1
Fair Work Act 2009
s.604—Appeal of decision
Dr Daniel Krcho
v
University of New South Wales (UNSW); Lucian Hiss; Phil Allen; Karen
Scott
(C2019/5167)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER SPENCER
MELBOURNE, 10 DECEMBER 2019
Appeal against decision [2019] FWC 5278 of Deputy President Sams at Sydney on 26 July
2019 in matter number AB2018/637.
Introduction
[1] By a notice of appeal dated 21 August 2019, Dr Krcho applies pursuant to s.604(1) of
the Fair Work Act 2009 (Act) for permission to appeal and, if granted, appeals a decision of
Deputy President Sams delivered ex tempore on 26 July 2019 (Decision). The Decision dealt
with an application for interim relief, seeking inter alia, to prevent University of New South
Wales (University) dismissing Dr Krcho from his employment. The Deputy President’s
reasons are recorded in the transcript of proceedings.1 While delivering the Decision, the
Deputy President indicated that he would later publish a written decision to which editorial
and stylistic changes might be made.2
[2] The Deputy President dismissed the application for interim relief. The substantive
application to which the application for interim relief related was an application for stop
bullying orders under s.789FC of the Act. Edited reasons for the Decision were published by
the Deputy President on 31 July 20193 (Reasons for Decision).
[3] A notice of appeal must be lodged within 21 days after the date of the decision being
appealed against, or within such further time allowed by the Commission on application by
the Appellant.4 The decision being appealed was made, as already noted, on 26 July 2019 and
Dr Krcho lodged his notice of appeal on 21 August 2019. The notice of appeal was therefore
lodged outside of the time prescribed by Rule 56(2) of the Fair Work Commission Rules 2013
(FWC Rules).
1 Appeal Book, pp.353-357 at PN560-PN589
2 Ibid, p.353 at PN561
3 [2019] FWC 5278
4 Fair Work Commission Rules 2013, r.56(2)
[2019] FWCFB 8269
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 8269
2
Application for appeal to be determined on the papers
[4] In his notice of appeal and written submissions, Dr Krcho sought that the matter be
determined on the papers. The Respondents did not object to this course.
[5] On 11 October 2019, we determined that given the consent of the parties and that the
appeal appeared to us able to be adequately determined without oral submissions for
consideration in the appeal, the appeal would be determined on the papers without a hearing.
The issues concerning whether a further period within which the appeal could be lodged
should be allowed and whether permission to appeal should be granted would consequently
also be determined on the papers and the parties’ consent earlier noted contemplated this
course. Pursuant to earlier directions, the parties filed detailed written submissions. We also
allowed Dr Krcho to file and serve reply submissions given that the aforementioned directions
had contemplated a hearing at which Dr Krcho’s reply would have been received orally.
[6] The Respondents sought permission to be represented by a lawyer. Dr Krcho opposed
permission being granted, however, as the appeal was to be determined on the papers,
permission to be legally represented is not required. Pursuant to Rule 12(1)(b) of the FWC
Rules, if a person is not participating in a conference or hearing, that person may be
represented by a lawyer or paid agent in the matter without the permission of the
Commission.5
[7] For the reasons that follow, we decline to allow Dr Krcho a further period within
which his notice of appeal may be lodged.
Background
[8] Dr Krcho has been employed by the University for 33 years.6 On 11 October 2018, Dr
Krcho applied to the Commission for stop bullying orders under s.789FC of the Act.7 Dr
Krcho also sought an interim order to prevent the University from dismissing him before his
bullying application was determined.8 The application for interim relief was heard before
Commissioner Hampton on 29 October 2018. The Respondents deny any bullying of Dr
Krcho as alleged in his application and contended that there was no basis for the making of
the interim order. In any event, the University provided a written undertaking to the
Commission in which it gave a commitment to the effect that if Dr Krcho’s employment with
the University is at threat, the University would give Dr Krcho at least five days’ notice of the
change to enable him to pursue an interim order.9
[9] The Commissioner determined that the University’s undertaking satisfactorily dealt
with the immediate concerns raised by Dr Krcho. The interim order sought by Dr Krcho was
not granted.10
5 Ibid, r.12(1)
6 Appellant’s written submissions dated 16 September 2019 at p.15
7 Appeal Book, pp.24-240
8 Ibid at pp.257-259
9 Ibid at pp.260-261
10 D.K [2018] FWC 6691; Ibid at pp.293-301
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[10] The stop bullying application was subsequently allocated to the Deputy President.
Following an unsuccessful conciliation conference, the Deputy President adjourned the
proceedings indefinitely on 24 December 2018 at Dr Krcho’s request. The adjournment was
specified to be until such time as Dr Krcho was certified fit to prepare for and conduct the
substantive application.
[11] In June 2019, the Respondents wrote to the Commission requesting the matter be re-
listed.11 This correspondence was sent to Dr Krcho by post, as this is his preferred method of
communication. The matter was listed for conference on 24 June 2019, but Dr Krcho did not
attend. Dr Krcho contends that he was not aware of nor did he receive any notice of the
conference.12 On 24 June 2019, Dr Krcho filed with the Commission and served upon the
University a written submission stating that he remained unable to pursue his substantive
application.13
[12] On 27 June 2019, the University wrote to Dr Krcho about his ongoing absence from
work.14
[13] On 22 July 2019, Dr Krcho applied for an “Interim Order to Prevent Dismissal.”15 By
that application Dr Krcho sought the following:
(1) an interim order to prevent dismissal as imminent dismissal had been notified by
the employer to occur at 4:00pm on Friday 26 July 2019;
(2) confirmation of validity of the advice from the Commission dated 24 December
2018 that the substantive bullying application will remain adjourned until Dr
Krcho is certified fit, and until he advises Chambers that he is medically fit to
prepare for, and conduct his case: AB2018/637;
(3) a confidentiality order pursuant to s.594 of the Act, limiting and restricting
publication of Dr Krcho’s personal information, including information about his
health;
(4) an interim order “to cancel any and all” of the University’s “performance
management actions/trainings” being “forced onto” Dr Krcho; and
(5) an interim stop-bullying order “to be made while Dr Krcho is on sick leave and
unable, and also prevented from progressing his case by the employer.”
[14] The application was heard before the Deputy President on 26 July 2019 who, as noted
earlier, decided ex tempore that the application be dismissed.
11 Appeal Book at p.408
12 Ibid at p.430 at [11] and p.516
13 Ibid at p.516
14 Ibid at p.410
15 Ibid at pp.427-488
[2019] FWCFB 8269
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The Decision
[15] In the Reasons for Decision, the Deputy President set out the orders sought by Dr
Krcho. As to the relief sought at item (2) of the application set out above, the Deputy
President determined there was no requirement to confirm a decision of 24 December 2018 to
adjourn the substantive application for stop bullying orders.16
[16] As to items (3), (4) and (5) of the application set out above, the Deputy President
concluded that these matters related to Dr Krcho’s substantive stop bullying application, they
were not urgent, and ought to be dealt with in an “orderly and procedurally fair fashion” with
more than one or two days’ notice to the Respondents.17 In light of the adjournment of the
substantive application, the Deputy President said the orders sought in items (3), (4) and (5)
of the application were “stood over generally.”18
[17] The Deputy President next sets out his consideration of Dr Krcho’s application for an
interim order preventing his dismissal. The basis of Dr Krcho’s concern that he might be
dismissed was explained by the Deputy President at [8] of the Reasons for Decision as
follows:
“The applicant claims that a letter dated 27 June 2019, directing him to obtain an
updated medical status from his own doctor by 4pm 19 July 2019, is a ‘new threat of
termination’.”19
[18] The full text of the University’s letter to Dr Krcho of 27 June 2019, is thereafter set
out and which relevantly stated:
“…Your current medical status
With your 24 June 2019 response, you provided a further letter from your treating
General Practitioner, Dr Graham Brierley. In that letter Dr Brierley stated he
considered you fit to return to work with emotional support (preferably your wife, Ms
Andrea Krcho) during an unspecified ‘adjustment period’, and that a support person
would need to be present for any meetings with management. Dr Brierley also stated
that UNSW’s refusal to allow you to return to work further exacerbated your anxiety
to the point that you felt you were unable to prepare for, or participate in, legal
proceedings.
Dr Brierley’s view that you are unable to prepare for, or participate in, legal
proceedings, appears to contradict his advice that you are fit to return to work, albeit
with emotional support. If you were to return to work, you would be required to
directly report to, and work with, individuals you had named in your application as
‘mob bullies’. You would also have to be able to engage with UNSW support
departments, including Human Resources, who you have also labelled as bullies.
16 [2019] FWC 5278 at [3]
17 Ibid at [5]
18 Ibid at [33]
19 Ibid at [8]
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Further, you would not be permitted to bring your wife to work with you to provide
support on a day to day basis.
A further difficulty, from UNSW’s perspective, is that Dr Deepinder Miller, a
specialist psychiatrist, has provided medical advice which states that you are suffering
from Delusional Disorder, and this diagnosis causes UNSW considerable concern for
your health and safety, and the health and safety of others, in the workplace.
Direction to obtain medical information from Dr Graham Brierley
We have enclosed a letter addressed to Dr Brierley seeking clarification about your
current medical status. In the letter, UNSW asks Dr Brierley to answer further
questions regarding your health and fitness to work. UNSW will bear the reasonable
costs of Dr Brierley’s time in preparing his response.
You are directed to take this letter (and its attachments) to Dr Brierley and ask that he
review the letter and provide a response to UNSW by no later than 4.00 pm Friday 19
July 2019.
If you do not comply with UNSW’s direction, or Dr Brierley’s response does not
answer the identified questions to UNSW’s reasonable satisfaction, UNSW may direct
you to attend a further Independent Medical Examination with an independent,
specialist psychiatrist. Any such independent assessment would be at UNSW’s
expense.
You should also understand that a failure to follow a reasonable and lawful direction
of your employer may result in disciplinary action up to and including the termination
of your employment…”20
[19] By letter from the University dated 5 July 2019, the date by which a response from Dr
Krcho’s treating medical practitioner was required, was altered to 26 July 2019.21
[20] Dr Krcho contended before the Deputy President that the effect of the University’s
correspondence was to automatically dismiss him from his employment at 4:00pm on 26 July
2019.22
[21] The Deputy President next sets out the principles which he intended to apply in
determining whether to grant the interim relief sought. After setting out the source of power to
make an interim decision in s.589 of the Act, the Deputy President said:
“As s 589(2) does not limit the Commission’s powers to make an interim decision to
particular species of applications or exclude others, it may be safely assumed that the
making of interim orders in a stop bullying application is a power available to the
Commission. Put another way, there is no express or inferred statutory provision which
20 Ibid
21 Appeal Book at p.426
22 [2019] FWC 5278 at [12]; Appeal Book at p.438 at [24]
[2019] FWCFB 8269
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would exclude the Commission from exercising such a power in s 789FC
applications…
The Commission is frequently called upon, in all of its areas of jurisdiction under the
Act, to make interim decisions and/or orders.: The principles to be applied in such
circumstances are well established and are often referred to as the tests of whether
prima facie firstly, there is a serious question to be tried, and secondly, whether the
balance of convenience favours the order for interim relief. In Quinn v Overland
[2010] FCA 799, Bromberg J set out at [45] and [46] the two main considerations as
follows:
‘[45] In determining an application for interlocutory relief, the Court addresses
two main inquiries. First, whether the applicant has made out a prima facie
case in the sense that if the evidence remains as it is, there is a probability that
at the trial of the action the applicant will be held entitled to relief. Second,
whether the inconvenience or injury which the applicant would be likely to
suffer if an injunction were refused outweighs or is outweighed by the injury
which the respondent would suffer if an injunction were granted: Australian
Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65], [19].
[46] The requirement of a “prima facie case” does not mean that the applicant
must show that it is more probable than not that the applicant will succeed at
trial. It is sufficient that the applicant show a sufficient likelihood of success to
justify in the circumstances the preservation of the status quo pending the trial.
How strong the probability needs to be depends upon the nature of the rights
the applicant asserts and the practical consequences likely to flow from the
order the applicant seeks. In that context there is no objection to the use of the
phrase “serious question” to convey the strength of the probability: Australian
Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson
CJ and Crennan J agreeing at [19].’”23
[22] The Deputy President ultimately was not satisfied that the “applicant has a serious
issue to be tried” and that the balance of convenience did not favour the grant of the interim
relief sought.24
[23] The Deputy President reasoned, inter alia, that:
(1) “…an employer is able to direct an employee to attend a medical examination to
establish whether the employee is fit to continue, or resume their duties, and
perform the inherent requirements of their role…This is particularly so where there
is conflicting medical opinions…”25
(2) “The fact the applicant has a large pool of accumulated leave entitlements which
he has accessed, with the University’s approval, during this period (55 days’
annual leave, 34 days’ sick leave and 194 days’ long service leave as at 30 June
2019, total 283 days’ leave), is not the point; the University is entitled to take
23 [2019] FWC 5278 at [18]-[19]
24 Ibid at [20]
25 Ibid at [21]
[2019] FWCFB 8269
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disciplinary action where the applicant refuses to attend a medical examination
including an independent medical examination (‘IME’), which is a lawful and
reasonable direction of the employer.”26
(3) “This is not the first occasion the applicant has sought interim orders to prevent
disciplinary action, where he has perceived his dismissal was likely; see: D.K.
[2018] FWC 6691, and my email to parties on 18 December 2018 where I refused
such interim orders). Neither of those applications succeeded, primarily because
the University gave an earlier undertaking that the applicant would not be
dismissed while these substantive proceedings remained on foot, without due
notice; see: D.K. [2018] FWC 6691 at [15]. This was likely given in the mistaken
belief these substantive proceedings would be heard and determined within a
reasonable timeframe. The applicant can no longer be ‘cloaked’ by the protection
of that undertaking and accordingly, to the extent necessary, I determine that the
University is released from the undertaking.”27
(4) “…The applicant is mistaken if he believes an interim order to prevent justified
disciplinary action will be made where, on his own case, he has not, and will not
comply with a direction of the University.”28
(5) “In any event, even if the applicant’s substantive stop bullying application is
dismissed, he will have other rights to challenge that decision in the Commission
and/or the Courts. In the event he is successful in challenging his dismissal, it may
result in orders of reinstatement. Moreover, even if the applicant is dismissed, it
does not automatically follow that his stop bullying application must be dismissed,
as there is no longer a risk of him being bullied at work, which is a jurisdictional
prerequisite for any stop bullying application to succeed: s 789FF(1)(b)(ii)…”29
[24] The Deputy President concluded at [30]-[33] of the Reasons for Decision as follows:
“I do not accept that the direction to the applicant and the letter to the applicant’s doctor
on 27 June 2019 requiring certain assurances as to the applicant’s fitness, is an
unreasonable or unlawful direction. It most certainly is not unlawful, and given the
circumstances, the request for a medical report from the applicant’s own doctor with
over four weeks’ notice, it is hardly onerous, oppressive or unreasonable.
The fact the applicant has attended previous medical examinations (notwithstanding
his views of Dr Miller) tells against the balance of convenience favouring him. If he
believes the legal obligation on him to do so has been negated, or otherwise altered by
Lee v Superior Wood, as I said earlier, he is mistaken. More importantly, there is no
threat to the applicant’s employment. The University has a comprehensive disciplinary
process, including the ordinary procedure of issuing a ‘show cause’ letter. That step
has not been taken. On any objective view, the letter of 27 June 2019 is not a threat of
dismissal; it is stating the correct legal and industrial position.
26 Ibid at [24]
27 Ibid at [25]
28 Ibid at [26]
29 Ibid at [29]
[2019] FWCFB 8269
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Given my knowledge of the history of this matter, I am not satisfied that the applicant
has a serious issue to be tried, which would be lost if the interim order was not
granted. Further, the employer’s right to direct an employee to attend a medical
examination, and the applicant’s subsequent refusal to do so, must weigh against the
balance of convenience telling in favour of the applicant. The application for an
interim order is dismissed.
Although I have already decided that the three remaining orders are not urgent, I do
not intend to further program any hearing of them, consistent with my email to the
parties of 24 December 2018. They are stood over generally.”30
Appeal grounds and submissions
Dr Krcho’s appeal grounds and contentions
[25] The notice of appeal contains 73 paragraphs in which Dr Krcho advanced his grounds
of appeal.31 In addition, Dr Krcho filed written submissions on 16 September 2019 and 22
October 2019 pursuant to the directions made by the Presiding Member. The appeal grounds
are set out in submission form but may conveniently be grouped into five key themes by
which Dr Krcho contends the Deputy President erred by:
(1) variously displaying bias towards the Respondents and by denying procedural
fairness to Dr Krcho;32
(2) making significant errors of fact through inter alia his failure to deal with “crucial
events, facts and dates” said to show the University’s unreasonable and vexatious
conduct which in the result produced a decision contrary to the overwhelming
weight of the evidence;33
(3) making significant errors of law through inter alia his failure to exercise power to
compel the University to explain why it sought to compel Dr Krcho to produce
medical material or attend an examination under threat of dismissal;34
(4) inappropriately refusing (or otherwise adjourning) each of the orders sought by Dr
Krcho;35 and
(5) allowing the Respondents permission to be legally represented at the hearing.36
30 Ibid at [30]-[33]
31 Appeal Book at pp.2-23
32 Notice of appeal at question 2.1 at [1]-[12] and [33]; Appellant’s written submissions dated 16 September 2019 at p.25,
pp.28-31 and p.40
33 Notice of appeal at question 2.1 at [13]-[53]; Appellant’s written submissions dated 16 September 2019 at pp.14-15, p.20
and pp.31-47
34 Notice of appeal at question 2.1 at [54]-[61]; Appellant’s written submissions dated 16 September 2019 at pp.25-26, p.36
and pp.47-53
35 Notice of appeal at question 1.2 at (4); Appellant’s written submissions dated 16 September 2019 at p.25 at [3] and pp.46-
47 at [51]
36 Notice of appeal at question 2.1 at [58]; Appellant’s written submissions dated 16 September 2019 at p.5 at [1.2] and p.53
at [58]
[2019] FWCFB 8269
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[26] As to the grant of permission to appeal, Dr Krcho’s submissions contend (in summary)
that:
(1) the Decision manifests an injustice; and
(2) it is in the public interest to preserve public confidence in the administration of
justice.
[27] Dr Krcho has also sought leave to amend his notice of appeal to add a further appeal
ground,37 which relates to an application that Dr Krcho says he made on 19 August 2019
seeking that the Deputy President recuse himself on the ground of apprehended bias.38
[28] Leave to amend is refused. Apart from the fact that the proposed ground does not
engage with the Decision the subject of this appeal, it is evident that the Deputy President has
not made any decision on the recusal application.
[29] Dr Krcho’s written submissions canvass a range of additional matters which engage
with issues beyond the Decision and the appeal against it. These matters concern conduct by
the University said to constitute further victimisation and bullying, such as:
(1) delaying and seeking to frustrate the substantive proceedings;
(2) hinting at an informal workplace restructure, which may involve downgrading
Dr Krcho’s position;
(3) continuing to block Dr Krcho’s access to his employment records and
documents since 14 February 2019;
(4) making a series of false accusations concerning Dr Krcho’s workplace conduct,
Dr Krcho’s responsibility for delays in the matter and suggesting that he no
longer wishes to be bound by his contract; and
(5) spreading false rumours about Dr Krcho.
[30] These matters do not relate to the Decision the subject of the notice of appeal. They
are in essence further allegations of bullying conduct and Dr Krcho should seek leave from
the Deputy President to amend his substantive bullying application to include these
allegations if they are to be pressed.
[31] Dr Krcho also seeks orders prohibiting the University requiring him to participate in a
medical examination.39 The application for such an order does not engage with the Decision
the subject of the notice of appeal or the application the subject of the Decision to which this
appeal relates. It is in essence a new claim for relief not sought in the application determined
by the Decision.
37 Appellant’s written submissions dated 16 September 2019 at p.27 at [1.5] and pp.43-44 at [35]
38 Appeal Book at pp.500-513
39 Appellant’s reply submissions dated 22 October 2019 at p.33 at [65]
[2019] FWCFB 8269
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[32] This appeal is also not the occasion for a “merit review” of Dr Krcho’s substantive
stop bullying order application dated 10 October 201840 or a “full and comprehensive” review
into the University’s conduct.41 That application will be determined in due course.
Respondents’ submissions
[33] The Respondents contend that permission to appeal ought to be refused because the
appeal concerns an interlocutory decision. They contend that such appeals should be
discouraged. In any case, the Respondents submit that the Decision is not attended by
sufficient doubt, it does not raise any matter of public importance or general application, it
does not result in an injustice to Dr Krcho and there is not otherwise an appealable error such
as to warrant permission to appeal.
[34] The Respondents also contend that as the notice of appeal was not lodged within the
time prescribed by the FWC Rules we should not allow a further period within which it may
be lodged as there is no merit in the appeal and it is, in any event, futile.
Consideration
[35] 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.42 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[36] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied
that it is in the public interest to do so.
[37] Except in unfair dismissal related appeals, the Commission is not confined to granting
permission to appeal only if it is in the public interest to do so.
[38] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.43 The public interest is not satisfied simply by the
identification of error,44 or a preference for a different result.45 A Full Bench of the
Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the
considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
40 Ibid at p.3
41 Ibid at p.47 at [103]
42 This is so because on appeal, the Commission has the power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
43 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
44 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
45 Ibid 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]
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guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”46
[39] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been adopted in granting leave and
which would therefore usually be treated as justifying the grant of permission to appeal,
include that the decision is attended by sufficient doubt to warrant its reconsideration and that
substantial injustice may result if leave is refused. 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.47 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.48
[40] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.49
However, it is necessary to engage with those grounds to consider whether they raise an
arguable case of appealable error.
[41] The Decision is an interlocutory decision. The characterisation of the decision is
relevant in deciding whether permission to appeal should be granted. Courts and tribunals
have generally discouraged interlocutory appeals on the basis that they may prolong the
proceedings and increase costs.50 The utility of any appeal is also a factor that is relevant in
assessing whether permission to appeal should be granted. There is rarely any public interest
in allowing an appeal from a decision to proceed which has no utility to the parties affected or
more broadly.
[42] However, before considering the question whether permission to appeal is to be
granted it is first necessary to determine whether to allow further time within which the notice
of appeal may be lodged.
[43] As already noted, Dr Krcho filed his notice of appeal outside of the prescribed time for
lodging an appeal as set out in the FWC Rules. His appeal cannot proceed unless we allow a
further period within which the notice of appeal may be lodged.
46 [2010] FWAFB 5343, 197 IR 266 at [24]–[27]
47 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
48 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78,
207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663, 241 IR 177 at [28]
49 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
50 See In re the will of F.B. Gilbert 91946) 46 SR (NSW) 318 at 323; Adam P. Brown Male Fashions Pty Ltd v Philip Morris
Inc (1981) 148 CLR 170 at 177; Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of
Australia (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Ltd Print PR945431, 6 April 2004 per
Giudice J, Hamilton DP and Hingley C; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd
[2012] FWAFB 6907; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Spectrum Community Focus v Valenzuela
[2017] FWCFB 4524
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[44] As is frequently noted and most recently by a Full Bench of the Commission in Snyder
v Helena College Council, Inc. t/as Helena College,51 time limits of the kind in Rule 56 of the
FWC Rules should not simply be extended as a matter of course. There are sound
administrative and industrial reasons for setting a limit to the time for bringing an appeal and
it should only be extended where there are good reasons for doing so.
[45] The following matters are relevant in considering whether to exercise the
Commission’s discretion to allow a further period under Rule 56(2)(c):52
(1) whether there is a satisfactory reason for the delay;
(2) the length of the delay;
(3) the nature of the grounds of appeal and the likelihood that one or more of those
grounds would be upheld if time was extended; and
(4) any prejudice to the Respondents if time were extended.
[46] Taking these matters into account, the exercise of the discretion will be guided by a
consideration whether, in all the circumstances, the interests of justice favour Dr Krcho being
granted an extension of the time within which to lodge his notice of appeal.53
[47] Dr Krcho’s notice of appeal was lodged five days out of time. Dr Krcho contends that
he could not be expected to remember what was said by the Deputy President when the
Decision was delivered ex tempore. He therefore relied upon the Reasons for Decision in
order to formulate his notice of appeal, which although published on 31 July 2019, he says he
did not receive by post (being Dr Krcho’s preferred method of communication) until 6 August
2019. The appeal was lodged 21 days from the date of publication of the Reasons for
Decision. Dr Krcho also contends that the University is to blame for the delay because it has
prevented him access to his University email account while he is absent from work.54 Without
making any findings as to Dr Krcho’s inability to access his University email, we are prepared
to accept that in the circumstances outlined, Dr Krcho has advanced a satisfactory explanation
for the delay in instituting these proceedings. This weighs in favour of allowing a further
period.
[48] The length of the period of delay is short which also weighs in favour of a further
period being allowed.
[49] The Respondents did not contend that they would suffer prejudice if a further period
were allowed. The absence of prejudice in the circumstances also weighs in favour of
allowing a further period with which Dr Krcho’s notice of appeal may be lodged.
51 [2019] FWCFB 815; See also Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 at [3]
52 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print
T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam
and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty
Ltd [2016] FWFBC 3410 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher
Antonarkis [2018] FWCFB 3815
53 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
54 Appellant’s written submissions dated 16 September 2019 at pp.2-5 at [1.1]
[2019] FWCFB 8269
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[50] The real issue in contest relates to the merits of the appeal to which we now turn. In
assessing whether to allow Dr Krcho a further period within which to lodge the appeal, it is
necessary to consider the nature of the grounds of appeal and the likelihood that one or more
of those grounds would be upheld if time was extended. This will in this case necessarily
include an assessment as to the utility of the appeal. Without a grant of permission to appeal,
the appeal grounds cannot succeed. Permission to appeal is not likely to be granted if there is
no utility in the appeal. We are in a position in this application for an extension of time to give
consideration to these matters having the benefit of substantive written argument about the
merits of the appeal grounds and thus, to make an assessment as to the utility of the appeal.
[51] For reasons that follow we do not consider there to be any utility in Dr Krcho’s appeal.
[52] Dr Krcho sought, inter alia, an interim order to prevent a dismissal which he was
concerned would occur on 26 July 2019. That date has passed without the resulting dismissal
of Dr Krcho. There has been no “show cause” letter issued to him by the University in respect
of the University’s letter of 27 June 2019 or any failure to comply with the request contained
therein. Moreover, the conduct said to constitute the threat of dismissal was the University’s
requirement that he provide from his doctor an update of his medical condition. Dr Krcho has
since obtained the medical information sought by the University,55 thereby rending moot the
contention that the requirement to provide the update was, and more relevantly continues to
be, a termination threat in any case. On the facts before the Deputy President and this Full
Bench, there was (and is) no threat to Dr Krcho’s employment. The correspondence from the
University of 27 June 2019 was not a threat of dismissal (or a show cause letter).
[53] Apart from the letter and his subjective concern, there was no other probative evidence
upon which Dr Krcho relied before the Deputy President to support his argument that there
was an imminent threat of dismissal. Absent any probative and compelling evidence of an
actual imminent threat of dismissal, or from which such a threat might reasonably be inferred,
there was no proper basis to issue an interim order of the kind sought and the Deputy
President’s conclusion to this effect was correct. It is neither unusual nor unjust for an
application for an interim order to be refused in such circumstances. No arguable case of
appealable error in this respect has been established. As there is no continuing threat of
dismissal, there is no utility in considering an appeal against a decision to refuse to make an
interim order preventing Dr Krcho’s dismissal. The appeal grounds related to the refusal to
make an interim order preventing Dr Krcho’s dismissal are not likely to be upheld and so
permission to appeal in respect of those grounds is not likely to be granted.
[54] Secondly, Dr Krcho’s application sought “confirmation of validity” of an earlier
decision of the Deputy President that the substantive bullying application was adjourned.
There was no requirement for the Deputy President to confirm an earlier decision made by
him, which stood unchanged. There is no arguable case of appealable error in the Deputy
President’s conclusion to this effect. The grounds of appeal directed to this aspect of the
Decision are therefore not likely to be upheld and so permission to appeal is likely to be
refused.
[55] Thirdly, there is no arguable case of appealable error in the Deputy President’s
determination that items (4) and (5) of the application (earlier set out) were relevant to the
substantive stop bullying application. We agree with the Deputy President’s conclusion that
55 Appeal Book at pp.495-496
[2019] FWCFB 8269
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these were not matters in respect of which urgent relief was required, given the indefinite
adjournment of the stop bullying application at Dr Krcho’s request. The grounds of appeal
directed to this aspect of the Decision are therefore not likely to be upheld and so permission
to appeal is likely to be refused.
[56] Dr Krcho challenges the Deputy President’s refusal to issue a confidentiality order, as
sought by item (3) of the application (also earlier set out). The Respondents did not oppose
the request (noting that such an order was made in the proceeding before Commissioner
Hampton in October 2018).56 While the Deputy President was not obliged or required to
adopt the confidentiality arrangement proposed, we accept Dr Krcho’s contention that
subsequent correspondence from the Chambers of the Deputy President to the parties on 31
July 2019 inaccurately states that “…No party has raised the issue of anonymisation of any
persons in the proceedings…”57
[57] A review of Dr Krcho’s submissions in support of the application58 reveals that the
request for a confidentiality order was confined to a circumstance where the Commission
“decides to exercise its authority to run its own independent investigation and/or research to
inform itself and/or to resolve the matter.” It is apparent that the interim application before the
Deputy President did not warrant an independent investigation into the issues giving rise to
the substantive stop bullying application. It was therefore not incorrect for the Deputy
President to form the view that the confidentiality issue was more appropriately stood over
until such time as the substantive application was heard. In the circumstances therefore, we
are not persuaded that the failure to make a confidentiality order in respect of the Decision
gives rise to an arguable case of appealable error. The grounds of appeal directed to this
aspect of the Decision are therefore not likely to be upheld and so permission to appeal is
likely to be refused.
[58] In his reply submissions, Dr Krcho has made an application to this Full Bench for
“retrospective anonymisation” of his personal and health information in the Decision.59 Given
our conclusion that no arguable case of appealable error is disclosed in respect of this issue,
there is no public interest in granting permission to appeal simply for us to deal with Dr
Krcho’s retrospective confidentiality request. In the circumstances, the appropriate course is
that Dr Krcho’s request for a variation of the Decision (and the Reasons for Decision) be
made to the Chambers of the Deputy President (with or without the support of the University).
[59] Having regard to the above matters, we do not consider that Dr Krcho has established
an arguable case that the Deputy President erred in his consideration of the application in the
manner contended. In our view, none of the appeal grounds are likely to be upheld; some of
the grounds are futile for the reasons we have identified; and the balance of the orders sought
by the application the subject of the Decision are moot for the reasons earlier described. Dr
Krcho is not prevented from making a further application for interim relief should there be a
change in his circumstances.
[60] Our assessment of the nature of the grounds of appeal, the likelihood that one or more
of those grounds would not be upheld if time was extended and the utility of the appeal in this
case weigh against allowing a further period within which the notice of appeal may be lodged.
56 Ibid at p.323 at PN244
57 Ibid at p.498
58 Ibid at p.440 at [30]
59 Appellant’s reply submissions dated 22 October 2019 at p.33 at [63]
[2019] FWCFB 8269
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In this case, for the reasons stated these considerations weigh heavily against allowing a
further period. While the other considerations weigh the other way, they are not so weighty in
the circumstances of this case to outweigh the merits considerations we have identified.
[61] Consequently, in all the circumstances, the interests of justice do not favour Dr Krcho
being granted an extension of the time within which to lodge his notice of appeal.
[62] Even if we were minded to allow a further period for the lodgement of the notice of
appeal, for the reasons stated in our assessment of the merits and utility of the appeal above,
we would not grant permission to appeal.
Conclusion
[63] We do not allow a further period within which the notice of appeal may be lodged. As
the notice of appeal was not lodged within the time prescribed by Rule 56 of the FWC Rules,
the application for permission to appeal is dismissed.
Postscript
[64] Since finalising the draft of this decision but before its publication, Dr Krcho applied
(by correspondence dated 23 November 2019 but received on 25 November 2019) to the Full
Bench seeking an order to prevent his dismissal arising from correspondence sent to him by
the University dated 19 November 2019. The letter concerns events which post-date the
Deputy President’s decision the subject of this appeal.
[65] The Presiding Member conducted a mention on 9 December 2019 at which Dr Krcho
was advised that the Full Bench would not deal with the application as it does not raise any
matter relevant to establishing whether the Deputy President erred in the Decision. Dr
Krcho’s application will be allocated to the Deputy President for hearing and determination.
The University has undertaken not to take any further step in relation to the matter canvassed
in its correspondence of 19 November 2019 until the hearing and determination of Dr Krcho’s
application mentioned at [64].
DEPUTY PRESIDENT
Determined on the papers by consent
Written submissions:
Appellant, 16 September and 22 October 2019.
Respondents, 9 October 2019.
Printed by authority of the Commonwealth Government Printer
PR714911
FAIR WORK MMISSION SEAL OF THE
