1
Fair Work Act 2009
s.604—Appeal of decision
TIOBE Pty Ltd T/A TIOBE
v
Cathy (Yaqin) Chen
(C2018/4365)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE MELBOURNE, 12 SEPTEMBER 2018
Appeal against Decision [2018] FWC 4173 and Order PR609148 of Commissioner Bissett at
Melbourne on 19 July 2018 in matter number U2018/2693 – permission to appeal granted –
appeal upheld – Decision and Order quashed – application remitted for rehearing.
Introduction
[1] On 19 July 2018 Commissioner Bissett issued a decision1 (the Decision) in which she
determined that Ms Cathy (Yaquin) Chen had been unfairly dismissed from her employment
with TIOBE Pty Ltd T/A TIOBE. The Commissioner issued an Order2 that TIOBE pay Ms
Chen compensation in the amount of $70,000 (the Order). TIOBE seeks permission to appeal
and has appealed against the Decision.
[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (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.3 There is no right to appeal and an appeal may only be
made with the permission of the Commission. The matter was listed for hearing in respect of
both permission to appeal and the merits of the appeal.
[3] The background to the proceedings is described in the Decision and may be shortly
stated. Ms Chen worked for the Appellant for about five years and was employed as a
Consultant, providing professional services as a Business Analyst/IBM Unica Solution
Specialist to clients of TIOBE. Ms Chen was dismissed on 12 February 2018 arising from
1 [2018] FWC 4173.
2 PR609148.
3 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[2018] FWCFB 5726
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 5726
2
poor performance and for her actions in relation to a message posted on the TIOBE staff
messaging system, called Slack, by her husband, Mr Malano.
[4] The Commissioner acknowledged that TIOBE is a small business and concluded that
as TIOBE did not say the dismissal of Ms Chen was in accordance with the Small Business
Fair Dismissal Code (Code), the Code did not apply.4 We return later to this aspect of the
Commissioner’s decision.
[5] The Commissioner sets out the factual background at [8] to [25] before turning to deal
with whether Ms Chen’s dismissal was ‘harsh, unjust or unreasonable’; and for that purpose
took into account the matters set out at s.387(a)-(h). In relation to the question of whether
there was a valid reason (s.387(a)) for dismissal the Commissioner concludes:
‘[29] There is no evidence that Ms Chen’s work performance was an on-going concern either to
TIOBE or API, the client she was working with. It is true that issues in relation to Ms Chen
and Mr Yang’s working relationship were raised in mid-2017 but there is no evidence that this
was an issue after that point in time. Further, there is evidence of a critical incident in mid-
2017 but it appears that systems were put in place to mitigate the risk of further similar
incidents…
[31] There is no evidence to support a claim that API raised issues with respect to Ms Chen’s
performance that provided a reason for Ms Chen’s dismissal. Those issues that arose whilst
Ms Chen was placed with API were addressed and, it appears, satisfactorily rectified.
[32] There is no evidence of any on-going performance issues such that I could find that they
provide a valid reason for Ms Chen’s dismissal.
[33] Mr Czarnota also said that Ms Chen’s employment was terminated because of her
conduct in relation to the posts on Slack. There is no evidence that Ms Chen played any part in
the posting of the message by Mr Malano. I am satisfied that she did not post the message,
encourage Mr Malano to post the message or have any knowledge of the message being
posted…’.5
[6] The Commissioner deals with the other matters she was required to take into account
at [35] to [56] and found:
s.387(b) – whether the person was notified of that reason: as there was no valid
reason for dismissal ‘Ms Chen cannot have been advised of that valid reason’,
alternatively:
‘There is no evidence that she was advised of the reason for her dismissal in advance of that
meeting [ie the meeting on 9 February 2018 at which she was advised of her dismissal] and
that at that meeting, Mr Czarnota had already decided to dismiss her from employment with
TIOBE’ (at [35]-[37]).
4 [2017] FWC 4173 at [6].
5 Ibid at [29], [31]-[33].
[2018] FWCFB 5726
3
s.387(c) – whether the person was given an opportunity to respond: there was
no evidence Ms Chen was given an opportunity to respond to the reason for
dismissal (at [38]-[40])
s.387(d) – any unreasonable refusal to have a support person present: there was
no indication that Ms Chen sought and was then unreasonably denied access to a
support person (at [41])
s.387(e) – warned of unsatisfactory performance: there was no evidence that
specific performance concerns were raised with Ms Chen or that she was advised
that if her performance did not improve in the identified areas her employment with
TIOBE was at risk (at [49], see also [42] to [51])
s.387(f) and (g) – the degree to which the size of the employer’s enterprise and
absence of dedicated human resource management specialists or expertise
would be likely to impact on the procedures followed in effecting the dismissal:
TIOBE is a small business and it does not have access to human resource specialists
or expertise. The Commissioner observed that:
‘This may well have affected the way the dismissal was brought about.
It does not however excuse the lack of any documentation by TIOBE to support the
claims it has made with respect to performance issues or meetings with Ms Chen’ (at
[52] to[53]).’
s.387(h) – other matters the FWC considers relevant: Ms Chen had claimed that
by dismissing her TIOBE avoided payment of a $50,000 bonus, TIOBE disputed Ms
Chen’s entitlement to the bonus. The Commissioner said (at [55] to [56]):
‘[55] I accept that the entitlement to such a bonus or the denial of the bonus would be a
relevant consideration in determining if the termination was harsh. I do not intend
however, and it is not my role, to decide if Ms Chen had completed five years
employment.
[56] This is not a determinative factor in reaching my decision.’
[7] The Commissioner then concluded (at [57] to [58]) that the dismissal was unjust and
that Ms Chen had been unfairly dismissed:
‘[t]here was no basis in her conduct or work performance to justify the decision of TIOBE to
terminate her employment.’6
[8] The Commissioner next dealt with the question of remedy and concluded that
reinstatement was inappropriate, noting that Ms Chen had not sought reinstatement.7 The
6 Ibid at [57].
7 Ibid at [59].
[2018] FWCFB 5726
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Commissioner then turned to the issue of compensation and ordered that TIOBE pay Ms Chen
compensation in the amount of $70,000 (at [59] to [74]).
The Appeal
[9] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the
Act. Section 400(1) provides that permission to appeal must not be granted from such a
decision unless the Commission considers that it is in the public interest to do so. Further, in
such matters appeals on a question of fact may only be made on the ground that the decision
involved a ‘significant error of fact’ (s.400(2)). 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’.8 The Commission must not grant permission to
appeal unless it considers that it is ‘in the public interest to do so’.
[10] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.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 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.’10
[11] 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, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.12
[12] The Appellant advanced six grounds of appeal; for reasons which will become
apparent we need only deal with the first two grounds, which relate to the Commissioner’s
consideration of the Small Business Fair Dismissal Code (the ‘Code’). The first two grounds
of appeal are:
‘1. The learned Commissioner erred in law by finding that the applicant was unfairly dismissed
in circumstances where the Commissioner failed to determine or be satisfied, in accordance
with section 385(c) of the Fair Work Act 2009 (Cth) (FW Act), that the applicant’s dismissal
was not consistent with the Small Business Fair Dismissal Code (Code).
8 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at paragraph 43.
9 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].
10 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].
11 Wan v AIRC (2001) 116 FCR 481 at [30].
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2018] FWCFB 5726
5
2. The learned Commissioner erred in law by failing to decide, in accordance with section
396(c) of the FW Act, that the applicant’s dismissal was not consistent with the Code, before
considering the merits of the applicant’s application.’
[13] Before turning to the submissions advanced in respect of these grounds it is necessary
to say something about the Code.
[14] Section 385 of the Act sets out the requirements which must be satisfied in order for
the Commission to find that a person has been unfairly dismissed:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
(emphasis added)
[15] As his Honour Jessup J (with whom Buchanan and Rangiah JJ agreed) observed in
Clermont Coal Pty Ltd v Brown:13
‘the requirements of this section [ie s.385] … depend upon the Commission itself being satisfied
of the state of affairs referred to.’
[16] As set out in the above ‘Note’ to s.385, the definition of ‘consistent with the Small
Business Fair Dismissal Code’ is set out in s.388:
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal
Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a small
business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the
dismissal. (emphasis added)
[17] Section 23 provides a definition of a ‘small business employer’ for the purpose of the
Act. Relevantly, s.23(1) provides that ‘A national system employer is a small business
employer at a particular time if the employer employs fewer than 15 employees at that time.’
It is not in dispute that TIOBE was a ‘small business employer’ at the time of Ms Chen’s
dismissal.
13 [2015] FCAFC 136 at [4].
[2018] FWCFB 5726
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[18] The Code declared by the Minister pursuant to s.388(1) is as follows:
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer
believes on reasonable grounds that the employee's conduct is sufficiently serious to justify
immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches
of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient,
though not essential, that an allegation of theft, fraud or violence be reported to the police. Of
course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is
at risk of being dismissed. The reason must be a valid reason based on the employee's conduct
or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being
dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the
warning and give the employee a reasonable chance to rectify the problem, having regard to
the employee's response. Rectifying the problem might involve the employer providing
additional training and ensuring the employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee
can have another person present to assist. However, the other person cannot be a lawyer acting
in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code
if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence
that a warning has been given (except in cases of summary dismissal). Evidence may include a
completed checklist, copies of written warning(s), a statement of termination or signed witness
statements.
[19] The Commissioner’s consideration of the Code is confined to paragraph [6] of the
Decision:
‘[6] Whilst TIOBE is a small business it does not say that the dismissal of Ms Chen is in
accordance with the Small Business Fair Dismissal Code (Code). For this reason, I am
satisfied that the Code does not apply.’
[20] As is apparent from the extract quoted, the Commissioner indicates that she was
satisfied that the Appellant was a small business, but concluded that the Code did not apply
because the Appellant did not contend that the dismissal was consistent with the Code.
[21] The Appellant submits that the fact that TIOBE may not have contended that the
dismissal was consistent with the Code does not relieve the Commission of the statutory
obligation to actively consider and determine whether the Code was complied with. So much
is said to be is clear from the wording of s.396 where it states that a number of matters must
be decided before considering the merits of the application including ‘whether the dismissal
was consistent with the Small Business Fair Dismissal Code’. On this basis the Appellant
[2018] FWCFB 5726
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submits that the Commission has an obligation to actively consider and determine the
question of compliance with the Code in circumstances where the employer is a small
business. We agree.
[22] The Commission has an obligation, in all matters, to satisfy itself that it has the
requisite jurisdiction to perform a particular function.14
[23] The terms of s.396 are clear:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an
order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal
Code;
(d) whether the dismissal was a case of genuine redundancy. (emphasis added)
[24] It is necessary to first consider whether the dismissal was consistent with the Code
before turning to deal with the issue of whether the dismissal was unfair. As the Full Bench
observed in Inner West Towing Pty Ltd v David Maynard:
‘The command in s.396(c) is clear, but it was not complied with in the Decision. We have
earlier set out the relevant parts of the Decision, and it is apparent that the Senior Deputy
President’s determination of the Code issue was intermingled with and subsidiary to her
consideration of the merits of Mr Maynard’s application.’15
[25] In the matter before us the Commissioner made an error in not first considering
whether the dismissal was consistent with the Code before turning to deal with whether the
dismissal was unfair. Further, contrary to the Commissioner’s statement at [6], the Code
plainly applied – because TIOBE was a small business employer – the relevant question was
whether ‘the dismissal was consistent with the Code’. But it does not necessarily follow from
that conclusion that permission to appeal should be granted. As stated earlier, the mere
demonstration of error does not necessarily mean that it would be in the public interest to
grant permission to appeal; particularly if the error could not have made any difference to the
outcome.16
[26] Mr Dircks, on behalf of the Respondent, submitted, in substance, that even if there was
an error (which he disputed) it would have made no difference to the outcome. In particular,
he submits that it cannot be seriously contended that this should be regarded as a summary
14 Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera Video Digital [2013] FWCFB 6321 at [15].
15 [2017] FWCFB 757 at [21]. Also see Steri-Flow Filtration Systems (Aust) Pty Ltd v Craig Erskine [2013] FWCFB 1943 at
[2]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [2].
16 Ibid at [22].
[2018] FWCFB 5726
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dismissal and in relation to the ‘other dismissals’ part of the Code, the Commissioner clearly
found that there was no valid reason for the dismissal under s.387(a).17
[27] Contrary to Mr Dircks’ submission we are not persuaded that the error could not have
made any difference to the outcome. The fact that a payment was made in lieu of notice is not
determinative of the question of whether it was a summary dismissal within the meaning of
the Code.
[28] In Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services18 (‘Ryman’) a
Full Bench considered the ‘Summary Dismissal’ section of the Code. The employee in that
case was dismissed on 5 January 2015 arising from an incident on 19 December 2014 and his
failure to attend for work on the following two days. He was paid an amount equivalent to
three weeks’ notice and the reason for dismissal identified in the separation certificate was
‘serious misconduct/yelling/swearing witnessed by customers and other staff’.
[29] At first instance the Commissioner had determined that the Summary Dismissal
section of the Code was relevant for the following reasons:
‘[50] In this instance the employer paid the applicant an amount equivalent to three weeks’
notice. However, apart from this payment, the dismissal contains all of the elements usually
associated with a summary dismissal. In particular, the reason for the dismissal involved
serious misconduct and the implementation of the dismissal although it was delayed because
of the absence of the applicant from the workplace, was summary in nature. That is, the
applicant was verbally advised of his dismissal without there being any contemplation of
explanation or defence.
[51] The applicant’s solicitor argued that because there had been payment of a period of
notice, the dismissal was not a summary dismissal and should not be assessed against those
terms of the Code that are relevant to summary dismissal. In my view this proposition would
impose an unrealistic and unintended rigidity on any application of the Code.
[52] A dismissal which is for reason of serious misconduct and which might appropriately
justify termination without notice or warning, should still be properly assessed as a summary
dismissal notwithstanding that an employer, for whatever reason, decided to make payment of
an amount in respect to notice. Broadly speaking, the Code establishes requirements for
dismissal without notice or warning which represent a less stringent evidentiary basis upon
which any serious misconduct is established when compared to the evidentiary basis that
applies for a medium/large business. Similarly, the Code sets out less stringent requirements
for other dismissals than those which apply to a medium/large business.
[53] That part of the Code which deals with summary dismissal is concerned with the
evidentiary basis upon which a small business employer establishes serious misconduct. While
the other dismissals part of the Code introduces a less stringent set of procedural requirements
than applies to a medium/large business. The requirements that are mentioned in the Code as
being relevant to cases of other than summary dismissal will invariably have little or no
relevance to circumstances where a dismissal is made without notice or warning and is based
upon serious misconduct. It would be contrary to the spirit and intent of the Code if, when a
small business employer decided to pay an amount in lieu of notice in respect to a dismissal
17 Transcript 5 September 2018 at [154] to [156].
18 [2015] FWCFB 5264.
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for serious misconduct, it was required to satisfy the procedural requirements of the other
dismissals part of the Code.
[54] Therefore, although the dismissal of the applicant was not strictly a summary dismissal
because an amount was paid in lieu of notice, in all other respects the dismissal was manifestly
in the character of a summary dismissal. In particular the dismissal was, in the employer’s
view, for reason of serious misconduct justifying the immediate termination of employment at
the soonest practical opportunity. Consequently, it is appropriate to apply that part of the Code
which relates to summary dismissal to the circumstances of the dismissal of the applicant.’
[30] The first issue that fell for determination in the subsequent appeal was whether Mr
Ryman’s dismissal was of a type to which the ‘Summary Dismissal’ section of the Code
applied. At the outset the Full Bench observed that ‘this issue is not easy to resolve because
the Code generally, and this section of the Code in particular, is very poorly drafted’.19 After
detailed consideration of the legislative provisions and their context20 the Full Bench
concluded that the ‘Summary Dismissal’ section of the Code applies to dismissals without
notice on the ground of serious misconduct as defined in regulation 1.0721. The Full Bench
then concluded:22
‘To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal
it is necessary for the Commission to be satisfied that the serious misconduct which is the basis
for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained
in Pinawin T/A RoseVi.Hair.Face.Body v Domingo: 23
“[29] … There are two steps in the process of determining whether this aspect of the
Small Business Fair Dismissal Code is satisfied. First, there needs to be a
consideration whether, at the time of dismissal, the employer held a belief that the
employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly
it is necessary to consider whether that belief was based on reasonable grounds. The
second element incorporates the concept that the employer has carried out a
reasonable investigation into the matter. It is not necessary to determine whether the
employer was correct in the belief that it held.”
Whether the employer had “reasonable grounds” for the relevant belief is of course to be
determined objectively.
In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider
that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with
immediate effect - on the ground that the employee has committed serious misconduct
that falls within the definition in reg.1.07, then it is necessary for the Commission to
consider whether the dismissal was consistent with the “Summary dismissal” section
of the Code. All other types of dismissals by small business employers are to be
considered under the “Other dismissal” section of the Code.
19 [2015] FWCFB 5264 at [26].
20 Ibid at [26] to [37].
21 Ibid at [38].
22 Ibid at [39]-[42].
23 [2012] FWAFB 1359, (2012) 219 IR 128.
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(2) In assessing whether the “Summary dismissal” section of the Code was complied
with, it is necessary to determine first whether the employer genuinely held a belief
that the employee’s conduct was sufficiently serious to justify immediate dismissal,
and second whether the employer’s belief was, objectively speaking, based on
reasonable grounds. Whether the employer has carried out a reasonable investigation
into the matter will be relevant to the second element.
In this case, Mr Ryman’s dismissal occurred with immediate effect - that is, without the
provision of any actual notice - on the ground of serious misconduct. The fact that he was paid
an amount said to be in lieu of notice, or that the dismissal occurred some days after the
conduct to which it related, does not alter the position in this respect. His dismissal therefore
fell to be considered under the “Summary dismissal” section of the Code in accordance with
the Pinawin principles. There was no error on the part of the Commissioner on this issue.’24
[31] The decision in Ryman was applied in Gainbridge Limited v Mrs Diane Wiburd,25 in
which the Full Bench said:
‘The proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the
employer genuinely behaves on reasonable grounds that the employee’s conduct is sufficiently
serious to justify immediate dismissal. The Code focusses attention on the employer’s belief
which must be based on reasonable grounds, not on whether the employee’s conduct as a
matter of fact and law justified immediate dismissal.’
[32] The Commissioner’s failure to decide whether the dismissal was consistent with the
Code before considering the merits of the application was an error. In the circumstances of
this matter it is at least arguable that the error could have made a difference to the outcome,
though we express no concluded view on the merits of the Code argument advanced by
TIOBE. We are satisfied that it is in the public interest to grant permission to appeal. We
grant permission to appeal, uphold the appeal on the basis of the error identified, and quash
the Decision and Order.
[33] Given our conclusion in relation to Appeal Grounds 1 and 2 it is not necessary for us
to consider the remaining grounds of appeal. However, given the nature of the issues raised
(particularly in Ground 3)26 it is appropriate to make some general observations regarding the
Commission’s obligation to provide a fair hearing.
[34] The Commission is obliged to perform its functions and exercise its powers in a
manner that is fair, just and quick.27 Members are responsible for ensuring that proceedings
are fair.
24 Applied in Gainbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732.
25 [2017] FWCFB 6732 at [14].
26 The learned Commissioner erred in law and denied the Appellant natural justice by failing to ensure that the Appellant, as
an unrepresented party to the proceeding, had a fair hearing and was aware of the fundamental procedure whereby the
Appellant was permitted, as a small business employer, to rely upon, and to lead evidence and make submissions in respect
of, the Code.
27 See s.577 of the Act.
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[35] As part of their overriding obligation to ensure a fair hearing, Members have a positive
duty to provide appropriate assistance to litigants in person whether they be applicants or
small business respondents, such as TIOBE.
[36] The degree of assistance which must be afforded depends on the context. As Bell J
observed in Tomasevic v Travaglini and anor:
‘The matters regarding which the judge must assist a self-represented litigant are not limited, for
the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of
the assistance depends on the particular litigant and the nature of the case. The touchstones are
fairness and balance. The assistance may extend to issues concerning substantive legal rights
as well as to issues concerning the procedure that will be followed …
The judge cannot become the advocate of the self-represented litigant, for the role of the judge
is fundamentally different to that of an advocate. Further, the judge must maintain the reality
and appearance of judicial neutrality at all times and to all parties, represented and self-
represented. The assistance must be proportionate in the circumstances – it must ensure a fair
trial, not afford an advantage to the self-represented litigant.’28
[37] The duty to assist may extend to issues of law as well as procedure29. In a case
involving a litigant in person the Commission should endeavour to ascertain the true legal
character of the claims made. As the High Court said in Neil v Nott30:
‘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.’
[38] As noted in the Commission’s Fair Hearing Practice Note: assistance provided to self-
represented parties by a Member may, depending on the circumstances, include:
explaining the relevant legislative provisions;
identifying the issues which are central to the determination of the particular
proceedings;
assisting a party to conform with procedural and evidentiary rules designed to avoid
unfairness;
drawing a party's attention to the relative weight to be given to bar table statements
as opposed to sworn evidence;
offering a party an interpreter where it appears that this may assist that party to
participate more fully in the proceeding;
facilitating the fair, just and quick determination of the matter; and
adjourning a proceeding in circumstances where it would be unfair to proceed.
28 [2007] VSC 337 (13 September 2007).
29 R v White [2003] VSCA 174 (2003) 7 VR 422.
30 (1994) 121 ALR 148 at 150.
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[39] However the assistance to be provided to a litigant in person is limited. It is plainly
necessary to balance the interests of litigants who represent themselves with the need to afford
procedural fairness to other parties.31
[40] In the context of the present matter it would have been appropriate for the
Commissioner to have drawn the Code to the parties’ attention (and provided them with a
copy of the Code) and inquired of TIOBE whether it submitted that the dismissal was
consistent with the Code.
[41] There is one final matter we wish to mention. During the hearing of the appeal it
became apparent that there had been a failure to comply with s.399 in the proceedings at first
instance.
[42] Division 5 of Part 3-2 – Unfair Dismissal deals with certain procedural matters.
Section 397 provides that the Commission:
‘The FWC must conduct a conference or hold a hearing in relation to a matter arising under this
Part if, and to the extent that, the matter involves facts the existence of which is in dispute.’
[43] The facts in the matter before the Commissioner were contested, it follows that the
Commissioner was obliged to conduct a conference or hold a hearing in relation to the matter.
Section 399 is central to the question of whether the matter was to proceed by conference or
hearing. Section 399 states:
399 Hearings
(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the
FWC considers it appropriate to do so, taking into account:
(a) the views of the parties to the matter; and
(b) whether a hearing would be the most effective and efficient way to resolve the
matter.
(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide
not to hold the hearing in relation to parts of the matter.
(3) The FWC may decide at any time (including before, during or after conducting a
conference in relation to a matter) to hold a hearing in relation to the matter.
[44] At first instance this matter proceeded by way of hearing, but there was no
consideration of the requirements of s.399(1)(a) and (b). These matters must be given
consideration before the Commission decides to hold a hearing in relation to a matter under
Part 3-2 (including any jurisdictional objection, application to extend time under s.394(3) and
a hearing on the merits). This issue should be addressed in the rehearing of Ms Chen’s
application. As observed by the Full Bench in Asciano Services Pty Ltd v Zak Hadfield:32
‘the more informal procedures of a determinative conference may be more appropriate for a
self-represented litigant …’
31 See Abram v Bank of New Zealand (1996) ATPR 42,340, affirmed on appeal (1998) ATPR 41-507.
32 [2015] FWCFB 2618 at [20].
[2018] FWCFB 5726
13
Conclusion
[45] As we have mentioned, the decision subject to appeal was made under Part 3-2 -
Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be
granted from such a decision unless the Commission considers that it is in the public interest
to do so. For the reasons given we are satisfied that it is in the public interest to grant
permission to appeal. We grant permission and uphold the appeal.
[46] Pursuant to s.607(3)(a) and (c) we quash the Decision and Order and refer Ms Chen’s
application for an unfair dismissal remedy to Commissioner Bissett for rehearing. In rehearing
the matter the Commissioner is not confined to the evidence and submissions already put and
may admit further evidence.
PRESIDENT
Appearances:
Mr J Tracey of counsel and Mr N Kelly for the Appellant
Mr G Dircks for the Respondent
Hearing details:
Melbourne.
2018.
5 September.
Printed by authority of the Commonwealth Government Printer
PR700309
