1
Fair Work Act 2009
s.604 - Appeal of decisions
Colin McKerlie
v
RateIt Australia Pty Ltd t/a RateIt
(C2020/4086 and C2020/5851)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ANDERSON
COMMISSIONER JOHNS
SYDNEY, 24 SEPTEMBER 2020
Appeals against decisions of Deputy President Boyce at Sydney in matter number
U2020/1211.
Introduction
[1] Mr Colin McKerlie has lodged two appeals, for which permission to appeal is
required, against various decisions made by Deputy President Boyce in connection with an
unfair dismissal application lodged by Mr McKerlie relating to the termination of his
engagement with RateIt Australia Pty Ltd (RateIt). The first appeal filed on 29 May 2020 in
matter C2020/4086 (first appeal) relates to a number of decisions interlocutory and procedural
decisions (or purported decisions) made by the Deputy President, which are characterised by
Mr McKerlie as follows:
the decision not to take any action in regard to Mr McKerlie’s complaint that the
respondent’s solicitors had committed extortion by sending a letter to Mr McKerlie
demanding the performance of various demands before the respondent company
would pay him monies already owed to him (decision 1);
the decision not to take any action in regard to Mr McKerlie’s complaint that the
respondent and/ or the respondent’s solicitors had committed conspiracy to defeat
justice in order to put before the Commission a document that had been obtained by
fraud (decision 2);
the decision not to take any action in regard to Mr McKerlie’s complaint that the
respondent’s solicitors had sought to mislead the Commission by submitting a
document purporting to be Mr McKerlie’s resume, constituted a “representation” by
Mr McKerlie to the respondent relevant to the proceedings before the Commission
(decision 3);
the decision to give the respondent permission to have legal representation in the
proceedings (decision 4);
[2020] FWCFB 5131
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 5131
2
the decision to allow MKI Legal to represent the respondent in the proceedings
(decision 5);
the decision that the issue of “genuine redundancy” is a “jurisdictional objection”
(decision 6);
the decision to refuse to grant Mr McKerlie an adjournment to prepare submissions
and evidence in regard to the issue of “genuine redundancy” (decision 7);
the decision of the Deputy President on 12 May 2020 not to allow Mr McKerlie to file
a statement and annexures relevant to his submissions regarding the issue of “genuine
redundancy” (decision 8); and
the decision of the Deputy President on 14 May 2020 to compel Mr McKerlie to
prepare and file submissions on the issue of his application that the Deputy President
recuse himself from further proceedings on the basis of his not being fit to hold
judicial office, his demonstration of active prejudice and the apprehension of bias
against Mr McKerlie both as a member of a class of persons, unrepresented workers,
and personally (decision 9).
[2] The second appeal, filed on 28 July 2020 in matter C2020/5851 (second appeal),
relates to a decision issued by the Deputy President on 15 July 20201 (recusal decision) in
which he dismissed Mr McKerlie’s application for the Deputy President to recuse or
otherwise disqualify himself from further involvement in the proceedings.
Reasons for the grant of legal representation in the appeal
[3] At the commencement of the hearing of the appeals on 4 September 2020 and over the
opposition of Mr McKerlie, we granted permission for RateIt to be legally represented in the
proceedings and indicated we would give our reasons in the final decision. We considered that
legal representation of RateIt would permit the matter to be dealt with more efficiently,
having regard to the complexity of the matter, such as to satisfy the jurisdictional prerequisite
for the grant of permission in s 596(2)(a). Mr McKerlie’s unfair dismissal application has
been the subject of a significant degree of procedural complexity, as our summary of the
procedural history below illustrates, and we formed the view that the legal representation of
RateIt would assist in ensuring that we properly understood the relevant aspects of that
procedural history. We also considered that the appeals raised a number of legal issues of
some complexity relating to procedural fairness and the principles applying to applications for
recusal, and the second appeal also raised the novel proposition that the Commission has the
power to determine the fitness to hold office of its own members. On that basis, we formed
the view that we would not be assisted by RateIt’s submissions on these issues unless these
were made by a lawyer. We determined to exercise our discretion to grant permission for
legal representation largely on the same basis. Mr McKerlie raised a number of matters
concerning the conduct of MKI Legal, the lawyers who represented RateIt at first instance and
who would represent it in the appeals if permission were granted. These issues are discussed
in somewhat greater detail below and, for the reasons given later, we consider that they are
without substance. But in any event, the requirement for permission for legal representation in
1 [2020] FWC 3598
[2020] FWCFB 5131
3
s 596 is not concerned with the selection by the Commission of the legal team to represent a
party.2
Factual background and procedural history
[4] It is necessary to set out the factual background to and the procedural history of Mr
McKerlie’s unfair dismissal application in some detail. Mr McKerlie was engaged to perform
work by the respondent, RateIt, on 19 November 2018. There is a dispute about whether he
was engaged in the capacity of employee or independent contractor. The engagement was
terminated effective from 31 January 2020. Mr McKerlie filed an unfair dismissal application
in respect of the termination pursuant to s 394 of the Fair Work Act 2009 (FW Act) on 5
February 2020. Under r 19 of the Fair Work Commission Rules 2013 (FW Rules), RateIt was
required to file a Form F3 response to the application within seven calendar days of being
served with the application. RateIt did not file any Form F3 within the prescribed time period.
[5] Mr McKerlie’s application was initially allocated to one of the Commission’s staff
conciliators on 7 February 2020, and the matter was listed for a telephone conciliation to be
held on 6 March 2020. However, on 21 February 2020, Mr McKerlie wrote to the
Commission alleging that he had received an “extortionate letter” from lawyers acting for
RateIt, MKI Legal. He requested that a hearing be organised so that he could seek orders
including that MKI Legal be barred from further participation in the proceedings and that the
Commission appoint lawyers to act on RateIt’s behalf. In response to an inquiry from the
Commission, Mr McKerlie confirmed on 25 February 2020 that he wished to have the
conciliation conference vacated and his matter referred to arbitration. Consequently the listed
conciliation conference was cancelled and the matter was referred to the Deputy President for
arbitration on 27 February 2020.
[6] On 28 February 2020, the Commission received an email from RateIt’s lawyers, MKI
Legal, stating that they acted for the respondent and intended to lodge a Form F3 response to
Mr McKerlie’s unfair dismissal application. On 2 March 2020, the Deputy President’s
chambers responded to this email, in which it was noted that RateIt’s lawyers had not filed a
Form F53 notice that they were commencing to act for RateIt and that it was not for a party to
determine when a document (namely the Form F3 employer response) was to be filed. The
email went on to state that the conduct of RateIt’s legal representatives had “flouted, without
reason, a clear direction made by the Commission ... could undermine the respondent’s
application to be legal[ly] represented...”. RateIt was directed to file its Form F3 by 4 March
2020. The same day, the matter was listed for a mention and directions hearing, by telephone,
to be conducted on 6 March 2020.
[7] RateIt filed its Form F3 on 4 March 2020 in accordance with the Deputy President’s
earlier direction. Section 2 of Form F3, as prescribed by the FW Rules, is headed
“Jurisdictional objections”. Paragraph 2.1 asks: “Does the employer have any jurisdictional
or other objections to the application?”. RateIt marked the box for the answer “Yes”.
Paragraph 2.2 then asks: “If you answered yes to question 2.1 – On what basis does the
employer object? If the employer objects on multiple grounds you can select more than one
on the list below:”. RateIt marked two of the listed grounds for objection: first, “The
Applicant was not an employee” and, second, “The dismissal was a case of genuine
2 See NSW Bar Association v McAuliffe [2014] FWCFB 1663, 241 IR 177 a t [24]
[2020] FWCFB 5131
4
redundancy”. RateIt then set out the grounds for these objections in the box provided in the
form.
[8] Also on 4 March 2020, Mr McKerlie filed a submission with a number of
accompanying documents in which he alleged that MKI Legal had engaged in conduct which
was “misleading and deceptive” and which “amounted to an attempt to extort the Applicant’s
compliance with demands made by the Respondent’s solicitors and an act of contempt of the
jurisdiction of the Commission”. Mr McKerlie went on to say in his submission:
“The Applicant seeks orders to redress the conduct of the Respondent's solicitors
including but not limited to an order that the Respondent instruct new solicitors drawn
from a list provided by the Fair Work Commission and subject to the ongoing
monitoring of the Commission in their communications with the Applicant.”
[9] The Deputy President conducted the directions hearing on 6 March 2020. This hearing
was not recorded. Following the hearing, the Deputy President’s chambers issued directions
which, for relevant purposes, included the following:
“[1] By 4.00pm AEDT on Friday, 27 March 2020, the Respondent must file with
the Commission and serve on the Applicant an Outline of Submissions, witness
statements, and any documents in support of the jurisdictional objections raised.
[2] By 4.00pm AEDT on Friday, 27 March 2020, the Respondent must file with
the Commission and serve on the Applicant an Outline of Submissions in support of
its application to be legally represented in this matter (noting that the Applicant has
already filed and served submissions regarding same).
[3] By 4.00pm AEST on Friday, 17 April 2020, the Applicant must file in the
Commission and serve on the Respondent an Outline of Submissions, witness
statements, and any documents in opposition to the jurisdictional objections raised.
[4] By 4.00pm AEST on Friday, 17 April 2020, the Applicant must file with the
Commission and serve on the Respondent submissions in reply to the Respondent’s
submissions regarding the Respondent’s application to be legally represented in this
matter.
[5] By 4.00pm AEDT on Friday, 24 April 2020, the Respondent must file in the
Commission and serve on the Applicant submissions, witness statements, and any
documents in reply to the Applicant’s submissions regarding the jurisdictional
objections raised.
[6] The matter is listed for Hearing regarding the jurisdictional objections at
10:30am AEST in Sydney (with videolink to Melbourne and Perth) on Friday, 8 May
2020...”
[10] It may be noted that directions [2] and [4] indicate that permission for legal
representation was not granted, at least on an ongoing basis, at the directions hearing on 6
March 2020. The next thing that occurred was that on 16 March 2020, at the request of the
parties, the matter was listed for a conciliation conference before a different member of the
Commission to occur on 25 March 2020. This conference was not successful in resolving the
[2020] FWCFB 5131
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matter, which was then allocated back to the Deputy President. On 27 and 30 March 2020,
RateIt filed the following documents in two separate emails:
“Submissions as to Jurisdictional Objection”, which contained submissions
concerning RateIt’s contentions that Mr McKerlie was a contractor and not an
employee and, in the alternative that, if he was an employee, his dismissal was a case
of genuine redundancy, and also addressed further in the alternative how his
application could be disposed of having regard to s 387 if his dismissal was found not
to be a case of genuine redundancy;
“Submissions for Legal Representation”, which contained RateIt’s submissions in
support of its application to be granted permission to be represented by MKI Legal
pursuant to s 596(2) of the FW Act, and also a response to Mr McKerlie’s submissions
of 3 March 2020;
witness statements by three employees of RateIt, which addressed the issues of the
basis of Mr McKerlie’s engagement, whether his dismissal was a genuine redundancy
and the circumstances attending his dismissal, and legal representation in the
proceedings; and
various primary documents referred to in the witness statements.
[11] On 30 March 2020, Mr McKerlie sent an email to the Associate to the Deputy
President which, omitting formal parts, stated:
“I write to request clarification of the issues which are to be the subject of the hearing
on 8 May.
The matter was escalated to a hearing without conciliation on my request for
consideration of the conduct of the Respondent's solicitors in the matter.
I can understand that this would translate to a hearing on the Respondent's request for
legal representation but I am unsure of the ambit of the hearing regarding jurisdiction.
Is this hearing intended to be solely in regard to those two issues or is it intended that
all issues between the parties are to be determined in this hearing?
I understand that the jurisdictional issue may be determinative, but I am not sure if it
is intended to address the substantive issues between the parties if it is decided the
Applicant has jurisdiction.
Could you please advise by return, thank you”
[12] The Deputy President’s Associate sent the following reply that afternoon (omitting
formal parts):
“I refer to your email below.
The matter is programmed for a hearing on the jurisdictional objections only. The
hearing is not intended to address the “substantive issues” between the parties.”
[2020] FWCFB 5131
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[13] On 8 April 2020, Mr McKerlie filed an application for an order for the production of
documents. The same day, RateIt sent the Commission an email indicating that it opposed the
order sought and wished to make submissions about it. On 9 April 2020, directions were
issued by the Deputy President’s chambers for the parties to file outlines of submissions about
the issue, and it was listed for an interlocutory telephone hearing to be held on 21 April 2020.
[14] On 17 April 2020, Mr McKerlie filed a document entitled “Applicant’s Amended
Outline of Submissions on Legal Representation”, which addressed at length Mr McKerlie’s
contention that RateIt ought not be permitted to be represented by MKI Legal in the
proceedings, and which contained allegations of a serious nature against RateIt, two of
RateIt’s managers, and MKI Legal. He also filed a witness statement made by himself, which
was entitled “Applicant’s Statement Regarding the Issues of Representation, Jurisdiction and
Notice for Production of Documents”. This statement addressed the issue of the basis of Mr
McKerlie’s engagement by RateIt (i.e. whether he was an employee or independent
contractor) and set out in some detail Mr McKerlie’s perspective of the history of his
engagement up until January 2020, but did not deal with the circumstances of the termination
of his engagement or the issue of whether he had genuinely been made redundant. The
statement also briefly dealt with the issues of legal representation and the production of
documents.
[15] At the interlocutory hearing on 21 April 2020, Mr Marouchak, a solicitor employed
by MKI Legal, appeared for RateIt. The transcript of the hearing shows that Mr Marouchak
neither sought nor was granted permission to appear for RateIt, albeit no objection to Mr
Marouchak’s appearance was made by Mr McKerlie. Mr McKerlie eventually withdrew his
application for an order for production pending the determination of what he referred to as the
issue of “jurisdiction”, since the documents he sought were not relevant to the issue of
jurisdiction.3 However, there was no clarification of what the issue(s) of jurisdiction was or
were during this hearing.
[16] On 24 April 2020, RateIt filed two further witness statements, in response to Mr
McKerlie’s submissions, which dealt with the basis of his engagement and the question of
whether he was covered by an award. Thereafter, no further events of relevance occurred
prior to the listed hearing on 8 May 2020. There was no communication from the Deputy
President’s chambers to suggest that RateIt had been granted permission for legal
representation pursuant to s 596(2) of the FW Act.
[17] At the commencement of the 8 May hearing, the following exchange transpired
between the Deputy President and the parties in respect of RateIt’s request for permission to
be legally represented in the proceedings:
“THE DEPUTY PRESIDENT: Yes, Mr Marouchak, you're appearing for the
respondent?
MR MAROUCHAK: Yes, Deputy President.
3 Transcript, 21 April 2020, PNs 45-54
[2020] FWCFB 5131
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THE DEPUTY PRESIDENT: Okay. I note permission has already been granted for
Mr Marouchak to appear today as the legal representative for the respondent. So I've
got the materials, the court book, as well as statements and the submissions.
So Mr McKerlie, how do you propose to proceed?
MR McKERLIE: Well, Deputy President, a couple of preliminary matters, I
suppose. This hearing was initiated by my initial complaint to the Commission
regarding the conduct of the respondent's solicitors. The Commission then,
apparently, made the decision to proceed with that complaint in the nature of a hearing
with regard to the general question of permission to have legal representation and to
list the issue of jurisdiction for hearing, at the same time.
My submission would be that it would be appropriate to determine the issue with
regard to my complaint regarding the conduct of the respondent's solicitors and my
application for an order that they be removed from the proceedings, prior to
consideration of the general question of legal representation. And that question, I
would submit, should be decided prior to the consideration of the matter of
jurisdiction.
THE DEPUTY PRESIDENT: Well, I've already granted them permission to
appear. So I'm not going to re-traverse that issue. We're just here to deal with the
jurisdictional issues.
What is the complaint about the solicitors?
MR McKERLIE: Well, Deputy President, it's made out extensively in my
submissions and my amended submissions with regard to legal representation.
THE DEPUTY PRESIDENT: I don't understand. We've already dealt with that
previously at an interlocutory stage. I'm not going to have - - -
MR McKERLIE: Well, Deputy President, I was never given an opportunity to make
submissions with regard to that, as far as I'm aware.
THE DEPUTY PRESIDENT: Well, you put on written submissions, didn't you?
MR McKERLIE: Yes, Deputy President.
THE DEPUTY PRESIDENT: Yes. So it's been determined…
….
THE DEPUTY PRESIDENT: ...Well, Mr McKerlie, having heard all that, none of it
gives rise to issues that are required for me to determine. If there's any complaints or
issues with the solicitors it's not for the Fair Work Commission to resolve.
Nor is it for the Commission to resolve, you know, various disputes that have occurred
witness the parties - - -
MR McKERLIE: Well - - -
[2020] FWCFB 5131
8
THE DEPUTY PRESIDENT: - - - prior to this matter coming on. All I have to deal
with is jurisdictional objections today.
And as I've said, I've already determined under section 596 of the Act, that it would be
more efficient, given the complexity of some of the arguments and issues being raised,
to go to jurisdictional questions for the respondent to be represented. And I note that
they have some evidence in their evidence that was already filed going to the capacity
for the respondent to represent itself.
. . . .
MR McKERLIE: Very well, Mr Deputy President. What I'd suggest then is, given
that what you're saying is that the issue of representation and my submissions with
regard to the particularities of the respondent's solicitors representation either have
been dealt with or aren't going to be dealt with, then it's over to the respondent to
argue their case with regard to jurisdiction.
THE DEPUTY PRESIDENT: Well, all I can say is that I'm required to determine
whether permission to appear is granted to the respondent's lawyers.
I do so on the basis of the nature of the case before me. I'm certainly not aware of any
conduct in the respondent's solicitor's interactions with the Commission that would
lead me to make a finding or to re-traverse my decision or to withdraw permission, in
these proceedings.
So the focus of 596 is what are the issues, and they have complexity, will the
proceedings be conducted more efficiently and will there be any disadvantage? Along
fairness grounds as to the respondent being entitled to represent or be represented by a
legal representative and as I've said, I've made a decision on that.”4
[18] The Deputy President refused to entertain Mr McKerlie’s submissions directed to the
conduct of MKI Legal, confirmed that he had previously made a decision to grant RateIt
permission for legal representation, and then said:
“Today's set down for a hearing on jurisdictional questions which really - whilst
matters of law, very much are determined according to the relevant facts that underlie
those objections.
So I'd like to proceed with the jurisdictional objections and I note that there's two. One
is that the applicant is not an employee and therefore, the Commission has no
jurisdiction because however the relationship between the parties ceased, the applicant
wasn't an employee.
And then secondly, the respondent says in the alternative, even if that issue's found
against them, that there was a redundancy which was a genuine redundancy within the
meaning of section 389 of the Fair Work Act...”5
[19] Mr McKerlie then protested that he was not aware that the issue of genuine
redundancy was the subject of the hearing, and the following exchanges occurred:
4 Transcript, 8 May 2020, PNs 66-79, 100-104, 115-118
5 Ibid, PNs 118-121
[2020] FWCFB 5131
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“MR McKERLIE: I sought your associate's advice with regard to the ambit of this
hearing and my understanding was that it was that it was solely with regard to the
jurisdictional issue and as such, consideration of the genuineness or otherwise of the
redundancy wasn't going to be heard today.
THE DEPUTY PRESIDENT: Well, that is a jurisdictional issue, the redundancy.
MR McKERLIE: Well, in my submission, it's not. It's an issue that arises subsequent
to the determination of jurisdiction.
THE DEPUTY PRESIDENT: Well, it's part of the jurisdiction. So for a genuine
redundancy I've got no jurisdiction to hear the claim.
MR McKERLIE: Well, in my submission, Deputy President, it's not an issue with
regard to jurisdiction. It's an issue with regard to the genuineness of the redundancy.
It's a separate issue.
THE DEPUTY PRESIDENT: Well, the respondent's Form F3 has ticked its
jurisdictional objections and one of those - I'll just go to it now, it's: ... The applicant
was not an employee and secondly, the dismissal is a case of genuine redundancy.
. . . .
THE DEPUTY PRESIDENT: No. Well, it is. It's a jurisdictional issue. So what are
you saying? You're not prepared for it?
MR McKERLIE: No. As I said, I sought specific advice from your associate as to
whether all matters were to be determined.
. . . .
THE DEPUTY PRESIDENT: Well, they're both jurisdictional questions and you'll see
that in the legislation, under section 385(d) so: The person isn't unfairly dismissed or
has not been unfairly dismissed.
MR McKERLIE: Well, so that's exactly the point, Deputy President.
THE DEPUTY PRESIDENT: So I mean, what do you say about - - -
MR McKERLIE: I mean, if I can make this point? Well, I'll just make this point.
Section 385 is headed: What is an unfair dismissal?
Now, the issue of whether or not a dismissal is fair or unfair only arises after the
Commission has made the determination that the applicant has jurisdiction...
So the consideration of jurisdiction is a completely separate issue to the question of
whether or not the dismissal of an employee was unfair.
THE DEPUTY PRESIDENT: Well, they're different issues but they're both
jurisdictional issues.”6
6 Ibid, PNs 128-134, 136-137, 145-154
[2020] FWCFB 5131
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[20] Mr McKerlie went on to say that the witness statement which he had prepared did not
address the genuine redundancy issue.7 There were further exchanges between the Deputy
President and Mr McKerlie concerning the directions issued on 6 March 2020 and Mr
McKerlie’s email exchange with the Deputy President’s Associate on 30 March 2020, and
whether the issue of genuine redundancy was a “jurisdictional issue”. Eventually Mr
McKerlie said:
“MR McKERLIE: Well, Deputy President, all I can say is my understanding was that
the issue of the genuineness of the redundancy was not going to be dealt with today. I
have not submitted a statement with regard to that, after having gone out of my way to
try and determine whether or not that issue was going to be determined.
So I suppose what I need to do is ask for adjournment so that I can amend my
statement, according to your interpretation of the Act.”8
[21] The reference to “your interpretation of the Act” prompted a series of further
exchanges between the Deputy President and Mr McKerlie concerning whether the genuine
redundancy issue was “jurisdictional” in nature, and Mr McKerlie finally ended this by
saying:
“MR McKERLIE: Well, Deputy President, as I said, I don't know what utility there is
in me making this submission again and again and again. I have not prepared the
materials that are currently before the Commission in anticipation of the question of
genuine redundancy being argued and determined today.
Therefore, I seek an adjourn to amend my statement accordingly.”9
[22] The Deputy President then sought RateIt’s views on this adjournment application, and
Mr Marouchak submitted that there should have been no confusion as to what the issues to be
determined were, that Mr McKerlie should not have been confused, that an adjournment
would cause cost and inconvenience to RateIt, and that Mr McKerlie was in a position to
cross-examine the witnesses about the genuine redundancy issue. There were then, yet again,
a series of exchanges between the Deputy President and Mr McKerlie about whether the
genuine redundancy issue was a jurisdictional one and the nature of the advice Mr McKerlie
had received from the Deputy President’s Associate. Finally, the Deputy President ruled as
follows:
“So look, the way I'm going to propose to deal with it is, the hearing will go ahead, you
can cross-examine the respondent's witnesses as to the issue of genuine redundancy.
You can also give evidence and be cross-examined on that evidence as well. And I'll
give you a further opportunity to put on any submission you wish make seven days
after the hearing, in writing, in relation to the redundancy issue.”10
7 Ibid, PN 166
8 Ibid, PNs 202-203
9 Ibid, PNs 218-219
10 Ibid, PNs 269-270
[2020] FWCFB 5131
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[23] The Deputy President also (in conjunction with a technical issue which required
resolution) allowed Mr McKerlie a 40-minute adjournment “to do any further preparation or
collect your thoughts in relation to the issue of genuine redundancy...”.11
[24] The hearing them proceeded, with RateIt going first in presenting its case. RateIt
called its witnesses, and they were cross-examined by Mr McKerlie. After RateIt had
completed its evidentiary case, the Deputy President admitted into evidence Mr McKerlie’s
witness statement and, over the objection of RateIt but subject to relevance, a statutory
declaration which Mr McKerlie had made on 6 February 2020 about various matters. There
was then insufficient time for Mr Marouchak to undertake his cross-examination of Mr
McKerlie, so the matter was set down for further hearing at 2.00pm on 15 May 2020.
[25] On 12 May 2020, Mr McKerlie filed written submissions on the issue of genuine
redundancy and, in addition, a further witness statement made by himself with a number of
annexed documents in relation to that issue. Upon being copied into this material when it was
filed by email, RateIt immediately sent an email to the Deputy President’s chambers which,
omitting formal parts, stated:
“The respondent opposes the tendering of the additional statement as the applicant has
already finished his examination in chief and therefore cannot tender new statements.
Could the Commission advise whether this statement will be accepted as that will
increase our time to prepare for cross-examination on Friday.”
[26] The Deputy President’s chambers sent the following email (omitting formal parts) to
Mr McKerlie later the same day:
“I refer to the matter above, and the Applicant’s email below (and the attachments
therein).
Leave has neither been requested nor granted for the Applicant to tender (or otherwise
rely upon) further evidence in these proceedings.
Leave has only been granted to the Applicant for him to make further submissions on
the jurisdictional issue of genuine redundancy. I note that he has filed those
submissions.
In view of the foregoing, the Deputy President advises that the parties should proceed
on the basis of the evidence filed as at the 8 May 2020 (i.e. the time that the
Respondent’s evidentiary case in these proceedings closed).”
[27] In response to this email, Mr McKerlie sent an email in reply stating that he would
seek leave to tender the evidence he had filed when the hearing of the matter resumed.
[28] On 13 May 2020, Mr McKerlie sent a complaint to the President of the Commission,
Ross J, about the Deputy President’s conduct. In this complaint, Mr McKerlie contended that
the Deputy President was unfit to hold judicial office, had displayed incompetence, ignorance
and disinterest in the conduct of his case, and was personally biased against him. He requested
11 Ibid, PN 274
[2020] FWCFB 5131
12
that the President intervene in the matter to vacate the hearing listed for 15 May 2020, declare
the proceedings in the case to date null and void, and allow the matter to be relitigated from
the point that RateIt filed its Form F3. Mr McKerlie sent a complaint raising similar matters
to the Commonwealth Attorney-General on 14 May 2020.
[29] At 6.16pm on 14 May 2020, Mr McKerlie sent an email to the Deputy President’s
chambers giving notice that, at the commencement of the hearing on 15 May 2020, he would
make an application for the Deputy President to recuse himself from further involvement in
the proceedings and that, should the Deputy President decline to recuse himself, he would
seek an adjournment to enable him to file an appeal against that decision. At 7.41pm that
evening, the Deputy President’s chambers issued directions requiring Mr McKerlie and RateIt
to file any written submissions and evidence in respect of the recusal application by 11.30am
on 15 May 2020 (i.e. the following day). The parties were notified in the same email that at
the conclusion of the hearing, the matter would be adjourned for a date to be fixed after any
decision and written reasons in relation to the recusal application had been issued. Neither
party filed submissions in response to these directions. Mr McKerlie sent an email that simply
outlined the matters he intended to raise at the hearing, and RateIt declined to file any
submissions at all.
[30] At the hearing on 15 May 2020, Mr McKerlie re-agitated the matters he raised in his
complaint to the President and the Attorney-General, and handed up copies of both
complaints. At the conclusion of the hearing, the Deputy President reserved his decision. On
25 June 2020, the Deputy President invited submissions concerning whether s 16 of the
Parliamentary Privileges Act 1987 (Cth) applied such as to preclude the admission into
evidence of Mr McKerlie’s complaints to the President and the Attorney-General and, if so,
whether there was any utility in determining the issue of the alleged apprehension of bias. Mr
McKerlie (on 30 June 2020) filed a submission in which he rejected the proposition that the
Parliamentary Privileges Act applied, denied that he had tendered into evidence the two
complaints, and said it was not necessary for him to prove facts which were within the
personal knowledge of the Deputy President.
[31] On 26 May 2020, Mr McKerlie filed an application in the Federal Court of Australia
(Court), seeking that the following relief:
(1) A writ of prohibition prohibiting the Deputy President from further involvement in
Mr McKerlie’s unfair dismissal application.
(2) A declaration that the Deputy President is not a fit and proper person to hold
judicial office, particularly the office of Deputy President of the Commission.
(3) An order that Mr McKerlie’s unfair dismissal application be transferred to the
Federal Court to be heard together with other matters arising.
(4) An interlocutory injunction against the Deputy President from taking any further
action or having any further involvement in Mr McKerlie’s unfair dismissal
application pending the determination of Mr McKerlie’s application before the Court.
[2020] FWCFB 5131
13
[32] Mr McKerlie lodged the first appeal on 29 May 2020. His notice of appeal included an
application for a stay pursuant to s 606 of the FW Act. The presiding member of this Full
Bench heard and dismissed Mr McKerlie’s stay application on 2 June 2020.12
[33] Following the stay decision, Mr McKerlie wrote to the presiding member’s chambers
on 3 June 2020 inquiring as to the procedure for the determination of whether RateIt has
permission to be legally represented at the appeal hearing. The presiding member’s chambers
responded stating that when the matter is listed and directions are issued, the parties will be
directed to file and serve submissions should they wish to seek permission to be legally
represented at the appeal hearing and that it is at the discretion of the Full Bench when the
issue of permission to be legally represented is to be determined. Mr McKerlie was informed
that he would be given an opportunity to respond prior to any such determination being made.
[34] On 9 and 26 June 2020, Mr McKerlie filed two further applications in the Court. The
application filed on 9 June 2020 sought, among other things, an injunction preventing the
Commission from further proceeding in any manner in respect of the unfair dismissal
application or the first appeal. The application filed on 26 June 2020 sought an order that
RateIt’s lawyers be restrained from acting in respect of that application, the unfair dismissal
application and any other legal proceedings in which Mr McKerlie is a party.
[35] On 3 July 2020, the Deputy President issued a document entitled “Decision”13 which
set out the Deputy President’s reasons for a decision which was said to have been earlier
made by him granting RateIt permission to be legally represented in the proceedings
(representation reasons). In the representation reasons, the Deputy President stated that the
recusal application would be determined in due course.14
[36] On 6 and 8 July 2020, Mr McKerlie filed two more applications in the Court. The
application filed on 6 July 2020 sought an order restraining the Commission from taking any
further action in respect of the unfair dismissal application and the first appeal until further
order. The application filed on 8 July 2020 sought a suppression order prohibiting the
publication or disclosure of the identity of Mr McKerlie in respect of that proceeding and any
proceedings currently before the Commission.
[37] On 15 July 2020, the Deputy President issued the recusal decision, in which he
dismissed Mr McKerlie’s recusal application. Mr McKerlie’s unfair dismissal application was
then listed for mention/ directions on 16 July 2020, and also listed for a further jurisdictional
hearing on 3 August 2020 before the Deputy President. RateIt filed an application for costs on
24 July 2020.
[38] On 28 July 2020, Mr McKerlie lodged the second appeal and sought a stay of the
whole of the proceedings before the Deputy President, specifically before the hearing of the
unfair dismissal application which was to resume on 3 August 2020. That same day, the
Deputy President’s chambers sent an email to the parties noting the multiple appeal
proceedings pending before the Commission and the application for interlocutory relief
pending before the Court. The email advised that the listing in that matter was vacated to a
12 [2020] FWC 2878
13 [2020] FWC 2616
14 Ibid at [51]
[2020] FWCFB 5131
14
date to be fixed, being a date subsequent to the resolution of the appeals before the Full Bench
of the Commission and the matter before the Court.
[39] On 5 August 2020, the Court dismissed Mr McKerlie’s various applications for
interlocutory relief.15 The same day, the presiding member of the Full Bench issued directions
and both appeals were listed for hearing on 4 September 2020.
The representation reasons
[40] In the representation reasons, the Deputy President began by noting that he had
reserved his decision on Mr McKerlie’s recusal application, and said that “[t]his decision
concerns only my reasons for having determined that permission be granted to the
Respondent to be legally represented in these proceedings pursuant to s.596 of the Act”.16 He
then noted that RateIt had raised two “jurisdictional objections” to Mr McKerlie’s unfair
dismissal application: first, that he was a contractor and not an employee and, second, if he
was an employee, his dismissal was a case of genuine redundancy within the meaning of s
389 of the FW Act and that “[o]n this basis, the Commission lacks the jurisdiction to hear and
determine Mr McKerlie’s claim alleging unfair dismissal”.17 The Deputy President then
described the procedural background concerning the issue of legal representation in the
following way (footnotes omitted):
“[9] On 4 March 2020, Mr McKerlie filed submissions opposing the Respondent’s
application to be represented by MKI Legal.
[10] On 6 March 2020, I issued directions, whereby parties were to file materials
regarding the Jurisdictional Objections, and the issue of the Respondent’s request for
permission to be legally represented.
[11] Both Mr McKerlie, and the Respondent, prior to the hearing on 8 May 2020, filed
extensive written submissions on the question of whether the Respondent ought to be
granted permission to be legally represented in these proceedings. I considered and
had regard to all of those submissions and evidence in making my determination to
grant the Respondent permission to be legally represented in these proceedings. I was
also able to consider and have regard to all of the written submissions and evidence
filed by the parties on the Jurisdictional Objections, given that all such written
submissions and evidence had been filed and served by the end of April 2020.
[12] On 8 May 2020, I held a hearing (by telephone) regarding the Jurisdictional
Objections raised by the Respondent. Mr McKerlie appeared for himself.
Mr Marouchak (Solicitor, MKI Legal) appeared for the Respondent.
[13] I made it clear to Mr McKerlie, at the commencement of the hearing, that I had
already determined that I would be granting the Respondent permission to be legally
represented in these proceedings. Despite this determination, Mr McKerlie made
further oral submissions opposing the grant of permission.”
15 [2020] FCA 1112
16 [2020] FWC 2616 at [3]
17 Ibid at [4]
[2020] FWCFB 5131
15
[41] The Deputy President then referred to what he described at the “ordinary approach” to
the determination of a permission to appear request, namely that the issue would be decided
prior to the commencement of a hearing.18 The Deputy President then said (footnote omitted):
“[18] Whilst, in the discretion of a Commission Member, the ordinary approach may be
departed from, I did not consider any departure from same necessary or appropriate in
these proceedings. In this regard, in relation to permission to appear, Mr McKerlie
filed a two page submission (with 16 separate attachments) on 3 March 2020. He also
filed a further 16 page submission (with 17 separate attachments) on 17 April 2020, in
response to the Respondent’s five page submissions (with one attachment) dated 27
March 2020.
[19] Having regard to the nature of the factual and legal disputes between the parties
(as identified in the Forms F2 and F3), and the written submissions and evidence filed
by both parties, in the exercise of my discretion, I determined that I did not need to
hear any further argument from the parties as to whether or not I ought to grant the
Respondent permission to be legally represented, and that I could determine the
resolution of the issue on the material already before me (i.e. prior to the hearing).”
[42] The Deputy President then said that he had determined, pursuant to s 595(2)(a) that the
complexity of the issues in the matter weighed in favour of the grant of legal representation,19
and identified complexities in relation to the “jurisdictional” issues he had identified. He then
said, in relation to s 596(2)(b), that he did not consider that RateIt was in a position to have
one of its directors, officers or employees represent it in the proceedings, and that he had
relied on RateIt’s submissions going to this issue, as supported by the evidence of RateIt’s
witnesses. In relation to s 596(2)(c), the Deputy President said that it was necessary for him
to “actively consider whether it would be unfair not to allow a party to be represented, taking
into account fairness between the person (Party A) and other persons (Party B etc) in the same
matter”.20 In this connection, the Deputy President had regard to the fact that Mr McKerlie
had previously been a practising lawyer until he was struck off by reason of a criminal
conviction, and described in detail the circumstances of that conviction. He also had regard to
identified instances of Mr McKerlie’s “post-employment conduct” which he considered
rendered it not “efficient, effective, fair or reasonable to have an employee representative of
the Respondent (as an advocate) engage directly with Mr McKerlie at a hearing”.21 Finally,
the Deputy President referred to Mr McKerlie’s submissions concerning the alleged conduct
of MKI Legal, and said that “what legal representative appears on behalf of the Respondent is
simply not a choice for Mr McKerlie to make”, and that he should take up his complaints with
the relevant Law Society.22 The Deputy President concluded by saying:
“[51] As part of his Recusal Application, Mr McKerlie alleges that my decision to grant
permission to the Respondent to be legally represented is infected by actual bias. I will
be dealing with this bias allegation as part of my decision (to be made in due course)
on the Recusal Application.”
18 Ibid at [16]
19 Ibid at [21]
20 Ibid at [29]
21 Ibid at [46]
22 Ibid at [50]
[2020] FWCFB 5131
16
The recusal decision
[43] In the recusal decision, the Deputy President identified McKerlie’s grounds for his
recusal application as being: first, that he had exhibited actual bias in granting RateIt
permission to be legally represented; second, that he was biased (on an actual and/or
apprehended basis) because of a predisposition to making certain types of errors identified in
two Full Bench decisions; and, third, that on the basis of Google searches undertaken by Mr
McKerlie, there were media reports about his conduct that gave rise to an apprehension of
bias such that he would be unable to bring an impartial mind to the determination of Mr
McKerlie’s unfair dismissal claim (including the “jurisdictional objections”).23 After
describing in some detail with the procedural history of the recusal application and hearing,
the Deputy President dealt with each of these grounds in turn. In relation to the first ground,
the Deputy President simply concluded that the words used by him recorded on the transcript
(for 8 May 2020) do not demonstrate that he had pre-judged the issue of legal representation
or he had not taken into Mr McKerlie’s submissions about the conduct of MKI Legal. The
Deputy President also concluded that there was no basis to Mr McKerlie’s allegations that he
was so committed to a particular outcome (in favour of RateIt) that he would not alter his
determination in respect of that outcome no matter what evidence or submissions were put
before him.24
[44] In relation to the second ground, the Deputy President traversed at length the relevant
legal principles and the application of the Parliamentary Privileges Act in respect of various
allegations about his conduct that had been aired in parliamentary proceedings. The Deputy
President ultimately concluded that the “evidence” upon which Mr McKerlie relied had as its
source parliamentary proceedings protected by the Parliamentary Privileges Act and was
accordingly inadmissible. As to the third ground, the Deputy President said that a case based
upon the results of a Google search was one based on inadmissible, inaccurate, incomplete
and unreliable hearsay and opinion, and there was no rational basis for concluding that the
hypothetical fair-minded and informed lay observer, acting reasonably, could apprehend (or
infer) some form of relevant disposition as to prejudgement on his part in the proceedings.
The Deputy President also rejected as a matter not capable of determination by him Mr
McKerlie’s suggestion that the Deputy President should be removed from office.
Appeal grounds and submissions - first appeal
[45] The grounds for Mr McKerlie’s first appeal as stated in his notice of appeal were as
follows:
“1. Deputy President Boyce was under an obligation to regulate the conduct of the
parties and their legal representatives.
2. Deputy President Boyce was under an obligation to enforce the relevant laws
regulating the conduct of the parties and their legal representatives.
3. Deputy President Boyce was under an obligation to provide reasons for each of his
decisions, which he has failed to do in regard to each of the decisions the subject of
23 [2020] FWC 3598 at [5], [41]
24 Ibid at [53]
[2020] FWCFB 5131
17
this appeal other than his decision regarding the issue of whether "genuine
redundancy" is a "jurisdictional objection".
4. Deputy President Boyce erred in finding that the issue of "genuine redundancy" is a
"jurisdictional objection" and erred in relying on a secondary source, The Fair Work
Commission "benchbook" in making that finding rather than having reference to the
primary source, The Fair Work Act 2009.
5. Deputy President Boyce erred in refusing to grant the Appellant an adjournment to
prepare submissions and evidence in regard to the issue of "genuine redundancy" as he
erred in his finding with regard to the issue being a "jurisdictional objection".
6. Deputy President Boyce erred in refusing to allow the Appellant to file a statement
and evidence in support of this submissions on the issue of "genuine redundancy" as
the necessary corollary to his decision to grant leave to the Appellant to file
submissions on this issue was that the Appellant be granted leave to file evidence in
support of those submissions.
7. Deputy President Boyce erred in failing to disqualify himself from further
involvement in the proceedings when his fitness for office had been put into question
on grounds and supported by precedent which established beyond argument that he is
unfit to hold judicial office.
8. Deputy President Boyce erred in failing to disqualify himself from further
involvement in the proceedings when his blatant prejudice against the Appellant had
been submitted to him on the basis of his conduct towards the Appellant the subject of
this appeal.
9. Deputy President Boyce erred in failing to take reasonable steps to ensure that the
Appellant could rely on his further conduct of the proceedings being undertaken with
a reasonable regard to the situation of the Appellant as an unrepresented worker
operating under conditions of pandemic lockdown and without even the resources
normally available to an unrepresented worker in the conduct of proceedings.
10. Deputy President Boyce erred in each of the actions the subject of this appeal in
failing to give the Appellant a "fair go" as required by the Fair Work Act.”
[46] In relation to grounds 1-3 of the appeal, Mr McKerlie submitted that Commission
members had the right and duty to supervise the conduct of legal practitioners engaged by a
litigant in any matter being decided by a member, and that the Deputy President had
abnegated that responsibility. It was necessary, it was submitted, for the Commission to use
its powers under s 590 to ensure that employer parties being able to afford legal representation
did not result in unfairness in proceedings towards unrepresented applicants. Because legal
representation before the Commission was a privilege, it was the responsibility that this
privilege was not abused by unethical conduct. Mr McKerlie alleged in his submissions that
MKI Legal had made misleading representations to him in the course of the litigation, had a
made a misleading submission to the Commission by referring to an inapplicable case
authority and had sent him a Calderbank offer letter which amounted to extortion, and
provided particulars of these allegations, and that the Deputy President had failed to discharge
his duty to take action in respect of this conduct. This was a matter which, Mr McKerlie
[2020] FWCFB 5131
18
submitted, attracted the public interest in the proper administration of justice. Specifically in
relation to the third ground of appeal, Mr McKerlie submitted that the failure of the Deputy
President to give reasons at the time he made his decision in relation to legal representation
demonstrated contempt for the Full Bench decision in Hungry Jack’s25 and thereby acted
contrary to the interests of justice. Mr McKerlie further submitted that the representation
reasons, issued some two months after the decision, had no real relationship to the reasons for
the decision supposedly made before 8 May 2020 and showed no indication that the Deputy
President had considered or even read Mr McKerlie’s submissions.
[47] In relation to grounds 4, 5 and 6, it was submitted that:
a contention that a dismissal was a case of genuine redundancy was not a
“jurisdictional objection” but a matter to be determined in the process of deciding
whether there was an unfair dismissal, and the Deputy President erred in
proceeding otherwise;
this error was conducive of unfairness because it created the impression that there
can be a meaningful hearing of the facts surrounding an assertion that a dismissal
was a genuine redundancy without there being a hearing of all the facts;
when Mr McKerlie sought clarification of the issues from Deputy President Boyce
to be determined at the hearing of 8 May 2020, having received documentation
from RateIt which included material about the substantive genuine redundancy
issue, he was advised that the hearing was not concerned with the substantive
issues, and he acted on that basis;
there was no legitimate reason for the refusal of Mr McKerlie’s request for an
adjournment, and the refusal to allow him to submit evidence on the genuine
redundancy question was irrational and prejudicial; and
the inference to be drawn was that the Deputy President and MKI Legal were
aware prior to the hearing that Mr McKerlie did not appreciate that the hearing on
8 May 2020 would include the issue of genuine redundancy and allowed Mr
McKerlie to proceed on that basis in order to ambush him.
[48] Mr McKerlie said that grounds 7, 8 and 9 of the first appeal “were essentially
anticipatory” of the recusal decision, which since the first appeal was filed had been handed
down. Mr McKerlie therefore proceeded on the basis that the issues raised by these grounds
were properly addressed by the second appeal, which challenged the recusal decision. In
relation to ground 10, it was submitted that Commission members had a duty to conduct
matters in a manner consistent with the requirement for a “fair go” in s 381(2).
[49] RateIt’s written and oral appeal submissions were brief and only addressed two
matters. First, it submitted that MKI Legal was at all times simply acting on instructions
received from RateIt when communicating with Mr McKerlie. Second, it submitted that it
was the usual practice of the Commission to state a ruling on the question of permission for
legal representation at the start of a hearing and then issue reasons for that ruling at a later
time.
25 [2020] FWCFB 1693
[2020] FWCFB 5131
19
Consideration – first appeal
[50] For the reasons which follow, we consider that permission to appeal should be granted
and the appeal upheld insofar as it challenges decision 5 and decision 8 and in respect of
grounds 3, 6 and 10 of the appeal.
[51] In relation to decision 5, we consider that the Deputy President erred in allowing
RateIt to be represented at by MKI Legal at the hearings on 21 April, 8 May and 15 May 2020
without ever having made a decision prior to or at those hearings to grant RateIt permission
for legal representation pursuant to s 596 of the FW Act. The transcript for the hearing on 21
April 2020 does not indicate, as we have earlier stated, that any application for permission for
legal representation was granted at that hearing. The passages we have quoted in paragraph
[17] above from the transcript for the hearing on 8 May 2020 demonstrate that the Deputy
President asserted on a number of occasions that, at some time prior to the hearing that day,
he had made a decision to grant RateIt permission for legal representation. If so, then logically
such a decision must have been communicated to the parties after 17 April 2020, when the
last written submissions on the question of legal representation had been filed pursuant to the
directions issued on 6 March 2020, and before the commencement of the hearing on 8 May
2020. However, on a close perusal of the file, we can discern no evidence that any such
decision was ever communicated to the parties. On enquiry at the appeal hearing, neither
party was able to identify when or how any such decision was ever made. The Deputy
President’s representation reasons, which confirm (at paragraphs [11] and [13]) that the
purported decision was said to have been made prior to the hearing on 8 May 2020, do not
identify when the decision was made or how it was delivered.
[52] It may be accepted that decisions as to whether to grant permission pursuant to s 596
may be communicated in a fairly informal way. It is a common practice, for example, for
members of the Commission to send an email to parties prior to the commencement of a
hearing stating, in response to an application for permission for legal representation, whether
permission has been granted and, if so, which of the three prerequisites in s 596(2) is
considered to have been satisfied. Sometimes it is indicated that more complete reasons will
be given at a later time. This is a sensible practice since it allows parties to prepare for a
hearing with advance knowledge of whether their legal representatives will be permitted to
appear. However, the Deputy President did not send any communication of this nature to the
parties prior to the hearing on 8 May 2020.
[53] It could not of course be the case that a decision could be said to have been made
without it being communicated to the parties. The ordinary meaning of a “decision” in judicial
or administrative proceedings is “an announced or published ruling or adjudication”26
(underlining added). For a court or tribunal to proceed on the basis that a certain decision had
been made that affected the rights and interests of the parties without having informed the
parties of that purported decision would constitute a failure to act judicially and a denial of
procedural fairness.27
[54] Accordingly what happened in the proceedings was that the Deputy President
permitted RateIt to be represented in the proceedings by MKI Legal on 21 April, 8 May and
26 Australian Broadcasting Tribunal v Bond [1990] HCA 33, 170 CLR 321 at p.335 per Mason CJ
27 Ibid at p.366 per Deane J
[2020] FWCFB 5131
20
15 May 2020 without ever having issued a decision to grant permission for such
representation. This occurred in circumstances where Mr McKerlie had strongly opposed the
grant of legal representation (at least insofar as representation by MKI Legal was concerned)
and was not allowed by the Deputy President on 8 May 2020 to be further heard on the issue.
This constituted a contravention of s 596(1). This was not a mere procedural failure, but one
which had the capacity to “fundamentally change the dynamics and manner in which a
hearing is conducted”.28 For the reasons stated, it also constituted a denial of procedural
fairness.
[55] The position was not rectified by the representation reasons issued on 3 July 2020.
Although the document published bore the heading “Decision”, it did not as a matter of
substance purport to be a decision to grant permission for legal representation (retrospectively
or otherwise), but was (as earlier stated) said to be reasons for a decision issued prior to the
hearing on 8 May 2020. In reality, these were reasons for a decision that was never made.
[56] In relation to decision 8, it is readily apparent from the procedural history and the
transcript that, as at the commencement of the hearing on 8 May 2020, Mr McKerlie
genuinely did not understand that the Deputy President intended to deal with the issue of
whether his termination was a genuine redundancy at that hearing. In our view, Mr
McKerlie’s misunderstanding was not unreasonable. The directions and listing issued on 6
March 2020 only identified the matters to be dealt with at the hearing on 8 May 2020 as the
“jurisdictional objections”. We consider that there is substance in Mr McKerlie’s submission
that a contention by a respondent to an unfair dismissal application that the dismissal was a
case of genuine redundancy is not a matter which goes to the jurisdiction of the Commission
to hear and determine the application. It is important in this context to understand the
distinction between the concepts of jurisdiction and power. As Toohey J said in Harris v
Caladine:
“The distinction between jurisdiction and power is often blurred, particularly in the
context of ‘inherent jurisdiction’. But the distinction may at times be important.
Jurisdiction is the authority which a court has to decide the range of matters that can
be litigated before it; in the exercise of that jurisdiction a court has powers expressly
or impliedly conferred by the legislation governing the court and ‘such powers as are
incidental and necessary to the exercise of the jurisdiction or the powers so
conferred’.”29
[57] The Commission certainly has the jurisdiction to entertain and determine an unfair
dismissal application if the application has been made in accordance with s 394 and the
applicant is a person protected from unfair dismissal as defined in s 382. The substantive
determinative functions of the Commission in respect of an application that is within
jurisdiction are to decide whether the dismissal the subject of the application was unfair and,
if so, what if any remedy should be granted. As s 385 makes clear, the substantive elements of
an unfair dismissal (apart from the fact of the dismissal itself) about which the Commission
must be satisfied are threefold: (1) the dismissal must be harsh, unjust or unreasonable; (2) the
dismissal must not be consistent with the Small Business Fair Dismissal Code; and (3) the
dismissal must not be a case of genuine redundancy. The power to grant a remedy cannot be
28 Warrell v Fair Work Australia [2013] FCA 291, 233 IR 335 at [24]
29 [1991] HCA 9, 172 CLR 84 at p,136
[2020] FWCFB 5131
21
exercised absent the Commission reaching the requisite state of satisfaction about these three
matters.
[58] Section 396, which is located within Division 5, Procedural matters, of Part 3-2 of the
FW Act, requires that certain matters, including whether the dismissal was a case of genuine
redundancy, be determined before “considering the merits of the application”. This meaning
of the italicised expression is not pellucidly clear, but it presumably refers to the question of
whether the dismissal is harsh, unjust or unreasonable and perhaps also to the question of
remedy. However this requirement to decide issues in a certain order of priority does not
mean they need to be the subject of a separate, preliminary hearing and, because the facts
relevant to whether a dismissal is a case of genuine redundancy will usually be interwoven
with those concerning whether the dismissal is harsh, unjust or unreasonable, it will not
generally be a convenient and efficient course of action to hold a preliminary hearing
concerning the question of genuine redundancy. Not all the “initial matters” identified in s
396 are jurisdictional matters. Determining whether a dismissal is a genuine redundancy (as
defined) precedes and may obviate the need to determine other questions (“merits”). In that
sense it is commonly referred to as a “preliminary matter”. Nonetheless, it is a matter to be
decided by exercising arbitral power on an application that is otherwise within jurisdiction.
[59] The standard Form F3 for an employer’s response to an unfair dismissal application at
paragraph 2.1 asks, as earlier explained, whether the employer has “any jurisdictional or
other objections to the application” (underlining added), and objections identified under this
part of the form have as a matter of usage often been referred to as “jurisdictional objections”.
This is no doubt what the Deputy President had in mind when the directions of 6 March 2020
were issued. However it is clear that Mr McKerlie, a former lawyer, did not have the same
understanding as to what constituted a “jurisdictional objection”. The position was further
confused when RateIt’s lawyers filed submissions which dealt not only with the questions of
whether Mr McKerlie was an employee or contractor and, if he was an employee, whether his
dismissal was a case of genuine redundancy but also went further and discussed the
appropriate disposition of the application even if the dismissal was not a case of genuine
redundancy. Mr McKerlie then, properly, sought clarification of what matters would be the
subject of the 8 May 2020 hearing, but the response from the Deputy President’s chambers of
30 March 2020 did not clearly identify the matters that were to be considered but merely
reiterated that the hearing would deal with the “jurisdictional objections” and not substantive
matters. That this merely reinforced Mr McKerlie’s existing understanding is shown by the
fact that when Mr McKerlie filed his evidence and submissions on 17 April 2020, they did not
touch upon the question of genuine redundancy.
[60] Soon after the commencement of the hearing on 8 May 2020, it quickly became
apparent that Mr McKerlie and the Deputy President (and RateIt) were at cross-purposes as to
the matters that were to be the subject of the hearing, as the exchanges set out in paragraphs
[18]-[19] demonstrate. The situation called for a sensible accommodation to allow Mr
McKerlie to be given a fair opportunity to present his case in respect of the genuine
redundancy issue whilst taking into account that RateIt appears to have been operating on the
same premise as the Deputy President concerning the issues that were before the Commission
that day. Mr McKerlie applied for an adjournment, which was not allowed. Instead the
Deputy President, as set out in paragraph [22] above, determined that the hearing should
proceed, that Mr McKerlie should cross-examine RateIt’s witnesses and, importantly, that Mr
McKerlie would then be allowed to give evidence on the issue and be cross-examined by
RateIt on that evidence. He would also be allowed to file further written submissions on the
[2020] FWCFB 5131
22
genuine redundancy issue within seven days after the hearing. This appears to us to have been
a reasonable approach in the circumstances, since it balanced the need for Mr McKerlie to be
afforded a fair opportunity to give evidence and make submissions about the genuine
redundancy issue without throwing away the day’s hearing for which RateIt had prepared and
made available its witnesses.
[61] As it turned out, by the end of the hearing there remained insufficient time for Mr
McKerlie to give his evidence in chief concerning the redundancy issue and be cross-
examined on this as well as in relation to the other issue of his employment status. As earlier
explained the matter was stood over for further hearing on 15 May 2020. Mr McKerlie then
filed, on 12 May 2020, his written submissions on the question of genuine redundancy which
the Deputy President had permitted him to do and, in addition, a witness statement setting out
the evidence which he wished to give in relation to that issue (plus associated documents). It
seems to us that, given the Deputy President had determined to give Mr McKerlie an
opportunity to give evidence concerning the genuine redundancy issue and that there had
proved to be insufficient time for Mr McKerlie to give such evidence orally on 8 May 2020, it
was a convenient course for Mr McKerlie to reduce the evidence he wished to give to the
form of a written witness statement prior to the resumption of the hearing on 15 May 2020.
[62] However, as earlier recited, RateIt objected to the filing or admission of this witness
statement and the Deputy President, without giving Mr McKerlie an opportunity to be heard
about this objection, effectively upheld it. That by itself constituted a denial of procedural
fairness. Further, in upholding the objection, the Deputy President determined that no further
evidence would be admitted in relation to the genuine redundancy issue in that the parties
were required to proceed on the basis of the evidence filed as at 8 May 2020. This was
contrary to the accommodation which the Deputy President had allowed during that hearing
when the misunderstanding concerning the issues which were to be dealt with had emerged,
which included permitting Mr McKerlie to give evidence.
[63] The definition of genuine redundancy in s 389 is primarily fact-based. In determining
whether a dismissal was a case of genuine redundancy, the Commission must make findings
of fact, or fact-based evaluative judgments, about whether the employer no longer wanted the
applicant’s job to be performed by anyone because of changes in operational requirements in
the enterprise, whether the employer consulted with the applicant in accordance with any
consultation requirements in an applicable award or enterprise agreement, and whether
redeployment of the applicant would have been reasonable in all the circumstances. It is
obviously necessary therefore as a matter of procedural fairness for an applicant in an unfair
dismissal case to be given a proper opportunity to give evidence in relation to these matters.
[64] Because of the uncertainty in the expression “jurisdictional objections” used in the
Deputy President’s directions of 6 March 2020, the repetition in the use of this expression by
the Deputy President’s chambers on 30 March 2020 when Mr McKerlie sought clarification
of the issues that were to be determined at the 8 May 2020 hearing, the genuine
misunderstanding which resulted from this and, ultimately, the Deputy President’s ruling on
12 May 2020 that Mr McKerlie would not be permitted to give evidence about the genuine
redundancy issue, we consider that Mr McKerlie was denied procedural fairness.
[65] The two errors we have identified - namely allowing RateIt to be represented by MKI
Legal without having decided to grant permission for legal representation pursuant to s 596,
and denying Mr McKerlie procedural fairness in relation to the genuine redundancy issue –
[2020] FWCFB 5131
23
are significant matters. At least the latter, and arguably the former, constitutes jurisdictional
error, and both involve manifest injustice to Mr McKerlie. In the circumstances, we consider
that it would be in the public interest to grant permission to appeal in respect of the first
appeal. We grant permission to appeal and, to the extent identified, we uphold the first appeal.
[66] We consider that the appropriate course, having regard to the history of this litigation,
is to remit Mr McKerlie’s unfair dismissal application to a member of this Full Bench for
further consideration (including the determination of any application for permission for legal
representation) on the basis of the evidence admitted to date and such further evidence as the
member may decide to admit.
[67] It is not necessary in the circumstances to deal with the other matters raised by the first
appeal. In relation to the various allegations made against MKI Legal, it is sufficient to say
that we are not satisfied that MKI Legal did anything other than to act bona fide on the basis
of the instructions provided by its client, RateIt. Mr McKerlie largely conceded at the appeal
hearing that he could not provide evidence of any deliberate malfeasance on the part of MKI
Legal. Certainly the record of the proceedings before the Deputy President does not provide
any indication to us that MKI Legal has acted in any improper way.
Second appeal
[68] The grounds for Mr McKerlie’s second appeal, including the grounds for the grant of
permission to appeal, were as follows:
“1. Deputy President Boyce is unfit to hold judicial office.
2. Deputy President Boyce has demonstrated egregious and deliberate bias against the
Applicant in the conduct of the proceedings to date including in his decision on the
application for disqualification.
3. It is contrary to the obligation of the members of the Fair Work Commission to
allow Deputy President Boyce to continue to preside over these proceedings or any
other proceedings as his widely publicised conduct since his appointment to the Fair
Work Commission is calculated to diminish public confidence in the Fair Work
Commission.”
[69] The first ground is not reasonably arguable. The Commission is not invested with
power to rule on the fitness for office of its own members. In relation to the second and third
grounds, the relief which Mr McKerlie could expect to obtain if he is granted permission to
appeal and his second appeal is upheld is that his matter is remitted for further consideration
by a different member of the Commission. Having regard to our disposition of the first
appeal, there would be no utility in us considering the second and third grounds of the second
appeal. For these reasons, we refuse permission to appeal in relation to the second appeal.
Orders
[70] In relation to the appeal in matter C2020/4086:
(1) Permission to appeal is granted.
[2020] FWCFB 5131
24
(2) The appeal is upheld to the extent identified in the above reasons.
(3) The application in matter U2020/1211 is remitted to Commissioner Johns for
further consideration (including the determination of any application for
permission for legal representation) on the basis of the evidence admitted to
date and such further evidence as the Commissioner may decide to admit.
[71] In relation to the appeal in matter C2020/5851, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr C McKerlie on his own behalf.
Mr S Stiller, solicitor, on behalf of the respondent.
Hearing details:
2020.
Sydney (via video-link):
4 September.
Printed by authority of the Commonwealth Government Printer
PR723041
COMMISSION THE SEAL SIS THE FAIR WORK
