1
Fair Work Act 2009
s.604—Appeal of decision
Richard Bosworth
v
Coles Supermarket Beechboro
(C2022/3215)
DEPUTY PRESIDENT MASSON
COMMISSIONER HAMPTON
COMMISSIONER BISSETT
MELBOURNE, 12 AUGUST 2022
Appeal against decision [2022] FWC 1114 of Williams C at Perth on 11 May 2022 in matter
number C2021/8706– permission to appeal refused.
Introduction
[1] Mr Richard Bosworth (the Appellant) has lodged an appeal under s.604 of the Fair Work
Act 2009 (Cth) (the Act) against a decision1 of Commissioner Williams issued on 11 May 2022
(the Decision) for which permission to appeal is required. The Decision concerned the dismissal
pursuant to s.587 of the Act of an application made by the Appellant pursuant to s.365 of the
Act.
[2] The appeal of the Decision of the Commissioner was listed for permission to appeal and
the merits of the appeal with a hearing date set for 7 July 2022, in advance of which the parties
were directed to file written submissions.
[3] At the hearing of the appeal on 7 July 2022, the Appellant was represented by Ms
Barbara Rebola who is the Appellant’s sister, while Coles Supermarket Beechboro (the
Respondent) sought and was granted permission to be legally represented pursuant to s.596(2)
of the Act. At the hearing on 7 July 2022, the Appellant sought and was granted an adjournment,
with the hearing of the appeal relisted for 15 July 2022.
[4] On 8 July 2022, Ms Rebola wrote to and advised the Fair Work Commission (the
Commission) that she had withdrawn from representing the Appellant in the appeal
proceedings.
[5] On 15 July 2022, the relisted hearing proceeded at which the Respondent appeared and
made oral submissions. The Appellant did not attend and was unable to be contacted by
telephone prior to, during or following the hearing. The Appellant also failed to subsequently
contact the Commission regarding his non-attendance at the hearing.
1 [2022] FWC 1114.
[2022] FWCFB 153
DECISION
AUSTRALIA FairWork Commission
[2022] FWCFB 153
2
[6] Following the hearing on 15 July 2022, further directions were issued to the parties
inviting written submissions on the question of the utility of the appeal. The Respondent filed
submissions in accordance with the directions however the Appellant failed to file any
submissions.
[7] For the reasons that follow, permission to appeal is refused.
Background
[8] The Appellant commenced employment with the Respondent in March 2015 and
resigned on 29 November 2021.
[9] On 18 December 2022, the Appellant filed a Form F8C – General protections
application involving dismissal (the Application). The Application stated that the Appellant did
not have a representative.
[10] On 11 January 2022, the Respondent filed its Form F8A response and in doing so raised
a jurisdictional objection to the Application, that being the Appellant had resigned from his
employment with the Respondent and therefore was not dismissed.
[11] On 28 February 2022, a form F53 was filed by Vivian Michael of the Michael Law
Group giving notice that she had commenced to act for the Appellant.
[12] On 22 March 2022, the Application was subject to conciliation before a staff member
of the Commission however the matter was not resolved. The Appellant was represented in the
conciliation conference by Ms Michael who was granted permission to appear pursuant to
s.596(2) of the Act.
[13] On 24 March 2022, a Form F54 was filed by Ms Michael giving notice that she had
ceased to act for the Appellant.
[14] On 24 March 2022, the Application was allocated to the Commissioner.
[15] On 29 March 2022, a notice of listing and directions were issued to deal with the
jurisdictional objection raised by the Respondent. The matter was listed for hearing on 6 July
2022 in advance of which the Appellant was relevantly required to file an outline of
submissions, witness statements and any other documents on which he sought to rely by 4.00pm
on 4 May 2022. The Appellant failed to file his material by 4.00pm on 4 May 2022 or contact
the Commissioner’s chambers to seek an extension of time for the filing of his material.
[16] On 5 May 2022, the Respondent emailed the Commissioner’s chambers raising the
Appellant’s failure to file his submissions and material in accordance with the directions issued
on 29 March 2022.
[17] On 5 May 2022, the Commissioner sent non-compliance correspondence (the Non-
Compliance Letter) to the Appellant which stated as follows:
“…
[2022] FWCFB 153
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On 29 March 2022 we sent the attached Notice of Listing and Directions to you
concerning the hearing of your application.
Our records indicate that you have not complied with the Commission’s direction to file
your materials.
Consequently, I now again direct you to file in the Commission and serve on the
Respondent a written statement of your evidence (if you intend to be a witness) and a
written statement of evidence from each supporting witness, if any, and an outline of
your submissions and copies of any documents that will be relied on by 4:00PM on
Monday 9 May 2022
If you do not comply with this further direction the Commission will take your repeated
non-compliance as demonstrating you do not want to continue with your application
and your application will be dismissed (see section 587 of the Fair Work Act 2009) and
the matter closed.
…”2
[18] Although not known to the Commissioner at the time, on 7 May 2022, the Appellant
attended a consultation with Tina Marley who is a clinical psychologist. Ms Marley provided
the Appellant with a brief medical report. The report indicated that the Appellant had a
considerable history of depressive symptoms and “would meet a diagnosis of a Major
Depressive Disorder (with acute symptoms) and General Anxiety Disorder”. The report further
stated that the Appellant had advised Ms Marley that he had missed a hearing date the previous
week due to his symptoms and felt fearful and incapable of leaving the house. She confirmed
the symptomology and mental health decline.3
[19] The Appellant failed to file material by 4.00pm on 9 May 2022 in accordance with the
revised directions of the Commissioner. The Appellant did not contact the chambers of the
Commissioner in relation to his failure to file his material, nor did he provide a copy of the
medical report obtained by him on 7 May 2022 from Ms Marley.
[20] On 11 May 2022, the Respondent requested an update from the Commissioner’s
chambers on the status of the matter having regard to the Non-Compliance Letter sent to the
Appellant on 5 May 2022 and the Appellant’s failure to file material in accordance with the
revised directions.
[21] On 11 May 2022, the Commissioner issued the Decision dismissing the Application
pursuant to s.587 of the Act.
[22] Shortly after receipt of the Decision on 11 May 2022, the Appellant forwarded a copy
of the Decision to Ms Rebola who subsequently sent an email to the Commissioner’s chambers
at 3.39pm on 11 May 2022 in the following terms:
2 Coles’ Court Book at p.87, Non-compliance letter to Appellant, dated 5 May 2022.
3 Appeal Book at p. 12, Medical Report, dated 5 May 2022.
[2022] FWCFB 153
4
“…
I am family advocate for Richard Bosworth in the matter C2021/8706 referenced above.
It is noted that I was not sent any of the communique on this matter, otherwise I would
have responded on behalf of Richard Bosworth within the requisite timings.
I am seeking your advice and direction on how to apply for permission to appeal or stay
this decision on the grounds of health, as Richard did not have nor currently has, the
mental capacity to make decisions, as supported by the attached letter from his clinical
psychologist. Please note, he has been under the care of another psychologist prior to
this and we are able to provide supporting evidence of same.
Does Richard need to apply by way of Form 7?
Your discretion is sought on the way forward for this matter.
…”
[23] At 12.22pm on 13 May 2022, a response to Ms Rebola’s email of 11 May 2022 was sent
by the Commissioner’s Associate to Ms Rebola in the following terms:
“Dear Ms Rebola,
The Commission had not previously been notified that you were Mr Bosworth’s
representative.
If Mr Bosworth believes he has grounds for an appeal of Commissioner Williams’
decision he should complete a Form F7 Notice of Appeal, which is available on the
Commission’s website, and file this with the Commission’s Registry.
For transparency this email has been copied to the Respondent.
…”
[24] The appeal was lodged by the Appellant on 30 May 2022.
The Decision
[25] The Decision issued by the Commissioner was short. It set out the brief history to the
Application including the Respondent’s jurisdictional objection raised, the unsuccessful
conciliation conducted and the directions issued to the parties on 29 March 2022. The Decision
noted the Appellant’s failure to file his material by 4.00pm on 4 May 2022 in accordance with
the directions, then referred to the Non-Compliance Letter subsequently sent to the Appellant
on 5 May 2022 which directed the Appellant to file his material by a revised date, that being
4.00pm on 9 May 2022. The Commissioner then stated that as at the date of the Decision, the
Appellant had not filed any materials as directed.
[2022] FWCFB 153
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[26] The Commissioner then concluded as follows:
“…
The legislation
[7] Section 577 of the Act obliges the Fair Work Commission to perform its
functions and exercise its powers in a manner that is fair, just and is quick, informal and
avoids unnecessary technicalities and is open and transparent and promotes harmonious
and cooperative workplace relations.
[8] Section 587(3) of the Act empowers the Fair Work Commission to dismiss an
application on its own initiative.
Decision
[9] In this case the Applicant has repeatedly failed to comply with the Fair Work
Commission’s directions and was on notice that non-compliance would be grounds for
the application to be dismissed.
[10] Consequently, my decision is that this application to deal with contraventions
involving dismissal should now dismissed on the initiative of the Fair Work
Commission under section 587(3) of the Act.
…”4
Grounds of appeal
[27] While not well articulated in the Form F7 Notice of appeal, we discern from that
document and the brief written submissions filed by the Appellant that the following grounds
of appeal are advanced. The Commissioner erred by failing to take into account that:
1. the Appellant inadvertently missed the directions issued by the Commissioner and
that his representative, Ms Rebola was not copied into the directions despite this
having been requested at mediation, and prior;
2. the Appellant’s serious and deteriorating mental health condition, which was
confirmed by a medical report, left him in no state to appear or respond to
correspondence from the Commission; and
3. the Appellant was subject to more than thirty-five instances of bullying and safety
breaches that were detailed in the Appeal Book filed by the Appellant.
Principles governing an appeal under s.604 of the Act
4 Decision at [7]-[10].
[2022] FWCFB 153
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[28] 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.5 There is no right to appeal and an appeal may only be made with the permission of the
Commission. Subsection 604(2) requires the Commission to grant permission to appeal if
satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted
on discretionary grounds.
[29] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.6 The public interest is not satisfied simply by the
identification of error, or a preference for a different result.7 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 issues 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...”8
[30] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been treated as justifying the grant
of permission to appeal include that the decision is attended with sufficient doubt to warrant its
reconsideration and that substantial injustice may result if leave is refused.9
[31] 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.10 However, as earlier stated, the fact that the Member at first instance made
an error is not necessarily a sufficient basis for granting permission to appeal.
Consideration
[32] Before turning to the grounds of appeal it is necessary for us to say something about the
Application before the Commissioner and the Decision.
[33] The Application was made under s.365 of the Act which states as follows:
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398, [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].
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining
Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 [28], 202 IR 388, affirmed on judicial
review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
8 [2010] FWAFB 5343, 197 IR 266, [24] – [27].
9 See also CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481.
10 Wan v AIRC (2001) 116 FCR 481, [30].
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
[2022] FWCFB 153
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“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.”
[34] It is clear from s.365 that a person may make an application for the Commission to deal
with a general protections dismissal dispute subject to the person meeting the necessary
jurisdictional pre-requisites including that they have has been “dismissed”, the meaning of
which is relevantly defined at s.386(1) of the Act as follows:
“(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.”
[35] Subject to it being established that the person has been dismissed and that the dismissal
is alleged to be in contravention of Part 3-1 of the Act, the Commission is required to deal with
the dispute in accordance with s.368 of the Act which requires, in part, that the Commission
must deal with the dispute “other than by arbitration”11. Where the Commission is satisfied that
the dispute is unable or unlikely to be resolved (other than by arbitration), the Commission is
required to issue a certificate to that effect,12 a certificate being required to make a general
protections dismissal dispute court application. The Commission must also as part of its
exercise of powers under s.368 of the Act advise the parties if it forms the view that the
application would have no reasonable prospects of success if arbitrated under s.369 of the Act
or if pursued by way of a general protections court application.13
[36] In the present case the Appellant was formerly employed by the Respondent and alleged
in the Application that he was dismissed from his employment in contravention of ss.340, 343,
344 and 351 of Part 3-1 of the Act on 29 November 2021. He further stated in the Application
that he was forced to resign because of years of intimidation, threats, bullying and a lack of
action by the Respondent. While not articulated in the following terms, we discern from the
Appellant’s material that he contends that the conduct or course of conduct he was exposed to
11 Fair Work Act 2009 (Cth), s.368(1).
12 Ibid, s.368(3)(a).
13 Ibid, s.368(3)(b).
[2022] FWCFB 153
8
during his employment with the Respondent was such that it left him with no choice but to
resign, which if established would bring him within the second limb of the definition in s.386(1)
of the Act.
[37] As earlier stated, the Respondent objected to the Application on the basis that the
Appellant was not dismissed within the meaning of s.368(1), thereby failing to establish one of
the necessary jurisdictional pre-requisites for the Commission’s exercise of power under s.368
of the Act. As the Respondent disputed that the Appellant had been “dismissed,” the
Commissioner was required to determine that “antecedent dispute” before he could proceed to
exercise the powers under s.368 of the Act.14 It was the “antecedent dispute” that the
Commissioner programmed for determination when he issued the directions on 29 March 2022.
[38] Following the issuing of directions on 29 March 2022, the Appellant failed to comply
with the requirement that he file his material by 4.00pm on 4 May 2022. The Commissioner
then put the Appellant on notice on 5 May 2022 in the Non-Compliance Letter that if he failed
to file his material by the revised date of 4.00pm on 9 May 2022 his application would be
dismissed. The Appellant did not file his material by the revised date. Nor did he contact the
Commissioner’s chambers at any point after the original directions were issued on 29 March
2022 and prior to the Decision being issued seeking an extension of time or to advise that he
was unable to comply with the directions due to his mental health condition.
[39] In light of the Appellant’s failure to file any material in accordance with both the original
and revised directions the Commissioner proceeded to dismiss the Application on his own
initiative, relying on ss.577 and 587(3) of the Act. Those sections of the Act state as follows:
“577 Performance of functions etc by the FWC
The FWC must perform its functions and exercise its powers in a manner that;
(a) is fair and just;
(b) is quick, informal and avoids unnecessary technicalities;
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
…
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC
may dismiss an application if:
(a) the application is not made in accordance with this Act; or
14 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [67].
[2022] FWCFB 153
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(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an
application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[40] While the Commissioner relied on ss.577 and 587(3) to dismiss the Application on his
own initiative, it is not entirely clear from the decision on what other basis, statutory or
otherwise, the Commissioner relied. We raise this point because the Commissioner has not
specifically referred to the use of s.587(1) and because s.577 does not, in itself, confer a power
to dismiss an application. It merely sets out the manner in which the Commission must “perform
its functions and exercise its powers”. Those powers, in this case, to dismiss the Application,
must in our view be derived elsewhere than from s.577 of the Act.
[41] Significantly, s.587(1) sets out three specific grounds on which an application may be
dismissed, however ss.587(2)(a) and (b) operate to prevent the dismissal of a ss.365 or 773
application on the grounds that the application is frivolous or vexatious or has no reasonable
prospects of success. As the present matter involves a s.365 application, ss.587(2)(a) and (b)
operate so as to prevent the dismissal of the Application on the grounds that it was frivolous or
vexatious or had no reasonable prospects of success.
[42] As ss.587(1)(b) and (c) are not relevant, it may have been open for the Commissioner
to dismiss the Application on other grounds including that the Application was not made in
accordance with the Act.15 To have done so in the circumstances of this case, where the
Respondent had raised a jurisdictional objection, would in our view have required the
Commissioner to find the Appellant had not been “dismissed” within the meaning of s.365 of
the Act. That is so because had the Appellant not been “dismissed”, no basis for a s.365
application existed and the Application could not be said to have been made in accordance with
the Act. The Commissioner made no such finding given his dismissal of the Application prior
to determining the “antecedent dispute” of whether the Appellant was “dismissed.” It can
therefore be safely established that the Commissioner did not rely on s.587(1)(a) of the Act to
15 Fair Work Act 2009 (Cth), s.587(1)(a).
[2022] FWCFB 153
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dismiss the Application. It is to whether a broader discretion exists to dismiss an application
that we necessarily turn.
[43] Section 587(1) commences with the words “Without limiting when the FWC may
dismiss an application” following which the provision then goes on to describe three specific
circumstances where an application may be dismissed. It appears the Commissioner may have
sought to rely on a broader discretion conferred by the opening words of s.587(1) in dismissing
the Application due to a failure of the Appellant to prosecute his case. That is made clearer by
the wording in the Order16 that accompanied the Decision where it stated that the Application
was “dismissed for want of prosecution.”
[44] The Bench were taken to several authorities17 where a broader discretion to dismiss an
application was exercised in circumstances where a party had failed to prosecute their case. In
Baillie v PJDH Pty Ltd t/a Brazilian Beauty Fairfield, Mansini DP relevantly stated as follows:
“[32] Section 587 confers a sufficiently broad discretion to allow an application under
s.365 to be dismissed for want of prosecution by an applicant, in an appropriate case, to
be exercised with caution and having regard to the matters the Commission is required
to take into account in the performance of its functions.”18 (emphasis added)
[45] In McLeod v Kulgera Trading Company Pty Ltd19 Catanzariti VP, referred to an earlier
decision of Gooley C in dismissing an application under s.587 of the Act when he stated as
follows:
“[9] In Rebecca Tomas v Symbion Health [2011] FWA 5458, Commissioner Gooley
(as she then was) stated the following with respect to the operation of s.587:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter.
Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss
matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is
required to afford a fair go all round to both employers and employees. Further,
Fair Work Australia must perform its functions and exercise its powers in a
manner that is fair and just and must take into account equity, good conscience
and the merits of the matter.”
[46] While considered under the Workplace Relations Act 1996 (the WR Act), support is also
drawn in more recent decisions of the Commission from the Full Bench’s comments in
Ghalloub v AON Risk Services Australia20 when in dealing with the failure of the applicant in
that matter to comply with directions for the filing of material the Full Bench said as follows:
16 Coles Court Book at p.90, Order dated 11 May 2022, PR741469.
17 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, Aynsley v Contracting Employment Services T/A Ambition Recruitment
[2011] FWA 1333.
18 [2020] FWC 163 at [32].
19 [2014] FWC 2112.
20 PR956665.
[2022] FWCFB 153
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“[23] We take as the starting point the proposition that an applicant pursuant to
s.170CE is entitled to have his or her case heard and that there is a corresponding duty
upon a member of the Commission to whom an application has been allocated to hear
the application. The right to a hearing is qualified by the terms of the Act, e.g.
ss.170CEA and 170CIB, and by the operation of principles relating to the summary
dismissal of an application in response to a submission by the respondent that there is
no case to answer. In this case the Senior Deputy President dismissed the appellant's
case for want of prosecution. It is clear from the terms of the decision that in the Senior
Deputy President's opinion the appellant's failure to comply fully with the Commission's
directions required that the proceedings be dismissed. This appeal therefore raises for
consideration a further possible qualification upon the right of an appellant to have his
or her case heard and upon the duty of the Commission to hear the case, a qualification
arising from a failure to comply with procedural directions.” (our emphasis added)
[47] More recently, the Full Bench in Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station21
(Roy Hill) traversed various authorities going to the approach to be adopted in considering the
dismissal of an application. While Roy Hill was concerned in particular with the use of s.399A
to dismiss an unfair dismissal application where the applicant in that matter had failed to comply
with directions, the Full Bench relevantly said the following in relation to s.587:
“[35] While the Commission’s powers to dismiss an unfair dismissal application under
s 399A are exercisable upon ‘application by the employer’, the section does not limit
when the Commission may dismiss an application under s 587 of the Act…” (emphasis
added)
[48] It seems from the various authorities to which we were referred that it has been accepted
in decisions of the Commission that the three specific grounds for the dismissal of an
application set out is s.587(1) of the Act are not exhaustive and therefore do not limit the
circumstances in which an application may be dismissed by the Commission on its own
initiative. Further, dismissal of an application “for want of prosecution” is a particular ground
for dismissal of an application that has been used in various decisions of the Commission, with
reliance routinely placed on a broader discretion conferred by the introductory words of
s.587(1) of the Act.
[49] We do however hold some reservations as to the correctness of the use of a broader
discretion to dismiss a s.365 or s.773 application in circumstances where the legislature has
sought to explicitly limit through s.587(2) the circumstances in which a s.365 or s.773
application may be dismissed. There appears to be a tension between the imposition of a
statutory restriction on the grounds upon which the Commission may dismiss ss.365 or 773
applications while preserving a statutorily unspecified general discretion to dismiss such
applications.
[50] While we hold some reservations as to the correctness of the Commissioner’s approach
of dismissing the Application on the basis of a broader unspecified discretion, that issue was
not raised on appeal, nor sufficiently ventilated in submissions to enable a full consideration.
21 [2019] FWCFB 2925.
[2022] FWCFB 153
12
In these circumstances, it is not appropriate for us to determine that point. It is also unnecessary
for the reasons set out below that go to both the grounds of appeal and the utility of the appeal.
It is to the specific grounds of appeal that we now turn.
Ground 1
[51] The Appellant contends that he inadvertently missed the deadlines for the filing of his
material and that the Commissioner erred by not taking that into account. We reject that ground
of appeal for the following reasons. We are not persuaded that the Appellant was unaware of
the timeframes for the filing of his material or that he had inadvertently missed correspondence
from the Commission. We have formed that view on the basis of Ms Marley’s medical report
in which she recorded that during her consultation with the Appellant on 7 May 2022, he
acknowledged that he was aware of having missed a hearing date in the previous week. This
indicates to us that the Appellant was in possession of the Non-Compliance Letter from the
Commissioner when he attended the consultation with Ms Marley on 7 May 2022. Our view is
fortified by the immediacy with which the Appellant forwarded the Decision to Ms Rebola on
11 May 2022 after it was issued by the Commissioner which further indicates that the Appellant
was monitoring his emails.
[52] Turning to the contention that Ms Rebola was not copied into correspondence from the
Commission following the conciliation on 22 March 2022 at which it was claimed she had
advised she was now representing the Appellant. We note that Ms Michael commenced to act
for the Appellant on 28 February 2022 and did not cease to act for him until 24 March 2022,
which was after the conciliation conference held on 22 March 2022 at which Ms Michael
represented the Appellant. There is no record of any formal communication from the Appellant
to the Commission advising that Ms Rebola was his representative, be that in the original
Application, or following the withdrawal of representation by Ms Michael or at any other time
prior to the Decision being issued on 11 May 2022. No error is disclosed in the Commissioner’s
failure to take into account that correspondence was not copied in to Ms Rebola.
Ground 2
[53] The Appellant submits that the Commissioner erred by failing to take into account his
mental health condition. That argument, which goes to procedural fairness, may be easily
disposed of. While we readily accept that the Commissioner did not take that matter into
account, that was for the simple reason that he was not made aware by the Appellant of that
condition until after the Decision was issued.
[54] Notwithstanding the Appellant obtained a medical report from Ms Marley on 7 May
2022 which was prior to the revised deadline for the filing of his material on 9 May 2022, he
failed to contact the Commissioner’s chambers to alert the Commissioner to challenges he may
have been experiencing in complying with either the original or revised directions. No error in
the Decision is disclosed by the Commissioner not taking the Appellant’s reported mental
health condition into account in circumstances where he was not made aware of or provided
with relevant medical information by the Appellant.
Ground 3
[2022] FWCFB 153
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[55] The Appellant also contends that the Commissioner failed to take into account a 17 page
document which detailed 38 various instances of alleged bullying, harassment, health and safety
breaches and where he was required to perform work outside his job description. The document
was identified as Appendix 1 - Mediation Log of Claims and was attached to the Form F7
Notice of appeal22 (the Mediation Log of Claims). Although we can find no record of the
Mediation Log of Claims being before the Commissioner, the Appellant did prepare and attach
a 9 page document to the original Application which set out various allegations23 (Application
Attachment).
[56] The Commissioner does not appear to have taken either the Mediation Log of Claims or
Application Attachment into account in the Decision. That is unsurprising as, while both
documents made a substantial number of allegations, neither document constituted sworn
evidence that was able to be tested under cross-examination. We do however accept that the
material in those two documents may have been relevant in the hearing of the Respondent’s
jurisdictional objection that the Appellant was not dismissed. That is on the basis that we discern
from the material that the Appellant’s position is that the conduct or course of conduct engaged
in by the Respondent, which he points to in both the Mediation Log of Claims and the
Application Attachment, left him with no choice but to resign. Unfortunately for the Appellant’s
case on appeal, none of the matters raised in the Mediation Log of Claims and in the Application
Attachment were advanced by way of sworn evidence and/or formal submissions before the
Commissioner in his dealing with the jurisdictional objection of the Respondent.
[57] In the absence of evidence being adduced and tested before the Commissioner, which
might have established the veracity of the Appellant’s allegations, the Commissioner was
correct to not take that material into account in the Decision. There was simply no evidence
before the Commissioner that would have allowed him to test the allegations in circumstances
where the Appellant did not engage in the listed proceedings. No error is disclosed.
Utility of the appeal
[58] We now turn to consider the utility of the appeal on which the parties were invited to
file submissions following the appeal hearing on 15 July 2022. As previously stated, the
Respondent filed submissions on this point while the Appellant failed to do so. In our view
there is no utility to the appeal for the reasons that follow.
[59] On the basis of the material filed, the Appellant has failed to establish that he was
dismissed. The Application expressly states that he resigned and put forward a number of
reasons that he says led to his resignation, including a number of complaints regarding his
workload, treatment by his manager and a failure of the Respondent to address various
complaints he had raised. Even taking the Appellant’s case at its highest that his resignation
was forced by the conduct or course of conduct of the Respondent, he has failed to articulate or
identify a basis for concluding that that the conduct was because of a prohibited reason.
[60] Finally, the Appellant seeks an indefinite stay of the proceedings on the basis of his
medical condition on which there was limited evidence before us. While the brief medical report
22 Coles Court Book at p.12, Appendix 1 - Mediation Log of Claims.
23 Coles Court Book at p.58, Supplementary document to Form F8C.
[2022] FWCFB 153
14
prepared by Ms Marley identified that the Appellant was suffering from a “Major Depressive
Disorder (with acute symptoms) and General Anxiety Disorder”, no material was advanced that
would indicate the prognosis or timeframe within which the Appellant may be able to press his
case were his appeal successful. We do not think in the circumstances of this case that the
interests of justice are served by an indefinite delay in the proceedings. This weighs in favour
of a conclusion that there is little or no utility to the appeal.
Conclusion
[61] For the reasons set out above, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
B Rebola, Appellant (7 July 2022).
M Mead for the Respondent (7 July and 15 July 2022).
Hearing details:
2022
Melbourne, Adelaide, Perth (by Microsoft Teams):
July 7, 15.
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PR744736
WORK OF THE FAVOR. THE USTRALIA O ISSION THE SEA
