1
Fair Work Act 2009
s 604 - Appeal of decisions
Mr Neil Emery
v
City Of Stirling
(C2018/6155)
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER MCKINNON
SYDNEY, 1 FEBRUARY 2019
Application for appeal against a decision [2018] FWC 4303 of Deputy President Binet at
Perth on 11 October 2018 in matter U2018/2882 – unfair dismissal application dismissed –
no valid reason – dismissal not harsh, unjust or unreasonable – permission for both parties to
be represented denied at first instance – complexity of matter – discretion of the Commission
may have miscarried – public interest enlivened – permission to appeal granted.
INTRODUCTION
[1] Mr Neil Emery (‘the appellant’) has lodged an application, pursuant to s 604 of the
Fair Work Act 2009 (‘the Act’), in which he seeks permission to appeal and appeal against a
decision and order [PR701253] of Deputy President Binet at Perth on 11 October 2018; see:
Emery v City of Stirling [2018] FWC 4303 (‘the Decision’). In the Decision, the Deputy
President dismissed the appellant’s application, filed under s 394 of the Act, in which he
sought an unfair dismissal remedy arising from the termination of his employment on 6
March 2018 by the City of Stirling (‘the City’ or ‘the respondent’) as a Security Patrol
Officer. Shortly stated, the reasons for the appellant’s dismissal were that:
he had engaged in misconduct by being in possession of a prohibited weapon (a
baton) while performing his duties;
he left the weapon in one of the City’s vehicles; and
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DECISION
E AUSTRALIA FairWork Commission
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when the weapon was found, he asked another employee to put the weapon in his
locker.
[2] The Deputy President found that the allegations of misconduct had been made out and
they constituted valid reasons for his dismissal, pursuant to s 387(a) of the Act. The
appellant’s primary challenge is against this finding, but he raised other appeal grounds,
which we will come to in due course. We do not understand that the Deputy President’s
findings under subsections (b)-(g) s 387 were in serious issue, but her findings under
subsection (h) – other matters – are subject to criticism by the appellant.
[3] The appellant contends in his Notice of Appeal that the Deputy President made
significant errors of fact and law, under seven broad grounds; namely that the Deputy
President:
refused to grant permission for representation (Representation Ground or
Ground 1);
made no findings of fact to support a valid reason for the dismissal (s 387(a))
(Ground 2);
admitted hearsay evidence (Ground 3);
accepted the admission of ‘out of court’ statements (Ground 4);
did not find that dismissal was disproportionate to the conduct (Ground 5);
made a finding that the applicant could breach the statutory regime in the
future(Ground 6); and
did not take into account the City’s differential treatment of the appellant
compared with another employee (Ground 7).
[4] The appellant also seeks an extension of time to appeal the decision giving rise to the
Representation Ground by way of an amended Notice of Appeal filed on 10 December 2018
(the Representation Decision). The Deputy President’s refusal to grant permission for both
parties to be represented in the proceedings at first instance was made by email on 10 July
2018.
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[5] The appellant claims that the appeal attracts the public interest in that it raises issues of
importance and general application, the Decision manifests an injustice and is disharmonious
with other Commission decisions dealing with similar matters.
[6] The appeal was listed for a hearing before the Full Bench of the Commission for
permission to appeal only in Sydney on 11 December 2018. Mr P Mullally, Workclaims
Australia appeared for the appellant and Ms E Hartley, Solicitor, HWL Ebsworth with Ms N
Smith appeared for the respondent, with permission being previously granted for the appellant
to be represented by a paid agent and the respondent to be represented by a lawyer, pursuant
to the provisions of s 596 of the Act.
THE DECISION
[7] After considering the parties’ preliminary submissions, pursuant to s 596 of the Act, in
which they both sought to be represented (in the appellant’s case, by an agent, Mr Mullally
and in the City’s case, by HWL Ebsworth Lawyers), the Deputy President concluded at [13]:
“[13] I note that involvement of representatives in the matter prior to the
Determinative Conference had not enabled the matter to be dealt with more efficiently.
In fact the proceedings were delayed by the failure of Mr Emery’s representative to
file Mr Emery’s materials in accordance with the Directions or seek an extension to do
so before the due date of those materials. I also note that in evidence tendered in these
proceedings asserted that he had a sound knowledge of the relevant security statutes. I
also note that both Mr Emery and the City had the assistance of their respective
representatives who prepared and filed outlines of submissions and closing
submissions on their behalves. I have taken into account the limited advocacy
experience of the City’s personnel. Having had the opportunity to observe the parties
during conciliation and having considered the submissions of the parties, I was not
satisfied that I should exercise my discretion to grant leave to be represented to either
Mr Emery or to the City.”
[8] The Deputy President noted that the appellant called no witnesses, other than himself.
He was provided with a checklist of the statutory elements of an unfair dismissal claim ‘to
assist him in presenting his case’.
[9] After outlining the appellant’s 30 years’ experience in the security and law
enforcement industry, his various security qualifications and his work history for the City,
where he had been a Team Leader, the Deputy President noted that none of the City’s security
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officers are authorised to possess, or carry a baton while performing their duties, in
accordance with their security licenses.
[10] At [29] to [36], the Deputy President summarised the events leading to the appellant’s
suspension, the investigation into his conduct and his subsequent dismissal.
[11] The Deputy President set out the details of the investigation and the three meetings the
appellant had with Management, at which his support person was the Union delegate, Ms
Gaye Boland. In the letter terminating his employment, it was concluded that the appellant
had committed misconduct by carrying and possessing an extendable baton and thereby failed
to comply with:
the conditions of his Security Officer’s Licence;
the Operations Manual;
section 6 of the Weapons Act 1999 (WA) (Weapons Act);
section 26 of the Security and Related Activities (Control) Act; and
clause 9(2) of the Security and Related Activities (Control) Regulations 1997 (WA)
(Security Regulations).
[12] In turning to the provisions of s 387 of the Act and subsection (a) – Valid Reason – in
particular, the Deputy President dealt with the appellant’s alleged conduct, his explanation for
that conduct, and the provisions of the Weapons Act. The Deputy President concluded that a
non-extendable baton was a ‘controlled weapon’ for the purposes of the Weapons Act and that
the Security Act only provides a lawful exercise for Security Officers to possess a baton if:
the Officer’s Security Licence is endorsed to permit such possession; and
the Officer is authorised to be in possession of a baton, while engaged in licensed
activities.
[13] The Deputy President at [70] to [74] noted that the appellant did not:
dispute that the baton was an expandable baton;
deny that the baton was the one located in his locker;
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assert that the baton was not a prohibited weapon; or
cross examine any of the City’s witnesses as to their evidence that the baton was a
prohibited weapon, possession of which constituted a breach of s 6 of the Weapons
Act.
[14] The Deputy President concluded at [82]:
“[82] Recording intelligence and arranging surveillance is an intrinsic part of
guarding, watching and protecting property and I am satisfied that the duties that Mr
Emery says that he was performing are within the duties of a Security Officer as
contemplated by Mr Emery’s Security Licence and by the Security Act. Even if the
artificially narrow definition of duties relied on by Mr Emery is accepted, neither the
Security Act nor Mr Emery’s Security Licence which is issued pursuant to the
Security Act authorise Mr Emery to carry a prohibited weapon or a controlled weapon
when he is not performing his duties as a licensed Security Officer.”
[15] In closing submissions, the appellant contended that the possession of the baton did
not constitute an offence because he had carried and possessed the baton only so as to deliver
it into the custody of the Police; see: s 6(2)(a) of the Weapons Act. The Deputy President
rejected this submission at [96] and said:
“[96] On his own admission Mr Emery:
a. Acquired an extendable baton on 15 January 2018 which he was aware should
be handed in to the WA Police because it was dangerous.
b. He made no effort to have the baton handed to the WA Police between 15
January 2018 and 25 January 2018 when he was made aware that his employer
had taken possession of the baton.
c. The earliest time he would have handed in the baton was 24 January 2018 but
he did not do so.
d. He had the baton in his possession during his shift on 16 January 2018 while
undertaking duties for which he was employed by the City as a Security Guard.
e. He was not authorised to have the baton with him while working (or, it would
appear, at any other time).
f. He instructed a colleague to place the baton in his locker rather than hand it
into the WA Police.”
[16] In her conclusions as to whether there was a valid reason, the Deputy President said at
[99] and [100]:
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“[99] Mr Emery is an experienced and qualified Security Officer and should be aware
of the statutory regime in which he has performed his duties for the City for 12 years.
He is a Team Leader responsible for supervision and management of a team of
Security Patrol Officers. Due to rostering arrangements and his personal circumstances
he operates his team semi-autonomously. During the investigation and since, Mr
Emery has shown no remorse or contrition for his conduct. There is therefore a
potential risk that Mr Emery would undertake or permit conduct which could expose
himself, his colleagues and/or his employer to breaches of the statutory regime
governing the delivery of security services in Western Australia.
[100] In light of all of the above circumstances, I am satisfied that there were valid
reasons for Mr Emery’s dismissal.”
[17] At [132], in setting out ‘other matters’ considered relevant by the appellant, the
Deputy President said:
“[132] Mr Emery submits that it is relevant to determination of whether his dismissal
was harsh, unjust or unreasonable that the baton came to be in his possession because
he performed his civic duty to ensure a dangerous weapon did not fall into the wrong
hands. He submits that his dismissal in these circumstances was disproportionate given
his unblemished career of 12 years with the City. He also says that the impact on the
dismissal is harsh given his age and its financial impact on his family which includes
an adult disabled son.”
[18] The Deputy President found that the appellant’s service was not entirely unblemished;
his lengthy service was a ‘double edged sword’, in the sense that his experience and seniority
should have led him to make better decisions in respect to the baton; that the appellant had not
raised his age or financial circumstances during the investigation; that his age, experience and
knowledge may be both an asset and a deterrent to his lack of success in obtaining alternative
employment, despite his efforts in this respect.
[19] Finally, in addressing the appellant’s argument that he had been treated differently
(dismissed) to Mr Cappa for his involvement in the incident (first and final warning) the
Deputy President found at [144] as follow:
“[144] Mr Cappa was contrite when his involvement in the incident was raised with
him. He initially offered to resign. The City suggested that he instead participate in an
investigation which on all accounts he did willingly, notwithstanding his initial
reluctance to ‘dob on a mate’. Mr Cappa acknowledged that his failure to report the
presence of the baton to management was inappropriate, and also said that he would
handle the same situation differently in the future. Mr Cappa was ultimately given a
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first and final warning and demoted as a Team Leader. I am not satisfied that the
treatment of Mr Cappa as compared to Mr Emery is such as to render Mr Emery’s
dismissal harsh, unjust or unreasonable.”
[20] The Deputy President was not satisfied that the appellant’s dismissal was ‘harsh,
unjust or unreasonable’ and dismissed his application.
EXTENSION OF TIME APPLICATION IN RESPECT TO THE REPRESENTATION
DECISION
[21] As noted above, the Representation Decision was made in an email on 10 July 2018,
from the Deputy President’s Chambers to the parties. It read:
“The Deputy President has returned from leave and has now had the opportunity to
review the submissions with respect to leave to be represented.
The Deputy President has determined on this occasion not to grant either party leave to
be represented at the hearing on 16 July 2018. The Deputy President is not satisfied
that granting the Applicant leave to be represented would enable the matter to be dealt
with more efficiently. Based on her observations of the Applicant at the conciliation
conference, the Deputy President is not satisfied that the Applicant is unable to
represent himself effectively.
Given that leave has not been granted to the Respondent to be represented and noting
the Respondent’s submissions with respect to the capabilities of the Respondent’s
officers to represent the Respondent at the hearing, the Deputy President is not
satisfied that it would be unfair not to allow the Applicant to be represented taking into
account fairness as between the parties.”
[22] The appellant challenges the Deputy President’s exercise of discretion under s 596(2).
He submits that decisions on representation are not mere procedural decisions as they may
fundamentally change the dynamics and manner in which a hearing is conducted; see: Warrell
v Fair Work Australia [2012] FCA 267. Non-compliance with s 596 in proceedings must be
treated as a matter of significance; see: Fitzgerald v Woolworths Ltd (2017) 270 IR 128. The
Deputy President’s discretion miscarried on the basis of a failure to deal with the appellant’s
application for permission to be represented; the finding that he could represent himself based
on her observations of the parties in a compulsory confidential conference; failing to give due
weight to the imbalance of resources between the appellant and respondent; failure to give
due weight to the parties’ mutual preference for representation; and failing to be fair and just.
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[23] In support of his application for extension of time to appeal the Representation
Decision, the appellant submits that it would have been inconvenient to appeal the decision at
the time it was made as the substantive application for an unfair dismissal remedy was about
to be heard; and there has been a substantial miscarriage of justice in the Decision and it
would be in the public interest for the time to be extended.
[24] The City opposes the application for extension of time. It agrees that permission
should have been granted but submits that it would not have changed the outcome, so that
there is no utility in dealing with the Representation Ground. It submits that an appeal of the
Representation Decision could have been filed within time and no adequate reasons have been
provided for the delay.
[25] The Commission will not generally encourage appeals of interim or interlocutory
decisions before a matter is determined to finality; see: Hutton v Sykes [2014] FWCFB 3384.
There is a public interest in discouraging appeals from a preliminary decision; see: Finance
Sector Union of Australia v Comsec Trading Ltd PR945431 [2004] AIRC 337.
[26] Inconvenience alone is not a satisfactory reason for the delay, even if the source of that
inconvenience is the pending hearing of a substantive application. While there was some
confusion as to the Deputy President’s directions requiring submissions as to permission to be
legally represented, we consider the appellant’s reason for delay to weigh against the grant of
an extension of time.
[27] The length of delay is significant – approximately five months. This weighs against an
extension of time being granted.
[28] Given our later findings as to the Representation Ground, as being sufficient of itself
to grant permission to appeal and the likelihood of the appeal being upheld on this Ground,
this weighs in favour of an extension of time being granted.
[29] Finally, there is no evident prejudice to the City if an extension of time is granted.
Both parties have addressed all of the matters relevant to the appeal grounds and permission
to appeal. The City was also denied permission to be legally represented.
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[30] On balance, we have decided to grant leave to the appellant to extend the time for
filing the appeal in respect to the Representation Ground to 1 November 2018.
PRINCIPLES ON PERMISSION TO APPEAL
[31] An appeal under s 604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker; s 607(2) of the Act; see: Coal and Allied v AIRC (2000) 203 CLR
194, 17 per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may
only be made with the permission of the Commission.
[32] This appeal is one to which s 400 of the Act applies. The parties agree that s 400 also
applies to the appeal so far as it relates to the Representation Decision, even though it was
made under s 596, referring to Asciano v Hadfield [2015] FWCFB 2618; Raynor v Little
Moreton [2017] FWCFB 756, and Kennedy v Qantas Ground Services [2018] FWCFB 4552
as well as Australia Post v Gorman [2011] FCA 975. We proceed on that basis, without
deciding the question.
[33] Under s 400, the Commission must not grant permission to appeal from a decision
made by the Commission in relation to unfair dismissal unless it considers it in the public
interest to do so. An appeal of an unfair dismissal decision involving a question of fact can
only be made on the ground that the decision involved a significant error of fact.
[34] In Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at
[43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s
400 as ‘a stringent one’. The task of assessing whether the public interest test is met is a
discretionary one involving a broad value judgment; see: 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]. In
GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27] a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
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“... 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.”
[35] 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; see: Wan v AIRC (2001) 116 FCR 481 at [30]. 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; see: 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].
[36] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal;
see: Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
CONSIDERATION OF GROUNDS OF APPEAL
[37] It is unnecessary for us to consider in any detail all of the seven grounds of the appeal
(as set out above) as for the reasons that follow, we are satisfied that at least on the
Representation Ground, the appellant has established an arguable case of appeallable error of
the House v King kind, in respect to the discretionary findings of the Deputy President made
under s 596 of the Act.
Representation Ground
[38] Section 596 of the Act provides as follows:
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“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.
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.
(3) The FWC’s permission is not required for a person to be represented by a
lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal
with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a
lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the
Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
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[39] For simplicity, we will refer to the criteria in s 596(2) as the ‘efficiency ground’ and
the criteria in s 596(2)(b) and (c) as the ‘fairness grounds’.
[40] We consider it necessary to set out the background of this matter by reference to the
following chronology before the Determinative Conference:
20 March 2018 The appellant filed his unfair dismissal claim, noting on the Form F2
Application that he was represented.
7 June 2018 The parties advised the Commission that the matter had not settled.
The appellant’s representative advised that he was on leave from 7 to
25 June 2018.
7 June 2018 Directions were issued by the Deputy President for the hearing
including submissions as to permission to be represented by a lawyer
or paid agent to be filed by 14 June 2018.
14 June 2018 The City filed submissions seeking to be legally represented. No
submissions were filed by the appellant. The Deputy President’s
Chambers emailed the parties at 6.13pm to notify that the appellant
had not complied with the directions by COB that day and inviting
the City to file a s 399A application. The City declined to do so.
15 June 2018 The appellant sought an adjournment of the hearing and set out
reasons for his failure to file submissions in accordance with the
Directions of 7 June 2018, including that he was incapacitated and
unable to represent himself effectively and that his representative
was on leave.
18 June 2018 The Deputy President’s Chambers emailed the parties advising she
had agreed to the adjournment and said:
In the absence of the City of Stirling applying for this matter to be
dismissed or making any submissions objecting to the request for an
adjournment, an extension is granted to Mr Emery to obtain
alternative legal representation and to file his submissions with the
FWC. Mr Emery’s materials are now required to be filed by close of
business on Thursday 28 June 2018. The Respondent’s materials
will be due 7 days thereafter. The current hearing date will be
vacated and the matter re-listed for a date in July 2018 – an updated
Notice of Listing will be issued in due course. (our emphasis)
25 June 2018 The Deputy President’s Chambers advised as follows:
Please find attached Amended Directions in this matter.
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We note that no submissions requesting leave to be represented at
the hearing were filed on behalf of Mr Emery in accordance with the
Directions issued on 7 June 2018.
In the interests of affording fairness between the parties, the City of
Stirling is declined leave to be represented at the hearing now listed
for 16 July 2018.
New directions were issued for a Determinative Conference. There
was reference to submissions as to representation.
28 June 2018 The appellant applied for permission to be represented in the hearing
on 16 July 2018.
10 July 2018 Email from Deputy President’s Chambers denying both parties
permission to be legally represented (set out above).
[41] Considerations of fairness for the purposes of s 596 might arise if the complexity of a
case makes it difficult for a party seeking permission to effectively represent themselves; as
appears to be the position here where the appellant called no witnesses, other than himself,
and the City called three witnesses, which the unrepresented appellant was required to cross
examine.
[42] The practical difficulty the appellant had in this respect is demonstrated in the
following exchange between the Deputy President and the appellant, concerning the
admission of statement evidence of two Security Patrol Officers, Mr Almond and Mr Cappa,
who were not called to give evidence by the City and whose statements were attached to Ms
Fairman’s statement:
“MR EMERY: It's just I object because the statements of Terry Almond is marked
NMF2 and Carlo Capper are marked NMF5. They have not been called as witnesses
to give evidence, so I can't cross-examine them. So, I feel that all their evidence is
hearsay.
THE DEPUTY PRESIDENT: So, in her statement, Ms Fairman is giving evidence of
what she asked Terry.
MR EMERY: Yes, I'm talking about the attached statements by Terry Almond and
Carlo Capper to Ms Fairman's statement.
THE DEPUTY PRESIDENT: So, rather than that particular paragraph, you are
objecting to which attachments?
MR EMERY: Paragraph 48.
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THE DEPUTY PRESIDENT: So, we have just talked about 48.
MR EMERY: Yes, 53.
THE DEPUTY PRESIDENT: So, let's go back to that again. I'm a bit confused what
you're objecting to. So, her evidence is what she was told by Terry. So, how is that
hearsay? So, she's giving evidence of what Terry told her?
MR EMERY: Yes, but Terry is not here for me to cross-examine him on that
evidence.
THE DEPUTY PRESIDENT: No, but her evidence is of what she was told by Terry,
so she's giving evidence of what he told her. So, what Terry said about Mr Capper is
hearsay - - -
MR EMERY: Yes.
THE DEPUTY PRESIDENT: - - - because she's relating something someone told
her. But her evidence in relation to Terry is evidence of what she was told.
MR EMERY: So, I had 63 and 71. Sorry, 63 to 71 and 98.
THE DEPUTY PRESIDENT: So, if you had some doubt about the accuracy of her
evidence, why didn't you call those witnesses?
MR EMERY: Sorry, I didn't - - -
THE DEPUTY PRESIDENT: So, if you have doubts about the accuracy of her
evidence in relation to what she was told by Terry, why did you not call Terry as a
witness?
MR EMERY: I thought it was Ms Fairman's witnesses. I didn't understand.
THE DEPUTY PRESIDENT: Well, they're not her witnesses. She is giving her
evidence. Is it your assertion that that evidence is incorrect?
MR EMERY: Yes.
THE DEPUTY PRESIDENT: So, why didn't you call Terry as a witness yourself? Is
there any reason why you didn't call him?
MR EMERY: No, I didn't, no.
THE DEPUTY PRESIDENT: Is there anything you want to say about the weight I
should give to the evidence, Ms Smith?
MS SMITH: I'm not exactly familiar with this, but to me the statements that Ms
Fairman has put forward is in the meeting she had with those people and it's her
recollection of how those meetings went. So, to me, I feel like that it is something
which should be kept in there.
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THE DEPUTY PRESIDENT: Is there anything else you wanted to - - -
MR EMERY: No, just the objection to their actual statements, Terry's and Carlo's
witness statements.
THE DEPUTY PRESIDENT: You haven't called either of those gentlemen to give
evidence on your part?
MR EMERY: No.”
[43] Further, we observe that the Deputy President set out a conflict in evidence between
Mr Cappa and the appellant at [43] in respect to an alleged conversation between them.
Putting aside the appropriateness of relying on statements from persons not called to give
evidence, it is plainly apparent that the appellant was confused about the status of these
statements and unclear as to how he could cross examine them when they were not called by
the City. While a party is able to request the Commission order a person to attend to give
evidence, Mr Emery appears to have been unaware of his capacity to do so, and confused by
the issues raised by the Deputy President. These are matters relevant to the question of how
effectively the appellant was able to represent himself.
[44] Further, we note that in respect of the statement of Mr Cappa when asked if the baton
belonged to the appellant, he replied, ‘Yeah, that is Neal’s’. Ownership of the baton was a
matter the appellant disputed. At the very least, he was denied the opportunity to test this
statement of Mr Cappa.
[45] There are other examples of the appellant’s confusion and lack of experience in cross
examining witnesses, as the following exchanges between him and the Deputy President
demonstrate. At PN 492 to PN497, the exchange concerning cross examination by the
appellant of Mr Beard is as follows:
“THE DEPUTY PRESIDENT: Mr Emery, I'm trying to afford you the greatest
leniency as I can because you're representing yourself, but the difficulty is you're
trying to put a whole lot of evidence onto transcript now which you had the
opportunity to put in your witness statement or had the opportunity at the start of the
hearing. You can ask the witness questions, but if he's not on notice that he needs to
answer them, it's difficult sometimes for him to respond. If you to give evidence, I
have to put you back in the witness box and then at the end of the case I am going to
have to give Ms Smith the opportunity to cross-examine you again, because you're
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continuing to put evidence, attempting to introduce new evidence without the
opportunity for the other side to re-examine.
What I'm going to have to do if you continue to do this, I'm going to have to put you
back in the witness box every time you do it and as a matter of fairness give Ms Smith
the opportunity to cross-examine you because it's not fair to the other side, otherwise.
MR EMERY: I asked Mr Baird where in that statement it shows I've been aggressive
towards - - -
THE DEPUTY PRESIDENT: Mr Baird answered that, he said - my notes say, please
correct me if I'm wrong Mr Baird, but he explained that he drew the attention to the
comments on the second page, and he also said that there were notes from the job
which also caused him to have those concerns. Is that correct?---That's correct. I can
amplify if you wish, Deputy President.
I don't feel the need to unless Mr Emery - - -
MR EMERY: I'll leave it at that, thanks.”
[46] At PN586 after the Deputy President inquires of Mr Holland as to the provisions of the
Weapons Act, the following is recorded:
“THE DEPUTY PRESIDENT: Could I ask you a question, Mr Holland, and if you don't have
the information, that's quite fine to say that you don't know, but are you aware whether
possession of the baton was lawful for anyone to have as a public citizen? Do you know
whether it's an item which a normal citizen is allowed to possess?---Okay, well my
understanding, Deputy President, is that the - certainly from a security officer, they're told
they can't have it so that's very - it's cut and dry. Just a citizen of Stirling, to be quite honest
I'm not sure, I really don't know. I'd have to ask our security people.”
[47] The Deputy President had permitted both parties to have the assistance of their
representatives for the purposes of participating in conciliation, although the basis upon which
permission was granted is not clear. The representatives had prepared and filed outlines of
submissions and an agreed statement of facts. They were corresponding with the Commission
on behalf of their respective clients on a regular basis. Curiously, the Deputy President at one
point (PN 384) agreed to adjourn the proceedings to allow the City’s representative, Ms
Smith, to get instructions from the City’s legal representatives about a particular document.
[48] We also consider that the Representation Decision appears counterintuitive. The
Deputy President refused the City permission to be represented on fairness grounds, arguably
on the assumption that the appellant did not also seek permission to be represented after
[2019] FWCFB 199
17
failing to take into account his representatives’ earlier advice to the Commission that he
would be on leave at material times. Having subsequently received an application for the
appellant to be represented at the hearing of his claim, the Deputy President appears to have
refused permission for the appellant to be represented on fairness grounds, because she had
earlier refused the City permission to be represented on the same basis on the assumption that
the appellant did not seek to be represented. The Deputy President also refused permission on
the efficiency ground, arguably without considering the complexity of the matter before her.
That occurred in circumstances where the materials disclosed alleged breaches of a range of
legislation (s 26 of the Security Act, s 6 of the Weapons Act, and cl 9.2 of the Security
Regulations) and the City’s related polices.
[49] A denial of natural justice to a party by a decision maker may constitute grounds for
permission to appeal to be granted. Given the circumstances of this case and the adverse
outcome for the appellant, permission to appeal should be granted. We consider it arguable
that the Deputy President’s decision to deny the appellant representation involved a
miscarriage of her discretion and a denial of natural justice to the appellant.
[50] Given the nature of the appealable error, we cannot be satisfied that the outcome
would not have been different if the error is made out on appeal. Further, in our view, the
arguable errors disclosed in these reasons may have resulted in a miscarriage of the Deputy
President’s discretion, such as to occasion on the appellant a manifest injustice.
CONCLUSION
[51] The Decision subject to appeal was made under Part 3-2 of the Act. Section 400(1)
provides that permission to appeal must not be granted from such a decision, unless the Full
Bench considers that it is in the public interest to do so. For the reasons we have given, we are
satisfied that it is in the public interest to grant permission to appeal. We order accordingly.
[52] The parties will be shortly advised as to further proceedings and directions in respect
to the disposition of the substantive appeal on both the Representation Ground and the
remaining six grounds of appeal.
[2019] FWCFB 199
18
DEPUTY PRESIDENT
Appearances:
P Mullally (Workclaims Australia) for the appellant.
E Hartley (HWL Ebsworth) for the respondent.
Hearing details:
2018.
Sydney:
December 11.
Final written submissions:
For the appellant 17 December 2018.
For the respondent 17 December 2018.
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