1
Fair Work Act 2009
s.604—Appeal of decision
Inna Grabovsky
v
United Protestant Association NSW Ltd T/A UPA
(C2019/3120)
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MASSON
COMMISSIONER WILSON
MELBOURNE, 23 OCTOBER 2019
Appeal against decision [2019] FWC 2915 of Commissioner Johns at Sydney on 30 April
2019 in matter number C2018/685.
Introduction
[1] Mrs Inna Grabovsky (the Appellant) has applied for permission to appeal, and appeals,
against a decision of Commissioner Johns issued on 30 April 20191 (Decision) in which the
Commissioner issued a certificate2 pursuant to s.368(3) of the Fair Work Act 2009 (the Act).
[2] Section 368(3) of the Act requires that where an application is made under s.365 of the
Act by a person alleging that he or she was dismissed in contravention of Part 3-1 of the Act
and the Commission is satisfied that all reasonable attempts to resolve the dispute (other than
by arbitration) have been, or are likely to be, unsuccessful, the Commission must issue a
certificate to that effect.
[3] 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.3 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
[4] The Appellant’s application made under s.365 of the Act (the General Protections
Application) was lodged on 9 February 2018.4 United Protestant Association NSW Ltd T/A
1 [2019] FWC 2915.
2 Dated 30 April 2019.
3 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
4 C2018/685.
[2019] FWCFB 7296 [Note: Appeals pursuant to s.604 (C2019/6933,
C2019/6935 and C2019/6936) were lodged against this decision]
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 7296
2
UPA (the Respondent) filed its Form F8A – Response to general protections application
(Form F8A) on 9 March 2018. It objected to the General Protections Application on the basis
that it had been “commenced outside the time limit under s.366 of the Fair Work Act.” A
jurisdictional hearing before Deputy President Gooley followed, the result of which was the
decision of the Deputy President made on 15 March 20185 to grant an extension of time
within which the Appellant was able to make the General Protections Application. The
Deputy President determined the effective date of the Appellant’s dismissal was 20 December
2017, which meant the General Protections Application had been filed 29 days outside the
statutory time limit. The Deputy President was persuaded to grant the Appellant an extension
of time for the making of the General Protections Application. The Appellant applied for
permission to appeal the decision of the Deputy President but was not granted permission to
do so.6
[5] Following the decision of the Deputy President, the General Protections Application
was allocated to the Commissioner, who sought the views of the parties in relation to its
further conduct. In ensuing correspondence that passed between the Commissioner and the
parties:
The position of the Appellant was that before proceeding to deal further with the
General Protections Application, the Commissioner should first deal with two other
applications she had made. These two other applications were the application to the
Commission to deal with a dispute in accordance with a dispute settlement procedure
(the Dispute Matter)7 and an application for approval of an enterprise agreement
made by the Respondent (the Agreement Matter).8
The position of the Respondent was outlined in an email sent from Mr Stuart
Leverton, Regional Manager – UPA Sydney North Region, to the Commissioner
dated 5 April 2018. Relevant to this appeal, it stated as follows:
“Dear Associate
I am authorised to respond to the proposal submitted by the Applicant’s
representative with respect to the conduct of the three matters before you.
In response to the matters submitted by the Applicant’s representative, it is
necessary for the respondent to make submissions in reply.
1.
C2018/685 - Dismissal matter
The respondent objects to the Fair Work Commission arbitrating this matter.
Therefore the Commission’s remaining role is to determine whether there is
any likelihood of resolution of the dispute in a conciliation.
5 [2018] FWC 1549.
6 [2018] FWCFB 2474.
7 C2017/7037.
8 AG2017/5218.
[2019] FWCFB 7296
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The respondent acknowledges that the applicant’s representative has filed an
Appeal of DP Gooley’s decision – matter no: C2018/1708. Despite this
development, the respondent does not see any point in a conciliating being
convened by the Commission.
The proceedings relate to an allegation of adverse action in circumstances
where the respondent has proceeded to terminate the employment of an
employee who has been absent from the workplace for over four years and
where the employee does not actually dispute the fact that she cannot return to
work with the respondent.
The allegations made by the applicant in support of this application are in part
connected to facts and matters that are in dispute in other current (as well as
previous) proceedings. The applicant alleges that the respondent was motivated
to terminate the applicant’s employment to avoid her being able to be involved
in the Enterprise bargaining that was due to commence.
By way of background, the Dismissal proceedings are the 11th set of
proceedings commenced by the applicant against the respondent in the Fair
Work Commission (the appeal of the decision of DP Gooley is the 12th). The
applicant’s allegations relating to the content of the respondent’s Enterprise
Agreement have been heard and determined or otherwise relate to matters to
which the Commission has no jurisdiction. These allegations and the
jurisdictional points have been the subject of lengthy Commission proceedings
and Full Bench appeals, all of which have been determined against the
applicant. There is no new evidence or facts contained in the new applications.
In any event the applicant’s allegations will be vigorously defended by the
respondent.
The positions of the parties are intractable. In the respondent’s submission, the
Dismissal matter will not benefit from a conciliation convened in the
Commission.
As a result, the respondent considers that the preconditions of s368(3) of the
Fair Work Act can be made out: in the circumstances all reasonable attempts to
resolve the dispute, including conciliation, are likely to be unsuccessful.
It is for these reasons that our solicitors have requested the issue of the
certificate under s368(3).
…
Position of Respondent
1.
The Respondent submits that the dismissal matter should not be consolidated
with the other matters as the only function remaining for the Commission is to
determine whether a conciliation will resolve the matter, apart from the
consideration of the Appeal lodged by the Applicant in relation to the decision
of DP Gooley.
[2019] FWCFB 7296
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...
Kind Regards”
[6] The Commissioner considered the views of the parties and, on 11 April 2018,
determined that he would not further consider the matter of issuing a certificate until after the
conclusion of the Dispute Matter and the Agreement Matter.
[7] The Commissioner then proceeded to deal with the Dispute Matter and, on 5
December 2018, determined that he should dismiss it pursuant to s.587 of the Act.9 The
Appellant applied for permission to appeal this decision of the Commissioner but in a
decision issued on 26 March 2019,10 was not granted permission to do so.
[8] The Agreement Matter was discontinued by the Respondent on 30 April 2019.
[9] As a result of these developments, the Commissioner determined that he would
resume dealing with the General Protections Application. The manner in which he did so is
outlined from paragraph [5] onwards in the Decision:
“[5] Noting that the UPA has already indicated that it will not consent to the
Commission arbitrating the GP Application under s.369 of the FW Act, the only
relevant power of the Commission is to be found in section 368 of the FW Act. It
provides as follows:
“368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the
dispute (other than by arbitration).
(2) Any conference conducted for the purposes of dealing with the dispute
(other than by arbitration) must be conducted in private,
despite subsection 592(3).
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute
(other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it,
that arbitration under section 369, or a general protections court
application, in relation to the dispute would not have a reasonable
prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under
Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”
9 [2018] FWC 7227.
10 [2019] FWCFB 1964.
[2019] FWCFB 7296
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[6] In the present matter I am satisfied that an application has been made under s.365
of the FW Act. Consequently, pursuant to s.368(1) I “must deal with the dispute (other
than by arbitration).”
[7] The note to s.368 provides that,
Note: The FWC may deal with a dispute by mediation or conciliation, or by
making a recommendation or expressing an opinion (see subsection 595(2)).
One of the recommendations that the FWC might make is that an application
be made under Part 3-2 (which deals with unfair dismissal) in relation to the
dispute.
[8] The use of the word “may” means that I am not required to deal with the dispute by
any particular means.
[9] In his submission on 29 March 2018 Mr Grabovsky noted that the GP Application
had been allocated to me in addition to me already having carriage of the Dispute
Matter and the Agreement Matter. He wrote,
“Allocation of all matters concerning the same parties to one Member of the
Commission is a prudent decision because all matters are interconnected and
[the] Member of the Commission will have full and comprehensive
information from both sides of the conflict to make an informed decision,
which in the case of multiple Members could not be achieved to the same
degree.”
[10] I agree. There have been considerable benefits to the parties and efficiencies in
the conduct of various proceedings derived from a single member dealing with all of
the various applications at first instance. For my manifold sins that was me.
Consequently, I am well informed about the attitude of the parties to resolving their
various differences through mediation or conciliation. I have seen no evidence that
mediation or conciliation would be productive.
[11] In any case, in the present matter, I note that the UPA have already submitted that
“The positions of the parties are intractable. In the respondent’s submission, the
[GP Application] will not benefit from a conciliation convened in the
Commission.”
[12] That submission is consistent with how the Respondent has conducted itself in
each and every matter before me. The UPA has no interest in resolving, through
voluntary means, the $90,000 claim being made by Mr Grabovsky on behalf of his
wife.
[13] For these reasons I am satisfied that all reasonable attempts to resolve the dispute
(other than by arbitration) have been, or are likely to be, unsuccessful.
[14] A Certificate pursuant to s.368(3) will be issued concurrently with this decision.”
The grounds of appeal
[2019] FWCFB 7296
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[10] 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’s decision renders ineffective provisions of the statute;
(3) The Commission did fail to take the relevant information into consideration;
(4) The Commission was acting outside its jurisdiction;
(5) 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;
(6) The Commissioner acted with actual bias, prejudice and hatred towards the
Applicant and arrived to his decision in deliberate error of facts in error of law and in
error of determination with intention to harm the Appellant and her family.
(7) The Commissioner has conflict of interest in dealing with this dispute;
(8) The Commissioner acted corruptly; and
(9) The Commission was acting upon legally invalid submissions (by the Respondent).
[11] The Appellant contended in her notice of appeal that the grant of permission to appeal
was in the public interest because:
All nine appeal grounds relate to the misuse of statute and the outcome of such
misappropriation of the law affects every national system employee removing
protection of workers’ entitlements under the National Employment Standards.
All nine appeal grounds relate to the conduct of the Commission that resulted in
misappropriation of law and covering up massive defrauding of the workers and the
Commonwealth by the Respondent.
Directions and hearing on 12 June 2019
[12] Directions made on 20 May 2019 listed a hearing to deal with the issue of permission
to appeal and the merits of the appeal for 14 June 2019 and required the Appellant to file and
serve submissions by 5.00pm on 30 May 2019. The Respondent was required to file and serve
submissions by 5.00pm on 12 June 2019. The Appellant made application for a stay of the
Decision. This was heard, determined and ultimately dismissed by Deputy President
Masson.11 The hearing to deal with the issue of permission to appeal and the merits of the
appeal was subsequently relisted for 12 June 2019.
[13] A request from the Appellant that we adjourn on medical grounds was first
foreshadowed on 31 May 2019. The Appellant was advised in a letter from the Commission
dated 4 June 2019, that an adjournment would only be granted having regard to medical
evidence relating to the incapacity of the Appellant and/or her representative. Particulars were
11 [2019] FWC 3822.
[2019] FWCFB 7296
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provided by the Appellant on 7 June 2019. We considered these but rejected the adjournment
application on the basis that we were not persuaded on the material before us that there were
medical grounds for doing so.
[14] The Appellant also proceeded to file a document dated 1 June 2019. It comprised:
a) Part I - Request to amend Directions and Listing: this foreshadowed a request
that we amend the Directions and relist the hearing date. It also included a suggestion
for the schedule for submissions and the new hearing date;
b) Part II – Information for the Full Bench’s consideration: this outlined three
options for dealing with the appeal; and
c) Attachment 1 – Outline of submissions: these were included in the event we
elected to proceed with the Appellant’s Option 1, which was described as the standard
hearing option and would involve addressing the question of permission to appeal
only.
[15] On 7 June 2019, the parties were advised that we would deal only with the question of
permission to appeal at the hearing on 12 June 2019.
[16] At the commencement of hearing on 12 June 2019, the Appellant made application
that we discharge/recuse ourselves from dealing with the appeal on grounds that included:
we were hostile towards the Appellant and her representative;
Deputy President Masson’s decision in relation to the application for a stay;
the procedural requirements attached to the conduct of the appeal, which were said
to have been conceived with ill intent to harm the Appellant and her representative
“judicially”, “psychologically” and “physically”;
accusations of dishonest and corrupt actions taken for the benefit of the Respondent;
and
a charge of perverting the course of justice to confuse the serious crime committed
by the Respondent and by the Members of Commission.
[17] We heard the oral submissions of the Appellant, before adjourning to consider them
and the contents of a document the Appellant had filed at the Commission on the morning of
12 June 2019. We discerned that the application the Appellant had made appeared to have
been put on the basis of apprehended bias and actual bias.
[18] When the hearing resumed, we delivered our decision. We advised the parties 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 and we also rejected the submission that we recuse ourselves or
[2019] FWCFB 7296
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withdraw on the basis of actual bias, if that was in fact a basis on which the application had
been made. We outlined our reasons in transcript.12
[19] We then addressed the further conduct of the application for permission to appeal. We
had regard to the medical certificate produced by the Appellant on 12 June 2019 and one of
the suggestions made by the Appellant for dealing with the appeal. We considered that the
appeal could be determined on the basis of further written submissions from the parties
without the need for a formal hearing. The parties consented to this course. 13 Accordingly, in
accordance with s.607(1) of the Act, it was not necessary for us to hold a further hearing in
relation to the Appellant’s application for permission to appeal. We then made directions for
the filing and service of any further written submissions and the hearing was adjourned.
Appellant’s Submissions
[20] The Appellant included Attachment 1 – Outline of submissions in the document dated
1 June 2019, referred to above at [14], for consideration in the event we elected to proceed
with the standard hearing option (Option 1). Although we have elected to proceed in a
manner consistent with the Option 3 advanced by the Appellant (dealing with the appeal “on
the papers”) and have determined, with the consent of the parties, to conduct the appeal
without a hearing, we have nonetheless considered the Attachment 1 – Outline of submissions.
[21] In this document, the Appellant indicated that only the following four grounds of
appeal would be addressed “in order to provide evidence that it is in the public interest to
allow an appeal to investigate the legitimacy of the original decision maker’s conduct that
caused errors of fact law and determination.” The four grounds were:
i. The Commission acted upon wrong principles and in breach of principles;
ii. The Commission’s decision renders ineffective provisions of the statute;
iii. The Commission did fail to take the relevant information into consideration;
and
iv. The Commission was acting outside its jurisdiction.
[22] The Appellant’s submissions in relation to the first, second and fourth grounds
included that the conduct of arbitrating members of the Commission must be consistent with
the applicable laws and not the decisions made by the other members of the “judiciary” in
different cases. Further, the Appellant submitted authorities and precedents cannot establish
principles but instead the authorities must comply with the law that is built upon the
principles. The Appellant submits the Decision breaches the following principles:
i. Superiority of statute, which precludes the use of discretion;
ii. No deed made in breach of statute law may be recognised as legitimate;
12 Transcript 12 June 2019 at PN 53- PN 89.
13 Transcript 12 June 2019 at PN 98 and PN 108.
[2019] FWCFB 7296
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iii. Arbitrating (judicial) decisions must be consistent with statute and not with the
decisions made in previous matters; and
iv. Prevalence of objectively recognisable evidence.
[23] The Appellant submits her dispute with the Respondent has no precedent and this
precludes the application of any authority to it. Further, the Appellant submits that no member
of the Commission may make a decision or issue an order that in any form, shape or manner
renders provisions of statute ineffective.
[24] In relation to the third ground, the Appellant asserts the Commissioner failed to take
into account all the materials before him.
[25] The Appellant’s written submissions dated 5 July 2019 canvassed a range of diverse
matters. In large part they engaged with issues that lie beyond the Decision itself and the
appeal against it. This is because the Appellant contends that this appeal “is not a single-
standing matter, but a product and one of the elements of lengthy legal proceedings” she
characterises as “the Dispute”, which she asserts has been ongoing since 2014. The
submissions covered matters such as:
our conduct and reasoning in rejecting the Appellant’s application for recusal;
the question of legal representation;
the contention advanced at the hearing on 12 June 2019 that the Respondent “may
not stand as a respondent” in this appeal;
a re-agitation of the Appellant’s assertions that she remains an employee of the
Respondent and that the finding of Deputy President Gooley that the Appellant’s
dismissal took effect 20 December 2017 is erroneous;
an assertion that the Commissioner elected not to address the substantive issues of
the General Protections Application and proceeded to issue a certificate without
establishing the fact of the existence of the termination of employment or
considering the Appellant’s submissions regarding “the issue of the protection of the
National Employment Standards”;
a request that we refer certain matters to the Federal Court pursuant to s.608 of the
Act and that we “provide objectively verifiable proof that the Commission has the
power to render ineffective provisions of statute (that is outside the FWC’s
jurisdiction)”;
an assertion that it is “in the public interest to allow an appeal to establish a
methodology to avoid further abuse of process, waist[sic] of public money, misuse
of the law and miscarriage of justice that currently is in place in the FWC’s
practice”;
an assertion that there have been “fraudulent official instruments” created in the
General Protections Application that have given rise to a “fraudulent authority” that
can be used against the law of the Commonwealth;
[2019] FWCFB 7296
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an application that this appeal be “merged” with two other appeals involving the
Appellant,14 although this request was subsequently withdrawn;15 and
a request for interim orders relating to the administration of medicine in the Aged
Care Industry and to suspend the operation of clauses 36.4, 43.2(b) and 43.6(a)(b) of
The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017.
[26] The Appellant’s written submissions dated 5 July 2019 concluded by outlining the
relief sought, being:
a) A withdrawal of our direction that the Respondent make submissions in any
appeal matter before us;
b) The merger of this appeal with matters C2019/3321 and C2019/3690, although
this request was subsequently withdrawn;16
c) Orders staying all decisions, orders, certificates made by the Commissioner in
the Dispute Matter, matter C2018/685 and C2018/2426;
d) The issuing of the interim orders requested; and
e) The granting of this appeal on the public interest grounds articulated in Part V
of the written submissions dated 5 July 2019.17
[27] The Appellant’s written submission dated 31 July 2019 commenced with the assertion
that the Respondent “may not stand as a respondent in this proceeding”.
[28] The Appellant then asserted the Commission could not have been satisfied that all
reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful because
“the satisfaction of the Commission must derive from an objective assessment of the litigants’
compliance with the applicable laws and not from a subjective (personal) sentiment of a
member of the FWC.”
[29] The Appellant maintains that the Respondent attempted to terminate her employment
but breached s.117 of the Act in doing so, such that the termination of her employment does
not constitute a legitimate act of dismissal. It is said by the Appellant that by failing to view
the circumstances according to this construct, the Commission and the Respondent are
“conspiring and wilfully making false and misleading statements, denying the obvious and
abusing the process”. The Appellant submits that as the termination of her employment never
took place, the Commission has no power, authority, function or jurisdiction to issue a
certificate for a non-existent event and it approves and recognises an offence by the
Respondent as a legitimate act. The Appellant also submits the attempt to terminate her
employment was in breach of s.772(1)(e) of the Act.
14 Matters C2019/3321 and C2019/3690.
15 Appellant’s submissions dated 31 July 2019 at p.10.
16 Ibid.
17 Appellant’s submissions dated 31 July 2019 at pages 21-30.
[2019] FWCFB 7296
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[30] In making these submissions the Appellant again asserts the termination of her
employment “never took place” and appears to be adopting the position that the Commission
should never have dealt with the General Protection Application. The Appellant submits the
Commissioner formed his opinion regarding the granting of the Certificate in error of law,
fact and determination and that the Decision is a fraudulent official instrument which endorses
a violation of sections 117 and 772(1)(e) of the Act. The Decision, it is said, constitutes an
instrument and mechanism of coercion and therefore, the Appellant submits it is in the public
interest to allow an appeal to revoke the effect of the fraudulent Decision.
[31] The Appellant submits that should we contradict her position regarding the alleged
breaches of sections 117 and 772(1)(e) of the Act, we must refer this dispute to the Federal
Court pursuant to s.608 of the Act and provide proof, based on statute and objectively
verifiable evidence, that the Commission has power, function and authority to render
ineffective provisions of statue and to recognise an offence as a legitimate act.
[32] The Appellant then makes the assertion that Deputy President Masson unlawfully
rejected the Appellant’s application for a stay of the Decision and confirmed she was
withdrawing her application that this appeal be “merged” with two other appeals involving the
Appellant.18
[33] The Appellant outlined the relief she sought, as follows:
i. A declaration that the Respondent is not a respondent in this appeal; and
ii. Orders staying the Decision and the Certificate under s.368 of the Act dated 30
April 2019.
[34] The Appellant required this relief by 5 August 2019, failing which she submitted we
should recuse ourselves from further dealing with this appeal on the basis that we have
conspired with the Respondent to pervert the course of justice in an attempt to conceal serious
offences.
Respondent’s Submissions
[35] On the question of permission to appeal, the Respondent submits the notice of appeal
discloses no error, let alone arguable error, in the Decision.
[36] The Respondent submits the Decision involves the regular exercise of the powers
conferred on the Commission by s.368 of the Act, in that:
the Commission applied the correct legal principles relevant to the exercise of power
under s368 of the Act;
the decision solely related to the issue of a Certificate under s.368 and the
submission that “the Commission’s decision renders ineffective provisions of the
statute” is misconceived;
18 Matters C2019/3321 and C2019/3690.
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the Decision clearly articulates entirely appropriate matters taken into consideration
by the Commissioner in issuing the Certificate;
the issue of the Certificate was entirely within the jurisdiction of the Commission;
there is no evidence of any deliberate act on the part of the Commission in the
manner contended by the Appellant or how such act has resulted in any outcome that
perverts the course of justice; and
there is no basis for the Appellant to claim, and no basis for us to find, the
Commissioner acted with “actual bias, prejudice and hatred” towards the Appellant,
had a “conflict of interest” in dealing with the dispute, acted “corruptly” or acted
upon “legally invalid submissions” by the Respondent.
[37] The Respondent submits the terms of s368(3) of the Act are clear in that they mandate
that the Commission must issue a certificate that indicates that the Commission is satisfied
that “all reasonable attempts to resolve the dispute (other than by arbitration) have been, or
are likely to be, unsuccessful”. The Respondent submits the Appellant has failed to identify
any such evidence that would challenge the view formed by the Commissioner that all
reasonable attempts to resolve the dispute had been, or are likely to be, unsuccessful and it is
clear from the Appellant’s submissions that the positions of the parties about the alleged
adverse action are so intractable that the Commissioner’s view about the prospects of
resolution of the dispute without arbitration was entirely appropriate.
[38] 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 and is not in the GlaxoSmithKline Australia Pty Limited v
Makin sense;
the Decision is based on a unique and particular set of circumstances involving the
decision to issue a Certificate in circumstances where the Commission had no
jurisdiction to make any binding decision in relation to the claims agitated by the
Appellant;
the Decision does not “relate to the misuse of the statute” or result in “the outcome
of such misappropriation of the law affects (sic) every national system employee
nationwide removing protection of workers’ entitlements under the National
Employment Standards”; and
the Decision does not result in “misappropriation of law and covering up massive
defrauding of the workers and the Commonwealth by the UPA”.
Consideration
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[39] As we have stated, the Commission’s powers on appeal are only exercisable if there is
error on the part of the primary decision maker.19 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.20 The public interest is not satisfied simply by the
identification of error,21 or a preference for a different result.22
[40] 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.23 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.24 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.25
[41] Grounds 1, 2 and 4 of the notice of appeal contain bald assertions that the
Commissioner acted outside jurisdiction, rendered ineffective provisions of the statute, and
acted upon wrong principles and in breach of principles. We reject these grounds. Clearly, the
Appellant disagrees with the Commissioner’s decision but this does not articulate error. The
Commissioner dealt with the evaluative task required by s.368(3) in a manner consistent with
the Act and further, he did not proceed on a wrong principle.
[42] Ground 5 of the notice of appeal states the Commissioner arrived at his decision in
“deliberate error of facts in error of law” and “in error of determination perverting the course
of justice” while Grounds 6, 7 and 8 allege the Commissioner:
acted with actual bias, prejudice and hatred towards the Applicant;
arrived at his decision in deliberate error of facts in error of law;
with intention to harm the Appellant and her family;
has a conflict of interest in dealing with this dispute; and
acted corruptly.
[43] These appeal grounds are devoid of merit. They are accusations made without basis.
We do not propose to further engage with them.
19 Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
20 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].
21 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
22 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].
23 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
24 Wan v AIRC (2001) 116 FCR 481 at [30].
25 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].
[2019] FWCFB 7296
14
[44] Ground 9 of the notice of appeal states “The Commission was acting upon legally
invalid submissions (by the Respondent)”. This ground appears to be based on the Appellant’s
contention that the Respondent “may not stand as a respondent in matter C2019/3120”. This
proposition is clearly wrong. United Protestant Association NSW Ltd T/A UPA is the
Respondent in matter C2019/3120 and not, as the Appellant contends, the “erroneous
respondent”. The Respondent’s substantive rights are affected by the Decision and would be
affected by the varying or quashing of the Decision. Procedural fairness obligations require
that it be given an opportunity to make submissions in respect of this appeal. Further, we note
that while the Appellant appears to have alleged we granted permission for the Respondent to
be represented by a lawyer in this appeal proceeding, this did not occur. The Respondent
made no application pursuant to s.596 of the Act in this appeal proceeding.
[45] Ground 3 of the notice of appeal states “The Commission failed to take the relevant
information into consideration”. The essence of the Appellant’s complaint under this ground
of appeal is that the Commissioner should have entertained a re-litigation of matters, that have
previously been decided by Deputy President Gooley26 and affirmed on appeal,27 before
applying himself to the task that he was required to undertake pursuant to s.368(3) of the Act.
The Appellant wanted the Commissioner to revisit the assertion that the non-compliance by
the Respondent with s.117 of the Act resulted in the termination of the Appellant’s
employment not constituting a legitimate act of dismissal. The Commissioner was not
required to revisit those matters. 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. The proper course for
the Appellant, if she was aggrieved by the Full Bench decision affirming the decision of
Deputy President Gooley was to apply for judicial review of it.
Other matters raised by the Appellant
[46] We observe there is an obvious difficulty for the Appellant in maintaining the
assertion she remains an employee of the Respondent in the context of a dismissal dispute
made under s.365 of the Act. Evidently the Appellant does not regard her pursuit of the
General Protections Application to be in any way misconceived despite persisting with this
contention. This difficulty also applies in relation to the assertion made by the Appellant that
the attempt to terminate her employment was in breach of s.772(1)(e) of the Act because the
pursuit of an application under s.773 of the Act requires both an employer to have terminated
an employee’s employment and the employee to allege that his or her employment was
terminated in contravention of s.772(1) of the Act.
[47] As to the Appellant’s submission that we should refer this dispute to the Federal Court
pursuant to s.608 of the Act should we contradict her position regarding the alleged breaches
of sections 117 and 772(1)(e) of the Act, we have no power to refer a question of law to the
Federal Court. This power is vested in the President of the Commission only.
[48] The Appellant seeks to re-agitate her application that we recuse ourselves from further
dealing with this appeal. We have previously communicated our decision regarding this
application and we do not intend to engage further in relation to it.
26 [2018] FWC 1549.
27 [2018] FWCFB 2474.
[2019] FWCFB 7296
15
[49] As to the request for interim orders relating to the administration of medicine in the
Aged Care Industry and that we suspend the operation of clauses 36.4, 43.2(b) and 43.6(a)(b)
of The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017, there is no basis for
us to do so in the context of this appeal and we decline to do so.
Conclusion
[50] The Appellant’s grounds of appeal do not contain any comprehensible let alone
arguable contention of appealable error directly referenceable to the Decision. Her grounds
for the grant of permission to appeal in the public interest raise matters which bear little or no
relationship to the subject matter of the Decision. Her submissions re-agitated numerous
matters which she has previously argued before the Commission in a range of applications
and appeal proceedings, but she did not attempt to identify any error of fact or law in the
Decision itself.
[51] Independent of the Appellant’s notice of appeal and submissions, we have carefully
reviewed the Decision. It is apparent that the Commissioner considered all the matters
required to be considered under s 368(3) of the Act, arrived at the requisite satisfaction on a
basis firmly supported by the evidence and procedural history of the various matters involving
the parties that have been before the Commission and made an evaluative judgment that was
reasonably open to him to make. No basis for an arguable contention of appealable error is
ascertainable. Furthermore we agree with the Decision. From the very outset, the Respondent
has held the belief that the General Protections Application will not resolve and has declined
to participate in a conference.28 The Respondent has maintained this position. The Decision
does not raise any question of law or general principle worthy of consideration at the appellate
level.
[52] For these reasons, we are not satisfied that the grant of permission to appeal would be
in the public interest. We so order.
DEPUTY PRESIDENT
Appearances:
Mr I Grabovsky for the Appellant
Mr S Leverton for the Respondent
Hearing details:
2019.
Melbourne:
28 Email from the Respondent to the Commission dated 14 February 2019.
NO R HE FAI NOISSIN THE SEA
[2019] FWCFB 7296
16
12 June.
Final written submissions:
Appellant: 31 July 2019
Respondent: 19 July 2019
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PR713592
