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Fair Work Act 2009
s.604—Appeal of decision
Andrew Rabel
v
Selmar Holdings Pty Ltd trading as Selmar Institute of Education
(C2014/5900)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER HAMPTON MELBOURNE, 13 NOVEMBER 2014
Appeal against decision [2014] FWC 5073 of Commissioner Ryan at Melbourne on 28 July
2014 in matter number U2014/4938 - permission to appeal - whether Commissioner failed to
accord procedural fairness - jurisdictional finding that dismissal not case of genuine
redundancy - finding that dismissal not harsh, unjust or unreasonable - failure to accord
procedural fairness - permission to appeal granted - appeal allowed.
[1] This is an edited version of the decision given in transcript at the conclusion of the
hearing of this matter on 12 November 2014.
[2] This is an application by Andrew Rabel (the applicant) for permission to appeal and, if
granted, an appeal against a decision made by Commissioner Ryan on 28 July 2014.1
[3] The decision of the Commissioner concerned an application under s.394 of the Fair
Work Act 2009 (the Act) by the applicant for an unfair dismissal remedy against his employer,
Selmar Holdings Pty Ltd trading as Selmar Institute of Education (the respondent). The
respondent filed a jurisdictional objection to the application on the basis that the dismissal
was a case of genuine redundancy.2 The matter was listed for hearing before the
Commissioner in relation to both the jurisdictional objection and the substantive application
for an unfair dismissal remedy. It was initially listed for 3 days but it was subsequently listed
for a one day hearing which was held on 5 June 2014.
[4] Following the hearing, the Commissioner issued his decision on 28 July 2014. In the
decision, the Commissioner decided:
to dismiss the jurisdictional objection raised by the respondent on the basis that
the dismissal was not a case of “genuine redundancy” within the meaning of
1 Rabel v Selmar Holdings Pty Ltd T/A Selmar Institute of Education [2014] FWC 5073.
2 See s.385(d) of the Act. For the meaning of “genuine redundancy”, see s.389 of the Act.
[2014] FWCFB 8037
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 8037
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s.385(d) of the Act as the consultation requirements in the applicable award
had not been complied with (see s.389(1)(b));3 and
to dismiss the unfair dismissal application on the basis that the dismissal was
not harsh, unjust or unreasonable having regard to the relevant criteria in s.387
of the Act and, in particular, because the dismissal was the result of the
applicant’s job becoming redundant as part of the restructuring of the
respondent’s business.4
[5] In the appeal proceedings, the applicant relied upon numerous grounds of appeal
relating to the various findings made by the Commissioner regarding the circumstances of his
dismissal, the timing of the restructuring, the possibilities of redeployment, and the
appropriate matters to be taken into account in determining if the dismissal was unfair. The
applicant also contended that there were various deficiencies in relation to the approach
adopted by the Commissioner in the conduct of the case which resulted in a failure to accord
procedural fairness.
[6] The respondent opposed the appeal. In relation to the issue of procedural fairness it
contended, in effect, that both parties had the same opportunity to present evidence and
submissions in the proceedings before the Commissioner and each party elected not to present
sworn evidence. The respondent did not otherwise make submissions on that issue.
Appeal Principles
[7] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the
powers of the Full Bench being exercisable only if there is error on the part of the primary
decision-maker.5
[8] The majority of the High Court explained in the following passage how error may be
identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has
some latitude as to the decision to be made, the correctness of the decision can only be
challenged by showing error in the decision-making process (See Norbis v Norbis
(1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it
is only if there is error in that process that a discretionary decision can be set aside by
an appellate tribunal.”6
[9] An appeal under s.604 of the Act may only be pursued with the permission of the
Commission. Section 604(2) requires the Commission to grant permission to appeal if it is
satisfied that it is in the public interest to do so. However, there is a note following the
subsection to the effect that this does not apply in relation to an application to appeal from an
unfair dismissal decision (see s.400 of the Act).
3 [2014] FWC 5073 at [47] - [61].
4 Ibid at [82] - [86].
5 See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205.
6 Ibid at [21].
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[10] The effect of s.400 is twofold. Firstly, the Commission may only grant permission to
appeal from an unfair dismissal decision where it considers it is in the public interest to do so
(s.400(1)).7 Secondly, an appeal of an unfair dismissal decision, to the extent that it is an
appeal on a question of fact, may only be made on the ground that the decision involved a
significant error of fact (s.400(2)).
Consideration
[11] For the purposes of determining the present appeal, we need only deal with the
grounds relating to procedural fairness. It is well settled that the Commission is obliged to
observe the principles of procedural fairness in the conduct of its proceedings.8 One aspect of
this obligation is the duty to hear a party and allow him or her to have a reasonable
opportunity to present his or her case.9
[12] In the proceedings before the Commissioner, the applicant represented himself and the
respondent was represented by Ms Lyons, the Chief Operating Officer of the respondent.
There was the same representation of the parties in the appeal before us.
[13] Although the listing forwarded to the parties advised that the matter was listed for
“Jurisdiction and Arbitration Conference/Hearing”, the Commissioner indicated at the outset
of the hearing that “this matter today is listed only for the purpose of dealing with the
jurisdictional issue of genuine redundancy.”10 The Commissioner indicated that, as this was
an objection raised by the respondent, then the respondent carried the responsibility of
establishing that it was a genuine redundancy within the meaning of the Act.11
[14] The matter proceeded on that basis with the respondent relying upon the written
submissions and statements which it had filed, the applicant being given an opportunity to
make “final oral submissions”12 as well as relying upon the written submissions and statement
which he had filed, and then the respondent being given an opportunity to respond to the
applicant’s oral submissions.13 Although the Commissioner raised various issues relating to
the determination of the merits of the substantive application with the applicant during the
course of his oral submissions, this did not indicate to the applicant or put the parties on
notice that the nature of the proceedings had changed from proceedings dealing with the
jurisdictional objection alone to proceedings which would result in a decision by the
Commissioner determining both the jurisdictional objection and the substantive unfair
dismissal application.
7 The way in which the public interest requirement in s.400(1) may be attracted has been described as follows in
GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27]:
“...the public interest might be attracted where a matter raises issues of importance and general application, or where
there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision
at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear
disharmonious when compared with other recent decisions dealing with similar matters.”
8 See Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 519 citing R v
Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 522. See also
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at 83 [25].
9 Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd, above n8 at 519.
10 See Transcript of proceedings before Commissioner Ryan, 5 June 2014 at PN7.
11 See s.389 of the Act.
12 See Transcript, above n10, at PN28.
13 See Transcript, above n10, at PN378 - 443.
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[15] To the extent that the applicant indicated he would not give sworn evidence in the
proceedings before the Commissioner, the indication was given in the context of a
jurisdictional hearing where the respondent had to demonstrate its case. When issues were
raised by the Commissioner about the substantive merits of the unfair dismissal application,
the applicant did then seek an opportunity to give sworn evidence but this opportunity was
denied by the Commissioner.
[16] In these circumstances we consider that the applicant was not given a reasonable
opportunity by the Commissioner to present his case and that there was a failure to accord
procedural fairness in relation to the determinations made.
[17] In the appeal, the applicant submitted further that he was also denied the opportunity
to present his case before the Commissioner as he was not allowed to cross examine the
respondent’s witnesses. In this regard we note that there were a number of significant factual
disputes between the parties which were evident from the statements and material filed.
[18] In the proceedings before the Commissioner, the parties decided to rely upon the
material filed, including unsworn witness statements. This meant that their witnesses did not
give sworn evidence nor were the witnesses available to be cross examined. That was of
course the parties’ right. However before a party who is not legally represented elects to not
call its witnesses to give sworn evidence, the Commission should inform that party of the
consequences of not presenting sworn evidence and having its witnesses available for cross
examination.14 A failure to do so may lead to a finding that a party was denied procedural
fairness. However, given our decision above, we do not need to take this matter further.
[19] For the reasons above, we have decided to grant permission to appeal, to allow the
appeal and to set aside the decision of the Commissioner. Accordingly the matter will be
remitted to another member of the Commission for determination.
SENIOR DEPUTY PRESIDENT
Appearances:
The appellant appeared on his own behalf.
R Lyons and M Sellen appeared on behalf of the respondent.
Hearing details:
2014:
14 Downes & Anor v Maxwell Richard Phys & Co Pty Ltd (in liq) [2014] VSCA 193 at [101].
[2014] FWCFB 8037
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November 12.
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