Fair Work Act 2009
s.604—Appeal of decision

Zahar Levin
v
Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists
(C2021/8378)

Appeal against decision [2021] FWC 6474 of Deputy President Mansini at Melbourne on 26 November 2021 in matter number C2021/4221 – permission to appeal granted – appeal upheld.

[1] Mr Zahar Levin (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Mansini (Deputy President) issued on 26 November 2021. The Decision concerns an application lodged by the Appellant under s.365 of the Act, alleging contraventions of Part 3-1 of the Act associated with his alleged dismissal by the entity trading as Histopath Diagnostic Specialists (the Respondent).

[2] Directions were set for the filing of material and this appeal was listed for permission to appeal and the merits. The Appellant relied on material contained in his F7 Notice of Appeal as his written submissions. The Appellant also submitted fresh evidence in support of his submissions. The Appellant and Respondent both filed written submissions on the issue of whether the Full Bench should allow the fresh evidence to be adduced at the Hearing. Furthermore, prior to the hearing, the Appellant indicated he consented to the matter being determined on the papers. The Respondent did not communicate any objection to the matter being heard on the papers. Accordingly, this appeal was conducted on the basis of written submissions. 2

[3] For the reasons that follow, permission to appeal is granted.

The Decision

[4] The Appellant commenced working for the Respondent on 21 June 2021 as a Pathology Collector at its Cromer Collection Clinic. On 28 June 2021, the Appellant was rostered to work 7.30am to 8.30pm. During his shift, there was an alleged incident between the Appellant and one of his colleagues. Following the incident, the Appellant left the workplace and sent a series of text messages to the Respondent’s COVID Clinic Manager (Mr Vongsuvanh). Those messages will not be reproduced in this decision, but in essence the Appellant said he felt bullied and discriminated against by the colleague and that he was going to sue the Respondent. His last message to Mr Vongsuvanh was “Good bye”.

[5] The Appellant submitted that whilst he told the shift supervisor that he was leaving and not coming back he did not mean that he was leaving his employment. For his part, Mr Vongsuvanh understood the Appellant’s communications on 28 June 2021 to suggest that the Applicant intended to leave the job and not return.

[6] The following day, on 29 June 2021, the Appellant had a pre-arranged rostered day off and did not attend for work. That morning, he attended his general practitioner and obtained a certificate which refers to a diagnosis of work-related injuries described as carpal tunnel syndrome and stress/anxiety due to bullying at work. The Appellant sent the certificate to Mr Vongsuvanh and to the Respondent’s workers’ compensation insurer.

[7] Later that day, after the Appellant’s worker’s compensation claim was submitted, Mr Vongsuvanh telephoned the Appellant and after multiple attempts was able to speak to him. At first instance, Mr Vongsuvanh explained that because they were busy, he initially tried to convince the Appellant to stay by offering him potential employment at another site. However, he said that during the discussion, it became clear that the Appellant was intent on not coming back, describing the Appellant’s manner as angry and threatening. According to the Appellant, they discussed work at other sites, but he was told that there were no available positions. The Appellant said that “at that stage I hang up on him, saying I will see him the court, which is what I am doing now.” The Appellant denied he was threatening.

[8] The Appellant’s evidence about whether he was dismissed during or following the telephone call on 29 June 2021 was somewhat inconsistent. His evidence variously referred to being “terminated” on 29 June 2021. However, at first instance the Appellant said that he was never told that he was “dismissed” during that telephone discussion but rather had decided he did not want to work there anyway.

[9] The Appellant was rostered to work on 30 June 2021 and received an email reminding him of the shift, but he did not attend work that day. The Respondent gave evidence that the Appellant was not taken off the roster for at least a few days and the Appellant gave evidence that he was still receiving roster notifications until July 2021. The Appellant and Respondent had no further communication until 7 and 8 July 2021, where the Appellant sent several emails to the Respondent about outstanding payment and complaints he had lodged to government bodies.

[10] The Appellant did not receive a termination letter or any written confirmation that the employer understood he did not intend to return to work for the Respondent. The Respondent contends that after the telephone call on 29 June 2021 it was clear that the Appellant did not wish to return to his job.

[11] The Deputy President began by rejecting the Respondent’s primary contention that the Appellant was a casual employee and his last engagement was brought to an end on 28 June 2021 when he walked off the job.

“[24] It is apparent that the Applicant did not leave the workplace on 28 June 2021 with approval of a shift supervisor. His subsequent communication certainly conveyed his upset and evinced an intention to pursue his grievances. However, even if the Applicant had intended to leave his employment when he left the workplace on 28 June 2021, the Respondent did not accept his decision to leave at that time. Indeed, Mr Vongsuvanh telephoned him the next day with the intention of persuading him to stay on. At the time of that discussion on 29 June 2021, the Applicant was on a rostered day off (and not required at work).”

[12] Rather, the Deputy President found that the critical act which ended the Appellant’s employment was the telephone call between him and Mr Vongsuvanh on 29 June 2021. The call ended by the Appellant stating his intention to sue the Respondent immediately, followed by the Appellant terminating the call. The Deputy President accepted the Respondent’s evidence regarding the nature, tone and content of the Appellant’s communication and found that this reflected the Appellant’s decision not to return to the job. Furthermore, at the commencement of the telephone call, it was open to the Appellant to remain employed and give the Respondent an opportunity to resolve his grievances whilst remaining in the job. The Appellant gave evidence that he was aware he could bring claims, such as a bullying claim, whilst remaining in employment.

[13] The Deputy President also found that the Appellant could not have clearly known that his role was terminated on 29 June 2021 because he admitted that he was rostered to work on 30 June 2021 and he decided for himself that he did not want to attend or indeed to go back to work again. Finally, the Deputy President found that the last communication between the Appellant and Respondent, around one week later, was not consistent with the continuation of employment.

[14] Ultimately, the Deputy President found that the employment relationship was ended by the Appellant’s own actions and not at the Respondent’s initiative, where at earliest this was effective on 29 June 2021.

[15] In regard to the workers compensation claim, the Deputy President noted:

“[30] For completeness, whilst I accept that the workers’ compensation claim was lodged on 29 June 2021 I do not consider this alters the finding that the Applicant’s conduct in the subsequent telephone call was the critical act that brought the employment relationship to an end. Further, there was no indication in those emails or the certificate of any period of incapacity to attend for work and there is no evidence that the Applicant applied for or requested to take a period of personal leave.”

Fresh Evidence

[16] Before turning to consider the grounds of appeal advanced by the Appellant, we will first deal with whether the Full Bench should receive new evidence that the Appellant seeks to adduce on appeal. Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information” on appeal, however it is by no means a matter of course that it will do so.

[17] It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank. 3 In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.4 However, it has been recognised by Full Benches of the Commission that, in considering whether to exercise the discretion in s.607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and the principles need not be strictly applied.5

[18] The Full Bench decisions referred to indicate it will be rare for fresh evidence to admitted on appeal where the conditions in Akins are not met. In JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia, fresh evidence was admitted where it was arguable that the requirements of Akins were not met. In that matter, however, it was considered that the special considerations that apply in relation to an appeal against a protected bargaining order (where very short time frames were involved) were such to allow fresh evidence to be adduced. The Full Bench observed:

“Consequently, in an appropriate case it will be a permissible exercise of the discretion in s 607(2) to admit fresh evidence on an appeal against a protected action ballot order decision notwithstanding that, strictly speaking, the evidence was available to be led at first instance.” (original emphasis).

[19] By contrast, in Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35, another protected action ballot case, the fresh evidence was refused. In C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, an unfair dismissal matter, the Full Bench declined to admit fresh evidence as “exceptional” circumstances were not present.

[20] The evidence that the Appellant sought to adduce was a letter written by the Respondent’s Business Manager (Wendy Martin) to Anti-Discrimination NSW, dated 6 September 2021. Having reviewed the additional evidence, the Full Bench is of the view that the evidence should be admitted. Our reasons are as follows.

[21] While, as with the case in JJ Richards, the fresh evidence might not have otherwise satisfied the requirements of Akins, it is instructive to consider those requirements.

[22] First, it is unclear whether the evidence was available to the Appellant at the time of the first decision. In his F7 Notice of Appeal, the Appellant submits that he obtained the evidence after the first proceedings. However, this might be doubted although we do not need to decide it. The evidence in question is a letter dated 6 September 2021, which is well before 22 November 2021 when the matter was first heard. The Appellant’s first witness statement stated:

“The employer wrote to one organisation, AntiDiscrimination Board, they sent this to me, that I was made redundant on 28/06 following incident with infection control protocols ( and this is probably what they sent to you, but I was not notified about this at all, not even until now, if person has lodged against them an Incident report, even if they sacked, it should be discussed with them personally not sent to another organisation. Later on, Arnold told Fair Work Ombudsman, when they asked him for one week wages, that they never dismissed me, at all, but I left myself ! here is how contradicting ( and lier ) he is! I have proof of all emails, and will bring this to court along with sms, which I cannot currently print.”

[23] The Appellant also sent the Deputy President a copy of the letter one day after the Decision was published. The Appellant has not provided any further explanation to the Full Bench as to why the evidence was not available to him at first instance.

[24] Secondly, and in the Appellant’s favour, the Full Bench is of the opinion that the evidence is highly probative such that had it been considered, there is a probability that a different outcome would have resulted at first instance. In relation to this part of the test, the Full Bench accepts the Appellant’s submission, that the letter is highly probative because, on its face, it evinces that the Respondent did dismiss the Appellant. The relevant parts of the letter are extracted bellow:

“Mr Levin was employed as a Pathology Collector for from 21 June 2021 until he was dismissed from employment on 28 June 2021. Mr Levin was dismissed during his probationary period for a serious breach of infection control procedures. Maintaining strict protocols are vital to prevent the spread of COVID-19. The complainant was very aggressive towards the site supervisor on the day when she attempted to discuss the breach with him. Please find attached the two incident reports in relation to the reason for Histopath's termination of Mr Levin during his probationary period.

It is noted that Mr Levin subsequently lodged a complaint about unsafe work practices with Safe Work Australia, an unfair dismissal claim with Fair Work Australia, a workers compensation claim for bullying and carpal tunnel syndrome with I-Care, and now an anti­discrimination complaint on the basis of his ethnic background.

Subsequent to the termination of Mr Levin's employment, the complainant became very aggressive towards the Clinic Manager, Mr Arnold Vongsuvanh, and the Payroll Officer, Mr Guilherme Langner, via email correspondence. Please find attached the email correspondence. Note that we did not respond to any of Mr Levin's emails.”

(emphasis added)

[25] Thirdly, regarding the credibility of the evidence the Full Bench took into account the context of the evidence. The evidence is a letter sent from the Respondent to Anti-Discrimination NSW, a government body responsible for administering the Anti-Discrimination Act 1977 (NSW), regarding a complaint lodged by the Appellant on the ground of racial discrimination. The Full Bench noted that this evidence does not fall within the category of careless communication, rather it is official correspondence sent, on the company’s letterhead, for a specific purpose, namely resolving the complaint lodged by the Appellant against the Respondent. While the Respondent submitted that “the letter should be dismissed as evidence as it was a wording error on our behalf,” the Full Bench is of the view that until the issue is fully ventilated, they cannot determine whether it was in fact a wording error.

[26] Notwithstanding that the Appellant might not be able to strictly satisfy the requirements of Akins, the fresh material raises the troubling prospect that the Respondent was giving one version of events to advance its case in the Fair Work Commission and knowingly giving a very different – and inconsistent – version of events to another body. If this is the case, we consider the possibility that the Commission’s processes might be brought into disrepute if the primary decision stands without these matters being tested and is sufficient to allow fresh evidence to be admitted under s.607(2).

[27] Accordingly, we grant leave for the Appellant to adduce further material.

Principles of Appeal

[28] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 6 There is no right to appeal. An appeal may only be made with the permission of the Commission.

[29] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 7 The public interest is not satisfied simply by the identification of error,8 or a preference for a different result.9 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 10

[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 11 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[31] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 12 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Consideration

[32] The Appellant’s primary ground of appeal is that he has a document stating that he was dismissed which was not provided at the first instance hearing and that the Full Bench should allow fresh evidence to be adduced in the appeal. It is the Appellant’s submission that this new evidence shows that he was dismissed by the Respondent, and therefore, the Deputy President erred in finding that he was not a person who has been dismissed for the purposes of s.365 of the Act.

[33] For the reasons set out above, we agree the evidence should be admitted. In these circumstances it is appropriate that the decision and order made by the Deputy President be reviewed on the ground that a substantial wrong or injustice may have occurred, albeit through no act or omission on the part of the Deputy President. Therefore, permission to appeal should be granted on the basis that the fresh evidence concerns a jurisdictional fact, namely whether the Appellant is a person who has been dismissed for the purposes of s.365 of the Act, and as a result, may have been dismissed within the meaning of s.386.

[34] The Full Bench is of the view that the most appropriate course is for the matter to be remitted to the Deputy President. The matter requires a hearing in relation to what is now clearly different material than what was before the Deputy President at first instance. The Full Bench also notes that because this evidence was raised with the Commission shortly after the decision was published, in such circumstances it is open to Members of the Commission to revoke the decision and allow the material in so that it can be considered at first instance. However, given that did not occur in this case, the Full Bench will quash the decision and remit it back to the Deputy President where she can rehear the matter taking into account the new evidence to determine the most appropriate course.

[35] Finally, in considering the fresh evidence the Full Bench is concerned that the correspondence could be relied upon by the Respondent in submissions to Anti-Discrimination NSW. This could be at the very least misleading, if not untrue, given the oral evidence by the Respondent in the Hearing at first instance. We feel that it is appropriate that this decision be referred to Anti-Discrimination NSW.

[36] The Appellant’s other ground of appeal is that he was unfairly dismissed by the Respondent because he lodged a worker’s compensation claim. As the Full Bench has upheld the first ground of appeal it is unnecessary to consider this ground.

Public Interest

[37] Having regard to the above, we are satisfied that the appeal enlivens the public interest. The public interest has been enlivened for the purpose of s.400(1) because the Decision was made without consideration of the fresh evidence. The fresh evidence concerns the Deputy President’s determination of whether a dismissal had occurred. This was a key jurisdictional fact that had to be determined before the Application could be entertained. Appellate intervention is therefore both warranted and necessary to examine the identified new evidence and allow the re-determination of the matter.

Orders

[38] For the above reasons, we order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The decision of Deputy President Mansini of 26 November 2021 is quashed.

4. The matter is remitted to Deputy President Mansini.

VICE PRESIDENT

Hearing details:

Matter decided on the papers.

Printed by authority of the Commonwealth Government Printer

<PR739556>

 1   Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists [2021] FWC 6474.

 2   Section 607(1) of the Fair Work Act 2009.

 3   (1994) 34 NSWLR 155

 4   Cited in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936.

 5   JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11].

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

 7   O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].

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

 9   Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 10   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

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

 12   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].