1
Fair Work Act 2009
s.604 - Appeal of decisions
John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd
v
Mr Ronaldo Salazar
(C2014/5455)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER ROE
MELBOURNE, 3 DECEMBER 2014
Appeal against decisions [[2014]FWC 4030] and [[2014] FWC 4918] of Commissioner Ryan
at Melbourne on 26 June 2014 and 22 July 2014 in matter U2014/3774 - whether grounds
attract public interest - denial of procedural fairness - permission to appeal granted - Fair
Work Act 2009 ss.394, 400, 577, 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of
Commissioner Ryan handed down on 26 June 2014. The decision of the Commissioner
concerned an unfair dismissal application made by Mr Salazar under s.394 of the Fair Work
Act 2009 (the Act) in relation to the termination of his employment by John Holland Pty Ltd
T/A John Holland Aviation Services Pty Ltd (John Holland).
[2] At the hearing of the matter Ms C Dowsett of counsel and Ms B Mouy appeared on
behalf of John Holland and Mr R Salazar appeared on his own behalf. At the hearing of the
matter on 17 October 2014 we requested the parties to initially address the ground of appeal
concerning procedural fairness issues which was ground 2 of the Notice of Appeal because
we considered that this was the most expeditious way to deal with the appeal. After hearing
submissions on those issues we announced our decision. We granted permission to appeal,
allowed the appeal and remitted the matter to Commissioner Roe for conference, hearing, and
if necessary, determination. Commissioner Roe subsequently advised the Full Bench that the
parties had reached an agreement to settle the matter later that day.
The Proceedings before the Commissioner
[3] Mr Salazar filed an unfair dismissal application on 10 January 2014. In conjunction
with the completed application form he filed a folder of documents. Pursuant to directions
issued by the Commission to file “an outline of submissions, witness statements and other
documentary material” upon which he intended to rely Mr Salazar filed a further bundle of
documents on 4 April 2014.
[2014] FWCFB 7813
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 7813
2
[4] At the request of John Holland a directions hearing was held on 28 April 2014. The
hearing was recorded. Mr Joyce, who appeared for John Holland, submitted that because the
document filed by Mr Salazar in compliance with the direction alleged a different reason for
dismissal than that contained in his application, and because there had been no attempt to
indicate the significance of the large volume of documentation filed, John Holland did not
know what was Mr Salazar’s case.
[5] Commissioner Ryan said:
PN 62
“ THE COMMISSIONER: Well, I am satisfied on the basis that Mr Salazar has made it
clear he doesn’t want to put any more than what he has put constitutes what he
considers to be compliance with the directions. Given that he is an unrepresented
applicant, I am not going to put the same standard on him that I would a lawyer, where
a lawyer would have witness statements that are very separate from submissions. An
unrepresented applicant - and it is not uncommon for them to simply put it all in
together and say this is my case. And the ease of managing that is that simply put the
applicant in the witness box at some stage and get him to work out what is that part of
the material that constitutes his knowledge and therefore what he refers to as his
evidence, as against what constitutes merely a submission, or an opinion, or a
contention.”
[6] On 12 May 2014 John Holland filed its material in reply.
[7] At the outset of the hearing of the matter on 2 June 2014 Commissioner Ryan declined
to hear from John Holland’s counsel as to the reasons why John Holland should be permitted
to be represented by her under s.596 of the Act. After hearing the application for permission
to be represented by counsel, from submissions by John Holland’s Human Resources
Manager, he declined to grant John Holland permission to be represented by counsel.
[8] The Commissioner then addressed Mr Salazar concerning the leading of evidence in
the matter. The transcript records the following exchange:
PN186.
“THE COMMISSIONER: Yes, there are two issues here. There’s material which
constitutes what you say is the evidence and then there are the arguments you want to
put to me. The evidence can be dealt with on the basis that you simply present the
documents to me.
PN187.
MR SALAZAR: Yes
PN188.
THE COMMISSIONER: And you say that you ask the Commission to have regard to
documents and / or material and that’s what you rely upon. A second way of doing it is
that you call witnesses. You can be a witness yourself or if you had arranged it, you
[2014] FWCFB 7813
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could have asked for others to come to give evidence. If you give evidence then you
would enter the witness box, you would present the evidence you want to present.
PN189.
But if you do that, you are then subject to cross-examination by the company. What
I’m asking you now is how do you want to proceed? Do you want to proceed by
giving evidence through the witness box or do you want to proceed by simply
presenting material to the Commission, and then on the basis of presenting material to
the Commission, asking me to take that into account.
PN190.
Mr SALAZAR: It’s more appropriate for me to present all the materials that I just have
submitted to the Fair Work Commission.”
[9] After considering whether a further document would be tendered, the transcript then
records the following:
PN226.
“THE COMMISSIONER: So on that basis we’re now not going to have that new
document. So your case - you’ve presented your material, I’ve got it all here. Is there
anything you want to be doing today? Do you want to give evidence or do you just
want to rely upon the material that you have filed, so that I take that material into
account in making a decision?
PN227.
MR SALAZAR: Sure, I’d be happy to consider your offer, Mr Commissioner.
PN228.
THE COMMISSIONER: So you’re happy for me just to take everything into account?
PN229.
MR SALAZAR: Yes
PN230.
THE COMMISSIONER: Thank you.
PN231.
Mr Joyce, it’s your case.”
[10] Mr Joyce stated that based on what occurred at the directions hearing he had
anticipated that Mr Salazar would give evidence and be available for cross-examination and
he had prepared for that. He led evidence from the witnesses called by the company. The
witnesses were cross-examined by Mr Salazar and answered questions from the
[2014] FWCFB 7813
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Commissioner. The parties then made brief oral submissions and the Commissioner reserved
his decision.
The Nature of the Appeal
[11] An appeal in relation to an unfair dismissal matter is governed by the provisions of
s.604 and s.400 of the Act. Section 604 of the Act deals with appeals generally. These
requirements are modified with respect to unfair dismissal appeals by s.400 of the Act, which
provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a
decision made by FWA under this Part unless FWA considers that it is in the public
interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in
relation to a matter arising under this Part can only, to the extent that it is an appeal on
a question of fact, be made on the ground that the decision involved a significant error
of fact.”
[12] The test for determining whether it is in the public interest to grant permission to
appeal has been described as follows: 1
“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made to be made by reference
to undefined factual matters, confined only by the objects of the legislation in question.
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in
this case.”
[13] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with
whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent
one”. The Commission must not grant permission to appeal unless it considers that it is “in the
public interest to do so.”2
[14] The decision under appeal is of a discretionary nature. Such a decision can only be
challenged on appeal if it is shown that the discretion was not exercised correctly.3 It is not
open to an appeal bench to substitute its view on the matters that fell for determination before
[2014] FWCFB 7813
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the Commissioner in the absence of error of an appealable nature in the decision at first
instance.
[15] As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
The Grounds of Appeal
[16] The grounds of appeal advanced in the Notice of Appeal are as follows:
“1. The Commissioner erred in finding that there was no valid reason for the
termination of Mr Salazar’s employment, and that the termination was harsh, unjust or
unreasonable (paragraphs [86], [97], [98], [132] and [147]).
2. The Commissioner erred in denying John Holland Pty Ltd (the Employer) procedural
fairness:
a. The Commissioner found that the employment relationship was “effectively
ended” by the Employer’s letter dated 5 August 2013 (paragraph [15]). The
Employer was not given an opportunity to be heard in relation to that finding;
b. The Employer was not permitted to cross-examine Mr Salazar (transcript 2
June 2014, PN137 to PN144 and PN180 to PN190);
c. The Commissioner accepted/relied upon the Applicants’ untested claims.
3. The Commissioner erred in denying the Employer’s legal representative an
opportunity to request permission to appear, and in failing to provide reasons for that
decision (transcript 2 June 2014 PN89 to PN108)”
[17] As we have heard and determined the matter only on the basis of ground 2, we do not
deal with the other grounds. The submissions on the procedural fairness ground had two
elements. First it is submitted that John Holland was denied procedural fairness in relation to
a finding made by the Commissioner as to the date the employment came to an end and the
consequences of such a finding including the application being out of time (Ground 2(a)). We
have not found it necessary to deal with this aspect of the appeal.
[2014] FWCFB 7813
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[18] The second aspect concerns the conduct of the proceedings before the Commissioner
and the treatment of evidence before the Commission (Grounds 2(b) and (c)). John Holland
submits that it was not able to test the various assertions made by Mr Salazar in his
communications with the company and others and was not able to challenge his claims. It
submits that this problem was compounded by the Commissioner relying on the untested
assertions of Mr Salazar and rejecting the evidence of John Holland’s witnesses who gave
sworn evidence and were subject to cross-examination and examination by the Commissioner.
Procedural Fairness
[19] This appeal raises various issues concerning the conduct of unfair dismissal
proceedings when dismissed employees represent themselves and are not familiar with the
usual processes of leading evidence and cross-examination. It requires a consideration of the
general nature of the Commission’s duty to accord procedural fairness, the content of the duty
in relation to the leading of evidence, the approach to the admission of evidence and the
weight to be given to statements from the bar table. These matters must be considered in the
context of the role of the Commission when parties represent themselves. The Commission
has additional duties when parties represent themselves to ensure justice to all parties is
achieved.
[20] It is well established that Commission members are required to act “judicially” and
accord all parties procedural fairness. This duty must be applied in the context of the
particular circumstances including the nature of representation and the nature of the matter
before the Commission. In Coal and Allied Services v Lawler, Buchanan J said:5
“There is no doubt that members of FWA are (as were members of its statutory
predecessors, the Commonwealth Conciliation and Arbitration Commission and the
Australian Industrial Relations Commission (“the AIRC”)) bound to act “judicially” in
the sense that they are obliged to respect and apply traditional notions of procedural
fairness and impartiality. (See Re Australian Bank Employees Union; Ex parte
Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519, citing R v
Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group
[1969] HCA 10; (1969) 122 CLR 546 at 552; R v Moore; Ex parte Victoria [1977]
HCA 58; (1977) 140 CLR 92 at 101–2. See also Re Polites; Ex parte Hoyts
Corporation Pty Limited [1991] HCA 31; (1991) 173 CLR 78; Re Finance Sector
Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583).
However, it is an important aspect of the work of FWA, at all levels including on
appeal (as it was of its statutory predecessors), that it is to proceed without
unnecessary technicality and as informally as the circumstances of the case permit.
FWA is not a court and its members are not judicial officers as such (although the
President has the same status as a judge of this Court and some senior members of
FWA retain an equivalent status from earlier statutory arrangements). It is not
inappropriate to say that the members of FWA have a statutory mandate to get to the
heart of matters as directly and effectively as possible.”
[21] The general principle of procedural fairness should be noted. In Kioa v West Mason J
(as he then was) said:6
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281992%29%2066%20ALJR%20583
http://www.austlii.edu.au/au/cases/cth/HCA/1992/30.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281991%29%20173%20CLR%2078
http://www.austlii.edu.au/au/cases/cth/HCA/1991/25.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281977%29%20140%20CLR%2092
http://www.austlii.edu.au/au/cases/cth/HCA/1977/58.html
http://www.austlii.edu.au/au/cases/cth/HCA/1977/58.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281969%29%20122%20CLR%20546
http://www.austlii.edu.au/au/cases/cth/HCA/1969/10.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281989%29%20167%20CLR%20513
http://www.austlii.edu.au/au/cases/cth/HCA/1989/41.html
[2014] FWCFB 7813
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“32. Where the decision in question is one for which provision is made by statute, the
application and content of the doctrine of natural justice or the duty to act fairly
depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty.
Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto
J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in
controversy to correct or contradict statements prejudicial to their view depends on
"the particular statutory framework". What is appropriate in terms of natural justice
depends on the circumstances of the case and they will include, inter alia, the nature of
the inquiry, the subject matter, and the rules under which the decision-maker is acting
(Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss
Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities
Commission v. The News Corporation Ltd. [1984] HCA 29; (1984) 58 ALJR 308, at
pp 314, 318; [1984] HCA 29; 52 ALR 417, at pp 427-428, 434).
33. In this respect the expression "procedural fairness" more aptly conveys the notion
of a flexible obligation to adopt fair procedures which are appropriate and adapted to
the circumstances of the particular case. The statutory power must be exercised fairly,
that is, in accordance with procedures that are fair to the individual considered in the
light of the statutory requirements, the interests of the individual and the interests and
purposes, whether public or private, which the statute seeks to advance or protect or
permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at
p.451, per Jacobs J.).”
[22] Once an application is made the Commission must hear the case, as a Full Bench of
the Commission said in Michelletto v. Korowa:7
“The Right to a Hearing
[14] It is implicit in the statutory provisions which we have referred to that once an
applicant has elected to have his or her application determined by arbitration he or she
acquires a right to have the case heard. There is a corresponding duty in the
Commission to hear the applicant's case. The nature of the applicant's right is, in the
time-honoured phrase, a right to their day in court. The right to a hearing is not
unqualified. Circumstances may render it just that something less than a full hearing is
appropriate. For example, the Act specifically provides for summary dismissal of an
application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to
prosecute its case (s.170CIB).”
[23] This obligation to hear a case requires the Commission to give the parties the
opportunity to be heard on the various aspects of the case: Re Media Entertainment and Arts
Alliance; Ex part Arnel.8 In that decision the High Court cited Re Australian Railways
Union; Ex parte Public Transport Corporation:9
“But the wide scope given to the Commission in determining the relief which it will
give does not absolve it from the obligation to observe the rules of procedural fairness
in exercising its arbitration function. In Re Australian Bank Employees Union; Ex
parte Citicorp Australia Ltd this court pointed out that it was well settled that the
Conciliation and Arbitration Commission was bound to act judicially and that the
Commission, as its successor, is bound to do likewise. The court went on to point out
that one aspect of the duty to act judicially is the duty to hear a party and to allow him
http://www.airc.gov.au/wrasections/s170CE.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=52%20ALR%20417
http://www.austlii.edu.au/au/cases/cth/HCA/1984/29.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281984%29%2058%20ALJR%20308
http://www.austlii.edu.au/au/cases/cth/HCA/1984/29.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281963%29%20113%20CLR%20475
http://www.austlii.edu.au/au/cases/cth/HCA/1963/41.html
[2014] FWCFB 7813
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or her a reasonable opportunity to present his or her case and, coupled with that duty,
is the duty to consider the case put. And in Re Media Entertainment and Arts
Alliance; Ex parte Hoyts Corp Pty Ltd the court said that the Commission has a duty
in considering an application to afford a party a reasonable opportunity to allow his or
her case to be put.”
[24] The role of the Commission member when an applicant appears in person also needs
to be taken into account. The duty is to provide for a fair hearing but not to provide a positive
advantage to a self represented litigant. As Samuels JA said in Rajski v Scitec Corporation
Pty Ltd :10
‘‘. . . the advice and assistance which a litigant in person ought to receive from the
court should be limited to that which is necessary to diminish, so far as this is possible,
the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to
prevent destruction from the traps which our adversary procedure offers to the unwary
and untutored. But the court should be astute to see that it does not extend its auxiliary
role so as to confer upon a litigant in person a positive advantage over the represented
opponent....At all events, the absence of legal representation on one side ought not to
induce a court to deprive the other side of one jot of its lawful entitlement. ...An
unrepresented party is as much subject to the rules as any other litigant. The court
must be patient in explaining them and may be lenient in the standard of compliance
which it exacts. But it must see that the rules are obeyed, subject to any proper
exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged
status, would be quite unfair to the represented opponent.’’
[25] In Minogue, the Full Court of the Federal Court recognised that the trial judge must
strike a balance.11
“A trial Judge often faces something of a dilemma. While he or she may be bound to
provide some advice and assistance to an unrepresented litigant, the authorities make it
clear that the Judge should not intervene to such an extent that he or she cannot
maintain a position of neutrality in the litigation. However, the boundaries of
legitimate intervention are flexible and will be influenced by the need for intervention
to ensure a fair and just trial.”
[26] It has been held that legitimate intervention includes ascertaining the rights of parties.
In Downes & Anor v Maxwell Richard Phys & Co Pty Ltd (in liq) [2014] VSCA 193 at [25],
Osborne JA said:
“Nevertheless in Neil v Nott & Anor the High Court recognised that a frequent
consequence of self-representation is that the Court must assume the burden of
endeavouring to ascertain the rights of parties which are obfuscated by their own
advocacy.”
[27] The boundaries of legitimate intervention must be considered in the context of the
requirement for the Commission to proceed in a manner which is quick, informal and avoids
unnecessary technicalities. (Section 577 of the Act) Consistent with this duty the
Commission, as with its predecessors, often accepts statements from the bar table on matters
of fact. As Buchanan J observed “the members of FWA have a statutory mandate to get to the
heart of matters as directly and effectively as possible”. However, the Commission must also
[2014] FWCFB 7813
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act in a manner that is fair and just. The parties should be made aware of the consequences of
making unsworn assertions from the bar table when the statements are likely to be contested.
[28] This issue was dealt with in a recent Full Bench decision in Andrew Rabel v Selmar
Holdings Pty Ltd trading as Selmar Institute of Education [2014] FWCFB 8037 as follows:
“[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. A failure to do so may lead to a
finding that a party was denied procedural fairness. (Downes & Anor v Maxwell
Richard Phys & Co Pty Ltd (in liq) [2014] VSCA 193 at [101]) However, given our
decision above, we do not need to take this matter further.”
[29] Further, unrepresented parties are often unfamiliar with the distinction between
evidence and submissions. Handley JA considered this issue in Randwick City Council v
Fuller:12
“There was no challenge by Mrs Fuller, who appeared before his Honour in person, to
the validity or enforceability of the Council's resolution or the notice given pursuant to
that resolution. The appeal by the Council to this Court challenges the manner in
which his Honour exercised his discretion in refusing to grant the Council any relief in
its application. Mrs Fuller did not give sworn evidence before the learned trial judge,
and it would seem that her affidavit was not formally before the judge either. His
Honour adopted the irregular course of allowing Mrs Fuller to say what she wished to
say in opposition to the Council's proceedings. No objection was taken to this course
by counsel appearing for the Council. It seems to me that the course, although irregular
and indeed regrettable, had the result that Mrs Fuller gave unsworn evidence in the
proceedings with the acquiescence of the Council and that the judge was entitled to act
on that unsworn evidence.
In my respectful opinion, this irregular procedure ought not to be followed when
litigants appear in person. The appropriate course is for the judicial officer to explain
to the litigant that he or she is entitled to read and rely upon any affidavit that has
already been filed on their behalf, and where appropriate they may give sworn
evidence in the witness box of any additional facts they wish to place before the Court
in support of their case, the evidence being either sworn to or affirmed as the litigant
prefers. The litigant should also be made to understand that if that course is followed,
he or she will be exposed to cross-examination to test whatever they have said by way
of evidence, and it would not be inappropriate for the judicial officer to assist the
litigant in person on matters of form when he or she is giving evidence. The litigant in
[2014] FWCFB 7813
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person should also understand that he or she is entitled to make submissions to the
Court about the evidence without having to do so from the witness box. This is a
difficult distinction for most litigants in person to understand or observe. However this
course is preferable to litigants in person being allowed to give unsworn evidence from
the bar table without being subject to cross-examination where it is not clear what is
submission and what is evidence.”
[30] These observations were made in the context of the practices and procedures of courts
and the rules of evidence. However, when an unrepresented person before the Commission
wishes to put forward material which is a combination of evidence and submissions it will
often be to their advantage to swear to the truth of what they say and to provide the other
party with opportunity to identify and challenge any evidentiary matters which are contested.
This is consistent with the obligation on the Commission to proceed in a manner which is fair,
just, quick, informal and avoids unnecessary technicalities. The form of proceedings may
vary, particularly when the Commission utilises a determinative conference rather than a
hearing, but where disputed facts are to be relied upon there should be an expressed
preference for sworn evidence and an opportunity to test that evidence through cross
examination.
[31] In this matter the Commissioner offered Mr Salazar a course of action which denied
John Holland the opportunity to cross-examine and test Mr Salazar’s evidence. It was a course
that should not have been offered. If the course had been proposed by Mr Salazar the
Commissioner should have given a warning that Mr Salazar’s evidence would be given
reduced weight. In taking up the Commissioner’s offer, Mr Salazar had no understanding of
the usual consequences of failing to give sworn evidence and John Holland was put at a
disadvantage in conducting its case.
[32] Not only did the Commissioner offer an inappropriate option and fail to give an
appropriate warning, he then proceeded to give undue weight to the untested and unsworn
assertions over the sworn evidence led in the proceedings. The sworn evidence of John
Holland witnesses went directly to the existence of a valid reason for the dismissal - an
important matter in the case. In a variety of respects the unsworn and untested assertions of
Mr Salazar were preferred over the sworn evidence of John Holland witnesses.
[33] For these reasons we are of the view that the Commissioner did not accord the parties
procedural fairness. Consequently his findings and conclusions should not stand. Fairness
requires that the matter be reheard and re-determined after a full and fair hearing.
[34] Although not necessary for the determination of this appeal we note that a Full Bench
found that there is no bar to the long standing practice of hearing counsel on applications for
permission to appear. In Priestley v Department of Parliamentary Services a Full Bench
said:13
“[11] When this appeal came on for hearing Mr Lovell sought leave to appear as
counsel on behalf of the respondent to the appeal. The appellant raised a preliminary
issue about the respondent’s appearance. It became clear that the substance of the
submission was that his employer is the Secretary of the DPS personally, no one else,
and that the Secretary is required to attend for the purpose of any application to be
represented by counsel. He attempted to add to the argument by submitting that the
[2014] FWCFB 7813
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DPS is not a party to the agreement and the agreement does not apply to it. He relied
on s.100(4) of the WR Act which reads:
“(4) A party (including an employing authority) may be represented by
counsel, solicitor or agent if:
(a) the party applies to the Commission to be so represented; and
(b) the Commission grants leave for the party to be so represented.”
[12] According to the argument, it is only the Secretary personally who can make an
application for representation under s.100(4).
[13] In the alternative, it was submitted that the proceedings are governed by terms in
the agreement which deal with appeals in relation to disputes and that those provisions
do not permit legal representation.
[14] We indicated during the hearing that we were satisfied that Mr Lovell had
authority to represent the Secretary of the DPS. We also indicated that representation
by counsel was appropriate and, without deciding whether leave was required,
indicated that we would grant leave in any event. We shall elaborate briefly.
[15] We accept Mr Lovell’s submissions that the appellant’s employer is the
Commonwealth of Australia, that the Secretary of DPS is the employing authority for
all relevant purposes and that the agreement applies to the employer. We have no
reason to doubt that Mr Lovell is properly authorised. It is not necessary that the
Secretary attend in person to make an application to be represented by counsel, there is
no reason of statutory construction, policy or practice why that should be so. While the
tribunal might have a discretion to require that a party itself rather than counsel put the
argument for legal representation, we would not do so in this case. If s.120 applies to
the appeal leave is necessary. We would grant leave because of the variety of legal
issues raised by the appellant’s grounds of appeal and submissions.”
Conclusions
[35] As we have determined that there has been a denial of procedural fairness in this
matter, we are satisfied that it is in the public interest that permission to appeal be granted.
The failure to provide procedural fairness involves an error in law and acting in excess of
jurisdiction. The appeal should therefore be allowed. For these reasons we have made an
order quashing the decisions and order of the Commissioner and discharging the stay order
made pending the hearing of the appeal [PR557213]. As noted above the matter was remitted
to Commissioner Roe on 17 October and resolved by agreement later that day.
[2014] FWCFB 7813
12
VICE PRESIDENT
Appearances:
Ms C Dowsett of Counsel and Ms B Mouy for John Holland Pty Ltd/ T/A John Holland
Aviation Services Pty Ltd.
Mr R Salazar appeared on his own behalf.
Hearing details:
2014.
Melbourne.
17 October.
Printed by authority of the Commonwealth Government Printer
Price code C, PR557355
1 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
2 Coal and Allied Mining Services Pty Ltd v Lawler & others [2011] FCAFC54.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
5 (2011) 192 FCR 78 at [25].
6 (1985) 159 CLR 550 at [32]-[33].
7 PR940392 at [14].
8 (1994) 179 CLR 84 at 89 per Mason CJ, Brennan, Dawson, Gaudron JJ.
9 (1993) 117 ALR 17 at [24].
10 [1986] NSWCA 1 at [28].
11 [1999] FCA85; (1999) 84 FCR[29].
12 [1996] NSWCA 444 at [4]-[5].
13 [2011]FWAFB 2702.
http://www.fwa.gov.au/decisionssigned/html/2011fwafb2702.htm
http://www.airc.gov.au/fullbench/PR940392.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
