1
Fair Work Act 2009
s.604—Appeal of decision
Dr Daniel Krcho
v
University of New South Wales T/A UNSW Sydney; Lucian Hiss; Phil
Allen; Karen Scott
(C2020/500) (C2021/2443)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER CAMBRIDGE
SYDNEY, 18 AUGUST 2021
Appeal against decision [2020] FWC 181 of Deputy President Sams at Sydney on 23 January
2020 in matter number AB2018/637and appeal against decision [2021] FWC 1653 of Deputy
President Bull at Sydney on 16 April 2021 in matter number AB2018/637 – permission to
appeal refused.
[1] Dr Daniel Krcho (the Appellant) lodged two appeals under s 604 of the Fair Work Act
2009 (Cth) (the Act) against a decision of Deputy President Sams and Deputy President Bull.
The decisions under appeal relate to the same stop bullying application made pursuant to s
789FC of the Act. The decision of Deputy President Sams1 (the Sams Decision) dealt with an
interlocutory application made by the Appellant for certain orders to be made. The decision of
Deputy President Bull2 (the Bull Decision) dealt with the substantive stop bullying
application.
[2] The Appellant has filed two Notices of Appeal. The first seeks only to appeal the Sams
Decision. The second Notice of Appeal is directed to both the Sams Decision and the Bull
Decision. We will deal with the appeal against both decisions together.
[3] Directions were set for the parties to file their written submissions. The parties agreed
to having the matter determined ‘on the papers’, namely on the written submissions of the
parties without the need for an oral hearing. Accordingly, pursuant to s 607(1) of the Act, the
appeal was conducted on the basis of written submissions only.
[4] For the reasons that follow, permission to appeal is refused.
The Decisions under appeal
1Application by Daniel Krcho [2020] FWC 181.
2 Daniel Krcho v University of New South Wales T/A UNSW Sydney; Mr Lucian Hiss; Mr Phil Allen; Ms Karen Scott [2021]
FWC 1653.
[2021] FWCFB 5113
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 5113
2
The Sams Decision
[5] As aforementioned, the Sams Decision related to an interlocutory application made by
the Appellant. Deputy President Sams summarised the orders being sought by the Appellant
as follows:3
“[4] In short form, it is apparent that the applicant seeks at least four orders under the
following headings:
(1) The deletion and/or variation of a significant number of paragraphs in the 31 July
2019 decision, which the applicant agrees with, or claims are errors of fact and law.
(The Variation application);
(2) The reinstatement of the undertaking given by the University in earlier proceedings
between Hampton C, in 2018, which I had released the University from in the 31 July
decision. (The Undertaking application);
(3) That I disqualify myself from further dealing with the applicant’s matter if I refuse
to grant (1) and (2) above, ‘in full or part of it (the ‘Recusal application’); and
(4) That I retrospectively order the anonymisation of the identity of the applicant and
his wife and suppress the publication and distribution of their personal health and
financial information, including removing all such references from my 31 July 2019
decision. (The Confidentiality application).”
[6] In relation to the Variation application, Deputy Presidents Sams relevantly found the
following:
“[26] The applicant was previously reminded the decisions of the Commission are final,
unless otherwise quashed or varied by a Full Bench of the Commission on appeal. The
applicant availed himself of the opportunity to appeal the 31 July 2019 decision which
was wholly unsuccessful. The appeal was dismissed with permission to appeal refused,
pursuant to s 604 of the Act. This means the 31 July 2019 decision is final and stands
on the record. It is not open for the applicant to seek to delete paragraphs or have
paragraphs altered or rephrased to his liking, simply because he does not agree with the
Decision. This must be a fortiori when his appeal of the 31 July 2019 decision was left
intact and unscathed by the Full Bench. In my view, what the applicant seeks is
improper and a waste of the Commission’s resources, paid for by the taxpayer, and
which might otherwise be utilised in determining properly prosecuted cases.”
[7] Regarding the Undertaking application, Deputy President Sams refused to grant the
application. Deputy President Sams found that the Appellant’s arguments as to why the
application should be granted were not new and already decided upon in an earlier decision of
the Deputy President.4 Furthermore, for the same reasons he refused to grant the Variation
application, Deputy President Sams refused to grant the Undertaking application.5
3 Application by Daniel Krcho [2020] FWC 181 at [4].
4 Ibid at [31].
5 Ibid at [36].
[2021] FWCFB 5113
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[8] Deputy President Sams also refused to grant the Appellant’s Recusal application. We
will not repeat his reasons for doing so here. The Appellant has not made it clear what remedy
he seeks in appealing Deputy President Sams’ refusal to recuse himself and in any case, the
Deputy President is now retired.
[9] Deputy President Sams granted limited confidentiality orders in the following terms:
“[63] As to the applicant and his wife’s personal financial circumstances, I will grant
limited confidentiality orders as to the disclosure of such information. I make the
following order:
“1. The applicant and his wife’s personal financial circumstances and records relating
thereto, unrelated to these proceedings, shall remain confidential to the parties and the
Commission, unless otherwise ordered by the Commission.”
[10] In essence, Deputy President Sams dismissed the Appellant’s application for interim
orders save for the confidentiality orders made at [63] of his decision.
The Bull Decision
[11] As aforementioned, the Bull Decision dealt with the Appellant’s substantive stop
bullying application. Relevantly to the Bull Decision, the Appellant was terminated from his
employment with the Respondent on 20 February 2020.
[12] The Respondent made an application pursuant to s 587(1)(c) of the Act that the
Appellant’s claim be dismissed as the matter had no reasonable prospects of success. The
Respondent submitted, inter alia, that the Appellant’s stop bullying application had no
prospects of success because he had no prospect of being reinstated to his employment with
the Respondent and therefore was at no risk of bullying at work.6
[13] Deputy President Bull considered the legislative principles regarding the
circumstances in which the Commission may make orders to stop bullying, noting that as per
s 789FF(1)(b)(ii) of the Act, the Commission is only able to issue a stop bullying order when
satisfied there is a risk that the worker will continue to be bullied at work. The Deputy
President had regard to the decision in Bowker v DP World Melbourne Limited7in which a
Full Bench of the Commission stated the words “at work” are words of limitation.8
[14] Deputy President Bull then considered the Full Bench decision in Garth Atkinson v
Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm and others9
(Atkinson). Extracted below are the relevant parts of that consideration:
“[24] The fact that an applicant has filed a bullying application and is no longer
employed at the workplace is not necessarily fatal to the application as the Full Bench
6 Daniel Krcho v University of New South Wales T/A UNSW Sydney; Mr Lucian Hiss; Mr Phil Allen; Ms Karen Scott [2021]
FWC 1653 at [10].
7 [2014] FWCFB 9227.
8 Ibid ay [45].
9 [2015] FWCFB 6503.
[2021] FWCFB 5113
4
observed in Garth Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat
Schoolwear and Adrian Palm and others (Atkinson) in dismissing an appeal against a
bullying application that was dismissed as the applicant was no longer employed:
“[35] In this decision, we are not suggesting that it will always be appropriate
for the FWC to dismiss a s.789FC application where an employee is dismissed
from their employment. Depending on the circumstances in each case there
may be a number of relevant considerations, including the prospect of
reinstatement through other proceedings, which could warrant the FWC
dealing with a s.789FC application notwithstanding the dismissal of the
employee.”
[25] The employee in Atkinson in addition to his bullying application had made a
General Protections application described by the member in the first instance in the
following terms:
“[11] Mr Atkinson has made a section 365 General Protections application
regarding his termination of employment. Whether Mr Atkinson is seeking
reinstatement as a remedy is not known. If he is seeking reinstatement there is
obviously no certainty as to the success or not of his application. Even if he is
successful with his section 365 application there can also be no certainty that
reinstatement would be ordered in any event; that would be a decision for the
Court.
[12] If at some point in the future Mr Atkinson is indeed reinstated he is not
prevented from making a new application under section 789FC of the Act if
necessary. The fresh application could then properly consider what may well
be changed circumstances given what in all likelihood will have been an
extended period of time which has passed and could also take into account the
significant new development being the decision of a Court to reinstate Mr
Atkinson. As can be seen dismissing this application does not disadvantage Mr
Atkinson. Adjourning this application indefinitely because of the remote
possibility Mr Atkinson is reinstated at some time in the future is consequently
not warranted.”
(My underline)
[26] In respect to this point the Full Bench stated at [22]-[23]:
“[22] The fact that, at the time the Commissioner dismissed Mr Atkinson’s
s.789FC applications, Mr Atkinson had an unfinalised general protections court
application in respect of the termination of his employment on 3 June 2015 and
the fact that a court has the power to make a reinstatement order in respect of a
general protections court application, do not preclude the Commissioner’s
conclusion. Those facts do not mean that at the time the Commissioner
dismissed Mr Atkinson’s s.789FC applications there was “a risk that [Mr
Atkinson] will continue to be bullied at work” by the individual or group
against whom he made the s.789FC applications.
[2021] FWCFB 5113
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[23] As a consequence of concluding that one of the pre-requisites for making
an order to stop bullying in respect of Mr Atkinson’s s.789FC applications was
not satisfied, the Commissioner determined that Mr Atkinson’s s.789FC
applications had no reasonable prospects of success. There is no error in that
determination. The determination is not contrary to authority, including that of
the High Court of Australia in Spencer v The Commonwealth.
[24] Having determined that Mr Atkinson’s s.789FC applications had no
reasonable prospects of success the Commissioner then exercised his discretion
under s.587(1)(c) of the FW Act to dismiss Mr Atkinson’s s.789FC
applications. It is evident from the Commissioner’s decisions that, in exercising
his discretion to dismiss Mr Atkinson’s s.789FC applications, the
Commissioner was conscious of the discretionary considerations raised by Mr
Atkinson as to why his s.789FC applications should not be dismissed,
including his submissions for relief in respect of his s.789FC applications being
constituted by something other than an order. However, the Commissioner was
also conscious that Mr Atkinson had made a general protections court
application and of the potential consequences of that on Mr Atkinson being
able to make another s.789FC application. In the circumstances, it was
reasonably open to the Commissioner to exercise his discretion under
s.587(1)(c) of the FW Act as he did.”
(My underline)
[27] In this decision the Full Bench also addressed the decision of Mitchell Shaw v
Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines
19 where Gostencnik DP held:
“[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment
relationship has ended. That Mr Shaw is taking steps to seek a remedy in
relation to his dismissal and that that may result in reinstatement at some point
in the future does not have a bearing on the question that I must answer and is
speculative and uncertain. It seems to me clear that there cannot be a risk that
Mr Shaw will continue to be bullied at work by an individual or group of
individuals identified in his application because Mr Shaw is no longer
employed by ANZ and therefore is no longer at work.
[17] It necessarily follows that I do not have power to make an order to stop
bullying and, as a consequence, I am satisfied that Mr Shaw’s application has
no reasonable prospect of success. I see no reason in the circumstances why I
should not exercise my discretion to dismiss Mr Shaw’s application given my
finding and I do so. An order dismissing Mr Shaw’s application has been made
separately in PR550413. I would observe that, if as a consequence of Mr
Shaw’s general protections application or any other remedy that he seeks, he is
reinstated to his former position or another position with ANZ and at that point
he has concerns about a risk of being bullied at work, it seems to me, and the
ANZ seem to accept that he will be at liberty to make a fresh application at that
time. That he has made this application and that it has been dismissed will not
operate as a bar to any future application if the jurisdictional facts can be
established in relation to that application.”
[2021] FWCFB 5113
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(My underline)
[28] The Full Bench in Atkinson held at [32]–[33] that they were not persuaded that
the decision in Shaw was wrong.”
(Citations omitted)
[15] After considering Atkinson, Deputy President Bull found that the Commission lacked
a jurisdictional basis upon which to issue any bullying orders given that the Appellant was no
longer in the employment of the Respondent and therefore a risk that he would continue to be
bullied did not exist. Deputy President Bull was therefore satisfied that the Appellant’s stop
bullying application had no reasonable prospects of success. Accordingly, the application was
dismissed.
Principles of Appeal
[16] 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.10 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[17] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied
that it is “in the public interest to do so”. The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.11 The public interest is not
satisfied simply by the identification of error,12 or a preference for a different result.13 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some
of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters...”14
[18] 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
10 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and
Allied Operations Pty Ltd).
11 O’Sullivan v Farrer (1989) 160 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
12 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
13 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial
review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
14 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[2021] FWCFB 5113
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of appealable error.15 However, that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.
Consideration
[19] The Appellant has filed a voluminous amount of material. We note that much of the
material filed by the Appellant goes to matters that are irrelevant to the appeal at hand.
Furthermore, the nature of the material and its density is such that it is near impossible to
identify what grounds of appeal the Appellant is attempting to advance and what is the basis
for any such grounds. In any event, we have read and considered the material filed by the
Appellant.
[20] It is appropriate to deal first with the appeal against the Bull Decision despite it having
followed the Sams Decision in time. In relation to the Bull Decision, the Appellant has failed
to identify any appealable errors. Deputy President Bull identified the correct legal principles
at [21] – [28] of his decision, which we have extracted above. Deputy President Bull applied
those legal principles in an orthodox manner and correctly found that at the time, the
Commission had no jurisdiction to issue any bullying orders because the Appellant had been
dismissed from his employment with the Respondent.
[21] Furthermore, the Appellant has failed to identify any sustainable public interest
grounds upon which permission to appeal should be granted. We note that Deputy President
Bull’s decision to dismiss the Appellant’s stop bullying application does not prevent the
Appellant from bringing further stop bullying applications if at some future point in time, he
is reinstated to his employment with the Respondent.
[22] Given that we have found that permission to appeal against the Bull Decision should
be refused, so too must permission to appeal against the Sams Decision be refused. As
aforementioned, the Sams Decision related to an interlocutory application made by the
Appellant in the course of his stop bullying application. With the dismissal of the substantive
application by Deputy President Bull, there is no underlying application in which to
redetermine the interlocutory application, even if we do accept, and we do not, that there is
any error in the Sams Decision.
[23] For completeness, we will now briefly consider the appeal against the Sams Decision.
[24] We find no error in Deputy President Sams’ refusal to grant the four orders sought by
the Appellant. Deputy President Sams correctly identified the principles confirming his
inability to amend a previous decision he himself issued and was already subject to an
unsuccessful appeal.
[25] The Appellant has also not identified an appealable error in Deputy President Sams’
refusal of the Undertaking application. In any event, the reinstatement of the undertaking
would be of no use to the Appellant in the current circumstances.
[26] Deputy President Sams correctly identified and applied in an orthodox manner, the
legal principles regarding the Recusal application. As aforementioned, it is unclear to us what
remedy the Appellant seeks in appealing Deputy President Sams’ refusal to recuse himself.
15 Wan v AIRC (2001) 116 FCR 481 at [30].
[2021] FWCFB 5113
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Deputy President Sams is now retired, and the Appellant’s substantive bullying application
was reallocated to Deputy President Bull. There is no utility in appealing this part of the Sams
Decision.
[27] There was no evidence before Deputy President Sams upon which he could reasonably
reach the conclusion that it was necessary to make the confidentiality orders sought by the
Appellant in the interests of the administration of justice. We find no error in Deputy
President Sams’ dismissal of the Confidentiality application.
Conclusion
[28] For the above reasons, permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers by consent.
Final written submissions:
Appellant’s submissions in reply dated 6 July 2021.
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PR732946
THE FAIR WORK COMM AP ISSION THE SEAA
