1
Fair Work Act 2009
s.604—Appeal of decision
Shane John Varichak
v
COG Regional Team Pty Ltd
(C2022/1056)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ANDERSON
COMMISSIONER HAMPTON
MELBOURNE, 10 MAY 2022
Appeal against decision [[2022] FWC 186] of Deputy President Colman at Melbourne on 28
January 2022 in matter number C2021/7133 – permission to appeal refused.
Introduction
[1] Mr Shane Varichak (the Appellant) has lodged an appeal under s.604 of the Fair Work
Act 2009 (the Act) for which permission to appeal is required, against a decision of Deputy
President Colman (the Deputy President) issued on 28 January 2022 (Decision). The Decision
dealt with whether the Appellant was dismissed from his casual employment position by COG
Regional Team Pty Ltd (the Respondent or COG). The context for the decision was that the
Appellant had lodged a general protections application involving a dismissal pursuant to s.365
of the Act (GP Application). The substance of the GP Application was the Appellant’s
contention that he had been terminated in contravention of various provisions of Part 3-1 of the
Act by dismissing him from his casual employment as a forklift driver wholly or partly for
proscribed reasons.
[2] The background to these events was that Mr Varichak had been advised by the
Respondent that he must provide proof to the company that he had received his first dose of a
COVID-19 vaccine, proof of a vaccination booking, or evidence of a medical exemption. This
was communicated on the basis of the Respondent’s contention that this was required by the
Victorian Government’s COVID-19 Mandatory Vaccination (Workers) Directions (No 5)
(Vaccination Directions). Mr Varichak informed the Respondent that his beliefs prevented him
from receiving the vaccination and that he would not be vaccinated. On 21 October 2021, the
Respondent wrote to Mr Varichak, stating that he could not be rostered for work at COG’s
distribution centre because he had not provided proof of his vaccination status.
[3] The GP application was made by the Appellant on 20 October 2021.
[4] The Respondent had objected to the GP application on the basis that it had not dismissed
the Appellant. Given the terms of the Act, the Commission’s role was to determine whether
[2022] FWCFB 37
DECISION
AUSTRALIA FairWork Commission
[2022] FWCFB 37
2
there had been a dismissal within the meaning of legislation. We will return to this aspect
shortly.
[5] In the Decision, the Deputy President found that the Appellant had not been dismissed
by the Respondent and his casual employment status remained active within the Respondent’s
human resources management system. The Respondent’s jurisdictional objection was upheld
and the GP application was dismissed by the Deputy President.
[6] For the reasons that follow permission to appeal the Decision is refused and the appeal
dismissed.
Permission to be Represented
[7] On 9 March 2022, the legal representative on behalf of the Respondent filed written
submissions seeking permission to be represented pursuant to s.596(2) of the FW Act.
.
[6] At the Hearing on 7 April 2022, the Appellant represented himself and did not oppose
the Respondent’s request to be represented by a lawyer. We granted permission essentially on
the grounds advanced by the Respondent.
The Decision
[8] In a relatively brief extempore decision, the Deputy President initially summarised the
context in which the dispute about the alleged dismissal had arisen and outlined the positions
of the parties.
[9] The substance of the Decision1 was as follows:
“[6] Mr Varichak gave evidence that his beliefs prevented him from receiving the
COVID-19 vaccine, and that his vaccination status had no bearing on his ability to do
his job. He said that he was not advised of any vaccination requirement when he
commenced employment, and that because of his beliefs the public health orders did not
apply to him. He also said that other employees who had not received the vaccine were
permitted to continue working.
[7] Mr Nicholas Greig, a manager, gave evidence that the company was subject to
the Directions and was required to ensure that unvaccinated workers did not work
outside their home from 22 October 2021, unless they had provided the required
vaccination evidence. Mr Greig said that because Mr Varichak did not provide this
information the company was prohibited from offering him shifts, but that Mr Varichak
remained part of the company’s pool of casuals who are offered shifts based on
operational requirements. Mr Greig produced a current extract from the company’s
human resources management system which records Mr Varichak’s employment status
as ‘active’. He tendered an extract of another casual employee whose employment had
ended, which records a status of ‘terminated’. Mr Greig said that if Mr Varichak became
1 [2022] FWC 186.
[2022] FWCFB 37
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eligible to work on site, the company would roster him for work. I accept Mr Greig’s
evidence. It was clear and convincing and consistent with the documentary evidence.
[8] In my opinion, the company did not dismiss Mr Varichak.
[9] The company was subject to the Directions and required to prevent any
employees who had not provided evidence of having received the COVID-19
vaccination, or evidence of a medical exemption, from attending the work site.
Mr Varichak did not provide this information to the company. It was therefore required
by law not to allow him to enter the work site. By choosing not to become vaccinated,
Mr Varichak rendered himself unable to perform an inherent requirement of his role as
a casual forklift driver, namely to be lawfully able to attend the workplace. However,
the company did not dismiss Mr Varichak. Instead, it told him that it was subject to a
legal requirement not to allow him to attend the workplace unless he provided proof of
vaccination.
[10] Mr Varichak remains a casual on the company’s books. His employment is
recorded as active in the company’s human resources management system. Proceeding
on the basis that the definition of ‘dismissed’ in s 386 of the Act applies to applications
under s 365, it is clear that Mr Varichak’s employment relationship with the company
has not been ‘terminated on the employer’s initiative’ (see Khayam v Navitas English
Pty Ltd [2017] FWCFB 5162). The company remains ready to deploy Mr Varichak on
shifts. He is currently unable to perform his duties, because he has decided not to get
vaccinated. If Mr Varichak becomes vaccinated, or if government requirements
otherwise allow, the company will roster him for work.”
Appeal grounds and submissions
[10] In his notice of appeal Mr Varichak, in effect, advanced the following grounds of appeal:
There was a change in the employment that was not recognised by the Deputy
President.
There was new evidence that COG had indeed viewed the relationship as being
terminated as no shifts were being given to the Appellant as at the hearing date. This
also confirmed that the Respondent had “lied” to the Commission.
The “law” was taken into account as a reason for the change of relationship, however
laws that supported the appellants position (on the vaccination requirement) were not
“allowed”.
The workplace rights of the Appellant were not addressed or acknowledged as the
(un)lawful reason for his change of relationship with the Respondent.
[11] Central to first 2 of these propositions is an email that was sent to the Appellant by the
Respondent within a few days of the Decision being issued. The email sent to him on 3 February
2022 stated:
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“We have noticed that you haven’t worked a shift in a while.
Cotton On Group’s (COG) standard process is to review our Casual pool of team
members regularly; this enables us to meet the needs of the operational business
requirements.
Our records indicate that you haven’t worked a casual shift in over 3 months. As a result
of this, your employment with Cotton On Group has come to an end effective today,
Thursday 3 February 2022.
We would like to take the time to thank you for your hard work during your employment
with us and wish all you all the success for the future. We hope you will always keep
Cotton On Group in mind for future opportunities, and encourage you to apply for roles
with us again, so please keep an eye on Cotton On Careers…”
[12] In submissions, Mr Varichak also raised a number of other issues that might properly
be considered as grounds to support his appeal. In effect, they were:
During the hearing he was rudely interrupted by the Deputy President and not
permitted to present his full case.
There was nothing in his employment contract, or in any other document that was
signed with COG that stated anything about his employment, or continual shifts
offered being subjected to some sort of vaccine mandate and as a result his
employment contract & workplace rights have been violated.
The Deputy President did not apply the definition of dismissal set out in the
Commission’s General Protections Benchbook (GP Benchbook) that he referenced
during the hearing.
The Vaccination Directions and the decision of the employer to require him to be
vaccinated were unfair and the Commission should not condone this requirement.
[13] The Respondent contends that the Decision by the Deputy President is not attended by
doubt. As at the date of the Application on 20 October 2021 and the date of the Decision on
28 January 2022, the Appellant had not been dismissed as jurisdictionally required under s.365
of the FW Act. The Deputy President correctly applied the evidence before him.
[14] The Respondent also submits that refusal to give permission to the Appellant to appeal
would not result in a substantial injustice. In that respect, the Respondent contends that the
email of 3 February 2022 represented a dismissal of the Appellant and that he could have made
a fresh s.365 application at that point. It submitted that the Appellant should have been aware
that this course was available to him, as the merits of such an application were discussed during
the Directions Conference held on behalf of the Full Bench by Commissioner Hampton on 22
February 2022. Further, the Respondent contends that the Appellant elected not to file a new
claim in relation to the termination of his employment on 3 February 2022 but rather elected to
pursue this appeal.
[2022] FWCFB 37
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[15] Further, the Respondent contends that there is no public interest in this appeal, there is
no identified error and permission to appeal should not be granted.
[16] As to the new evidence, the Respondent contends that admitting the new evidence would
not result in a different outcome. Rather, the new evidence affirms the finding by the Deputy
President that at the time the Application was made, the Appellant was not dismissed.
Accordingly, the Full Bench should not admit the new evidence as there is no probability that
with this evidence there would have been a different outcome.
[17] Mr Varichak’s supplemented grounds of appeal raise issues about the conduct of the
hearing before the Deputy President. As a result, the Full Bench arranged for the transcript of
those proceedings to be supplied to the parties and an opportunity provided to make further
submissions.
[18] In final submissions, and amongst other matters largely set out above, Mr Varichak also
contended that the Respondent had misled the Deputy President as to whether he had provided
his vaccination status to COG.
Principles of appeal
[19] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s
powers on appeal are only exercisable if there is error on the part of the primary decision
maker.2 There is no right to appeal and an appeal may only be made with the permission of the
Commission.
[20] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.3 The public interest is not satisfied simply by the
identification of error,4 or a preference for a different result.5 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...”6
2 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).
3 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v
Hinch (2011) 243 CLR 506 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].
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
5 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].
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
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[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of
appealable error.7 However, that the Member at first instance made an error is not necessarily
a sufficient basis for the grant of permission to appeal.
[22] The question of whether Mr Varichak was dismissed is one of jurisdictional fact. In this
appeal we must therefore determine whether the Deputy President reached the right conclusion,
not simply whether the Deputy President’s finding was reasonably open to him.8
Consideration
[23] It is appropriate to commence with the prerequisite that formed the basis of the
jurisdictional objection and the focus of the decision; that is, whether Mr Varichak was
dismissed by the Respondent at the time when the GP application was lodged.
[24] Mr Varichak’s central contention is that his employment relationship changed when the
Respondent declined to offer him further shifts unless and until he “complied” with the
vaccination Directions. Further, this change represented a dismissal.
[25] Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial
interests of the person, alleges that the person was dismissed in contravention of
this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.
[26] The Commission’s role with respect to an application of this kind under s.368 of the Act
includes to:
1. Conduct a conference for the purposes of dealing with the dispute (other than
by arbitration) – s.368(1) and (2); and
2. If satisfied that all reasonable steps to resolve the dispute (other than by
arbitration) have been, or are likely to be unsuccessful – issue a (certificate)
confirming this – s.368(3).
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd (2016) 260 IR 244, [2016] FWCFB 2654 at
[11], Voros v Dick (2013) 237 IR 248, [2013] FWCFB 9339 at [11], Pawel v Australian Industrial Relations Commission
(1999) 94 FCR 231; 97 IR 392 at [14].
[2022] FWCFB 37
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[27] A s.368(3) certificate is necessary for this application to proceed to the Court for
determination9 or the Commission for consent arbitration.10
[28] A Full Court of the Federal Court11 has determined that in a s.365 matter, the
Commission must (where the respondent employer has raised an objection of the nature present
here) decide whether the jurisdiction exists for it to conduct a conference and issue a certificate
as contemplated by s.368 of the Act. That is, in this case, the Deputy President needed to
determine whether the Appellant had been dismissed.
[29] The meaning of ‘dismissed’ is provided at s.386 of the Act:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season,
and the employment has terminated at the end of the period, on completion
of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for
any reason, limited to the duration of the training arrangement; and
the employment has terminated at the end of the training
arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.”
9 Section 370(a) of the Act.
10 Section 369(1)(a) of the Act.
11 Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].
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[30] Section 386 is found in Part 3-2 Unfair Dismissal of the Act. “Dismissed” for the
purposes of the Act more generally is defined in s.12 by reference to s.386 and the provisions
of s.386 have been applied by the Courts12 to s.365 General Protections matters. We consider
that this approach is apposite.
[31] The Full Bench in Khayam v Navitas English Pty Ltd t/a Navitas English (Navitas).13
comprehensively considered the operation of s.386(1). That decision deals fundamentally with
the notion of fixed or outer-limit contracts and there is no suggestion here that the employment
contract was of that nature. However, Navitas provides some important analysis of the operation
of s.386(1) more generally and provides the context for the contentions arising in this matter.
The majority,14 after considering the import of previous decisions and the various statutory
contexts, observed as follows with respect to the inclusion of casual employees within the scope
of the unfair dismissal jurisdiction:
“[71] It is reasonably apparent that, notwithstanding that it is expressed as an
exclusionary provision, the purpose of s 384(2)(a) is to confirm that casual employees
of the type referred to are included in the operation of Pt 3-2 and are able to make an
application for an unfair dismissal remedy. However there is a difficulty in that,
conventionally, casual employment is taken to be constructed of daily or shorter
contracts of employment (although this is not a universal indicium of casual employment
and in some cases the existence of a longer-term contract of employment may be
inferred). Where a casual employee is taken to be engaged under a sequence of daily
contracts, then if a casual completes their engagement on a particular day and is never
thereafter engaged by the employer, contractually the employment has come to an end
by agreement due to the effluxion of the contractual term rather than by any act by the
employer to terminate the contract. If that situation was incapable of being characterised
as a dismissal under s 386(1)(a) it would substantially or entirely defeat the operation of
s 386(2)(a).” (Footnote omitted)
[32] The Full Bench then summarised the approach in the following terms:
“[75] Having regard to these propositions and the court decisions to which we have
earlier referred, we consider that s 386(1)(a) should be interpreted and applied as
follows:
(1) The analysis of whether there has been a termination at the initiative of the
employer for the purpose of s 386(1)(a) is to be conducted by reference to
termination of the employment relationship, not by reference to the
termination of the contract of employment operative immediately before
the cessation of the employment. This distinction is important in the case
of an employment relationship made up of a sequence of time-limited
contracts of employment, where the termination has occurred at the end of
12 Coles Supply Chain v Milford (2020) 300 IR 146; Fair Work Ombudsman v Austrend International (2018) 273 IR 439
amongst many other examples. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589 at [116] and
[117].
13 [2017] FWCFB 5162 at [75].
14 Although reaching a different conclusion on the disposition of the appeal, Colman DP took a similar approach to the operation
of s.386(1) – see paras [120] to [122] and [128] to [129].
[2022] FWCFB 37
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the term of the last of those contracts. In that situation, the analysis may,
depending on the facts, require consideration of the circumstances of the
entire employment relationship, not merely the terms of the final
employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the
employer” is a reference to a termination that is brought about by an
employer and which is not agreed to by the employee. In circumstances
where the employment relationship is not left voluntarily by the employee,
the focus of the inquiry is whether an action on the part of the employer
was the principal contributing factor which results, directly or
consequentially, in the termination of the employment.
(3) In Mahony v White the Full Court stated that a termination of employment
may be done at the initiative of the employer even though it was not done
by the employer. In circumstances where the parties to a time-limited
contract have agreed that their contract will expire on a specified date but
have not agreed on the termination of their employment relationship, it
may be the case that the termination of employment is effected by the
expiry of the contract, but that does not exclude the possibility that the
termination of employment relationship occurred at the initiative of the
employer - that is, as a result of some decision or act on the part of the
employer that brought about that outcome…” (footnotes omitted).
[33] The reference to the termination of the employment relationship in Navitas must now
be considered in light of the subsequent Full Bench decision in NSW Trains v James15which
held, in effect, that s.386(1)(a) of the Act means termination of the employment relationship
and/or the contract of employment, depending in part upon the factual and statutory context.
That is, at least in the context of demotion matters, Navitas should be understood as meaning
that the termination of a contract will not necessarily lead to a dismissal where the persisting
employment relationship remains on foot and largely unchanged, not that contract termination
is irrelevant. 16
[34] For completeness, we observe that an earlier Full Bench,17 when considering the
application of the minimum employment period established by s.384 of the Act to casual
employment, observed as follows:
“[10] As a matter of the common law of employment, and in the absence of an
agreement to the contrary, each occasion that a casual employee works is viewed as a
separate engagement pursuant to a separate contract of employment. Casual employees
may be engaged from week to week, day to day, shift to shift, hour to hour or for any
other agreed short period. In this sense no casual employee has a continuous period of
employment beyond any single engagement. Moreover, it is common for a casual
employee to transition between a period in which their engagements with a particular
15 [2022] FWCFB 55.
16 Ibid at [44], [45] and [89].
17 Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709.
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employer are intermittent and a period in which their engagements are regular and
systematic and vice versa. It is against that background that s.384 must be construed.
[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis
that a casual employee’s period of employment for the purposes of the unfair dismissal
remedy starts and ends with each engagement as understood in the common law of
employment.”
[35] We emphasise that the notion of a minimum employment period is not relevant to this
matter. It is the concept of casual employment and the connection to the employment
relationship and contracts of employment that arises in the context of the Appellant’s central
contention.
[36] In terms of the Appellant’s reference to the GP Benchbook, we understand that amongst
other statements he relies upon the following:
“Termination at the employer’s initiative requires the termination of the employment
relationship, not the contract of employment.”
[37] In that regard, the GP Benchbook references the decision in Searle v Moly Mines
Limited18 (Searle) and Byrne v Australian Airlines Ltd.19 The full terms of the referenced extract
of the decision in Searle is:
“22 Before turning to the facts of this case there is another issue which arose in the
course of the submissions with which we should deal. That matter concerns the relevance
of the principles governing the termination of a contract of employment. It is clear that
the statutory test relates to termination of the employment relationship, not termination
of the contract of employment. The difference is well illustrated by the following
passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne v
Australian Airlines Ltd:
It does not appear to have been doubted in this country that a wrongful dismissal
terminates the employment relationship notwithstanding that the contract of
employment may continue until the employee accepts the repudiation
constituted by the wrongful dismissal and puts an end to the contract. That was
accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd
v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):
An employer terminates the employment of a servant when he dismisses
him, though, as I say hereafter, such a dismissal does not put an end to the
contract between the parties. An argument that a dismissal because
wrongful was a nullity was raised and rejected in both Williamson’s Case
[Williamson v Commonwealth, (1907) 5 CLR 174 at 185] and Lucy’s Case
[Lucy v Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].
And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:
18 (2008) 174 IR 21.
19 (1995) 185 CLR 410, 427.
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there is nothing in the general law preventing the wrongful dismissal of a
servant operating to discharge him from service, notwithstanding that he
declines to accept the dismissal as absolving him from further performance
but keeps the contract open and remains ready and willing to serve.
23 In the case of wrongful dismissal, as the passage shows, the employment is
terminated by the employer even though the contract continues until the employee
accepts the repudiation, thereby bringing the contract to an end. In applying the statutory
test it is the termination of the employment relationship which is important.”
[38] For reasons that follow, in dealing with this appeal it is unnecessary for us to more fully
explore the import of s.365 in light of recent authorities.
[39] We also observe that the Benchbooks available on the Commission’s website contain
an important caveat, which confirms that they are general guides only and should not relied
upon to support a legal case. The issue in this appeal is not whether the Deputy President
misapplied the Benchbook, but rather, whether there was relevant error in his approach to the
determination of the jurisdictional issue before him. Namely, whether the Appellant had been
dismissed at the relevant time. We will return to this shortly.
Fresh evidence
[40] Before turning to consider the grounds of appeal advanced by Mr Varichak, we will first
deal with whether the Full Bench should receive new evidence that the Appellant seeks to
adduce on appeal. Section 607(2) of the Act confers a discretion on the Full Bench to “admit
further evidence” and “take into account any other information” on appeal, however it is by no
means a matter of course that it will do so.
[41] A recent Full Bench of the Commission20 summarised the approach in the following
terms:
“[17] It is well-settled that the principles governing the discretion to admit new
evidence or to consider further material are set down in Akins v National Australia Bank.
In that case, the New South Wales Supreme Court identified three conditions which need
to be met before fresh evidence can be admitted. These are: (1) it must be established
that the evidence could not have been obtained or adduced with reasonable diligence for
use at first instance; (2) it must be evidence which is of such a high degree of probative
value that there is a probability that there would have been a different result at first
instance; and (3) the evidence must be credible. However, it has been recognised by Full
Benches of the Commission that, in considering whether to exercise the discretion in
s.607(2), it is permissible in an appropriate case to depart from the principles set out in
Akins and the principles need not be strictly applied.
[18] The Full Bench decisions referred to indicate it will be rare for fresh evidence to
admitted on appeal where the conditions in Akins are not met. In JJ Richards & Sons
Pty Ltd v Transport Workers’ Union of Australia, fresh evidence was admitted where it
was arguable that the requirements of Akins were not met. In that matter, however, it
20 Mr Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists - [2022] FWCFB 39.
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12
was considered that the special considerations that apply in relation to an appeal against
a protected bargaining order (where very short time frames were involved) were such to
allow fresh evidence to be adduced. The Full Bench observed:
“Consequently, in an appropriate case it will be a permissible exercise of the
discretion in s 607(2) to admit fresh evidence on an appeal against a protected
action ballot order decision notwithstanding that, strictly speaking, the evidence
was available to be led at first instance.” (original emphasis).
[19] By contrast, in Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of
Australia (2014) 241 IR 35, another protected action ballot case, the fresh evidence was
refused. In C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, an unfair
dismissal matter, the Full Bench declined to admit fresh evidence as “exceptional”
circumstances were not present.” (Footnotes omitted)
[42] In this case there is no doubt that the evidence (the email of 3 February 2022) is credible
and could not have been provided at the time of the original hearing. Indeed, it represents an
event that occurred after the hearing and determination of the matter.
[43] In terms of probative value, the email does not assist us to determine whether, at the
time of the GP application, the Appellant was dismissed. It does confirm that the Appellant has
not been provided with any shifts since that time. The fact that shifts were not being provided
to the Appellant at the relevant time was not in dispute before the Deputy President. The email
does represent an unequivocal dismissal of the Appellant and we will return to this aspect.
[44] The new evidence is however relevant to the disposition of the appeal and the
Respondent has sought to rely upon the email in that regard. As a result, we propose to have
regard to its terms at least for that purpose.
Consideration
[45] The material before the Deputy President about the nature and circumstances of the
Appellant’s casual employment was sparse. The Respondent’s and Appellant’s written
evidence at first instance did not directly deal with the basis of the Appellant’s employment,
only with the competing views about the Vaccination Directives and how this was dealt with
by the Respondent. The summary of key facts provided by the Respondent, and which was not
disputed by the Appellant21 was as follows:
“2. The Applicant was a casual employee of the Respondent, employed on the basis
that the Respondent could make no firm advance commitment to provide
continuing and indefinite work.
3. The Applicant commenced employment with the Respondent on 8 September
2020 when he was given his first shift as a Casual Pick Team Member at the
Respondent’s Distribution Centre, and continued to be offered shifts until
19 January 2021 to cover the Respondent’s busy period. Then in October 2021
21 Appeal transcript PN100.
[2022] FWCFB 37
13
the Respondent recommenced offering the Applicant shifts in its Distribution
Centre as a Casual Afternoon Shift Forklift Driver.”22
[46] The Appellant’s evidence about his employment and the alleged dismissal included:
“PN106 I don’t have a lot to say necessarily about the facts, maybe none of the facts are
especially contentious in terms of I think it’s agreed you haven’t worked since that
particular date, or you haven’t been given certain shifts, or you haven’t been given shifts
since whenever it was, 15 October. So you might not necessarily want to say very much
about the facts if you don’t disagree with what Mr Greig has said, but it’s up to you.
What do you say are the facts - leave the bench book - you can come back to the bench
book when it’s your turn for the submissions, but just in relation to the facts what do you
say is relevant here and what do you say are the facts? Okay. First of all just last year I
worked for Cotton On also and I worked a full season, so I had shifts every week, 40
hours a week minimum and sometimes they wanted me to work five or six - six or even
seven days a week. So the shifts - and when I was re-employed again I was told that I
would be employed for the entire season. The season usually runs until after new year’s
or something like that. So I should be - regardless of any vaccine I should be continually
employed and being offered shifts as I was last year. Now, when it comes to - basically
my relationship with the employer has changed. At the start in my contract there was
nothing stipulating any medical procedure. There’s nothing saying anything about
COVID and the fact that my employment, my continual shifts being offered are reliant
on any vaccine. There was nothing in my contract about that, nothing even mentioned
by the HR man who hired me saying that a vaccine was going to be necessary by the
15th or anything. That’s - but that’s not - I’m getting off the track there, excuse me. So
basically my argument is that I am no longer being offered shifts when I normally would
be, and that is - that is basically - that is to me termination. That’s termination of my
employment, because I’m not being offered any shifts.”23
[47] This evidence was also not directly disputed however the notion that this represented a
dismissal was clearly in issue. The Appellant also gave evidence in effect that in more recent
times he would normally work Sundays to Thursdays and after Friday 15 October the Roster
system (Dimensions) did not show any further shifts for him.24
[48] The evidence25 of the Respondent was that the Appellant’s HR management system file
had not been marked with a termination date and remained active. Further, that the Appellant
had not been advised that he had been terminated. Rather, the Appellant had on 14 October
2021 been informed that he could not be scheduled for work (at the Distribution Centre) unless
he received his first (vaccination) dose or was booked in for his first dose by 22 October 202126.
22 Respondent’s outline of submissions before Colman DP.
23 Transcript before Colman DP 28 January 2022.
24 The evidence of Mr Varichak – transcript PN131 and PN132.
25 Exhibit R2.
26 The statement of Mr Grieg exhibit R1 at 7.
[2022] FWCFB 37
14
[49] It was also the evidence27 of the Respondent to the effect that any (still active) casuals
such a Mr Varichak who advised that they had become vaccinated would be able to be
scheduled for work onsite at the Distribution Centre. It was common ground that the Appellant
had advised that he was not intending to be vaccinated and that he had not been offered any
shifts after 15 October 2021.
[50] The GP application was lodged on 20 October 2021.
[51] On 21 October 2021, the Respondent confirmed by email that (the Appellant) “cannot
attend work if they had not produced their vaccination status or had not received their first
vaccination by 22 October 2021.”28
[52] It is evident from the Decision that the Deputy President accepted the following
propositions:
The Respondent did not dismiss the Appellant but rather advised him that it was
subject to a legal requirement not to allow the Appellant to attend the workplace
unless he provided proof of vaccination;29
The Appellant had chosen, by not becoming vaccinated, to render himself “unable
to perform the inherent requirement of his role as a casual forklift driver, namely, to
be lawfully able to attend the workplace”;30 (second finding) and
The Appellant remained an active casual on the Respondent’s HR system and was
ready to deploy him if “he becomes vaccinated or if government requirements
otherwise allow…”31
[53] We understand that the Appellant’s concerns about the Deputy President “relying upon
the law” when he was not given an opportunity to deal with that aspect relate primarily to the
second finding. We observe that the Appellant sought to contest the legal validity of the
Vaccination Directions during the hearing and the Deputy President correctly guided him to the
immediate jurisdictional issue. In that light it was unnecessary and unhelpful to make the second
finding by reference to the asserted legal validity of the Vaccination Directions.
[54] However, for reasons that we will come to this does not mean that the decision reached
by the Deputy President on the immediate jurisdictional issue was an error.
[55] We accept that there was a change impacting the employment relationship that occurred
in the context of the Vaccination Directions. However, not all changes in employment lead to
a dismissal. Further, the fact that the Respondent had not expressly “terminated” the
relationship and kept the Appellant on the books is relevant but cannot be determinative. The
question remains whether the decision of the Respondent, not to offer further shifts to the
27 The evidence of Mr Grieg – transcript PN79 and his witness statement at 12.
28 The statement of Mr Grieg exhibit R1 at 11.
29 Para [9].
30 Ibid.
31 Para [10].
[2022] FWCFB 37
15
Appellant in the context of the Directions and his response to not be vaccinated, was properly
considered not be a dismissal at the relevant point.
[56] The combined effect of the evidence is that Mr Varichak was engaged as a casual
employee and there was no firm advance commitment to offer or accept shifts. The general
practice had been that, largely in the context of significant seasonal fluctuations, when work
was available and the Respondent sought to engage Mr Varichak, significant hours were offered
and worked.
[57] At the time of the application, the Appellant was not being offered any shifts and this
was a consequence of the Vaccination Directions, the Respondent’s view that this restriction
applied to its workplace and the decision made by the Appellant not to become vaccinated. The
Appellant has strong views about the validity of the Vaccination Directions and wished to
challenge them through this application; however, this aspect does not impact on the assessment
of whether there was a dismissal for present purposes. We emphasise that for reasons set out
earlier, the role of the Commission at this point was to determine the narrow jurisdictional issue
and not to determine whether there had been a breach of the general protections provisions of
the Act or whether the Vaccination Directions or the actions taken by the employer were unfair.
[58] In the context of the casual employment operating in this matter and the absence of a
mutual obligation to offer and accept work, we do not consider that at the time of the GP
application it can be established that the Appellant had been dismissed from his employment
with the Respondent. There was neither the termination of an employment contract or the
employment relationship at that point. We observe that this finding is confined to the specific
circumstances of the nature of the casual employment and the timing of the application evident
in this particular matter. Further, the continuation of the Respondent’s position not to offer
shifts to Mr Varichak may have at some point changed the status of the relationship to the extent
that a dismissal would result, but it had not at the relevant time.
[59] The Respondent did subsequently expressly terminate the Appellant’s employment in
early February 2022. In that respect, during preliminary proceedings32 associated with the
appeal, the Appellant was made aware that the February 2022 dismissal put the issue beyond
doubt and that he could make a fresh GP application without the Respondent raising a
jurisdictional issue. Further, we observe that the substance of the Appellant’s dispute with the
Respondent could have been, in light of the Decision, already taken to the Court as a non-
dismissal General Protections matter33 and this would appear to remain available. It is
regrettable that one of these options was not taken up by the Appellant; however, we have dealt
with the grounds of appeal on their own merits.
[60] In relation of the alleged misleading of the Deputy President by the Respondent about
the Appellant’s vaccination status, it is not clear whether the screenshots of the Respondent’s
HR system that the Appellant relied upon in the appeal were before the Deputy President. The
context for this contention was that Mr Varichak had advised the Respondent that he was not
vaccinated and this was confirmed in COG’s system. In any event, a reasonable understanding
of the Respondent’s evidence is that the Appellant had not provided proof of his positive
32 Directions proceedings before Hampton C conducted on 22 February 2022.
33 S.372 of the Act.
[2022] FWCFB 37
16
vaccination status (that he had been vaccinated) rather than he had not confirmed any
vaccination status at all.
[61] In terms of the aspects of the conduct of the hearing beyond the second finding, we do
not consider that the Deputy President’s conduct of the hearing was in any sense inappropriate
or led to unfairness. The Appellant’s concerns, other than as related to the second finding, arise
from his lack of appreciation of the difference between facts demonstrated by evidence and
submissions about the legal impact of the events concerning the alleged termination. Further,
the Deputy President also ensured that both parties understood the immediate issues and
appropriately assisted the Appellant to lead and challenge relevant evidence.
[62] Further, we have considered whether this appeal attracts the public interest, and we are
not satisfied that:
There is a diversity of decisions at first instance so that guidance from an appellate
body is required of this kind;
The appeal raises issues of importance and/or general application;
The Decision at first instance manifests an injustice, or the result is counter intuitive;
or
The legal principles applied by the Deputy President were disharmonious when
compared with other decisions dealing with similar matters.
Conclusion
[63] Permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
S Varichak for the Appellant.
A Farr with B Kunstler for the Respondent.
Hearing details:
2022.
THE THE FAIR WORK WORK COMMISSION THE SEAS
[2022] FWCFB 37
17
Microsoft Teams (Video).
7 April.
Final written submissions:
Appellant, 14 April 2022.
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PR739532
