1
Fair Work Act 2009
s.604—Appeal of decision
Inna Grabovsky
v
United Protestant Association NSW Ltd T/A UPA
(C2019/3690)
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MASSON
COMMISSIONER WILSON
MELBOURNE, 20 DECEMBER 2019
Appeal against decision [2019] FWC 3718 of Commissioner Johns at Sydney on 29 May 2019
in matter number C2018/2426 - application pursuant to s.739 made after termination of
employment - permission to appeal refused.
Introduction
[1] Mrs Inna Grabovsky (the Appellant) has applied for permission to appeal and appeals
against a decision of Commissioner Johns issued on 29 May 20191 (Decision), in which the
Commissioner dismissed the Appellant’s application under s.739 of the Fair Work Act 2009
(the Act) and the disputes procedure in clause 43 of the UPA NSWNMA and HSU NSW
Enterprise Agreement 2014-2017 (Agreement).
[2] 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.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission. We have decided to refuse permission to appeal. Our reasons
follow.
Background and Decision
[3] The Appellant commenced employment with the United Protestant Association NSW
Ltd T/A UPA (the Respondent) on 30 March 2004.
[4] On 20 December 2017, the Appellant received a letter of termination, dated 14
December 2017, advising that her employment had been terminated.
1 [2019] FWC 3718.
2 This is so because on appeal FWC has the 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.
[2019] FWCFB 8605
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 8605
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[5] On 9 February 2018, the Appellant made an application pursuant to s.365 of the Act,
alleging a breach of the general protections provisions in the Act involving dismissal. That
application was made out of time and the Appellant’s consequent application for an extension
of time for its filing was heard and determined by Deputy President Gooley.
[6] On 15 March 2018, the Deputy President granted the Appellant an extension of time
and in doing so, determined that the effective date of the Appellant’s dismissal was 20
December 2017.3
[7] On 29 March 2018, the Appellant appealed the Deputy President’s decision,
contending the letter of termination dated 14 December 2017 had no legal effect and that the
Deputy President erred in accepting the letter of dismissal and determining the date of
dismissal was 20 December 2017.
[8] On 21 May 2018, a Full Bench refused permission to appeal4 and, in doing so, stated:
“[10] We do not agree that the Deputy President was in error in determining the date of
dismissal. The Deputy President had before her an application by the Appellant to deal
with a general protections dispute involving dismissal. Whilst it was not subject to any
submissions by the Appellant we concur with the observations of the Deputy President
that the Commission, in receiving an application, must be satisfied as a first step that it
has jurisdiction to deal with the application made. In this case it was a general
protections application that was required to be filed within 21 days of the date of
dismissal. To determine if the application was made within the statutory time period
and, therefore, if there was a period of delay it was necessary of the Deputy President
to determine the date of dismissal. In this respect the Deputy President had regard to
the relevant authorities for guidance on this question. We see no error in her doing so.
[11] In her application to the Commission the Appellant, in response to the question
“On what date were you dismissed?” answered “The Notice of Termination of
Employment is dated 14 December 2017.”
[12] The Deputy President considered the date the letter of termination was received
by the Appellant and determined that the date of dismissal was 20 December 2017.
The application was made to the Commission on 9 February 2018 and therefore was
outside the statutory time limit prescribed in s.366 of the FW Act. She therefore
proceeded to consider if an extension of time within which to make the application
should be granted. We observe no error in a very orthodox approach to a matter that
confronts the Commission on a regular basis.”5
[9] The Commission subsequently received an application from the Appellant made under
s.602 of the Act which sought the correction of “obvious errors” in the Full Bench’s decision
dated 21 May 2018, including its finding regarding the date of dismissal. That application was
dismissed.6
3 [2018] FWC 1549 at [26].
4 [2018] FWCFB 2474.
5 Ibid at [10]-[12].
6 [2018] FWCFB 6928.
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[10] On 8 May 2018, the Appellant made the application under s.739 of the Act and the
disputes procedure in the Agreement referred to in [1] above (the Application).
[11] On 9 May 2018 correspondence was sent from Commissioner Johns’ chambers
conveying a concern he held regarding the Application having regard to the timeline we have
outlined at [4] and [5] above, and it was stated:
“In those circumstances it is not clear to the Commissioner how your wife complied
with all of the necessary preconditions contained in the UPA, NSWMNA and HSU
Enterprise Agreement 2014 - 2017 in advance of lodging the Application -
C2018/2426.
Non-compliance with steps contained in a dispute resolution clause is usually fatal to
an application being made in the Commission.
Consequently, the Commissioner requires a submission from you explaining how he
has jurisdiction to deal with the Application -C2018/2426.”
[12] A reply on behalf of the Appellant was made on 14 May 2018 and based on it, the
Commissioner determined it was necessary to program the Application for a hearing. Due to
the conduct of various other matters instituted in the Commission by the Appellant, the
hearing did not take place until 29 May 2019.
[13] The Commissioner dismissed the Application, delivering reasons in transcript and
issuing an Order7 to that effect. The Commissioner subsequently issued further reasons which
were outlined in the Decision.
[14] After outlining a chronology of events, including the procedural history to which we
have referred at paragraphs [5] – [9] above, the Commissioner sought to address the question
of whether the Appellant’s employment was terminated and, if so, when:
“[13] In Re 4 Yearly Review of Modern Awards – Preliminary Jurisdictional Issues the
Full Bench observed (albeit in another context),
[25] Although the Commission is not bound by principles of stare decisis it has
generally followed previous Full Bench decisions. In another context three
members of the High Court observed in Nguyen v Nguyen:
“When a court of appeal holds itself free to depart from an earlier decision
it should do so cautiously and only when compelled to the conclusion
that the earlier decision is wrong. The occasion upon which the departure
from previous authority is warranted are infrequent and exceptional and
pose no real threat to the doctrine of precedent and the predictability of
the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per
Aickin J at 620 et seq.”
[26] While the Commission is not a court, the public interest considerations
underlying these observations have been applied with similar, if not equal,
7 PR708822.
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force to appeal proceedings in the Commission. As a Full Bench of the
Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd
(T/as Parkview Hotel) (Cetin):
“Although the Commission is not, as a non-judicial body, bound by
principles of stare decisis, as a matter of policy and sound administration
it has generally followed previous Full Bench decisions relating to the
issue to be determined, in the absence of cogent reasons for not doing
so.”"
[14] These policy considerations tell strongly against the proposition that a single
member of the Commission, especially a non-Presidential member like me, should
proceed in isolation unencumbered by previous Commission decisions.
[15] The issues of termination and the date of termination have been before the
Commission at least since the commencement of matter C2018/685 on 9 February
2018. The fact of the termination of employment having occurred on 20 December
2017 was decided by Deputy President Gooley on 15 March 2018. That decision
remained undisturbed by the Full Bench. Consequently, I follow those decisions. In
any case, had I been required to determine whether there was a termination of Mrs
Grabovsky’s employment and the date of the termination of her employment, I would
have decided that it occurred on 20 December 2017 for the same reasons that Deputy
President Gooley so decided.
[16] I also observe that Mrs Grabovsky’s application in C2018/685 is inconsistent with
an assertion that there has not been a termination of her employment. The application
was made under s.365 of the FW Act. Such an application can only be made if there
has been an alleged breach of the general protections provisions involving a dismissal.
At paragraph 1.1 of the application in answer to the question “On what date were you
dismissed” Mrs Grabovsky wrote “The Notice of Termination is dated 14 December
2017”.
[17] On 30 April 2019 I issued a certificate under section s.368(3) of the FW Act in
relation to the general protections claim involving dismissal (C2018/685).
Consequently, Mrs Grabovsky is now at liberty to pursue her general protections claim
in the Federal Circuit Court or Federal Court of Australia. Mrs Grabovsky may be
successful in that claim. Further, she may be reinstated into her employment. I express
no views about the likelihood of those outcomes, but I do observe that nothing in the
action being taken by Mrs Grabovsky to challenge the termination of her employment
alters the fact that her employment was terminated.”8 (references omitted)
[15] While he overstated the time that had elapsed from the date upon which he considered
the termination of the Appellant’s employment had occurred to the date upon which she made
the Application,9 the Commissioner then outlined his conclusion that the termination of the
Appellant’s employment occurred prior to the Application being made.10
[16] The Commissioner then turned to the subject matter of the dispute:
8 [2019] FWC 3718 at [13]-[17].
9 Describing it as 1 year, 4 months and 18 Days, when it was 4 months and 18 days.
10 [2019] FWC 3718 at [18].
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“[19] The dispute in the present matter is said to be made under the 2014 Agreement.
[20] In the Form F10 Notification of Dispute, the dispute in the present matter is said
to be about:
‘1. The Applicant disputes the fact of Termination of Employment.
2. The Applicant disputes the Respondent’s compliance with the National
Employment Standards. And
3. The Applicant disputes the accuracy of calculation and scope of her
entitlements and the fact of payment of some of her entitlements.’
[21] By way of relief Mrs Grabovsky asks that the Commission to make an interim
order to preserve her employment. That prayer for relief is incompetent. There is no
employment to be preserved. If Mrs Grabovsky wants to be reinstated into her
employment then she has a certificate from me enabling her to pursue her s.365
application in a court of competent jurisdiction.”11
[17] The Commissioner set out the Grievance and Dispute Resolution Procedures clause
from the Agreement and set out the submissions made by the parties, outlining his
consideration of the matter before him:
“[36] An aspect of the application brought by Mrs Grabovsky was to the effect that the
dispute resolution clause in the 2014 Agreement was invalid. That contention has been
heard and determined against Mrs Grabovsky on at least two occasions. I follow those
decisions and agree with them.
[37] The language used in clause 43 of the 2014 Agreement enables the matter to be
disposed of promptly. It refers to:
a) the terms “party” or “parties” and then go goes on to define them as meaning
“the employer and/or the employees”.
b) “matters arising in the employment relationship, except matters relating to
the actual termination of employment of an employee”,
c) further references to “an employer or employee”, and
d) attempts being made to resolve “the matter at the workplace level, including,
but not limited to the employee and his or her supervisor discussing the
matter”.
[38] That is to say the whole scheme of dispute resolution under the 2014 Agreement
contemplates that there is an employment relationship in existence at the time that the
dispute arises. That is not the case in the present matter.
[39] The employment of Mrs Grabovsky ended on 20 December 2017. At that point in
time she ceased to be an employee. It makes no sense to suggest that she did or could
have raised with her employer the termination of her employment and the payments
made to her on termination during the employment relationship. Her disputes about
11 Ibid at [19]-[21].
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those matters only arose once the termination had been effected. By then her
employment had already ended.
[40] This means she did not and could not have complied with the requirements of
clause 43.4 in discussing those matters with her supervisor. That is a precondition to
making an application to the Commission.
[41] By the time that application was made to the Commission Mrs Grabovsky had
ceased to be an employee 1 year, 4 months and 18 days earlier.
[42] Of course, it is well established that former employees can enliven the jurisdiction
of the Commission in circumstances where they had commenced the dispute
resolution process in advance of the cessation of their employment. In ING
Administration Pty Ltd v Jajoo the Full Bench majority traversed the various single
member decisions concerning former employees and noted that it was effectively the
first Full Bench to consider the particular question in the context of the then legislative
scheme under the Workplace Relations Act 1996 (Cth). The majority concluded,
[38] We accept that a single person dispute which arises for the first time after
the termination of employment is not a dispute between an employer and an
employee. Whether, many disputes will arise my employment exists and
continue after the termination of employment. In such a case, when the dispute
arises it is a dispute between an employee and an employer. If the dispute has
progressed to the point of seeking the assistance of the Commission, the ING
interpretation would require the employee to remain in employment. If it was
intended to incorporate a limitation in s.170LW of the nature contended for by
ING, we would expect there to be a clear express reference to that effect.”
[43] The Full Bench majority rejected that contention. Mr Jajoo was permitted to
continue before the Commission because he had enlivened the dispute resolution
process prior to the termination of employment.
[44] However that is not the case in the present circumstances. Mrs Grabovsky’s
dispute clearly falls within the category “a single person dispute which arises for the
first time after the termination of employment”. Consequently it follows that it is not a
dispute between an employer and an employee.
[45] In Shields & Sprigg v Alfred Hospital Senior Deputy President Kaufman, in
deciding a matter under the FW Act, held that the decision in ING was apposite. In
that matter the dispute between the applicants and the respondent did not arise, or at
least was not agitated, until after their employment with Alfred Health had come to an
end. It necessarily followed that Fair Work Australia (as the tribunal was then called)
lacked jurisdiction to deal with the matter. For this same reason, the Commission lacks
jurisdiction to deal with Mrs Grabovsky’s application. The dispute about her
termination of employment and entitlements paid on termination arose only after the
fact of termination (i.e. after she ceased to be an employee).
[46] In any case, the dispute resolution clause carved out matters “relating to the actual
termination of employment of an employee”. An employee’s remedy in respect of the
same lies in commencing either an unfair dismissal case (which Mrs Grabovsky has
[2019] FWCFB 8605
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not done) or a case alleging a breach of the general protections provisions involving
dismissal (an application which was made by Mrs Grabovsky, and in respect of which
I have given her a certificate to continue with in a court of competent jurisdiction).”12
(references omitted)
[18] The Commissioner was satisfied the Commission was not invested with jurisdiction to
deal with the Application, upheld the jurisdictional objections of the Respondent and
dismissed the Application.
The grounds of appeal
[19] In the notice of appeal, the Appellant outlined nine grounds for appeal:
“(1) The Commission acted upon wrong principles and in breach of principles;
(2) The Commission had been guided by irrelevant factors;
(3) The Commission’s decision renders ineffective provisions of the statute;
(4) In arriving to its decision, the Commission was acting outside its jurisdiction;
(5) The Commission did arrive to its decision in error of facts and in error of
determination.
(6) The Commission denied natural justice to the Applicant.
(7) The Commission arrived to its decision in deliberate error of facts in error of law
and in error of determination perverting the course of justice;
(8) The application of the Commission’s decision will result in a person committing an
offence against the law of the Commonwealth – decision endorses serious crimes;
(9) The Commission arrived to its decision in deliberate error of facts in error of law
and in error of determination with intention to harm the Appellant and her Family;
(10) Commissioner Johns discriminated and acted with hatred towards the the [sic]
Representative of the Applicant as a result of Commissioner Johns homophobic
problems associated with his sexual believes [sic];
(11) Commissioner Johns has conflict of interest in dealing with this dispute and acted
corruptly.”
[20] The Appellant contended in her notice of appeal that the grant of permission to appeal
was in the public interest because the grounds of appeal “are addressing the systematic misuse
of law and miscarriage of justice by Fair Work Commission that is detrimental to entire
workforce in Australia and it is in public interest for the FWC to allow an appeal and deal
12 Ibid at [36]-[46].
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with the grounds advanced by the Appellant to bring conduct of the FWC Members in
compliance with the Commonwealth law.”
Directions
[21] Directions made on 19 June 2019 required the Appellant to file and serve submissions
by 5.00pm on 12 July 2019. Submissions dated 12 July 2019 were filed.
[22] The Respondent was required to file and serve submissions by 5.00pm on 26 June
2019. Submissions dated 25 July 2019 were filed.
[23] The Appellant had the opportunity to file submissions in reply by 5.00pm on 9 August
2019. Submissions dated 8 August 2019 were filed.
[24] The Directions indicated that upon receipt of this material we would then determine
whether a hearing would be required and would seek the parties’ views. On 25 October 2019,
a letter was sent to both parties seeking their advice as to whether they consented to the appeal
being determined on the basis of the submissions filed, without a hearing.
[25] On 5 November 2019, we were advised in writing that the Appellant did not consent to
the appeal being determined without a hearing. Accordingly, on 8 November 2019, the appeal
was listed for hearing on 25 November 2019.
Application pursuant to s.596 of the Act
[26] On 11 November 2019, the General Manager of the Respondent advised that he would
be abroad on pre-arranged leave at the time of the hearing and he foreshadowed an application
for permission for the Respondent to be represented by a lawyer would be made. The
Respondent was therefore directed to file submissions as to why it should be granted
permission by 1.00pm on 14 November 2019. Submissions dated 13 November 2019 were
filed.
[27] The Appellant was directed to file any submissions in response by 1.00pm on 20
November 2019. She did not do so.
[28] Also on 11 November 2019, the parties were advised that we would endeavour to
advise them our determination in relation to the Respondent’s application for permission to be
represented by a lawyer by 2.00pm on Friday 22 November 2019, and that the hearing
remained listed for 2.00pm on 25 November 2019. As things transpired, we did not determine
the Respondent’s application for permission to be represented by a lawyer prior to the
hearing.
Respondent’s Submissions on the question of permission to be legally represented
[29] Addressing firstly the considerations outlined in s.596(2)(a) of the Act, the
Respondent submitted:
1) the appeal contains complex, technical issues of law, including jurisdictional
matters relating to the appellate jurisdiction of the Commission;
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2) the Respondent’s capacity to articulate its arguments in relation to these
proceedings will be more effectively promoted by its legal representative;
3) the Commission has afforded the Respondent permission to have its legal
representative and/or paid agent appear in the proceedings before the
Commissioner which have given rise to the appeal; and
4) the grant of permission to appear to the Respondent’s legal representative will
ensure the proceedings are conducted more efficiently.
[30] In relation to s.596(2)(b), it was submitted the Respondent employs no person with
legal qualifications or any experience in industrial relations advocacy and as such, it will not
be in a position to represent itself effectively in these proceedings without external
representation.
[31] Finally, in relation to s.596(2)(c), it was submitted that the Appellant is represented by
her husband, who has represented her in all previous proceedings between the parties and has
a demonstrated capacity to effectively represent her. Accordingly, it would be unfair for the
Respondent to be denied the right to be legally represented.
[32] The Respondent submits that the considerations of s596(2) were therefore satisfied
and that in the circumstances, we should exercise our discretion to grant permission for the
Respondent to be represented by a lawyer.
Appellant’s Submissions on the question of permission to be legally represented
[33] As outlined, the Appellant did not comply with the direction to file submissions in
response. No explanation for this was given. At the hearing, we asked the Appellant’s
husband whether the Appellant wished to make any oral submissions in response to the
Respondent’s application for permission to be represented by a lawyer. When the Appellant’s
husband proceeded to do so, he did so by reciting the contents of a document dated 25
November 2019 submitted to the Commission on the day of the hearing and bearing the title
“Protest against unlawful conduct of Fair Work Commission as currently constituted for
matter C2019/3690.” This document traverses issues the Appellant’s husband has taken with
decisions13 in two previous appeal matters before us. The document also discloses that two
separate appeals against each Member of this Full Bench have been filed in the Commission
in relation to both of these two previous decisions (six appeals in total). The Appellant
submits this fact creates a conflict of interest for each of us. The application that has been
made by the Appellant’s husband for an order to stop bullying14 naming each of us, amongst
other Members of the Commission, was also raised.
[34] The essence of the Appellant’s submission was that permission should not be granted
because the hearing itself must be adjourned, and this appeal be allocated to another Full
Bench of the Commission.
[35] The Appellant also maintains the complaint that the Respondent may not stand as a
Respondent in this proceeding because in requesting the Commission to recognise it in this
13 [2019] FWCFB 7296 and [2019] FWCFB 7311.
14 AB2019/601.
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proceeding, the Respondent is requesting the Commission to violate a law of the
Commonwealth.
Determination regarding the standing of the Respondent and the Application pursuant
to s.596 of the Act
[36] At the conclusion of the Appellant’s oral submissions, we conferred and then advised
the parties that we did not accept the Appellant’s contention that the Respondent may not
stand as a Respondent in this proceeding. We determined this contention was without merit
because the Respondent’s substantive rights are wholly affected by the Decision and, to the
extent the Decision is being impugned by this appeal, it would be affected by a change to its
effect. We determined procedural fairness required that the Respondent be given the
opportunity to make submissions in this proceeding.
[37] In relation to the Respondent’s application pursuant to s.596 of the Act, we advised the
parties that we were satisfied, having regard to the notice of appeal, the material in the written
submissions and the oral submissions of the Appellant, that the matter was invested with
sufficient complexity such that we would be assisted in the efficient conduct of the matter if
we allowed the Respondent to be represented by Mr McIntosh, and that we had determined
we should exercise our discretion to grant permission for the Respondent to be legally
represented pursuant to s.596(2)(a) of the Act.
Appellant’s application that we recuse ourselves and vacate the Hearing on 25
November 2019
[38] At Part VIII of the Appellant’s written Submissions in Reply dated 8 August 2019, it
was requested that we recuse ourselves on the ground that we are conspiring with the
Respondent to pervert the course of justice in an attempt to conceal serious offences due to
our failure to uphold the law. It was stated that if we discharged ourselves from dealing with
the appeal before 20 August 2019, no further legal action would be taken against us by the
Appellant.
[39] In a further document dated 5 November 2019, the Appellant again submitted that we
should recuse ourselves on the basis of a conflict of interest because we have made two
previous decisions15 that are “fraudulent official instruments issued for a purpose to pervert
the course of justice” in a continuous attempt to conceal serious offences committed by the
Respondent and Members of the Commission. It was also submitted that we have committed
a serious offence in issuing our two previous decisions.
[40] The Appellant further asserted that until the application made by her husband for an
order to stop bullying16 that names each of us, amongst other Commission Members, is
finalised, we cannot participate in this appeal.
[41] On 13 November 2019 the Appellant’s husband made a request to the President of the
Commission requiring that the hearing on 25 November 2019 be vacated and that, pursuant to
s.640 of the Act, the President give us a direction that we no longer deal with the appeal. No
such direction has been made by the President.
15 [2019] FWCFB 7296 and [2019] FWCFB 7311.
16 AB2019/601.
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[42] In another document submitted to the Commission on 21 November 2019 by the
Appellant’s husband, there was a further request that the hearing before us on 25 November
2019 be vacated and that there be a reconstituted Full Bench to deal with this appeal.
[43] Finally, as outlined above at [33], there was a document submitted to the Commission
on the day of the hearing dated 25 November 2019 and bearing the title “Protest against
unlawful conduct of Fair Work Commission as currently constituted for matter C2019/3690”
and the Appellant’s husband made oral submissions based on its contents, to which we had
regard.
[44] Having had the opportunity prior to the hearing to consider all this material the
Appellant has filed, and having conferred following the oral submissions of the Appellant’s
husband, we dealt with the submissions the Appellant had made that we recuse ourselves,
notwithstanding her husband’s denial on 25 November 2019 that such application had been
made.
[45] We outlined that in Construction, Forestry, Maritime, Mining and Energy Union,17 the
Full Bench of the Commission had distilled the principles applicable to an application for
recusal based upon a reasonable apprehension of bias from the High Court authority of Ebner
v Official Trustee in Bankruptcy (Ebner),18 as follows:
a) the governing principle is that a decision-maker is disqualified if a fair-minded
lay observer might reasonably apprehend that the decision-maker might not
bring an impartial mind to the resolution of the question the decision-maker is
required to decide;19
b) deciding whether a decision-maker might not bring an impartial mind to the
resolution of a question that had not yet been determined is a question of
possibility (real and not remote), not one of probability or prediction;20
c) the application of the apprehension of bias principle requires two steps: (1)
identification of what it is said might lead the decision-maker to decide a case
other than on its legal and factual merits; and (2) an articulation of the logical
connection between the matter and the feared deviation from the course of
deciding the case on its merits;21
d) only once these two steps are undertaken can the reasonableness of the asserted
apprehension of bias be assessed;22 and
e) it is not possible to state in a categorical form the circumstances in which a
decision-maker may properly decline to sit, since relevant circumstances will
vary.23
17 [2019] FWCFB 214 at [12].
18 (2000) 205 CLR 337.
19 Ibid at [6].
20 Ibid at [7].
21 Ibid at [8].
22 Ibid at [8].
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[46] We then proceeded to apply the Ebner two-step approach, noting there was a range of
allegations that have been made about our conduct which are firstly relied upon by the
Appellant and/or her husband as matters which might lead a fair-minded, lay observer to
reasonably apprehend that we might not bring an impartial mind to the resolution of the
questions we are required to determine in this appeal.
[47] In relation to the second Ebner step, although it was not put forward in this way, we
indicated that we had discerned the Appellant’s contention to be that the necessary “logical
connection” is that because of these matters, the fair-minded lay observer would reasonably
apprehend that we could not bring an impartial mind to the questions we are required to
determine in this appeal.
[48] Outlining that we had had regard to the material and submissions before us, we
advised that we considered the allegation that we have conspired, or are conspiring, with the
Respondent to pervert the course of justice in an attempt to conceal serious offences to be
baseless. As to the other complaints of the Appellant and/or her husband, we expressed the
view that these are based on dissatisfaction with our previous decisions relating to two other
appeals24 the Appellant has brought in the Commission.
[49] We stated that the fact that we have previously made decisions adverse to the
Appellant is not determinative, relying on Kirby v Centro Properties Limited (no.2)25 and
what was outlined by Justice Mason (as he then was) in Re J.R.L.; Ex parte C.J.L.:
“It needs to be said loudly and clearly that the ground of disqualification is a reasonable
apprehension that the judicial officer will not decide the case impartially or without
prejudice, rather than that he will decide the case adversely to one party. There may be
many situations in which previous decisions of a judicial officer on issues of fact and
law may generate an expectation that he is likely to decide issues in a particular case
adversely to one of the parties. But this does not mean either that he will approach the
issues in that case otherwise than with an impartial and unprejudiced mind in the sense
in which that expression is used in the authorities or that his previous decisions provide
an acceptable basis for inferring that there is a reasonable apprehension that he will
approach the issues in this way.”26
[50] We informed the parties that we did not consider that the “logical connection” sought
to be drawn by the Appellant and her husband between the matters outlined in her written
material and the oral submissions of her husband and the matters to be determined in the
resolution of the questions we are required to determine in this appeal, is sustainable.
[51] We stated that we did not accept there was a basis for concluding that a fair-minded,
lay observer might reasonably apprehend that we might not bring an impartial mind to the
resolution of the questions we are required to determine in this appeal. We stated that the
Appellant has failed to persuade us that we should recuse ourselves.
23 Ibid at [21]; see also Livesey v NSW Bar Association [1983] HCA 17, 151 CLR 288 at 299: “…each case must be
determined by reference to its particular circumstances”.
24 [2019] FWCFB 7296 and [2019] FWCFB 7311.
25 (2011) 202 FCR 439 at 442.
26 (1986) 161 CLR 342 at 352.
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[52] We also determined that there was no basis to vacate the 25 November 2019 hearing
because the Appellant’s husband has made the application for an order to stop bullying that
names each of us, amongst others. That application is the Appellant’s husband’s matter and
does not prevent the Appellant proceeding with her appeal before us.
[53] Noting the Appellant’s husband is not a party to this appeal and that he is neither a
lawyer nor paid agent to whom s.596 of the Act applies, we observed that the Appellant has
not sought that her husband be recognised as a “McKenzie friend”. The role of a McKenzie
friend was described in a decision of the Family Court (Lindenmayer J) in Watson &
Watson27 as follows:
“2. ... The case of McKenzie v McKenzie [1970] 3 All E.R. 1034 was to the effect that a
litigant who appears before a Court in person is ordinarily entitled, if he or she so
wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside
the litigant at the bar table for the purpose of taking notes, handling or cataloguing
documents or exhibits, making quiet suggestions to the litigant as to how best to
conduct the case, and generally being of assistance to the litigant in presenting his or
her case to the Court, provided that that person does not disrupt the proper conduct of
the proceedings. However, an important limitation upon the role and functions of a
‘McKenzie friend’ is that he or she may not (except, perhaps, in the most exceptional
cases, and with the express leave of the Court) act as an advocate for the litigant in the
proceedings. Collier v Hicks (1831) 2 B and ad. 663 at 669 [1831] EngR 686; 109 E.R.
1290at 1292, and KT v KJ & TH [2000] FamCA 831; (2000) FLC 93-032 at 87,509
cited.”
[54] We indicated that we have received no advice from the Appellant that she wishes to be
assisted by her husband in the way contemplated for a McKenzie friend, and noted that the
Appellant’s husband has simply presumed he has had the right to act as her advocate in this
appeal and other proceedings before the Commission.
[55] We noted that Parliament’s desire for informality and for parties to appear on their
own behalf, without representation by lawyers or paid agents, has been said to emerge from
the terms of both s.596 of the Act and the Explanatory Memorandum to the Fair Work Bill
2008,28 with the latter relevantly stating as follows:
“2291. FWA is intended to operate efficiently and informally and, where appropriate, in
a non-adversarial manner. Persons dealing with FWA would generally represent
themselves…
…
2296. In granting permission, FWA would have regard to considerations of efficiency
and fairness rather than merely the convenience and preference of the parties.”
27 [2001] FamCA 1470.
28 per Warrell v Walton [2013] FCA 291 at [24] and [25].
[2019] FWCFB 8605
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[56] We also noted that in the context of this matter, the particular powers of the
Commission, which are set out in s.577(a) of the Act, require the Commission to perform its
functions and exercise its powers in a manner that is fair and just.
[57] We acknowledged the Appellant’s husband claims to be her Attorney, however there
is nothing filed before us in this proceeding that establishes this. Nor is there material
suggesting he is the Appellant’s Litigation Guardian. We stated that while neither of these
factors afforded him the right to represent the Appellant in this proceeding, we were
nevertheless prepared to allow the Appellant the option of having her husband make oral
submissions in support of her written submissions. We also made the point that whether this
opportunity is ultimately taken up by the Appellant is a matter for her and indeed, whether the
Appellant’s husband himself elects to take up this opportunity is a matter for him.
[58] We advised the parties that we relied on the principles outlined in Edghill v Kellow-
Falkiner Motors Pty Ltd29(Kellow-Falkiner) in this regard, and we referred to:
a) The procedure of the Commission is, subject to the Act and the Fair Work
Commission Rules 2013, within the discretion of the Commission;
b) We indicated members of the Commission are bound to act in a judicial
manner, that the principles of natural justice are applicable to hearings before
the Commission, and that the term "natural justice" in the context of
administrative decision making has been essentially equated to an obligation to
act fairly or to accord procedural fairness; and
c) We referred to Mobil Oil Australia Pty Ltd v The Commissioner of Taxation,30
in which Justice Kitto stated:
“What the law requires in the discharge of a quasi-judicial function is
judicial fairness. This is not a label for any fixed body of rules. What is
fair in a given situation depends upon the circumstances.”31
[59] We advised the parties that we were intent on ensuring that the Appellant has the
opportunity to present her case. We outlined to the Appellant’s husband that it is a matter for
the Appellant as to whether or not she takes best advantage of the opportunity presented,
indicating this was held by Justice Dean (as he then was) in Sullivan v Department of
Transport:32
“... it is important to remember that the relevant duty of the Tribunal is to ensure that a
party is given a reasonable opportunity to present his case. Neither the Act nor the
common law imposes upon the Tribunal the impossible task of ensuring that a party
takes the best advantage of the opportunity to which he is entitled.”33
29 [2000] AIRC 785, Print S2639.
30 (1963) 113 CLR 475.
31 Ibid at 504.
32 (1978) 20 ALR 323.
33 Ibid at 343.
[2019] FWCFB 8605
15
[60] We stated we would therefore proceed to determine this appeal on the basis of any oral
argument the parties elected to make, in addition to the written submissions they had
previously filed.
Appellant’s Written Submissions
[61] As has previously been the case with two other recent appeal matters34 we have
considered and determined, the Appellant’s written submissions canvassed a broad range of
matters which largely engaged with issues lying beyond the subject matter of the Decision
itself and the appeal against it.
[62] The written submissions dated 12 July 2019 lay a series of complaints about Deputy
President Gooley’s disposition of matter C2018/685 in March 201835 and challenges the
subsequent endorsement of the Deputy President’s decision by the Full Bench,36 and by the
Commissioner in determining the Application. In making these submissions the Appellant
again asserts that she remains an employee of the Respondent and submits appeal grounds 1,
3 and 4 arise from the Commissioner’s recognition of the Respondent’s “attempt” to
terminate her employment in breach of mandatory statutory requirements as a legitimate
termination of employment. The Appellant submits that in combination, these three appeal
grounds and the denial of natural justice (appeal ground 6) raise the requisite public interest
for the granting of permission to appeal. She further describes the Decision as a fraudulent
instrument.
[63] In terms of appeal ground 6, the Appellant submits the Commissioner:
denied her natural justice to avoid the obvious display of his corrupt conduct without
addressing the substantive issues;
forcefully prevented her from presenting her case;
did not listen to her submissions;
did not allow her husband to speak;
predetermined the outcome.
[64] The appellant’s written submissions dated 8 August 2019 do not engage with the
Decision. They largely seek to again agitate against the aforementioned decision of Deputy
President Gooley and the appeal decisions emanating from it. They also seek to agitate against
other decisions from matters instituted by the Appellant that have previously been heard and
determined by the Commission.
Respondent’s Written Submissions
[65] On the question of permission to appeal, the Respondent submits the notice of appeal
discloses no error, let alone arguable error, in the Decision or the impugned order.
[66] The Respondent submits the Decision involves the regular exercise of the jurisdiction
impliedly conferred on the Commission to determine if it possesses jurisdiction to determine
an application to it and the powers conferred on it by s.587 of the Act. Further, the
34 Matters C2019/3321 and C2019/3120.
35 [2018] FWC 1549.
36 [2018] FWCFB 2474 and [2018] FWCFB 6928.
[2019] FWCFB 8605
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Respondent submitted the Commissioner applied the correct legal principles relevant to the
exercise of power to dismiss the Application.
[67] As to appeal grounds 1,2,3,4,5, 7 and 11, the Respondent’s submissions are essentially
that the Appellant has failed to make good the allegations contained therein.
[68] As to appeal ground 6, the Respondent submits there is no merit in the allegation of a
lack of procedural fairness and likewise, submits appeal grounds 8, 9 and 10 have no
foundation.
[69] In terms of public interest considerations, the Respondent submits:
there is no issue of principle or statutory construction;
there is no issue of general importance, general application or involving a diversity
of decisions at first instance and the Decision is not counter-intuitive, nor does it
manifest an injustice;
there is no error.
Submissions made at the Hearing on 25 November 2019
[70] We gave the Appellant’s husband three invitations during the hearing to make any oral
submissions in support of the Appellant’s written submissions in relation to the substance of
the appeal.
[71] On the first occasion, the Appellant’s husband stated:
“Clancy DP, Masson DP, Wilson C, you have to understand, and I repeat it once
again: I do not recognise your authority. I do not recognise your jurisdiction to decide
on this matter, therefore no submissions will be made, no questions answered in
relation to this matter because you are not fit to sit on that Bench, full stop.”37
[72] On the second occasion, the Appellant’s husband elected to respond by addressing the
rulings we had made which are outlined above at [36] – [60].
[73] On the third occasion, the Appellant’s husband responded in the following manner:
“DEPUTY PRESIDENT CLANCY: Thank you. Mr Grabovsky, is there any final
comments you wish to make?
MR GRABOVSKY: Deputy President, I – no, I really don't. Just one request,
demand for proceedings to be adjourned, not the decision reserved, adjourned because
it will added to that long list of transgressions committed by the members of Fair
Work Commission which is not helpful. And I will not continue further, as I said,
because it will be repetition, and I am not at liberty to divulge or elaborate on the
information which is relevant, but at this point in time is consideration to other agency
or by other members of the Fair Work Commission which decide to actually restore
37 Transcript dated 25 November 2019 at PN 57 and Audio Recording dated 25 November at 2.47.27pm – 2.47.55pm.
[2019] FWCFB 8605
17
law and order into the Fair Work Commission. And I'm doing this and actually, I
apply to your sense of your brotherhood between the members of the Fair Work
Commission. Don't make the job of Mr Peter Anderson harder than it is now. And for
the Crown solicitors to assist him, if they’re game, because further events which
constitute offences will only make the matter worse. Please adjourn the meeting,
adjourn the hearing, and the rest will be dealed with the proper course, the proper
channels of communications and regulations. Thank you, very much.
…
The hearing must be adjourned but not decision reserved, because the reason why I'm
not addressing the substantive matters of appeal, didn't explain at length during this
proceeding, but I do have a lot of evidence in support of submissions but it would be
hypocritical of me to talk for nearly two hours to make that submissions that you are
not fit to hear and decide it. And then after two hours, finally submit – make those
submissions. It is a lengthy submission. In the proper constituted Fair Work
Commission I will need approximately one hour approximately, two and a half hours
to call the witness and to question them.”38
[74] The Respondent repeated and relied on its written submissions.
Consideration
[75] The Commission’s powers on appeal are only exercisable if there is error on the part
of the primary decision maker.39 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”. The task of
assessing whether the public interest test is met is a discretionary one involving a broad value
judgment.40 The public interest is not satisfied simply by the identification of error,41 or a
preference for a different result.42
[76] Permission to appeal may otherwise be granted on discretionary grounds. These are
not specified however considerations that have traditionally been 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.43 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
38 Ibid at PN 141-142 and Audio Recording dated 25 November at 3.50.30pm – 3.52.33pm and PN 146 and Audio Recording
dated 25 November at 3.53.37pm – 3.54.34pm.
39 Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
40 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].
41 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
42 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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;
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
43 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
[2019] FWCFB 8605
18
error.44 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.45
[77] Grounds 1, 3 and 4 of the notice of appeal contain bald assertions that the
Commissioner acted upon wrong principles and in breach of principles, rendered ineffective
provisions of the statute, and acted outside jurisdiction. We reject these grounds. As we
outline below, we consider the Commissioner dealt with the jurisdictional objections in a
manner consistent with the Act and further, he did not proceed on a wrong principle or act
outside jurisdiction.
[78] Grounds 2, 5,7 and 9 of the notice of appeal state the Commissioner “was guided by
irrelevant factors” and arrived at his decision:
a) “in deliberate error of facts and in error of determination”;
b) “in deliberate error of facts in error of law and in error of determination
perverting the course of justice”; and
c) “in deliberate error of facts in error of law and in error of determination with
intention to harm the Appellant and her Family.”
[79] We reject these grounds. The essence of the complaint under these grounds of appeal
appears to be that by not having revisited the Appellant’s assertion that non-compliance by
the Respondent with s.117 of the Act resulted in the termination of her employment not
constituting a legitimate act of dismissal, the Commissioner proceeded on an erroneous basis
when he applied himself to the task that he was required to undertake pursuant to s.739 of the
Act.
[80] While the Appellant may have wanted the Commissioner to revisit this assertion, the
Commissioner was not required to. It was open to the Commissioner to follow the decisions
of Deputy President Gooley and the Full Bench in the manner that he did. The Full Bench had
decided an orthodox approach had been adopted by the Deputy President in determining that
the date of the Appellant’s dismissal was 20 December 2017 and that it was not infected with
error.46 Further, it did not consider the Deputy President’s reliance on Metropolitan Fire and
Emergency Services Board v Duggan47was an error of law.48
[81] The Act does not provide for appeal of a decision of a Full Bench of the Commission.
Instead, a person aggrieved by a decision of a Full Bench may seek judicial review of the
decision in the Federal Court of Australia. Therefore, the proper course for the Appellant, if
she was aggrieved by the Full Bench decisions affirming the decision of Deputy President
Gooley, was to apply for judicial review of them. She has not to date done so.
[82] It is well established that while the Commission is not bound by principles of stare
decisis, it has generally followed previous Full Bench decisions. This has previously been
44 Wan v AIRC (2001) 116 FCR 481 at [30].
45 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at
[28], 202 IR 288, 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, 241 IR 177 at [28].
46 [2018] FWCFB 2474 at [12].
47 [2017] FWCFB 4878.
48 [2018] FWCFB 2474 at [15].
[2019] FWCFB 8605
19
made known to the Appellant in a previous decision of a Full Bench of the Commission in
which it was stated:
“[26] Although the Commission is not bound by principles of stare decisis it has
generally followed previous Full Bench decisions. In another context three members of
the High Court observed in Nguyen v Nguyen:
‘When a court of appeal holds itself free to depart from an earlier decision it
should do so cautiously and only when compelled to the conclusion that the
earlier decision is wrong. The occasion upon which the departure from
previous authority is warranted are infrequent and exceptional and pose no real
threat to the doctrine of precedent and the predictability of the law: see
Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et
seq.’
[27] The public interest considerations underlying these observations have been
applied with similar, if not equal, force to appeal proceedings in the Commission.” 49
(references omitted)
[83] Further, it was also open to the Commissioner himself to make the finding that the
Appellant’s employment was terminated on 20 December 2017. 50
[84] The consequence was that the Commissioner proceeded on the basis that by the time
the Application was made, the Appellant had ceased to be an employee of the Respondent. It
was open to him to do so. The Commissioner then had regard to this circumstance in
determining the Respondent’s jurisdictional objections. We have reviewed the Decision. It is
apparent that the Commissioner correctly proceeded on the basis that the dispute resolution
clause in the Agreement was valid, and considered the relevant language of that clause against
the 20 December 2017 termination date and the timing of the filing of the Application. The
Commissioner then outlined the basis for his conclusion that the Commission lacked
jurisdiction to deal with the Application. The conclusion the Commissioner reached was open
to him.
[85] Ground 8 of the notice of appeal asserts the application of the Decision will result “in
a person committing an offence against the law of the Commonwealth” and that the “decision
endorses serious crimes.” This ground does not purport to identify error. Regardless, it
comprises claims that are without basis.
[86] Ground 10 alleges the Commissioner discriminated and acted with hatred towards the
Appellant’s husband due to his homophobic problems associated with his sexual preferences.
This ground is vile and disgraceful. It is utterly devoid of merit and we do not propose to
engage with it further other than to observe that the behaviour of the Appellant’s husband
towards the Commissioner during the Telephone Mention on 21 May 2019 and the hearing on
29 May 2019 was completely disrespectful and contemptuous.
49 Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2018] FWCFB 4362 at [26] and [27].
50 Exhibit 5 in matter C2018/2426.
[2019] FWCFB 8605
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[87] Ground 11 alleges the Commissioner has a conflict of interest in dealing with this
dispute and acted corruptly. This ground comprises accusations that are made without basis or
merit. We do not propose to further engage with it.
[88] Ground 6 alleges the Commissioner denied the Appellant natural justice. As to this,
we note:
a) Having been allocated the Application (filed on 8 May 2018), the Commissioner
wrote to the Appellant's husband on 9 May 2018 raising that it was unclear to him
how the Appellant had complied with all the necessary steps contained in the
Agreement and pointing out that non-compliance with steps contained in a dispute
resolution clause was usually fatal to an application being made to the
Commission.
b) On the basis of a reply from the Appellant’s husband dated 14 May 2018, the
Commissioner deemed it necessary to program the Application for hearing.
c) The hearing of the matter was delayed but by way of directions issued on 1 May
2019, both parties were required to file any submissions, witness statements and
documents upon which they intended to rely ahead of a hearing to take place on 29
May 2019.
d) On 10 May 2019, the Appellant filed written submissions dated 8 May 2019, draft
orders requiring persons to attend the Commission and a Form F52- Application
for order for production of documents.
e) On 17 May 2019, the Respondent filed written submissions and certain documents.
f) The matter was listed for a Mention and/or directions, by telephone on 21 May
2019.
g) On 24 May 2019, further written submissions dated 23 May were filed by the
Appellant.
h) The hearing of the Application took place on 29 May 2019.
Telephone Mention on 21 May 2019
[89] We have reviewed the audio recording and transcript from the Telephone Mention that
took place on 21 May 2019. At the outset the Commissioner explained that the Mention had
been called on to deal with the Appellant’s two applications for Orders. The Commissioner
posed the question to the Appellant’s husband as to whether the application for an Order
requiring certain persons attend was premature, given that the hearing on 29 May 2019 was to
deal with the Respondent’s jurisdictional objection only. The Commissioner stated that if the
Appellant was successful in the jurisdictional issue, whether or not the people were to be
required to attend the substantive hearing could be revisited.
[90] In response, the Appellant’s husband asserted that the jurisdiction and substantive
issues were the same. The Appellant’s husband also challenged the participation of the
Respondent’s legal representative, Mr Puxty, in the Mention.
[2019] FWCFB 8605
21
[91] The Commissioner acknowledged that Mr Puxty had not yet sought permission to
represent the Respondent in the matter. He elected to waive compliance with the Fair Work
Commission Rules 2013 and accepted an oral application pursuant to s.596 of the Act. The
Commissioner then stated he was satisfied having read the material filed that the matter was
invested with complexity and that Mr Puxty would assist in its efficient conduct. He granted
permission. At this point the Appellant’s husband stated “I have to protest and I have to
cancel my participation in this mockery of justice. Goodbye, gentlemen.”51 The Appellant’s
husband then immediately terminated his telephone connection to the Mention. The Mention
concluded as follows:
“THE COMMISSIONER: Mr Puxty, you now have permission. Mr Grabovsky has
decided not to further participate. In relation to the order requiring the attendance at
the Commission, it is my decision that I will not be issuing the order. I am not
satisfied that any of the three named people are relevant to the jurisdictional issue
which I will be dealing with on 29 May. Mr Puxty, anything further this morning?
MR PUXTY: No, thank you.
THE COMMISSIONER: Mr Grabovsky, are you on the line or not? It would appear
not. All right. In those circumstances, the Commission is adjourned. Good morning.
MR PUXTY: Thank you.”52
Hearing on 29 May 2019
[92] We have also reviewed the audio recording and transcript from the hearing on 29 May
2019. At the outset of the hearing, the Commissioner stated he intended to mark all the
documents which had been filed in relation to the Application as exhibits in the matter
according to the tab in which they appeared behind the court book he had prepared. Having
asked the Appellant’s husband a legitimate question about the documents, the Commissioner
was immediately ignored on three occasions as the Appellant’s husband proceeded to talk
over him. When the Commissioner asked the Appellant’s husband to answer his question
about the documents that had been filed, the Appellant’s husband simply ignored him and
commenced reading a prepared statement. The Appellant’s husband then elected to continue
reading even though the Commissioner repeatedly sought to draw him back to the question
using a measured tone of voice. It is clear from the audio that the Appellant’s husband would
have heard the Commissioner but elected to ignore him. The Commissioner then directed the
transcript recording be paused and following a break of approximately eight minutes, during
which the Commissioner appeared to leave the hearing room, the matter resumed as follows:
“THE COMMISSIONER: Before we proceed, I need to warn Mr Grabovsky of the
provisions of section 674 of the Fair Work Act. It provides that a person commits an
offence if the person engages in conduct and the person's conduct disturbs a Fair Work
Commission member in the performance of functions or the exercise of powers as a
Fair Work Commission member. The penalty for a breach of that provision is
imprisonment of up to 12 months. In the Fair Work Commission, when I, as the
51 Transcript dated 21 May 2019 at PN 29.
52 Ibid at PN30 – PN 33.
[2019] FWCFB 8605
22
presiding member speak, anybody speaking from the bar table must cease
speaking. To talk over me, to continue to speak in circumstances where I have asked
you not to speak, you are disturbing me in the performance of my functions and in the
exercise of my powers as a Fair Work Commission member.
So when I ask you to cease speaking you will do so. If you do not then you will
remove yourself from the bar table and you will remove yourself from the
Commission and the Commission notes the attendance of security in the room. Now,
we will get back to the proceedings. I have distributed - - -
MR GRABOVSKY: Excuse me, Mr Johns, did you finish? Because I made the legal
statement we don't go any further.
THE COMMISSIONER: Mr Grabovsky, I am speaking. I am not prepared to hear
your legal statement at this point. I want to deal with the things that I want to deal
with first. When I have concluded dealing those - - -
MR GRABOVSKY: Let the record show the applicant leaving the room to take
urgent measures against the conduct of Mr Johns - - -
THE COMMISSIONER: Mr Grabovsky, you may leave the court room. I am
prepared to listen to you after I have finished speaking about the things that I want to
speak about. I will give you your opportunity but you will not speak now. I want to
deal with procedural issues first. If you want to be heard, you can stay in the room but
you will do things in my timing.
MR GRABOVSKY: No, it will not happen.
THE COMMISSIONER: I've given you the opportunity, you have chosen not to, you
will leave the court room. You will leave the court room.
MR GRABOVSKY: Let the record show that I have left the room at 10.20 and 47
seconds. I'll be back.”53
[93] Our review of the audio recording confirms that no sooner had the Commissioner
finished delivering this warning to the Appellant’s husband and resumed his attempt to deal
with the documents filed in relation to the Application, the Appellant’s husband simply
ignored the Commissioner and proceeded to resume reading his statement. We consider the
Commissioner’s tone at that time was entirely appropriate and his intended approach entirely
reasonable. The warning regarding the provisions of s.674 of the Act and its operation was
entirely appropriate in circumstances where the Commissioner found himself with a
representative who would not follow directions of the Commission. The Commissioner was
entitled to make plain to those present that he was presiding, his directions as to process
should be observed and that a failure to heed those directions may constitute a disturbance of
the Commission. The Appellant’s husband elected to leave the hearing room rather than stay
and make oral submissions once the Commissioner had finished dealing with the documents.
He also stated that he would not follow directions from the Commissioner as to process
before announcing his departure from the hearing room. The Appellant’s husband was not
53 Transcript dated 29 May 2019 at PN 48 – PN 56.
[2019] FWCFB 8605
23
interested in availing himself of the opportunity to make submissions on her behalf. He
wanted to control the conduct of the hearing.
[94] The Commissioner then proceeded to confirm a number of minor matters with Mr
Puxty and queried whether there were any oral submissions to be made on behalf of the
Respondent before briefly adjourning. Only when the hearing resumed, and after the
Commissioner had commenced delivering the Decision, did the Appellant’s husband re-enter
the hearing room. He made no comment prior to the Commissioner’s conclusion and the
Commission being adjourned indefinitely.
[95] Having regard to the matters we have outlined from [88] – [94] above, we reject the
contention the Appellant was denied natural justice. The Appellant was afforded and took the
opportunity to file written material in support of the Application. Further, copies of the
documents she sought were made available to her and, in the circumstances, the decision not
to order the attendance of witnesses was open to the Commissioner. The Commissioner had
the opportunity to review the written material prior to the hearing on 29 May 2019 and did not
forcefully prevent the Appellant from presenting her case at the hearing. Nor did the
Commissioner prevent the Appellant’s husband from speaking. Indeed, the Commissioner
made it clear that once he had finished marking all the documents which had been filed in
relation to the Application as exhibits, he would hear the oral submissions of the Appellant.
The Appellant’s husband was informed that if he stayed in the hearing, he would be heard on
the Appellant’s submissions. That was an entirely reasonable indication to give and consistent
with the Commission’s standard process in disputed matters requiring a hearing. It was only
when the Appellant’s husband stated he would be walking out and made it clear he would not
follow the process of the Commissioner, nor take up his opportunity to make oral
submissions, that he was directed to leave. It was open to the Commissioner, in these
circumstances, to then proceed to make and deliver the Decision based on the written material
already filed.
[96] As was discussed above at [59], the duty of the Commission is to ensure that a party
is given a reasonable opportunity to present his or her case but it is not up to the Commission
to ensure parties take the best advantage of the opportunity to which they are entitled.54 The
Appellant had a reasonable opportunity to present her case to the Commissioner, however her
husband chose to conduct himself in the manner he did. We reject ground 6.
Conclusion
[97] We are not satisfied that there is any basis to grant permission to appeal either in the
public interest or on discretionary grounds. The Decision does not raise any question of law or
general principle worthy of consideration at the appellate level, and we are not satisfied that
the decision is attended with sufficient doubt such as to warrant its reconsideration, nor are we
persuaded that substantial injustice may result if permission to appeal is refused. Having
regard to the grounds of appeal and the Appellant’s submissions, we do not consider the
Appellant has made out an arguable case of error on the part of the Commissioner. The
Decision correctly determined the Respondent’s jurisdictional objections.
[98] Permission to appeal is therefore refused.
54 (1978) 20 ALR 323 at 343.
NO R HE FAI NOISSIN THE SEA
[2019] FWCFB 8605
24
DEPUTY PRESIDENT
Appearances:
Mr I Grabovsky for the Appellant
Mr S McIntosh for the Respondent
Hearing details:
2019.
Melbourne:
25 November 2019.
Printed by authority of the Commonwealth Government Printer
PR715464
