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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

VICE PRESIDENT CATANZARITI

COMMISSIONER HAMPTON

COMMISSIONER PLATT

 

C2022/1461

 

s.604 - Appeal of decisions

 

Appeal by Bin Sahri

(C2022/1461)

 

Sydney

 

11.00 AM, FRIDAY, 29 APRIL 2022


PN1          

VICE PRESIDENT CATANZARITI:  Yes, good morning. I'll take the appearances.

PN2          

MR MULLALLY:  Good morning, your Honour.  My name's Patrick Mullally.  I seek permission to represent the appellant today with Ms Niri.

PN3          

VICE PRESIDENT CATANZARITI:  Yes.  Thank you.

PN4          

MR ANDREWS:  If it please the Commission, I appear on behalf of the respondent as of right under section 596(4)(b)(1) of the act.  Andrews initial S and I also confirm that we have no objection to the appellant's request for permission to be represented by a paid agent.

PN5          

VICE PRESIDENT CATANZARITI:  Yes.  Thank you.

PN6          

Mr Mullally, permission is granted to appear and thank you, Mr Andrews.  The Full Bench has had the opportunity to read the material that has been filed including the extensive submissions.  It now invites short, brief oral submissions.  Thank you, Mr Mullally.

PN7          

MR MULLALLY:  Thank you, your Honour and members of the Full Bench.  In this appeal the appellant contends that he suffered an injustice when the learned Deputy President refused to reinstate him.  She had, as is common ground, found there was an unfair dismissal for the reasons set out in her reasons for decision but declined to order what we say is the primary remedy provided for under section 391 - sorry, 390(1) of the Fair Work Act.

PN8          

The short reasons for not reinstating the applicant are set out in the reasons for decision at page 29 of the appeal book, commencing at paragraph 137 and the first reason essentially is that there was no evidence before her, she said, which would indicate that the CSCRC would reinstate or consider reinstating the appellant if they were satisfied that their concerns about his performance were misplaced.

PN9          

Now, we say that that constituted potentially an error of fact because it was not going to be a reinstatement to the CSCRC.  The evidence throughout the hearing was that the CSCRC were, essentially pursuant to a contract with the respondent, providing the funding for the appellant's position.  Now, as is apparent from both the witness statements and the evidence in the case, and I don't think the respondent disputes this, there was nothing in the appellant's contract which made it conditional upon funding from the CSCRC.

PN10        

So to not order reinstatement because of matters with respect to the CSCRC we say constituted an appealable error.  The next reason given is at paragraph 138 and that was that there was no alternative position provided when in the university, according to the respondent, into which the appellant could be reinstated.

PN11        

We challenge that on the grounds that the only evidence before the learned Deputy President tendered by the respondent essentially came through Professor Valli in his memo generated to get authority to terminate the appellant and that appears at page 149 of the appeal book and is really extremely brief and it says at the bottom of that page 149:

PN12        

Under these circumstances there is no available suitable position to transfer Dr Bin Sahri to.

PN13        

And that essentially, your Honour, and members of the Full Bench, was the scope of the evidence with respect to positions available and we say that that ought not to have been accepted by the learned Deputy President as having any relevance or force or weight with respect to the determination and the exercise of the decision.

PN14        

COMMISSIONER HAMPTON:  Was that statement disputed by the applicant at the hearing?

PN15        

MR MULLALLY:  Not directly, sir.  No.  No, from memory.

PN16        

COMMISSIONER HAMPTON:  All right.

PN17        

VICE PRESIDENT CATANZARITI:  So, Mr Mullally - sorry, please proceed.

PN18        

MR MULLALLY:  The thrust of the appellant's case was though that he was appointed to a scholastic position at the university and the question of other positions really, we say, is not entirely relevant because this contract was for a position.  The university had made arrangements for funding behind that contract but we say that he ought to have been reinstated to the applicant's position which appears in his contract which was for a fixed term.

PN19        

COMMISSIONER HAMPTON:  But, Mr Mullally, wouldn't that require us to disturb the finding that the funding had been concluded and there wasn't a position?

PN20        

MR MULLALLY:  Yes.  Well, yes, it would because the finding ought to have been that if you look - particularly with his contract he was appointed to a scholastic position, an academic position in the School of Science at the university.

PN21        

COMMISSIONER HAMPTON:  All right.  But in terms of the other positions, what do you say about the evidence of Susan Hancy which is at 154 and 155 of the appeal book?

PN22        

MR MULLALLY:  Well, my understanding was that she gained that from Professor Valli.

PN23        

COMMISSIONER HAMPTON:  And again - and was that challenged?

PN24        

MR MULLALLY:  Yes.  Well, to the extent that the out of court statement ought not be relied upon.

PN25        

COMMISSIONER HAMPTON:  Yes, but was it challenged before the Deputy President?

PN26        

MR MULLALLY:  Yes.

PN27        

COMMISSIONER HAMPTON:  Was a ruling made about that?

PN28        

MR MULLALLY:  No.

PN29        

COMMISSIONER HAMPTON:  All right.  Obviously I'll be interested in what Mr Andrews says about that in due course.  All right.  Thank you, Mr Mullally.

PN30        

MR MULLALLY:  Thank you, Commissioner.

PN31        

The other aspect, with respect to paragraph 138 with respect to the alternative positions, as I've said in the written submissions, and I don't want to labour this but it's strongly arguable, we say that ‑ ‑ ‑

PN32        

VICE PRESIDENT CATANZARITI:  Sorry, just before you go on, can I just go back to Ms Hancy's evidence, paragraph 12, which Commissioner Hampton has drawn your attention to, there are two propositions there.

PN33        

MR MULLALLY:  Yes.

PN34        

VICE PRESIDENT CATANZARITI:  One is about the no funding and the second part is no suitable alternate positions to transfer him that the university was able to terminate his employment.  That second part isn't relied upon funding, is it?

PN35        

MR MULLALLY:  Your Honour, what page of the appeal book is that?

PN36        

VICE PRESIDENT CATANZARITI:  154.

PN37        

MR MULLALLY:  154.  And what was the question, sir?

PN38        

VICE PRESIDENT CATANZARITI:  Well, that second part of that sentence is dealing with alternative positions.  It's not dealing with the question of funding for the position in question.  It is looking at alternative positions and the evidence of Hancy is there are no suitable alternative positions to transfer him to.

PN39        

MR MULLALLY:  No, that's right and I believe that the thrust of the evidence was that she'd named Acting Professor Valli on the note that I've just read out.

PN40        

VICE PRESIDENT CATANZARITI:  All right.  I understand that.  Thank you.

PN41        

MR MULLALLY:  And the other argument, with respect to the reinstatement to a position is that the argument which I've touched upon in the written submissions, and that is that the termination clause prepared at page 140 of the appeal book in the agreement between the CSCRC and the university arguably provides for the continuation of the funding if it's legally incurred by the respondent.

PN42        

And we say that that would embrace arguments with respect to the validity of the termination and orders made by this Commission by, for example, with respect to reinstatement and the only limitation on that is that the extensions can't go beyond those originally contemplated and of course that would be the end of the three‑year fixed term contract or the outer limit contract as described by the respondent.

PN43        

139 deals with the hard border question.  Essentially, as we've said in the written submissions, there was no evidence before the learned Deputy President with respect to this.  The decision was made on 8 February 2022.  The hearing took place on 11 November 2021.  The learned Deputy President had invited the parties - well, perhaps only the appellant to make submissions with respect to his ability to enter the country should circumstances require him to do so and he made those submissions.

PN44        

Obviously by 8 February 2022 there were changes in the operational activities in the borders of Western Australia but we say that certainly there was no evidence before her with respect to that and I presume the written submissions - she must have made her own inquiries outside of the evidence before her to make the conclusion she did at 139.

PN45        

The respondent's counsel has indicated in his submissions that it was right what she said anyway so it makes no difference but we say that it was wrong.  There are opportunities to make applications at that time for a return into the country.  It probably would have involved an application and quarantine but certainly it was something which would have been the subject of proper the evidence and it wasn't.

PN46        

Finally at 140 there is the visa question.  There's no doubt that the appellant was working in the university subject to a temporary skills shortage 482 visa and the evidence is that that was cancelled upon termination or within seven days thereafter, I believe, and he had to leave the country within a certain time which he did in compliance with his obligations under the visa and our argument is that that cancellation of the visa would not have occurred but for the unfair dismissal inflicted upon the appellant by the respondent.

PN47        

There is nothing in the evidence which would suggest at this stage that upon a reinstatement order that given that it's a fixed term contract that the conditions prevailing with respect to the granting of the 482 visa back in 2019 would have changed in any way with respect to the sponsorship of the university.

PN48        

The evidence is that he, I think at page 128 of the appeal book, that the university had obtained the visa and I'll just check - yes, on 31 July 2019 Professor Valli emailed the appellant to say that (indistinct) and expense had been incurred with respect to the commissioning of the visa and so I think we can draw the inference from that that although there's no direct evidence but the inference can be drawn that the university had obtained the visa and obviously would sponsor.

PN49        

The other submission made by counsel for the respondent is that the decision of the learned Deputy President was in accordance with other authorities which have been identified in the written submissions.  I just quickly want to turn to those.  Essentially, I think it's fair to say that all but one of those decisions involved applicants who did not seek reinstatement.  I think in Webster's case the learned Senior Deputy President Drake, as she was then, said at 47:

PN50        

I've considered the remedy of reinstatement.  Reinstatement is not appropriate in this case.  Mr Webster has already agreed - already had his visa conditions applied and he had to remove himself from the country.

PN51        

There's no evidence or no discussion in that decision as to the circumstances of his contract of employment but I think an inference can be drawn that it was certainly not a fixed term contract.

PN52        

In Massimo reinstatement was not sought for the restaurant manager and reading the decision it appeared fairly clear that the working relationships had broken down completely and so another ground for reinstatement would have been inappropriate as well.

PN53        

In Bazzard again, a very good architect working for the respondent in Australia on a 487 visa.  He'd returned to Canada.  Reinstatement was not sought and again, an arrangement took - reading the facts of that case, the relationship had apparently broken down.

PN54        

In the Federal Court case mentioned in the authorities provided by the respondent again, although reinstatement was sought in the original application at the hearing, the applicant no longer sought reinstatement as again, he had left the country.  But again, the indications from the evidence of that case are that the contract was certainly not fixed term and there was no analysis of the (indistinct) with respect to the operations of reinstatement and visas.

PN55        

So in this case we'd say that there are significant differences for the appellant with respect to consideration of the visa.  On the appeal there was, we say, there was a miscarriage of justice because there was no evidence before the learned Deputy President with respect to the operations and the visa.

PN56        

It is critical, we say, for his career that reinstatement take place and we say that the difference with respect to the operation of the visa would, in the fullness of time, establish that it would be reinstated in accordance with the original provisions in light of the university back in 2019.

PN57        

So for those reasons we say that ground C in the appeal ought to be upheld and that the matter sent back to a reconsideration of evidence with respect to (a) the visa and (b) the entry into Australia with reporting hours, much more lenient.

PN58        

Thank you, your Honour and members of the Full Bench, that's all I wanted to say orally.

PN59        

COMMISSIONER HAMPTON:  Mr Mullally, perhaps can I just ask you a couple of questions?  So in relation to the Theme Agreement, is it the appellant's position that the funding relevant to the appellant's position under the Theme Agreement concluded but doesn't make any difference or do you contend that the funding wasn't concluded?

PN60        

MR MULLALLY:  No, we say that on the face of it the funding is still being included.  That seems to be a concession gained by the respondent and we of course as an employee and the respondent's written submissions make this clear, that we're not a party to that contract.  We've certainly not provided with any information with respect to it other than after the dismissal.

PN61        

So what we do say though is that in the end reading - a proper reading of the examination clauses contemplates provisions for circumstances arising such as the very circumstances that we're talking about today and that is the status of the termination, that's been determined under the Fair Work Act that it was an unfair dismissal and in those circumstances we say there ought to be the remedy of reinstatement imposed or ordered.

PN62        

And then looking at the termination clause in the Theme Agreement, we say that it provides that the CSCRC will be responsible for any illegally incurred (indistinct) the only limitation being rather than originally contemplated and of course that was the three‑year contract.

PN63        

COMMISSIONER HAMPTON:  So, Mr Mullally, does the appellant say that even if there was therefore a position that reinstatement could have worked because the university could effectively build the funding (indistinct).

PN64        

MR MULLALLY:  Yes.  Precisely.

PN65        

COMMISSIONER HAMPTON:  I'll have to think about how that work but all right.

PN66        

COMMISSIONER PLATT:  What work do you say that the applicant would have done then?

PN67        

MR MULLALLY:  He would have gone on to the School of Science and lived academically, provisions in his contract to be teaching, tutoring and so forth.

PN68        

COMMISSIONER HAMPTON:  All right.  Mr Mullally, I also want to ask you about the Deputy President's findings in relation to compensation.  So at paragraph 143 of the decision the Deputy President observes at least that the appellant had already been paid the maximum compensation.

PN69        

Now, it's not clear what the purpose of that observation is or how that was applied but at 144 the Deputy President records that both ECU and the appellant agree that an order for compensation was inappropriate.  Now, I'm not sure whether that's, with respect, an accurate description of the ECUs position but I understand that is a correct understanding of the appellant's position at first instance.

PN70        

MR MULLALLY:  Yes.  That is so.

PN71        

COMMISSIONER HAMPTON:  All right.  Thank you.

PN72        

VICE PRESIDENT CATANZARITI:  I'm just concerned about the temporary visa issue.  If what you've just said in relation to Commissioner Hampton's question about the funding situation is it - your view is that the indemnity would mean that the person would be funded but the question is what is the work they do, doesn't the temporary skilled visa require them to actually be specifically doing something which you can't just sort of create something out of nothing, it's got to actually fit that visa in the first place.

PN73        

MR MULLALLY:  Yes.  I agree with that, your Honour.  The contract of employment essentially puts him into the School of Science and ultimately that visa question will become a matter of evidence.  Well, we're not really to privy - there's no evidence other than what I've just touched on I think at page - about the - at page 149 of the appeal book about the university having permission, the word used by Professor Valli were 'commissioned the visa', so what needs to take place to re-establish a substantiative visa in these circumstances must become a matter of evidence.

PN74        

VICE PRESIDENT CATANZARITI:  Yes, thank you.

PN75        

Anything further, Commissioner Hampton or Commissioner Platt?  All right.  Thank you.

PN76        

Mr Andrews?

PN77        

MR ANDREWS:  Yes.  Thank you, your Honour and fellow Commissioners.  The respondent in this matter obviously relies on submissions that we have tendered.  I do apologise for the numbering error with respect to Ms Hancy's evidence and how it's perhaps been corrected by the Commission today.

PN78        

The first matter of course is that of permission to appeal and with respect to the public interest, we say that the appellant in this case from the outset of proceedings made it clear that he was not seeking compensation and that is in the appeal book at 95 in the opening submissions and in closing at 196.

PN79        

The issue of remedy before the Commission at first instance therefore was confined to the issue of the appropriateness of an order for reinstatement as sought.  The test is in terms of the appropriateness and the authorities that we are relying upon as put before the Commission aren't confined to the circumstance of an applicant not seeking compensation.

PN80        

The statements of principle go to the fact that someone who does not hold a visa, who is a non‑Australian resident is as a matter of law not entitled to work in Australia and in this specific circumstance, not entitled to work for the respondent unless there is a visa entitling that person to perform a particular job role as sponsored under a 482, for example.

PN81        

So the circumstance we have before us is someone who is not legally entitled to work in Australia seeking a reinstatement order and the authorities go beyond simply saying that the applicants in those matters were not seeking reinstatement.  Each of those authorities goes further and makes a statement of principle that it'd be inappropriate to order reinstatement in such circumstances.

PN82        

In the Federal Court case Barker J goes further in terms of the statement of general principle and as we put it, makes it clear that there is no certainty that someone who does not hold a visa would be able to obtain a visa to enable them to be employed pursuant to an order that the court or tribunal might make.

PN83        

And so in terms of the questions that have bene put this morning from Commissioner Hampton and Commissioner Platt to the appellant, are very relevant in terms of the fact that as conceded by the appellant this morning, the material before the Commission made it very open to the Commission at first instance to conclude that the funding had in fact been withdrawn and that's been conceded this morning.

PN84        

So if the funding for the position was withdrawn then what?  As put in answer to questions this morning the appellant says that the appellant could be appointed to another position within the university.  Well, if a position is going to be identified then these requirements kick in in terms of needing to satisfy labour market testing, et cetera, et cetera.

PN85        

There is indeed no certainty, to use the terminology of Barker J that a visa would ensue such that the employer would be able to comply with an order of the Commission to reinstate.  So we say as a matter of principle consistent with each of those authorities that the situation we have is the appellant being not able to be legally - not able to legally work in Australia without a visa, that there is no position that exists that - where the university, the respondent, is sponsoring the appellant for such a position, a new visa would have to be in place and all the requisites that go to that as we've touched upon in the response that we filed in these appeal proceedings.

PN86        

COMMISSIONER PLATT:  Mr Andrews, can I just ask you one question?  The visa, is that the primary aspect or the secondary aspect because I would have thought the first task is to determine whether or not there's an alternative position because if there's no alternative position then presumably the visa is academic, isn't it?

PN87        

MR ANDREWS:  Academic in the sense that I took you to say, yes.  I agree entirely.  There are two aspects.  I hadn't touched on yet the issue of an available alternative position but in terms of the position that was held by the appellant that no longer exists.  Funding was withdrawn.  The visa that related to that specific position no longer exists.  There is no longer a right for the appellant to work in Australia.  If we go to the issue ‑ ‑ ‑

PN88        

COMMISSIONER PLATT:  I suppose where I'm trying to come from is I understand what you've told me about the visa and obviously in terms of in the alternative position as I understand it, there's no information that was before Deputy President Binet as to whether or not any alternative position would have attracted a visa or indeed if the substantive position would have attracted a renewed visa but I'm just thinking in my head that that's a secondary position because isn't the first challenge there needs to be a position to reinstate to.

PN89        

And then the second question I would have thought then would be, well, if there was a position to reinstate to, would there have been any requirement that would have prevented that reinstatement to that position.

PN90        

MR ANDREWS:  Yes.  Thank you, Commissioner, and I can agree entirely with the proposition you just put.  So if I turn to the issue of the availability or otherwise of an alternative position, there was direct evidence before her Honour as to the non‑availability of another position. That's the evidence of Ms Hancy at 153 to 155.  Contrary to what my colleague has indicated that was not contested in cross‑examination in - at 64 to 73 in the appeal book.

PN91        

There was also evidence from Professor Woodward at 152 and his conclusion was that there was - the funding had been withdrawn by the centre and there was no longer a position available and no funding available for another position.  The primary evidence is that of Ms Hancy in terms of her inquiries as to the availability of any alternative position.

PN92        

The evidence before the Commission which was very open for her Honour to accept was that there was no available position - alternative position for the appellant to be employed in and we say further that if indeed there was then that may or may not give rise to issues to do with obtaining a visa for that particular position, vis‑ŕ‑vis labour market testing requirements that might apply for such a position, for example, as applies under 482 visas.

PN93        

So we say quite clearly that we accept that proposition entirely.  The funding for the appellant's position was withdrawn.  There was clear evidence before the Commission that there was no alternative available position for the appellant to be effectively redeployed in (indistinct) to reiterate that the situation we have is for ‑ ‑ ‑

PN94        

VICE PRESIDENT CATANZARITI:  Mr Andrews, you just froze for about the last 10, 15 seconds.  Can you rewind a bit?

PN95        

MR ANDREWS:  Thank you.  I saw other people freezing so to come in out of the cold, we say that the - it is clear and accepted by the appellant that the funding for his former position was withdrawn.  It was that position which was subject to the visa.  The visa has been withdrawn by the Department of Home Affairs.  The appellant is no longer entitled to work in Australia.

PN96        

We then turn to the issue of an alternative position.  We have the evidence of Ms Hancy along with the documentary evidence and associated evidence with Professor Woodward as to non‑availability of the other positions.  If indeed there was another position then that would also give rise to a further complication or uncertainty to use the terminology of Mr Barker J in terms of whether there was any certainty that a visa would be able to be issued for an alternative position, vis‑ŕ‑vis any labour testing requirements that might need to be applied under 482 requirements.

PN97        

So we say with respect to both those issues, with respect to the fact that the funding has disappeared for the position in question, we say that of itself shuts the case to use that sort of terminology but even to look at the availability of other positions, there was clear evidence before the Commission, accepted by the Commission, uncontested that there was no other available position that could be looked at for the appellant to be redeployed into.

PN98        

COMMISSIONER HAMPTON:  Mr Andrews, I just want to explore the connection between the funding for the position and the appellant's position.  I think it's common ground that the contract of employment made no mention of the fact that it was expressly subject to ongoing funding so what's the evidence that connects the funding to the appellant's employment?

PN99        

MR ANDREWS:  The material before the Commission included the documentary evidence from Professor Valli.  We accept that Professor Valli was not called to give evidence but the memorandum that is in the material before the Commission at 149 to 150, I understand was before the Commission by agreement and that makes it clear in terms of the fact that there is a relationship between the Cyber Security CRC and the university.

PN100      

There was other documentation before the Commission as to the nature of that contractual relationship and the availability of funding to fund research activity within the Cyber Security CRC.  So all that material is before the - or was before the Commission at first instance as to the connection between the two entities and the issue of funding particular research activity pursuant to what was referred to as the Theme Agreement.

PN101      

COMMISSIONER HAMPTON:  And do you say that that evidence, that material creates the link between all of that and the employment of the appellant?

PN102      

MR ANDREWS:  We say the appellant was clearly employed by the university.  We accept that the contract didn't make specific reference to funding flowing from the Cyber Security CRC but we say in terms of the material before the Commission it's very clear that that was the case.  We accept, as we conceded at first instance that in terms of the termination of employment that procedural fairness was not properly afforded and this touches upon that both ways.

PN103      

But in terms of the facts before the Commission, the evidence before the Commission, the material before the Commission it is very clear that funding for this position was withdrawn and that led to the termination by the university of the appellant's employment.

PN104      

COMMISSIONER HAMPTON:  All right.

PN105      

MR ANDREWS:  And subsequently the university had informed the Department of Home Affairs as it's required to do, of that cessation, leading to the withdrawal of the appellant's visa and entitlement to work in Australia.

PN106      

COMMISSIONER HAMPTON:  Thank you, Mr Andrews.

PN107      

MR ANDREWS:  Just bear with me for one moment.  No, those are the matters that we wish to put before the Full Bench today.

PN108      

VICE PRESIDENT CATANZARITI:  So annexure 1 of Ms Hancy's statement has the available positions at the time.  Is that the only evidence we have in relation to what are available positions?

PN109      

MR ANDREWS:  Yes, that was the evidence as to the availability of positions as at the time that Ms Hancy put that together and as we have indicated, that evidence was not challenged at all under cross‑examination so it was, we say, it was entirely proper for the Commission and I don't think it's been suggested otherwise that the Commission at first instance and now can accept that there was no other positions available for the appellant to be redeployed into.

PN110      

VICE PRESIDENT CATANZARITI:  Yes.  Thank you.

PN111      

Any further questions, Commissioner Hampton or Commissioner Platt?  Thank you.

PN112      

Anything in reply, Mr Mullally?

PN113      

MR MULLALLY:  Just one matter, your Honour and members.  The Commission from the respondent elevates the authorities mentioned in their written submissions as enunciating principles of law.  As I mentioned in my opening submission, the question of visas was dealt with very, very shortly in almost all of those cases and I don't think there was ever, subject of any evidence and that of course is the appellant's grievance here that there was no opportunity for up to date evidence to be led with respect to the implications of the need to apply for a visa.

PN114      

So my submission is that those cases are all single member decisions but more importantly the question of the operation of various visas was not the subject of any evidence and therefore the decisions were of very limited value and (indistinct) don't establish principles of law with respect to the submission that was made that if you don't have a visa you're not going to get reinstated.  I don't think that that can be extracted from those authorities.

PN115      

COMMISSIONER PLATT:  Mr Mullally, do you accept that if there's no position, either the substantive position or an alternative then the question of visas doesn't arise?

PN116      

MR MULLALLY:  Yes, that's right.

PN117      

COMMISSIONER PLATT:  Thank you.

PN118      

MR MULLALLY:  Nothing further, your Honour.

PN119      

VICE PRESIDENT CATANZARITI:  Thank you.

PN120      

The decision is reserved.  The Commission is adjourned.

ADJOURNED INDEFINITELY                                                          [11.44 AM]