I made sophisticated arguments in the hearing regarding this aspect in the constitution having been derailed many times by the Deputy President and the ACTU's representatives, many times preventing me from pursuing several lines of questioning and putting certain submissions forward fully, perhaps against the fair hearing obligation, is irrelevant. The implied and explicit rights granted by the Commonwealth constitution are guiding principles and inform all Commonwealth legislation and decision-making made as a result of that Commonwealth Parliament bringing laws into being. The implied rights to political communication should have a primordial role in guiding the decision-making in this matter and all matters, and to ignore implied rights granted by the Commonwealth constitution is an error of fact, and possibly law.

PN27

In PN579 of the transcript onwards, I attempted to tease out whether me campaigning for the no side, and voting no in the gay marriage plebiscite would breach the contract of employment with the ACTU. I also tried to ease out in the hearing if me voting no and campaigning for the no side could be seen as against the values of the ACTU. Mr Alex White replied in the cross-examination that me voting no was not against the values of the union movement, but the ACTU did in fact campaign very hard for the yes vote and that was there public position and they spent a lot of member money on this agenda. This showed that as a subject of the Crown an employee has implied rights to engage with political process and take a political position and advocate for their political beliefs, even if they're against the public position of their employer.

PN28

This should have been obvious to the Deputy President in his decision-making and these implied rights to political communication should extend to my personal political expressions online as I'm engaging in the parliamentary democratic system by making these legal and factually justifiable political communications via Facebook. It should be obvious to anyone, including the Deputy President, that laws are the result of political process as are made by parliaments subject to the Crown elect members to attend parliaments, and these members of the parliament make and vote by laws, impact subjects of the Crown in the applicable jurisdictions. It is absurd that an employee could be subordinated to the employer as a slave is to a master in regards to their freedom of political expression in an alleged parliamentary democracy such as Australia and its states and territories.

PN29

Vague broad-brushed posts made on ACTU social media accounts, or vague chatter is not unambiguous language that impacts the terms of the contract of employment. Such public positions do not constitute a lawful, reasonable workplace direction in such unambiguous language as to subordinate and deprive an employee of their rights implied under the constitution. The bulk of material in Mr White's witness statement and exhibits is abstract - - -

PN30

VICE PRESIDENT CATANZARITI: Mr Corry, just before we continue, you are in fact repeating a lot of the stuff that is in your written submissions.

PN31

MR CORRY: Right.

PN32

VICE PRESIDENT CATANZARITI: But then you also keep repeating the point of the constitutionality of the process.

PN33

MR CORRY: Right.

PN34

VICE PRESIDENT CATANZARITI: The Fair Work Commission is a Tribunal, right? We're dealing with this matter as a Tribunal. If you are saying that the Tribunal has acted, in the first instance, beyond the constitution then your remedy is to go straight to the High Court, effectively, or through the Federal Court to get some sort of writ against the Commission. We will not be dealing with the fact that a member is not complying with the constitution if that really is the heart of your point. We didn't see that as being your core point based on the very extensive submissions, but you are into these oral submissions continuously focussing on the fact that the constitution has not been complied with by the member of the Commission.

PN35

We do not have the power to determine that issue.

PN36

MR CORRY: Are you not guided by that document in some form?

PN37

VICE PRESIDENT CATANZARITI: We are guided by it but we're not going to declare whether something is constitutionally valid or invalid, but that is not in the remit of the Fair Work Commission.

PN38

MR CORRY: Interesting. All right, I'll try and continue then and make it as brief as possible for you. Other errors - - -

PN39

VICE PRESIDENT CATANZARITI: You should focus on the public interest point, which is the primary point you have to get through, and then you have dealt with all the errors of fact in detail in the written material.

PN40

MR CORRY: Right, okay. Certainly. Well, I'll continue, sorry. So, another error of fact in the Deputy President's - I'll just get that, sorry - okay, so I'll just cut a lot of this out for you then. A lot of this material was building to the public interest but I'll cut it out for you if you feel it's a double up.

PN41

VICE PRESIDENT CATANZARITI: Well, I'm not inhibiting how you run your trial but you have put, in very detailed written submissions, the public interest point, and you are in fact repeating a lot of what is in the detail. You've written 74 pages of written submissions.

PN42

MR CORRY: Yes. I was just - - -

PN43

VICE PRESIDENT CATANZARITI: Most people only write ten pages. That's fine.

PN44

MR CORRY: Yes.

PN45

VICE PRESIDENT CATANZARITI: I'm saying that I have said at the beginning that the Full Bench is cognisant of the 74 page that you have filed.

PN46

MR CORRY: Okay.

PN47

VICE PRESIDENT CATANZARITI: So, oral submissions are not to repeat. They're to amplify orally what you need to amplify, all right?

PN48

MR CORRY: Certainly. It's just that in my last experience a lot of things were ignored, so I just wanted to make sure they weren't. So, I'll respond to the ACTU's position. The respondent takes the position that there are no errors of fact in the decision. I imagine that my detailed written submissions and what was to be my oral submission make it clear that there are many serious errors in the decision and that there is a significant public interest in allowing the appeal to proceed.

PN49

The respondent claims in 8(f) of their submissions that there is no diversity of decisions at first instance requiring guidance to overcome. The fact is there are no decisions that relate to the specifics of this case. The posts were not directed at colleagues, clients of the ACTU, or anyone to do with unions, the ACTU, or anyone specifically involved with the ACTU. The post did not breach any actual valid policy or obligation I had to the ACTU under my contract of employment. I cannot find any decision from the Fair Work Commission about a matter where someone was sacked for making lawful political communications under the protection of the constitution and that didn't breach any contractual obligations where that employee was protected in making such political communications under that very contract of employment.

PN50

The ACTU write in paragraph 19, they write:

PN51

Equally clear are the following propositions:- (a), failing to follow lawful and reasonable direction may warrant termination of employment.

PN52

In response to this, there was no lawful or reasonable direction given to me that they could force me to be unable to post political communication, protected by the contract of employment itself and my implied rights under the constitution.

PN53

In (b) they say:

PN54

Out of hours conduct generally may provide a valid reason for termination.

PN55

This has been addressed in my submissions on Rose v Telstra and The Star case. My conduct does not meet the criteria for these authorities, and the ACTU policies that were valid don't extend to personal political publications and communications, not only in substance but because a term of contract explicit or implicit (audio malfunction) constitution.

PN56

(c), breaching an employer's policy may warrant termination of employment.

PN57

There is no evidence I breached any policy, as the policies from 2016 were not valid under the contract of employment and the scope of those policies does not extend to personal publications of political and religious belief on a publication platform such as Facebook. The scope and specifics of such policies is also limited by implied rights under the constitution. When they say, even in the absence of relevant policy, publication of insulting and threatening comments may constitute serious misconduct. This relates to actual insults and actual threats to specific work colleagues in previous authorities. My matter does not involve insulting comments to any individual or any colleague, nor to the posts decry or show (audio malfunction) agenda. If anyone takes offence to truthful legal political communications that does not breach any valid contractual obligation I have to the ACTU, especially given the ACTU was not named in any political communications I made.

PN58

The respondent also points out in (e) of that part of their submission:

PN59

Conduct which could harm the reputation, liability of profitability of the employer or the health and safety of other workers is serious misconduct.

PN60

It's true that that might be a definition of, 'serious misconduct,' but there is no evidence that my posts fit that criteria, as explained in my submissions to this appeal hearing, and also my original submissions from the January hearing.

PN61

The respondent says in paragraph 20 that:

PN62

the decision was not counterintuitive, rather it is submitted that in circumstances where the Deputy President held that there was a valid reason for the termination based on multiple offensive social media posts which were entirely incongruous with the continued employment with the respondent. The decision is entirely intuitive.

PN63

Given there was no actual obligation that was breached by the posts, and the posts are not unreasonably offensive or untrue, not that that would be a breach of the contract of employment or nefarious in any way, or a way that could be congruous with the continued employment under the contract, this is not a legitimate point that can be relied on to find a valid reason for termination of employment. In paragraph 21 the respondent claims:

PN64

Further, the appellant can point to no disharmony between the decision and recent decisions dealing with similar matters.

PN65

The fact is there are no similar cases that I could find. This is part of the problem with this matter. The errors of fact are so overwhelmingly significant and the original reasons for termination, so flawed, it's hard to find any cases like it. It is also a fact that I'm self represented and the ACTU has a dedicated industrial team, an industrial lawyer team that they can draw on for expertise. I don't have that, and I couldn't find any previous cases that relate to political communications being a reason for someone's dismissal.

PN66

I have made submissions that effectively debunk the claims the ACTU makes in paragraph 22 of the hearing submissions. For example, the claim the 2016 policies were valid. On the evidence and in actuality, they were not. And they also didn't specifically extend to personal publications of political communication or expressions of political and religious beliefs.

PN67

In paragraph 25 the ACTU claim I was afforded significant procedural fairness during the proceedings. This is not true. As I have outlined in my written submission for this appeal, I was derailed and stonewalled by the Deputy President and the ACTU's representative, often in concert from pursuing various important lines of questioning with witnesses, and the two worked together to shoehorn a malicious interpretation of a colloquial word.

PN68

The Deputy President also derailed my oral submissions as pointed out, around my attempt to submit oral submissions around the application of the Fair Work Act, clause 772.1(f). In 27(c) the ACTU claimed that the Deputy President correctly applied the definition of, 'serious misconduct' in the Fair Work regulations, as has been demonstrated in my submissions cannot be true on the balance of probabilities or in any other way, as my conduct and the context around it did not meet the basic criteria to satisfy (indistinct 11.03.46) 1.07 of the Fair Work Act.

PN69

In 32 they write in regards to the colloquialisms of words used:

PN70

As I have dealt with, the term, 'nibba' is a colloquialism used in political satire and culture. It is a legitimate internet word that is in effect (audio malfunction) legitimate communication and is protected under implied rights to political communication under the constitution and under the contract, itself.

PN71

At 38 the respondent says:

PN72

Further, the respondents submit that no appeal book error could possibly transpire in relation to this point, on the basis that even without incorporation into the applicant's written contract, such that a breach of one axiomatically breaches the other, it was open to the Deputy President to consider the policies that constituted a lawful and reasonable direction, and/or that the terms of the policies outlined acceptable conduct. Either of these alternative findings would have been sufficient to support the latter finding that there was valid reason for termination. Further, as the Deputy President observes, it was open to conclude that the appellant's misconduct was serious misconduct, even in the absence of (indistinct) policies.

PN73

As I point out in my submissions, a workplace direction or policy, invalid or otherwise, chatter in meetings, ACTU Facebook posts, can never be a lawful direction that interferes with one's implied rights under the constitution or the actual contract of employment itself, which does grant me an employer, political rights and religious expression rights under the anti-discrimination clause in the agreement.

PN74

In 39 of the respondent's submission the ACTU is incorrect here. The contract of employment is specific. Section 5.2 of the staff agreement must be satisfied in the staff agreement for a policy or code of conduct to be brought in. Also, a policy that's sought to control someone's outside of work life would have to be so specific and unambiguous in wording as to make that very clear. No such valid policy exists and the ACTU would also have needed to have engaged in the introduction of a changed clause under 25 of the staff agreement, given the sweeping control such alleged policies would have over an employee's life. The fact is there is no evidence that this ever happened under the 5.2 consultative committee, so all those 2016 policies in the code of conduct should not apply, and it's an error of fact further, Deputy President, to apply those policies.

PN75

In 39(b) of the respondent's submissions they say that:

PN76

the appellant fails to acknowledge that the policies preceded the entry into force of the 2018 agreement. Accordingly, there was no requirement for them to be subject to consultation during the life of the agreement.

PN77

This is incorrect. The ACTU representative appears to be misleading the Commission with this. The 2016 suite was not subject to consultation under the explicit terms of the contract of employment, clause 5.2 of the staff agreement. So those policies themselves are invalidated by the contract of employment and its explicit terms there and then. The 2016 suite including the code of conduct was never shoehorned into the 2018 staff agreement appendix in any draft or its final form, and was not voted on. That specific policy set was not voted on, as the vote on the 12 of the '18 staff agreement occurred. How can invalid policies never accepted under the explicit terms of the contract that were never voted on as part of the staff agreement process, be valid? The fact is, the 2016 suite remained contractually dormant and in valid. And in 2021 the evidence revealed the ACTU hurriedly got together a new suite of policies to cover governance shortfalls likely revealed by my Fair Work Commission case against them after October 2021, and in 2021 the consultative committee was actually allegedly consulted by Ms Mitchell.

PN78

This proves that the 2016 suite was not contractually valid or enforceable and it's an error of fact to rely on these policies to find a valid reason for termination of employment. If the contract allowed for the ACTU to change goalposts on employees with new policies, they may have a case. But there is no evidence the 2016 suite contractually applied or can apply, or can form a basis of a valid reason for termination of employment.

PN79

In paragraph 41 the ACTU says:

PN80

The appellant's reliance on the Fair Work Act 772 is similarly misplaced. This ground was appropriately treated and dispensed with in the final sentence of paragraph 146 in the decision.

PN81

This also seems to be an attempt by the respondent to mislead the Commission as the Deputy President does not address section 772 in his decision at paragraph 146 or anywhere else. He doesn't mention it, at all, and I have put in my written submissions how the Deputy President did actually derail my oral submissions on that particular clause of the Fair Work Act and that's in my written submission at 466.

PN82

The respondent says in 42 that:

PN83

The appellant submits that an error of fact arises in relation to treatment in the decision of the police assault post. The respondent submits that no material significant error of fact is evidence that the appellant during cross-examination confirmed the nature of the incident captured in the relevant image, as well as the meaning of his analysis of that incident contained in the relevant post.

PN84

It is important for me to point out that the ACTU, or respondent attempted to mislead the Commission and myself of the affiliation of alleged police unions. The fact is only one Police Association seems to affiliate to the ACTU and that's the New South Wales Police Association, which undermines their argument of a reputational risk from a post relating to police abuse arising in a different state where that Police Association has no jurisdiction. This has been dealt with in the written submissions, of course.

PN85

The ACTU in paragraph 43 seemed to suggest that the transgender doesn't harm kids, or that the harm to kids isn't a big deal. This attitude from the ACTU should be of significant concern to all union members who prioritise the safety of children. Union members from affiliates of the ACTU would likely not be aware that their dues are partly tied to the ACTU, and given this is the ACTU's attitude perhaps the union members should ask some questions about what their money is actually going to and what the ACTU is really about.

PN86

In terms of reputational risk it is hard to see that a post criticising a social agenda for harming children could be a reputational risk to anybody or any organisation. The ACTU in 44 says:

PN87

The respondent's loss of trust and confidence in the appellant arose from the misconduct of the appellant.

PN88

Given that there was no misconduct or serious misconduct that could be found, and no contractual obligation to breach by the political communications of the Facebook posts, there cannot be a lost of trust and confidence when it is acknowledged that there was no breach, and no serious misconduct engaged in. Political and cultural discrimination from managers is not a legitimate basis for a loss of trust and confidence in an employee, and in fact there is no evidence I ever put a foot wrong with disseminating information to members of the public whilst doing that job, or was in any way negative or discriminatory to people I interacted with as a result of doing the job.

PN89

In paragraph 45 the respondent says that:

PN90

the appellant relies on the Briginshaw principle, however it is not in context that the conduct occurred, and the respondent led evidence in the first instance as to the significance and potential effects of the conduct.

PN91

This statement is not necessarily correct. Surely the claim of allegations has to be tested. There was no evidence led by the ACTU that the conduct was serious misconduct. They simply pointed the wavering finger and never bothered to show the mechanics of how or why, if this conduct could lead to a genuine serious and imminent OH&S risk, or reputational risk. The evidence wasn't there, and so it cannot have been led it if didn't actually exist. Presumably the claim needs to be tested. Just because conduct is said to be misconduct by an employer, doesn't mean it is. It's like the ACTU claimed I had set the office on fire, or stolen something and then they sacked me for it but had no evidence of a fire or theft, and then the Fair Work Commission accepted the claim as proof of the conduct. It's an absurdity and an error of fact to find that there was serious misconduct on the balance of probabilities.

PN92

The ACTU suggests in 48 and 49 that this application is frivolous or vexatious. It is not clear how this is the case given the significant detail in the material I have to back my claims. Seeking to write a significant injustice is not frivolous or vexatious. And in 51 the claim:

PN93

Not withstanding the significant material filed and the arguments put by the appellant both at first instance and in this appeal, nowhere is there disclosed an arguable case as to why the appeal should succeed.

PN94

It's not clear to me how being sacked without a valid reason would be anything but an arguable case, and I believe I have dealt with the errors of fact in a concise and detailed manner in my submissions.

PN95

To sum up the reasons for the appeal based on key areas of fact, and this is not an exhaustive list, the ACTU were unable to make ground in any of their submissions or evidence that there was a sound, defensible or well-founded reason for terminating my employment. The Deputy President did not do any work in this regard and has taken the ACTU's hyperbolic claims on face value without any sort of attempt at a balanced judgment, or an attempt to test any allegation made by the ACTU on the balance of probabilities.

PN96

When the ACTU leap to fanciful conclusions with their wavering finger without a basis in evidence, the Deputy President leaps with them and has uncritically taken on hyperbolic claims that the ACTU has made, in his decision-making to make findings that have no basis in evidence. This is a serious error of fact, as a finding of there being valid reasons for termination is contrary to the overwhelming weight of the evidence submitted. There was evidence provided that showed the ACTU's motivation and reasoning was capricious, fanciful and spiteful, as the termination of employment was politically motivated and discriminatory against me for my comments posted on Slack and Facebook, and the Deputy President ignored that material in the submission and evidence, which is an error of fact.

PN97

Terminating someone for capricious, spiteful and prejudice reasons can never be a valid reason for dismissal. Again, the 2016 suite of policies and code of conduct are not valid under my contract of employment and should have been disregarded. The staff agreement policy for harassment, discrimination and workplace bullying cannot apply to my personal publishing of material on social media, as this policy only relates to interactions through work, and also ground cannot be made to lead to a conclusion that my posts would breach it, in any case as it has only a workplace context and a political (audio malfunction) innocuous, in any case.

PN98

It is also of note that the ACTU itself has breached that policy in clause 29.1 of the staff agreement in how they have treated me in the process leading to the termination of my employment, and also before then. It is an error of fact for the Deputy President to apply that policy, which is a valid policy under the staff agreement to my out of hours conduct in order to find a valid reason for termination of employment. There is no evidence that any of my conduct actually breached my contract of employment or did any damage to the ACTU, their reputation or anyone's OH&S, and there is no evidence that my conduct actually breached my contract of employment or duties to the ACTU as an employer, and no attempt has been made to make this ground other than for the Deputy President to cut and paste fanciful, illogical leaps of the ACTU without testing the voracity of such fanciful claims, even the balance of probabilities.

PN99

The chatter and side remarks in all staff meetings or Facebook posts made on the ACTU social media websites are not work directions that strip an employee of their rights under the contract of employment, or their rights to participate in parliamentary democracy as found (audio malfunction) posted on Facebook was in fact on an objective reading of the court case contrary to the actual various campaigns and stated positions of the ACTU. There was also no basis in the expressed and explicit terms of my contract, or implied terms which would forbid me from doing so, even if it were the case.

PN100

It is an error of fact to find that the posts contradicted the ACTU campaigns, but also doing so would not be a valid reason for termination of employment under that contract of employment. The posts are also innocuous and not objectively offensive or unreasonably offensive. But offence taken at truthful, lawful political communication is not a valid reason to terminate someone's employment, when someone taking offence to political communications doesn't breach any contractual clause or implicit obligation an employee has to an employer.

PN101

The ACTU as an employer has no right to interfere with the private beliefs and expressions of political and religious belief under their own staff agreement. To ignore this in the decision is a serious error of fact. To consider that the duties an employer of the ACTU has to the ACTU are complete subordination of their political and religious beliefs and expression of those beliefs, is an error of fact, as such a gross intrusion without unambiguous language in explicit written words to the contract cannot be found in my contract of employment with the ACTU, and there is no evidence that there is a genuine repugnance between my conduct and my actual contract of employment.

PN102

There is also no genuine loss of faith in my ability to do the job as political discrimination towards an employee is not a valid reason for an employee for an employer to lose faith in the employee to do the job, and their ability to do the job.

PN103

It is an error of fact to find the conduct repudiated the contract as there is no basis in evidence for this conclusion. (Audio malfunction) interest in this appeal. This appeal is a matter of public interest because the decision from the Deputy President has ignored key facts around the reality of what policies and conditions actually applied to my conditions of employment and contract of employment. It would manifest an injustice to have my job unfairly terminated without me having actually breached any element of the contract of employment, and having actually conducted myself specifically within the constraints of that contract of employment for six and a half years that I worked there.

PN104

The refusal in the Deputy President's decision to consider the implied constitutional rights of a subject of the Crown who is exercising their rights in a parliamentary democracy is a matter of public interest as it manifests a particularly grievous injustice.

PN105

There is a public interest in this matter being granted permission to appeal the decision, due to the potential general application implications. Those implications are that employers can sack workers because those workers engaged in lawful and constitutionally protected out-of-hours conduct such as political communication. Also conduct that was protected under the actual contract of employment itself on an objective reading of that contract and its terms.

PN106

To not grant the appeal and allow the decision to stand would manifest an injustice and create a general application that potentially subordinates all employees to the political whims and cultural fetishes of their employers, in spite of the implied constitutional protections subjects that the Crown have as a result of the constitution setting out the Commonwealth parliamentary democracy.

PN107

If the decision stands it means an employer can terminate an employee's employment for their out-of-hours conduct when that conduct itself was protected under the employee's contract of employment and its explicit terms. Especially when political communications made outside of work were lawful, truthful and innocuous in nature. And this would manifest an injustice and it is in the public interest to grant permission to gran the appeal because of this.

PN108

This is a matter of public interest as well as it is an issue of significant importance relating to social media and it's implications around out-of-hours conduct and political communications. As more and more people work from home, the lines become blurred on out-of-hours conduct and social media use. It is in the public interest to grant permission to appeal this decision as it is a matter that raises issues of importance to general application, which would be important to the wider community now more than ever.

PN109

It's a matter of public interest the appeal be granted as the decision found it was acceptable for a worker to be fired for criticising mutilation and abuse of children by a social agenda. This is of significant public interest.

PN110

It is in the public interest to grant permission to appeal as the decision ignored key legislation in the Fair Work Act in relation to this matter, particularly 772.1(f). I understand that this - in the wording of the Fair Work Act is meant to apply to international agreements, but there is no reason why the Act can't inform other parts of the Act for consistency. Why would 772.1(f) only apply to workers in Australia under foreign agreement? Why would a subject of the Crown and a national system employee not be granted those same rights? I believe that that is a matter of public interest.

PN111

This appeal for this matter doesn't just turn on particular facts either. Many of the facts have been ignored completely or in some cases overridden by irrelevancies. A significant injustice would result if permission to appeal was refused. As stated, the wider issue of principle and general importance is in play here. This is a rather unique case which has got little previous case authority to go by. It's a case where a worker published lawful political communications on Facebook as is their right as subject of the Crown and is their right under their contract of employment which had nothing, in substance, to do with the employer's public positions on things. It didn't name the ACTU or any of their specific campaigns, affiliates or colleagues who were working at the ACTU or anything of that nature. And the material did not pose a serious and imminent threat to the reputation or occupational health and safety. Yet still that employee can have their job terminated having done nothing wrong under their contract of employment, just because that employee is a victim of political and cultural bias and discrimination from the employer.

PN112

It is of note that if this decision from the Deputy President is allowed to go through, it means that worker at Harvey Norman, JB Hi-Fi, other electrical companies who decry the environmental destructive inputs that go into extracting rare earth metals to make the products which these companies sell, that worker could be terminated in their employment for making such political communications as they go against the employer's public positions of selling electronic goods. It becomes a case where it could set a precedent where a vegan can be sacked by a supermarket for decrying the production of beef products. I don't concede anything I've said is specifically against the ACTU's public positions and substance, but how can a worker be sacked for participating in (indistinct) parliamentary democracy. That's in the public interest. It is for these reasons as well that this decision by the Deputy President could have far-reaching negative impacts on subjects of the Crown who are working under the national employment system and that is in the public interest.

PN113

To conclude, once the facts, evidence and submissions surrounding this matter are properly considered and the evidence and submissions actually looked at objectively, it reveals the following; the invalid policies from 2016 are removed as a valid reason for dismissal. The conduct, political communications published on Facebook does not fit the criteria for serious misconduct under reg 1.07, as there is no evidence of justification even on the balance of probabilities for this to be so.

PN114

The invalid alleged directions in the form of meeting chatter, ACTU propaganda and contractually invalid policies cannot be seen as lawful or enforceable workplace directions, and they are not the basis in which to find a valid reason for termination of employment. The content itself didn't breach any policy or obligation I had to the ACTU as an employee. Nor did any of the contact act contrary to the specific (indistinct) or public positions run by the ACTU in any way, especially not in a way that breached any obligation I had to the employer under the contract.

PN115

Once these and other considerations are given proper weight, this matter is then simply a case of termination of employment for political and religious beliefs and expressions of those beliefs. This behaviour by the ACTU would breach the staff argument, clause 29, and their policy on antidiscrimination, which would breach the contract of employment. Such behaviour is also a breach of elements of the Fair Work Act, as I argue, section 772.1.F.

PN116

The allegations of serious misconduct from the ACTU are fanciful and capricious and therefore cannot be a valid reason for termination. The termination of employment can only be found to be unfair.

PN117

My original submissions for the January hearing and the facts revealed throughout the proceedings, and this submission and my written submission go to prove that there are significant errors of fact in the Deputy President's decision and the decision is based on reasons contrary to the overwhelming weight of evidence, and it will be a significant injustice for the termination of my employment to be found to be anything other than unfair, given the actual facts of the matter when they are given proper weight and actually taken into consideration, and not subject to significant errors of fact as the Deputy President's decision was. That will be it for my submission then, thank you.

PN118

VICE PRESIDENT CATANZARITI: Thank you. Any questions, Deputy President Easton?

PN119

DEPUTY PRESIDENT EASTON: No, thank you.

PN120

VICE PRESIDENT CATANZARITI: Commissioner Bissett?

PN121

COMMISSIONER BISSETT: Just one question. Mr Corry, if the Full Bench don't find any error with respect to the 2016 policy suite as they are referred to, or with respect to the application of live chemicals, where does that leave your appeal?

PN122

MR CORRY: I don't quite understand the question, sorry.

PN123

COMMISSIONER BISSETT: Well, your appeal seems to be built on a foundation of the Deputy President having found an error that the 2016 policy is applied.

PN124

MR CORRY: Well, I mean, I can't see how the 2016 suite of policies can apply under the actual - - -

PN125

COMMISSIONER BISSETT: I understand that's your view, but the Full Bench need to consider that matter. If we find against you on it, where does that leave your appeal?

PN126

MR CORRY: Well, there's still elements in terms of the actual scope of those policies. So if the Full Bench found that the 2016 suite for some reason did apply, I don't believe that there's enough scope in those policies as they're written and I believe I've put that in the written submissions.

PN127

COMMISSIONER BISSETT: That's (indistinct) written submissions, is it, the scope of the policy?

PN128

MR CORRY: Yes. Yes, the scope of those 2016 suite of policies and the code of conducts doesn't extend to the actual personal, private, political religious activity of employees that I would rely on that then. Because there is a social media policy which the Deputy President did make, I believe, the correct finding on, because that policy was to do with social media conduct for employees in the workplace context, so my argument is that all the other code of conduct and policies don't apply to out of hour social media conduct, because that material is already put in the social media policy from 2016. And if those other code of conducts and policies did extend to social media, that social media policy wouldn't have any work to do, as they say. So, yes, I would rely on the fact that the 2016 and the code of conduct don't actually have the scope, wide‑sweeping unambiguous language in which to subordinate someone's political and religious beliefs and activity in that space.

PN129

COMMISSIONER BISSETT: Thank you.

PN130

VICE PRESIDENT CATANZARITI: Thank you. Mr Kemppi.

PN131

MR KEMPPI: Thank you, Vice President. I would just ask the Bench if we could just take a five or 10-minute break before I start. I'm happy to roll on if - - -

PN132

VICE PRESIDENT CATANZARITI: We can take a 10-minute break.

PN133

MR KEMPPI: Thank you.

PN134

VICE PRESIDENT CATANZARITI: The Commission is adjourned.

SHORT ADJOURNMENT [11.30 AM]

RESUMED [11.40 PM]

PN135

VICE PRESIDENT CATANZARITI: Yes. Thank you, Mr Kemppi.

PN136

MR KEMPPI: Thank you, Vice President and Full Bench. I will start by remarking on the length of the appellant's submissions, over 70 pages as has been pointed out. For that reason, your Honours will have noticed that we have prepared quite a lengthy list of authorities. Having now heard the appellant's submission, I don't propose to necessarily read from all of those cases. In fact, what I might instead do is refer to them rather than read from quite a number of them, which will truncate, now that we know more so the case we need to meet, which will truncate our submission somewhat.

PN137

In our submission, there are a number of key issues in contest here. Primarily in part, as was pointed out by Bissett C, whether those policies apply and whether the Blyth Chemicals authority was misused by the Deputy President in reaching his decision.

PN138

Sorry, there is just one slightly disconcerting thing to point out. On my screen, the appellant has frozen. Have we still got the appellant with us?

PN139

VICE PRESIDENT CATANZARITI: I certainly can see the appellant. Mr Corry, you can still hear us?

PN140

MR CORRY: Yes. Yes.

PN141

MR KEMPPI: Okay. Thanks. I just wanted to make sure, before I get too far down the line. In essence, it goes to the finding that there was a valid reason for the termination. We say there was no error whatsoever in that finding. Another matter that is in contest and Vice President, as you rightly pointed out, it's not the preserve of this Full Bench to determine the constitutionality or otherwise of what's taken place, so I will leave my submission on that, but for a small reference I will make slightly later.

PN142

The other issue then, of course is whether there is any other reason for the unfairness and all of this factors in, of course, to whether or not there is any reason in the public interest to allow permission for this appeal to be made. We say that there is not.

PN143

We say looking at the established test for whether something is in the public interest, this case does not meet that test. Assessing whether something is in the public interest is, of course, a matter of determining competing matters. It's a question of fact and degree and it's an exercise that occurs within the context of the (indistinct) of the act as a whole.

PN144

We say in this case, there has been a fair go all round. The industrial scheme, the unfair dismissal scheme has run its course. We say it has run its course fairly and it has produced an appropriate outcome. If we look at House v R and the other authorities that determine what is the nature of the discretionary exercise for a Tribunal member and whether or not there has been an error, whether that error has been within the jurisdiction or it's been an error in terms of the exercise of the jurisdiction, we say that there is no error that could be pointed to in Masson DP's decision.

PN145

And nor does the appellant precisely identify an actual error, other than to say perhaps that there were issues that the appellant might complain of in the decision. But that doesn't necessarily rise up to there being appealable error. The appellant has pleaded their case as one involving errors of fact. We point to section 400 of the Act which, of course, says that an error of fact must be significant. So there is a materiality threshold there, to the extent that these errors are made out, which we say they are not. To the extent that they are errors of fact, they would need to be significant errors of fact. We say that that hasn't taken place.

PN146

I won't repeat our outline of submissions, but I will draw the Bench's attention to the point where we summarise the decision reached by Masson DP. That's at paragraph 2 of our outline of submissions in the appeal matter.

PN147

Your Honours will see that there a series of cascading points there, which we outline as the critical steps the Deputy President made in reaching that decision. All of those findings were open to the Deputy President, and accordingly within the jurisdiction afforded to the Deputy President, it was open as a discretionary matter for the deputy president to find that there was no unfair dismissal.

PN148

The two key findings, which I've adverted to were that there was a valid reason and then that as part of the broader value of the exercise of taking into account all of the other things that occurred in terms of the determination, that ultimately the valid reason was really the key factor here. There was, perhaps, I might say such an overwhelmingly valid reason in this case that any other factor that might have been taken into account was, for want of a better word, eclipsed by that - the size or the nature of that valid reason.

PN149

And I point to the correctness of the decision and the openness of that finding and, in fact, the correctness of the finding that there was a valid reason, because it does factor into two things. One thing is, of course, if permission is granted and the Full Bench then needs to go through the exercise in determining, 'Was there an error? What was the error? Do we overturn this decision? Do we put in place a different decision?' It's relevant to that factor and we say that even if permission is granted, there is nothing in that decision that is an error that the Full Bench should reach a different conclusion on, or could reach a different conclusion on.

PN150

But we also say, of course, that the error point comes in more fundamentally at the start of proceedings, and that is where the Full Bench is considering whether or not to grant permission to appeal at all. There are numerous authorities and we point to these in our outline that stand for a position that error is necessary. In order to grant permission to appeal, the Full Bench should be satisfied that there has been some error, some appealable error at that. But further, there are also authorities that say that even if there is an error, that of itself doesn't necessarily mean that permission will always be granted. There are cases where error has been established and I am happy to expand on this as necessary, but it's a fairly straightforward proposition where error has been established, but nevertheless it's not in the public interest to grant to the appeal.

PN151

In our submission, the appellant appears to have confused a sort of age old issue that arises in media which is that which is in the public interest and that which the public might be interested in. Those are two very different things, particularly when it comes to the exercise of the statutory task in determining whether and appeal should be granted. In our submission, there is nothing here which attracts the public interest. There is no plurality of decisions. This decision was very much within the confines of the existing common law, the existing findings of the Commission.

PN152

In our submission, it was very open to the Deputy President to look at the conduct of the appellant, which is set out in our submissions at first instance, in the written statement of Mr Alex White. It was open to the Deputy President, we say, to look at that conduct, look at where the appellant has used the N word, look at where the appellant has vilified or literally demonised trans people, look at where the appellant has said, 'Fuck the jab, good lads,' in the context of a global pandemic where the ACTU is on record with a position that people should be getting vaccinated, and that's the best way to get back and the best way to protect workers.

PN153

It was open to the Deputy President, we say, to conclude that that does form a valid reason for the termination and that it was serious misconduct, based on the fact that it could have risked the health and safety of the appellant's colleagues, and it could have harmed the reputation of the ACTU. Moreover, it was fundamentally inconsistent with the lawful and reasonable directions of the respondent.

PN154

As to the policies now, the critical piece in all of this is whether or not the appellant's conduct breached one or several of the policies of the respondent and if so, or if not, what that meant. Now, in some ways we say this is a potentially moot point, because in our submission even if the policy - and we say this in our submission as the appellant points out, even if the policy wasn't incorporated into the contract, even if it just stood alone, it would still have the force of being a valid and lawful direction in our submission.

PN155

But taking a further account of (indistinct) even if the policy didn't exist, if there was no policy, there is clear authority for the fact that certain conduct may still - certain conduct on social media that is - may still a form a valid reason for the termination of employment. We don't need to make that argument out, but we simply signal that it was open to the Deputy President to allow that the finding of valid reason for three or four different powers.

PN156

The Deputy President could have looked at the conduct in and of itself and just in and of the context of the serious misconduct in the regulations; looked at it, assessed the reputation and/or the health and safety considerations and considered that that in itself is serious misconduct, there's a valid reason there. The Deputy President also could have looked at the conduct, seen that it was a breach of the policies, that the policies were a lawful and reasonable direction and that that was the valid reason.

PN157

Instead, the Deputy President has traced the policies through the agreement and their general validity. Now the appellant says those policies were completely invalid. They never applied to the employment. But then the appellant also seems to have a bit of a bet each way, in our submission. The appellant points to the protection of the policies as well and says that the policies should have - or the policies of the contract should have protected the appellant's free speech.

PN158

We say it's clear that the policies were incorporated. There is a clear reference in the 2018 agreement to the ACTU policies. The bullying and harassment policies appended to that actual agreement. On that basis, we say there's no about that one applies. As to the rest of them, the appellant is saying that because there was no consultation, those policies are invalid. They don't have any force through the enterprise agreement.

PN159

Even if that were the case; even if they didn't have force specifically through the agreement, we would say they still have force by virtue of the lawful and reasonable direction point. But the timing point there, we say, is critical. These were policies - the code of conduct in particular and the suite around that - that came in in 2016. There was therefore no requirement for those policies to be consulted on at the time or after the striking of the 2018 agreement. Those were the policies that already existed in time. The appellant's argument might be different if we were back in 2017 or 2016 and it was during the life of the previous agreement perhaps there might be a question - and this will be a matter for evidence which was no led by any party - perhaps there might be a question about that and the appellant could put their case, but any case the appellant can put in respect of those policies not being consulted on, evaporate completely when the 2018 agreement comes in.

PN160

At any rate though, even if there was a failure to consult at any point in time and we say that there was not, there are also authorities that look at whether or not a failure to consult is fatal to the application of a direction or a policy.

PN161

Project Blue Sky is often quoted as the case about purpose, however that case also looks at whether or not in reaching a decision, the decision-maker fails to comply with a procedure or step, what is the effect of that? Does that then invalidate or make unlawful the subsequent steps. And the answer is, no, you've got to look at the purpose. We would say you've got to look at the wider context.

PN162

The Mount Arthur case, which is referenced in our table of authorities - I won't read from that case, I will just refer to in general terms - the Mount Arthur case also looks at whether or not there is lawfulness or unlawfulness on the basis of a failure to consult and we say that that offers support for the proposition that failing to consult over a policy won't necessarily mean that the policy is unlawful. We are just looking at the lawfulness.

PN163

It doesn't necessarily mean that it's invalidated or that it's unlawful. So we would say even if there was a failure to consult on those policies, which is denied, that doesn't make the policies unlawful. It doesn't remove the force that they had. It doesn't remove the relevance that they had as lawful and reasonable instructions to the appellant to not say some of the things that he did on social media where there is a significant risk to the health safety and wellbeing of his colleagues and the reputation at large of the ACTU and the union movement more broadly.

PN164

Those are in essence the key or the head points that I would make. The reference to Blyth Chemicals, I will deal with your Honour's question as if it was addressed to me. we say the Blyth Chemicals point does not really advance the appellants case at all greatly. The appellant appears to rely on that case for a proposition that you need to make out more than just being a bit uneasy about future context there needs to be something more than that we say there was definitely something more than that in this case. This isn't just a case about - say if the respondent had been aware or notice of the appellant's views and then sought to sanction the appellant just for having those views over what they might say in the future, absent of what they have said in the past. This is very much a case of actual conduct, actual things that the appellant did say and the employer taking a view about that and disciplinary proceedings flowing on from that.

PN165

This is not a case where there was some unease about the future that was not based on actual conduct which had occurred further. Blyth, if anything. Stands for the establishment of the fiduciary duty that the employee has to the employer, which in our submission is helpful to the respondent in circumstances where the appellant has clearly not acted in the respondent's best interests and, in our submission, has done so knowingly.

PN166

There are clear examples in the reputational risk to the respondent that could have flowed from the appellant's conduct and also in the police post. I won't take the Bench to it now, but there are clear excerpts in the transcript where the police post was discussed. It's treated in the decision itself. The significance of a post which appeared to promote violence against police officers is clearly significant to the reputation and the operation of the ACTU in circumstances where there is a police union that is affiliated to the ACTU and there is the possibility that further unions will affiliate. The argument of the appellant that somehow because that happened interstate to where this particular police union is, in our submission, completely irrelevant and has no bearing on the outcome.

PN167

I just want to turn to deal with two points and I promise to be quite brief there. The first is the implied freedom of political communication. Your Honour is completely correct to say if that's the complaint - I don't wish for this to happen, but if that is the complaint, this isn't the jurisdiction.

PN168

What I will say, however, is that there is clearly authority for the prospect that even if the implied freedom of political communication should have been taken into account in some way shape or form, that sensible limits on that freedom can be imposed, including by the common law. Banerji is, of course, a case about the public sector and (indistinct) statutory obligations and how they rub up against the implied freedom. But nevertheless we would say it stands for the proposition that there can be a permissive trespass on the implied freedom. We would say were we in that jurisdiction that the common law as it stands might be such a permissible trespass, at least in the context of this case.

PN169

The implied freedom has been the subject of a number of limits. It is not absolute. For example, the implied freedom doesn't allow free licence to defame people as we see in the Lange case. It doesn't allow, in South Australia for example, mistruths to be published. There are definite codified limits to that implied freedom. We would say even if the political freedom had - the implied freedom had some work to do here, sanctioning conduct that is demonising trans people, making light of ethnic communities and making light of people who are survivors of domestic violence is probably something that is able to be curtailed or that's a legitimate trespass, even if the implied freedom has some work to do here.

PN170

The second legal point that I will make is about Briginshaw. We say Briginshaw has no work to do here whatsoever. The appellant tries to argue for a higher standard. Briginshaw doesn't have work to do here because in this case we are dealing with conduct that actually occurred; conduct that there is no controversy about whether it occurred. It's admitted conduct at all stages of these proceedings.

PN171

Briginshaw is, of course, the famous case about adultery; whether or not that adultery occurred. Briginshaw is not necessarily an argument for a higher standard. Really, it's been talked down a little bit to mean no more than you've just got to have a bit of a better look or maybe the kind of evidence that might substantiate a lesser allegation might not substantiate a bigger allegation. But here it's not a matter of debate about whether or not the posts occurred. They did. Nobody denies that they did, not even the appellant.

PN172

The Briginshaw standard has no work to do here. The contest here is about given that those posts did occur, what is their meaning, what is their significance. That is not a Briginshaw question; that is a question about looking at what serious misconduct is, assessing reputation, work health and safety risks, the harm that could ensure and it doesn't need to be, in our submission, actual harm or evidence of actual harm. Potential harm is sufficient. Risk is the word that is used for serious misconduct. It's about looking at that significance and then working out whether or not there's a valid reason. Accordingly we say the two higher legal challenges of the appellant are fundamentally misplaced. The first being the implied freedom and the second being Briginshaw.

PN173

Finally, I won't go through the decisions, but I will say that in our submission Masson DP correctly appreciated the relevant authorities. The Deputy President looked at Rose v Telstra, for example; looked at a number of other cases, the Pearson case, Cameron Little et cetera. Correctly applied those cases, correctly looked at how the facts of this case fit in with those cases and reached an appropriate conclusion that was open to the Commissioner. Nothing in that decision fails to take into account a relevant legal principle.

PN174

The Deputy President did not miss a significant case. The Deputy President didn't misread one of the cases that he relied on. He reached an appropriate conclusion within the jurisdiction, within the case law and the discretion available to him. For that reason, we say that this appeal doesn't get off the ground. There is no error that is appealable. There is no significant error of fact. There is no error that even if it were an error would have made a material difference to this case.

PN175

In the context - and I will draw a parallel here - in the context of a - of the appellant who engaged in the conduct, admitted that he'd engaged in the conduct and was terminated and was completely unrepentant, at first instance there was a finding around procedural fairness and I think that one of the chief submissions that was made there that was persuasive was that even if there had been a different tack taken, there would have been no difference made. And that's a key decision making principle in terms of whether to overturn a decision or not.

PN176

And we would say the same thing applies here. Even if there is an error, which we say there isn't, but even if there is, it's not a material error that would have made any difference to the ultimate finding in the case which was there was a valid reason. There is no other factor that makes it unfair. And in the absence of that error, there is no permission - sorry, there is no reason for permission to be granted and even if permission is granted, there is no reason to uphold the appeal. May it please the Full Bench, those are the submissions of the respondent. Of course, I am happy to assist if there are any questions.

PN177

VICE PRESIDENT CATANZARITI: Thank you, Mr Kemppi. Any questions, Deputy President Easton?

PN178

DEPUTY PRESIDENT EASTON: No. Thank you.

PN179

VICE PRESIDENT CATANZARITI: Commissioner Bissett?

PN180

COMMISSIONER BISSETT: No. Thank you.

PN181

VICE PRESIDENT CATANZARITI: Yes. Mr Corry, is there anything in reply that you need to say?

PN182

MR CORRY: Yes. There's a couple of points I'd like to raise. Yes.

PN183

VICE PRESIDENT CATANZARITI: It needs to be by way of reply, not by way of repetition. So it's stuff arising from Mr Kemppi.

PN184

MR CORRY: Certainly. Certainly.

PN185

VICE PRESIDENT CATANZARITI: Yes. Go ahead.

PN186

MR CORRY: Do you mind if we just take a three-minute break quickly, sorry?

PN187

VICE PRESIDENT CATANZARITI: Yes. We will take a five minutes adjournment then. Thank you .

SHORT ADJOURNMENT [12.07 PM]

RESUMED [12.12 PM]

PN188

VICE PRESIDENT CATANZARITI: Yes. Thank you , Mr Corry.

PN189

MR CORRY: Thank you. Sir, by way of responding, I want to respond to when Mr Kemppi alleges I used the N word. But this is not actually true. The N word I guess he is referring to is N-i-g-g-e-r, with the hard R. The term I use is Nibba, which is a colloquialism. It's not an offensive word. It's a colloquialism and the context in which it was used, where I see, 'Shiiiiiit nibba', that is a colloquialism and an expression of exasperation. It's use in the political satirical post is clearly a reference from the TV show, 'The Wire', where a corrupt politician often uses that phrase to show displeasure or exasperation. It is not the same as the completely different word, N-i-g-g-e-r, with the hard R. Nibba is used by people in urban environments to greet each other and talk to each other. These terms of ubiquitous in cultural artefacts, online and elsewhere. If such terms were allegedly offensive, why are cultural products with those terms used so ubiquitous and legal in this country or America? It makes no sense. But it is misleading to equate N-i-b-b-a with N-i-g-g-e-r. Completely different words. I have submissions on that in my written material.

PN190

As to the demonization of trans people, the post about the trans agenda doesn't demonise individual victims or advocates of the trans agenda. It is calling out a social agenda that harms people. And it's not demonising anyone. I have submissions on why my posts don't satisfy the criteria for misconduct in my written submission.

PN191

But Mr Kemppi was a bit misleading there with the Full Bench when he said I had a bet each way. I understand perfectly well that the 2018 staff agreement applied to my contract of employment. I am perfectly aware that the 2018 policy around antidiscrimination, harassment and bullying applied to my contract of employment. The 2016 suite, I argue, doesn't apply and can't apply. What's the point of having a contract of employment that includes a staff agreement - and remember my contract says 'all other conditions are outlined in the staff agreement which you recently received.' That's in the contract of employment I signed. What is the point of having a clause in there that you need to - that the employer needs to consult with staff about policies if they can just ignore that under the contract of employment.

PN192

I'm perfectly aware the 2018 policy on harassment, bullying and antidiscrimination applied to me. As I point out in my submissions, that policy does not have an out of workplace or out of workplace adjacent context or reach. It is specific to the workplace. There is no evidence I engaged in anything that breaches that policy in regards to my workplace behaviour or any workplace adjacent context. So I don't have a bet each way. I actually have a specific bet on that particular point.

PN193

The fact is that, yes, there is no evidence for the 2016 policy being valid. It wouldn't matter if it was written on the back of a napkin or it was presented by the ACTU - the managers. It needed to go through the staff agreement process, which is a term - explicit term - out of contract of employment. You can't have the employer simply ignore explicit terms under a contract of employment and then just terminate someone because they - in their employment, because they violated something that is irrelevant to their contract of employment.

PN194

Also, it's not just a casual failure to consult. It's not like Linfox or whatever employer casually suggesting, 'Well, we want to have a social media policy. Maybe we will put one in. We didn't consult.' The staff agreement is very clear that you have to consult with the consultative committee under 5.2. There is also no unambiguous language that denies your right to express yourself in your political opinions or religious beliefs online. If you read the staff agreement, the antidiscrimination clause in the staff agreement is very specific that the ACTU cannot injure an employee because they engaged in political beliefs or religious beliefs or expressions of those beliefs. It is quite clear. the anti discrimination policy itself applies to me and protects me from the employer doing things like summarily dismissing me for exercising my political and religious beliefs, and expressions of those beliefs.

PN195

There is also, by way of responding, no objective reading of the police - of that police officer assaulting peaceful protesters that incites violence to police. Police - police unions are obviously very non political or apolitical entities. As I've made submissions, if the ACTU's support for the anti-white domestic terror inciting Black Lives Matter movement and Black Lives Matter has killed police officers and burnt union property - police union property. It the ACTU support that movement, Black Lives Matter, what reputational damage does one post pointing out excesses of Victorian police (indistinct) damage is that going to do? None.

PN196

So I also will put forward that I do believe the Constitution's implied freedom of political communication trumps any term that would limit my freedom to political communication. I realise the jurisdiction for whatever reason may or may not be guided specifically by such implied rights that someone has under the Constitution, but I do submit that.

PN197

There is also no mockery of survivors of domestic violence. Using the fact that saying someone was fleeing domestic violence was a legal mechanism to get out of COVID fines is not saying, 'Ha ha, look at the domestic violence victims.' It's quite absurd and an error of fact to interpret that way, because it's unable to be interpreted in that fashion. And also I would say that the conduct does not meet reg 1.07 and the Briginshaw principle absolutely should apply, because the Fair Work Commission Bench Book at 112 states:

PN198

Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw may be relevant. The standard of proof remains the balance of probabilities, but nature of the issue necessarily affects the process by which reasonable satisfaction is attained. And such satisfaction should not be produced by inexact proofs indefinite testimony or indirect inferences or by slander and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. There therefore needs to be more serious consideration given to serious allegations.

PN199

So the allegations of reputational risk and OH and S risk that the ACTU claim my political communications posed is a serious allegation that ought to require some serious evidence that that is something that could have happened.

PN200

There therefore needs to be more serious consideration given to the serious allegations, so the allegations - excuse me, yes. There therefore needs to be more serious consideration given to serious allegations so the allegations of reputational risk, and OH and S risk from the ACTU towards my political communications are pretty serious allegations, albeit fanciful and capricious ones. The ACTU summarily dismissed me as an employee, a serious undertaking which requires serious evidence and not just hearsay from an ACTU director as to their biased or hysterical opinions.

PN201

Facebook publications do not - that are politically protected do not fit the criteria to satisfy 1.07 of the Fair Work Regs. The ACTU literally says - their argument is my conduct was serious misconduct. But they don't show the mechanism of how or why or a possibility of it actually happening. The Facebook page itself did not name the ACTU at all - - -

PN202

VICE PRESIDENT CATANZARITI: Mr Corry, you are now repeating your submissions. This is for the purpose of reply. You don't need to repeat - - -

PN203

MR CORRY: I'm just trying to (indistinct).

PN204

VICE PRESIDENT CATANZARITI: Is there anything that you need to reply to?

PN205

MR CORRY: I will just double-check. I'd reply that the errors are significant and when these errors are found to be errors of fact, it does change the outcome of the unfair dismissal application. And I would also add that, yes, for the reasons I've already expressed, there is a public interest and public welfare issue to this case, because if it's allowed to stand that an employer can simply sack someone over hearsay, that is something that can affect a lot of people in their political and religious expressions online.

PN206

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [12.21 PM]