1
Fair Work Act 2009
s.604—Appeal of decision
Loi Toma
v
Workforce Variable Pty Ltd T/A Workforce International
(C2018/3158)
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SIMPSON
SYDNEY, 27 SEPTEMBER 2018
Appeal against decision ([2018]FWC 2963) of Commissioner Cambridge at Sydney on 24
May 2018 in matter number U2018/2283.
[1] Mr Loi Toma (Appellant) has lodged an appeal, for which permission to appeal is
required, against a decision of Commissioner Cambridge issued on 24 May 20181 (the
Decision). In that Decision, the Commissioner determined that the Appellant’s application for
an unfair dismissal remedy was not supported by “any proper evidentiary basis” and that the
matter had “no reasonable prospects of success” and was “an abuse of process” made “in
pursuit of collateral purposes”.2 As a result, the matter was summarily dismissed by the
Commissioner pursuant to s.587 of the Fair Work Act 2009 (Cth) (Act).
[2] On 7 August 2018, we heard the parties on permission to appeal and the substantive
appeal. The Appellant appeared on his own behalf and Mr Andrew Burnett, of counsel, sought
permission to appear for Workforce Variable Pty Ltd T/A Workforce International
(Respondent). Pursuant to s.596(2)(a) of the Act, we have determined to grant permission to
appear for the Respondent as it would, in our view, enable the matter to be dealt with more
efficiently taking into account the complexity of this appeal.
[3] For the reasons which follow, we have determined to grant permission to appeal, to
uphold the appeal, and to quash the Decision of Commissioner Cambridge.
Procedural background
[4] On 5 March 2018, the Appellant lodged an application for an unfair dismissal remedy.
The application was deemed to have been filed within the 21 day time limit.3 A conciliation of
the matter was not attempted as the Respondent advised that it did not intend to participate.
1 [2018] FWC 2963.
2 Decision at [12].
3 Decision at [2].
[2018] FWCFB 5811 [Note: a correction has been issued to this document]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5811_pr704677.htm
[2018] FWCFB 5811
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[5] On 20 March 2018, the matter was subject to a pre-hearing conference before
Commissioner Cambridge. In the conference, the Respondent sought to have the matter
summarily dismissed on the basis that the application “represented an abuse of process
involving proceedings whereby the application had no reasonable prospect of success”.4 The
Commissioner “cautioned” the Appellant about the apparent circumstances of the termination
and the Respondent’s jurisdictional objection, namely that in a text message sent by the
Appellant on 15 February 2018 it appeared that he had unambiguously resigned.5
Notwithstanding, the Appellant indicated his intention to continue with the application and
the matter was fixed for a jurisdictional and substantive hearing commencing on 24 May
2018.
[6] On 23 May 2018, the Commissioner’s chambers wrote to the Appellant and advised as
follows:
“… in reviewing the filed documentary material, the Commissioner has been unable to
locate a Witness Statement of the [Appellant], and this is a matter of considerable
concern, particularly as the [Appellant] indicated during the Pre-Hearing Conference
at 10:00 am on Tuesday, 20 March 2018 that he was engaging a lawyer to conduct the
matter on his behalf.
Could you please confirm as a matter of urgency as to whether any Witness Statement
from the [Appellant] has been inadvertently overlooked.”
[7] In response, the Appellant refiled with the Commission a copy of Mr Thiruvasan
Nagan’s witness statement which had already been filed on 14 May 2018.
[8] On 24 May 2018, Mr Burnett sought permission to appear for the Respondent and the
Appellant (appearing on his own behalf) objected to permission being granted. The
Commissioner noted that the Appellant had advised that he would be engaging a lawyer to
represent him in the hearing, but had failed to advise the parties and the Commission that he
could not afford to engage one. On that basis the Commissioner determined that it would be
“unfair to not allow the employer to be represented… taking into account fairness between the
[p]arties”.6 Accordingly, permission to appear was granted for the Respondent pursuant to
s.596(2)(c) of the Act.7
Permission to appeal
[9] 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.8 There is no right to appeal and an appeal may only be
made with the permission of the Commission.
4 Decision at [5].
5 Decision at [6].
6 Decision at [9].
7 Ibid.
8 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 5811
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[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 Fair Work Australia 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] Other than the special case in s.604(2), the grounds for granting permission to appeal,
are not specified. Considerations which have traditionally been adopted in granting “leave to
appeal” and which would therefore usually be treated as justifying the grant of permission to
appeal include that the decision is attended with sufficient doubt to warrant its reconsideration
and that substantial injustice may result if leave is refused.11
[12] For the reasons given below, we have concluded that the Commissioner erred in
summarily dismissing the Appellant’s unfair dismissal application under s.587 of the Act,
without affording the Appellant an opportunity to be heard on his application. It is apparent
that the Commissioner had formed the view that the application was frivolous, vexatious, and
made without any reasonable prospects of success in circumstances where there was a live
fact in issue concerning the Appellant’s alleged resignation. In our view, this constituted an
appealable error and it manifested in injustice. Accordingly, we consider it is in the public
interest for leave to be granted. Permission to appeal is granted.
Consideration
[13] We note that the Decision under appeal is of a discretionary nature and as such it can
only be successfully challenged on appeal if it is shown that the discretion was not exercised
correctly. In that regard, it is not open for us to substitute our view on the matters that fell for
determination before the Commissioner in the absence of error of an appellable nature in the
Commissioner’s Decision. As the High Court said in House v The King:12
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
9 O’Sullivan v Farrer (1989) 168 CLR 210; applied in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192
FCR 78 at [44]-[46].
10 (2010) 197 IR 266 at [24]-[27].
11 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
12 [1936] 55 CLR 499.
[2018] FWCFB 5811
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reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[14] The relevant statutory provision in which the Commissioner summarily dismissed the
Appellant’s application is as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may
dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for
unfair dismissal made under Division 5 of Part 3-2, see section 399A.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[15] In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others,
Barwick CJ observed that the power to summarily dismiss an application ought to be
exercised cautiously and sparingly:
“… great care must be exercised to ensure that under the guise of achieving
expeditious finality a plaintiff is not improperly deprived of his opportunity for the
trial of his case by the appointed tribunal… [a]rgument, perhaps even of an extensive
kind, may be necessary to demonstrate that the case of the plaintiff is so clearly
untenable that it cannot possibly succeed.”13
[16] The Respondent submitted that it was reasonably open for the Commissioner to
summarily dismiss the Appellant’s unfair dismissal application. The Respondent contended
that there was no factual dispute surrounding the circumstances of the Appellant’s resignation
on 15 February 2018 via text message. The Appellant’s own material indicated that he would
be returning to a different position and not the position that he had previously sustained his
workplace injury.14 In any event, the circumstances surrounding the resignation text was not
13 (1964) 112 CLR 125, 129-130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91.
14 Transcript of Proceedings dated 24 May 2018 at PN71-76.
[2018] FWCFB 5811
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at all similar to the circumstances contemplated in Bupa Aged Care Australia Pty Ltd t/a
Bupa Aged Care Mosman v Shahin Tavassoli (Bupa);15 there was no jostling or steps taken
by the employer which forced the employee to resign.
[17] In our view, the Respondent’s submissions do not address the injustice raised by the
Appellant on appeal. The Appellant submitted that the Commissioner did not allow the matter
to proceed and therefore he had been deprived of an opportunity to present his case.16 We
agree with the Appellant in this regard. Contrary to the Respondent’s submission, we are of
the view that there was a live issue of fact as to whether the Appellant had been dismissed
pursuant to s.386(1) of the Act. A conclusive view on this question could not have been
reached without a full substantive hearing. The Commissioner in this case had relied solely on
the materials filed by the parties, and more particularly a resignation text from the Appellant.
As it was noted by the Full Bench in Bupa, the factual circumstances surrounding a
resignation, whether that be express or otherwise, are particularly important in determining
whether a person has been dismissed on the employer's initiative; or if the person has resigned
but was forced to do so because of conduct, or a course of conduct, engaged in by his or her
employer:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a)
where, although the employee has given an ostensible communication of a resignation,
the resignation is not legally effective because it was expressed in the “heat of the
moment” or when the employee was in a state of emotional stress or mental confusion
such that the employee could not reasonably be understood to be conveying a real
intention to resign. Although “jostling” by the employer may contribute to the
resignation being legally ineffective, employer conduct is not a necessary element. In
this situation if the employer simply treats the ostensible resignation as terminating the
employment rather than clarifying or confirming with the employee after a reasonable
time that the employee genuinely intended to resign, this may be characterised as a
termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the
employer will be a dismissal within the second limb of the definition in s.386(1)(b).
The test to be applied here is whether the employer engaged in the conduct with the
intention of bringing the employment to an end or whether termination of the
employment was the probably result of the employer’s conduct such that the employee
had no effective or real choice but to resign. Unlike the situation in (1), the requisite
employer conduct is the essential element.”17
[18] Indeed, the Full Bench in Bupa after having examined the substantive hearing at first
instance determined that the factual question in s.386(1) of the Act could not be properly
determined without a rehearing by another Member of the Commission. This goes as far as to
show that in circumstances where there is no opportunity given to a party to present his or her
case, it would not be reasonably open for the Commission to summarily dismiss a matter
where there is a live issue of fact under s.386(1). To that end, we find that it was not
reasonably open for the Commissioner to have formed the view that the application was made
15 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (2017) 271 IR 245 at [47].
16 Appellant’s outline of submissions filed on 9 July 2018 at [7].
17 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (2017) 271 IR 245 at [47].
[2018] FWCFB 5811
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without “any proper evidentiary basis”, had “no reasonable prospects of success”, and was as
“an abuse of process”18 in summarily dismissing the Appellant’s unfair dismissal application.
[19] We also note that following the High Court’s observations in General Steel, the
opportunity to present and test arguments in a hearing proper is an important function of the
Commission. This is especially the case in circumstances where critical facts in issue have not
been properly resolved, and where such facts in issue go to the determination of whether the
Commission has jurisdiction to deal with an unfair dismissal application. Accordingly, in
circumstances where no such opportunity was afforded to the Appellant before the matter was
summarily dismissed, we consider that the Commissioner fell into error of the kind in House v
King in exercising his discretion under s.587 of the Act.
Conclusion
[20] For these reasons, we consider that it is in the public interest to grant permission to
appeal, and that the appeal should be upheld. We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWC 2963) is quashed.
(4) The Appellant’s application for an unfair dismissal remedy is referred to
Commissioner Simpson for rehearing.
VICE PRESIDENT
Appearances:
Mr L Toma, Appellant, on his own behalf
Mr A Burnett, of counsel, for the Respondent
Hearing details:
2018
Sydney
August 7.
Printed by authority of the Commonwealth Government Printer
PR700424
18 Decision at [12].
OMMISSION CO THE SEAA THE FAIR WORK
