1
Fair Work Act 2009
s.604 - Appeal of decisions
David Rayner
v
Little Moreton Pty Ltd t/a H-R Products
(C2016/7522)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HUNT SYDNEY, 13 FEBRUARY 2017
Permission to appeal against decision of Deputy President Binet at Perth on 19 December
2016 in matter number U2016/10836 to grant permission to the respondent to be legally
represented.
Introduction and background
[1] On 21 December 2016 Mr David Rayner lodged a notice of appeal in which he sought
permission to appeal and appealed a decision issued by Deputy President Binet on 19
December 2016. The decision concerned an application by the respondent, pursuant to s.596
of the Fair Work Act 2009 (FW Act), for permission to be represented by lawyers at the
hearing of an unfair dismissal remedy application lodged by Mr Rayner on 30 August 2016.
Section 596 relevantly provides:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be
represented in a matter before the FWC (including by making an application or
submission to the FWC on behalf of the person) by a lawyer or paid agent only with
the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid
agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into
account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the
person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into
account fairness between the person and other persons in the same matter.
[2017] FWCFB 756
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 756
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Note: Circumstances in which the FWC might grant permission for a person to be
represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty
reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources
staff while the other party is represented by an officer or employee of an industrial
association or another person with experience in workplace relations advocacy.
…
[2] The decision, which was communicated to the parties by email from the Deputy
President’s Associate, simply stated:
“We note that the Applicant, Mr Rayner, has objected to the Respondent being
represented in this matter, however, to enable the matter to be dealt with more
efficiently, taking into account the complexity of the matters, leave has been granted
for the Respondent to be represented at the Hearing.”
[3] Mr Rayner’s unfair dismissal remedy application contends that his dismissal was
unfair for reasons which include that:
he was denied a fair hearing, contrary to the principles of natural justice, prior to
his dismissal;
the dismissal was made “as a consequence of a fatal error”;
in investigating Mr Rayner’s conduct and deciding to dismiss him, the respondent
obtained and relied upon witness statements which were never shown to him;
the respondent denied Mr Rayner’s request that he be provided with all documents
relating to the matters in controversy;
Mr Rayner was at the relevant time on workers’ compensation for a variety of
illnesses including PTSD;
the respondent proceeded on the basis of “Vague and unsubstantiated claims,
dressed up, perhaps even concocted under duress, or worse...”;
the dismissal was aimed wholly at seeking to avoid scrutiny of the respondent’s
workplace practices and safety record;
the respondent had failed to provide a safe working environment resulting in
physical and mental injury to Mr Rayner;
the dismissal was an attempt by the respondent to avoid its obligations under
workers’ compensation legislation; and
[2017] FWCFB 756
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the respondent was aware that Mr Rayner’s state of mind was compromised as a
consequence of the injuries which he had suffered in the workplace.
[4] Mr Rayner sought reinstatement and compensation as remedies.
[5] The respondent’s response to Mr Rayner’s unfair dismissal remedy application
contended that he had been dismissed for serious and wilful misconduct, in that on 18 August
2016 he had initiated a physical assault on another employee at the workplace, and had also
taken photographs of the respondent’s plant and equipment contrary to a previous direction
not to engage in such conduct. The respondent further contended that it had properly
investigated the matter and that in any event Mr Rayner had admitted to the misconduct. The
respondent further responded in detail to the allegations made in Mr Rayner’s application,
including the allegations of safety breaches, and denied that the dismissal was intended to
avoid its workers’ compensation obligations.
[6] The respondent made its application for permission for legal representation in writing
on 25 October 2016. In its application it relied upon the various allegations made against it in
Mr Rayner’s application as raising a level of complexity which would cause the Commission
to be benefitted by the participation of an experienced legal practitioner in the proceedings.
The respondent also contended that its lack of relevant internal expertise meant that it would
be more efficient if it was legally represented, and that if it did not obtain permission it would
have to be represented by persons who would also be witnesses in the matter. Mr Rayner
made written submissions against the grant of permission for legal representation on 25
October 2016 and 30 November 2016. It was against that background that the Deputy
President issued her decision under s.596.
[7] Mr Rayner’s unfair dismissal remedy application is listed for hearing before the
Deputy President on 3 March 2017.
Grounds of appeal and submissions
[8] In his notice of appeal and his submissions in support of his application for permission
to appeal, Mr Rayner contended that:
the Deputy President failed to properly and duly consider and correctly apply the
Federal Court decision in Warrell v Walton1;
the Deputy President incorrectly applied the authority of Wesslink v Walker Australia
Pty Ltd t/as Tenneco2;
the decision might reasonably be regarded as one where impartiality was not
evidenced or that an apprehension of bias existed;
the submissions of the respondent in support of its application for permission for legal
representation contained inaccuracies which may have misled the Deputy President,
including that Mr Olivieri was a key decision-maker in the dismissal decision when in
fact the decision was made by the respondent’s two directors, Mr and Ms Kagi;
1 [2013] FCA 291, 233 IR 335
2 [2011] FWA 2267
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the respondent had a number of other senior officers who could assist in the case such
that it would not be prejudiced if permission for legal representation was refused; and
it was in the public interest to grant permission to appeal, since the decision had the
capacity to touch all applicants in person, was inconsistent and disharmonious with
earlier decisions including Warrell v Walton, and was significantly prejudicial to Mr
Rayner.
Consideration
[9] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.3 There is no right to appeal and an appeal may only be made with the
permission of the Commission. Subsection 604(2) requires the Commission to grant
permission to appeal if satisfied that it is “in the public interest to do so”. Permission to
appeal may otherwise be granted on discretionary grounds.
[10] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair
Dismissal, of the FW Act:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
[11] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public
interest to grant permission to appeal, it must refuse such permission. It is not available to
grant permission on discretionary grounds.
[12] The decision here was one made under s.596, which is not located in Part 3-2, but in
relation to an unfair dismissal remedy application made under Part 3-2. In Asciano Services
Pty Ltd v Hadfield4, which was an appeal from a decision to refuse permission for legal
representation under s.596, the Full Bench determined that it would approach the matter on
the basis that s.400(1) applied, but that it would also state the conclusion it would reach if
s.400(1) did not apply. In taking this approach, the Full Bench referred upon the decision of
the Federal Court (Besanko J) in Australian Postal Corporation v Gorman.5 In that matter,
judicial review was sought of an appeal decision of a Full Bench of this Commission which
quashed the decision of a single member to dismiss an unfair dismissal remedy application
under s.587 (which provision is likewise not located in Part 3-2 of the FW Act). In that
context, the question arose as to whether the Full Bench was required to apply s.400(1) to the
appeal. Besanko J said:
“[37] ... It seems to me that the Senior Deputy President’s decision was a decision
made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter
arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-
1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 [2015] FWCFB 2618
5 [2011] FCA 975
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respondent’s application made under s 394 for a remedy for unfair dismissal. That is a
decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or
compensation would be a decision under that Part. Even if FWA’s general power to
dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a
decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to
the order but to the ground upon which the order was made, that is, that the continued
pursuit of the application is frivolous or vexatious.”
[13] We will likewise take the approach that s.400(1) applies to Mr Rayner’s appeal.
However, we will also take the step of stating what conclusion we would reach if s.400(1) did
not apply.
[14] In the Federal Court Full Court decision 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(1) as “a stringent one”.6 The task of assessing whether the public interest
test is met is a discretionary one involving a broad value judgment.7 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 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
[15] 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.9 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.10
[16] The appeal here is brought against an interlocutory decision. Courts and tribunals have
generally discouraged appeals against interlocutory decisions, and it will not commonly be the
case that permission would be granted to appeal against an interlocutory decision under s.604
of the FW Act, whether or not s.400(1) applies.11
[17] The granting of permission under s.596 involves a two-step process12. The first is that
there must be satisfaction that at least one of the criteria in s.596(2) is satisfied. The
6 (2011) 192 FCR 78 at [43]
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 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 [2010] FWAFB 5343, 197 IR 266 at [24] - [27]
9 Wan v AIRC [2001] FCA 1803 at [30]
10 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 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 in Coal & Allied
Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
11 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there
12 Warrell v Walton [2013] FCA 291, 223 IR 335 at [24]
[2017] FWCFB 756
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consideration required by this first step “involves the making of an evaluative judgment akin
to the exercise of a discretion”.13 The second is that the discretion conferred by s.596(2) must
be exercised in favour of the applicant for permission. Accordingly in respect of either step it
will not be sufficient for an appellant to invite the Full Bench simply to substitute its own
determination for that of the single member whose decision is the subject of the appeal. It is
necessary to demonstrate error of the type identified in House v The King.14
[18] We are not satisfied that Mr Rayner has demonstrated any basis upon which
permission to appeal could be granted in the public interest, for the following reasons:
(1) We do not consider that the appeal raises any issue of importance and general
application concerning the interpretation of 596(2). The interpretation of that
provision is a well-settled issue, having been dealt with in a number of Court
and Commission Full Bench decisions including Warrell v Walton, King v
Patrick Projects Pty Ltd15 and Asciano Services Pty Ltd v Hadfield.
(2) We do not consider the proposition that the decision is inconsistent with the
Federal Court decision in Warrell v Walton to be arguable. The outcome of that
matter arose of its own facts, including that the applicant for an unfair
dismissal remedy in the matter was “functionally illiterate and brain
damaged”16, that the record of the proceedings disclosed that the applicant had
not been afforded a hearing that was fair and just as required by s.577(a) of the
FW Act17, and that the decision-maker had failed to give reasons for the grant
of permission.18 There is nothing to indicate that the decision of the Deputy
President here was inconsistent with the general principles concerning the
operation of s.596 stated by the Court Warrell v Walton at paragraph [22].
(3) The decision by a single member in Wesslink v Walker Australia Pty Ltd t/as
Tenneco19 turned on its own facts and provides no assistance to Mr Rayner’s
case.
(4) The proposition that the Deputy President’s decision lacked impartiality and
gave rise to a reasonable apprehension of bias has no basis.
(5) The various allegations made by Mr Rayner against the respondent, which the
respondent has denied, give rise to a degree of factual complexity in the matter
beyond the ordinary. That is the case even if they are ultimately considered to
be of no relevance to the issue required to be determined by the Deputy
President. We consider in those circumstances that it was open for the Deputy
President to exercise her discretion in favour of granting the respondent
permission under s.596(2)(a). We also consider that it was open for the Deputy
President to conclude that the hearing would be conducted with greater
13 Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19]
14 (1936) 55 CLR 499 at 505
15 [2015] FWCFB 2679
16 Warrell v Walton [2013] FCA 291, 233 IR 335 at [22]
17 Ibid at [23]
18 Ibid at [11] and [22]
19 [2011] FWA 2267
[2017] FWCFB 756
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efficiency if the respondent did not have to be represented by persons who
were not also witnesses.
(6) While we have taken into account Mr Rayner’s submissions that he suffers
from PTSD, he presented at the hearing before us as a well-spoken and
articulate applicant to adequately present his evidence and submissions. We
note that the Deputy President, before making the decision concerning
representation, conducted a preliminary conference in relation to the matter and
would therefore have had the opportunity to make an assessment, as we have,
of Mr Rayner’s capacity to advance his case. We do not consider it likely that
Mr Rayner will suffer any real disadvantage from the grant of permission to the
respondent for legal representation.
[19] Because we are not satisfied that it would be in the public interest to grant permission
to appeal, permission to appeal must be refused in accordance with s.400(1). Alternatively, if
s.400(1) does not apply to this appeal, we would still refuse permission to appeal for the
reasons we have stated. No public interest or discretionary grounds have been made out which
would justify the grant of permission to appeal.
[20] We note, from the directions made by the Deputy President on 29 November 2016,
that the parties had until 8 December 2016 to request that the matter be determined by way of
a hearing rather than a determinative conference. This direction reflects the position under the
FW Act that a determinative conference under s.398 is the default process, and that a formal
hearing is, under s.399, to be held only where the Commission considers it appropriate to do
so. On 5 December 2016 Mr Rayner applied for a hearing on the basis that “It has become
evident that there are a number of contested facts that must be resolved at an open hearing”.
No such request was made by the respondent. On 6 December 2016, in response to Mr
Rayner’s request, the Deputy President amended the listing of the matter so that it was set
down for a hearing, not a determinative conference on 3 March 2017.
[21] It may be that, as a self-represented litigant, the less formal and adversarial
determinative process of a conference under s.398 might better serve Mr Rayner’s interests
and minimise any perceived disadvantage arising from the grant of permission to the
respondent for legal representation. At the hearing before us the respondent confirmed that it
preferred the matter to be dealt with by way of a determinative conference. This is a matter
which it would be open for Mr Rayner to re-agitate before the Deputy President prior to 3
March 2017 in the event that he reconsiders his position.
[22] We order that permission to appeal is refused.
VICE PRESIDENT
OF THE FAIR WORK MISSION THE
[2017] FWCFB 756
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Appearances:
D. Rayner on his own behalf.
R. Greig solicitor for Little Moreton Pty Ltd t/a H-R Products.
Hearing details:
2017.
Sydney:
6 February.
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