Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [[2016] FWC 8949] of Commissioner Wilson at Melbourne on 13 December 2016 in matter number C2015/8182.

[1] This is an appeal by Mr Blair Heading, for which permission is required, against a decision 1 (Decision) made by Commissioner Wilson on 13 December 2016 in which the Commissioner found that the processes of selection of candidates for particular positions adopted by the Secretary of the Department of Education and Training (Department) complied with clause 21(2)(b) of the Victorian Government Schools Agreement 20132. Mr Heading claims that the Commissioner failed to properly explain the basis on which he reached certain conclusions or misrepresented the evidence before him.

The Decision

[2] The background to Mr Heading’s s.739 application to the Fair Work Commission (Commission) is set out in the Decision. 3 It is enough to note here that Mr Heading was employed as a psychologist with the Department on a fixed term contract ending on 18 December 2015. Three psychologist positions were advertised between 16 and 30 September 2015 – two on an on-going basis and one fixed term position. Mr Heading applied for all three positions. He was shortlisted but not successful for any of the positions. It was this failure to gain any of the positions that was the cause of Mr Heading’s application to the Commission.

[3] The Commissioner summarised the issues before him as follows:

“[22] Mr Heading’s substantive complaint is about several matters, including;

● that members of the selection panel held a conflict of interest that should have been disclosed, and in any event skewed the results of the panel’s decision making;

● that he was given insufficient opportunity by the selection panel in the interview to demonstrate his abilities;

● that the Department breached its processes and his confidentiality when it contacted a person for a reference whom he had not identified as his referee;

● that the Department did not determine the applications for employment solely on principles of merit and equity; and

● that, in any event, Mr Heading was more meritorious than other candidates preferred for employment.”

[4] The Commissioner then analysed the evidence and made specific findings in relation to each issue.

[5] With respect to any conflict of interest or bias Ms Stewart may have had as a member of the selection panel, the Commissioner found:

“[29] Mr Heading complains that Ms Stewart held a conflict of interest because she knew, in some detail, the professional abilities of one or more of the applicants for positions, in particular having mentored more than one of them through their preregistration training. While I deal with that subject in greater detail below, I am not persuaded a conflict of interest arose on the part of Ms Stewart.

[30] I find that the panel was appropriately formed and structured, consistent with the Department’s local selection requirements…

[36] Whether there is a reasonable perception of bias involves consideration of whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question that is required to be decided. 4 The application of the objective test of the “fair-minded lay observer” is set out in Ebner v Official Trustee as a two step process requiring identification of matters, followed by connection of those matters with the matter being decided.5 There must be grounds upon which there may be a reasonable apprehension that a matter will not be decided impartially or without prejudice, and the mere fact of prior decisions, or contact or experiences with the facts, the context, or with one or more parties will generally not be sufficient to require a disqualification.6”

[6] The Commissioner concluded:

“[49] Accordingly I do not find that there was an actual or perceived conflict of interest from the inclusion of Ms Stewart in the selection panel.”

[7] On the matter of whether Mr Heading was given insufficient opportunity in the interview process, the Commissioner considered the evidence in relation to that interview of members of the selection panel 7 and concluded that:

“[55] Almost inevitably a person who did not succeed in a job application is likely to consider that their interview they may not have presented themselves as well as they could have. While that is necessarily a human reaction to what can often be a gruelling process, Mr Heading’s complaint about the interview is not about how he presented himself to the panel, but rather it is about how the interview panel members conducted themselves. In this case, there is no evidence that the interview was conducted inappropriately or that insufficient time was allowed to Mr Heading to present his claims. There is also no evidence that Mr Heading wanted to provide further relevant information about his claims to the panel, but was prevented from doing so.

[56] Instead the evidence before the Commission leads to the conclusion that the interview itself was conducted appropriately with each member of the interview panel forming the view that Mr Heading did not perform well and, more importantly, that he presented himself worse – and less meritoriously – than other applicants.

[57] The fact that Mr Heading did not perform well in the interview is not a matter for the selection panel to somehow bear responsibility; instead the selection panel’s task was to objectively discern the differences between candidates, ranking the better performances from the poorer. A candidate who does not seize the opportunity to assertively and persuasively present their claims to an interview panel will likely struggle for a high ranking. Inevitably, responsibility for his poor performance in the interview rests with Mr Heading.”

[8] The Commissioner considered in some detail the processes undertaken by the selection panel in contacting referees and who was contacted by which members of the selection panel 8 before finding that there was “no inappropriate contact with a person who was not a referee.”9

[9] The Commissioner also considered the contact made by Mr Wells and Ms Williamson – school Principals who were not nominated referees of Mr Heading – with Ms Stewart with respect to Mr Heading. Whilst raising a question as to how Mr Wells and Ms Williamson reached their views independent of each other and communicated to Ms Stewart, the Commissioner found that the communication had no impact on the selection decision. In particular, the Commissioner found:

“[86] Ms Stewart denies that she sought any information from Mr Wells, Ms Williamson or Mr Wicher, or that she saw it as something that was necessary to be taken into account in the selection process. There is also no evidence before me that the views of the three were taken into account in the selection panel’s decision about the psychologist positions.

[87] In any event the communications from Mr Wells and Ms Williamson were after Mr Heading been told that he was unsuccessful in his application.”

[10] The Commissioner also took this contact into account in determining if the selection decision was based solely on merit and equity, finding on this that “the evidence is that the selection panel followed its obligations in respect of the assessment of merit.” 10

[11] The Commissioner then turned to consider the question of whether Mr Heading was more meritorious than other candidates for the positions. The Commissioner considered how Mr Heading was ranked in the shortlisting process before concluding that the decision to shortlist Mr Heading “was likely generous to him”. 11 The Commissioner concluded:

“[111] The evidence given by each of the selection panel members about the interview are consistent with a finding that Mr Heading did not do well in the interview. Some of the reasons are set out above. Analysis of the evidence from any of the witnesses could it be said that Mr Heading was unjustifiably marked down in his interview performance (sic). Even within Mr Heading’s own evidence there appears to be an acceptance that he may not have put forward for employment best case that he could have.”

[12] After considering all of the matters raised by Mr Heading the Commissioner concluded:

“[113] As a result of this analysis, I am unable to form the view that Mr Heading should have been viewed by the selection panel as having more merit than it actually assessed him to have.”

Consideration

[13] An appeal under s.604 of the Fair Work Act 2009 (FW 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. 12 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(2) A person may appeal the decision by applying to the FWC.

[14] Subsection 604(2) requires the Commission to grant permission to appeal if it is 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. 13 The public interest is not satisfied simply by the identification of error14, or a preference for a different result.15 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of Fair Work Australia 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...” 16

[15] Other than the particular consideration in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 17 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.18 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.19

Grounds of appeal and submissions

[16] Mr Heading’s grounds of appeal are set out in his appeal notification. They are:

● an explanation of the statement (at paragraph [85] of the Decision) “…with a more definitive response about whether these conversations between Ms Stewart and the individual Principals were likely to…[have] affected the recruitment process and decision”. (Reference checks)

● an explanation with “evidence [as to] how [the Commissioner] formed a judgement that ‘I accepted that I may have not put my best case forward?’ I believe I did not make this statement…please resolve the statement with evidence and examples otherwise dismiss the statement”. (Best case forward)

● “can the Commissioner please resolve this stay (sic) … [that some panel members ranked some applicants including Mr Heading higher than the chosen applicants] by making a statement about how this important recruitment process may have occurred and whether it had an impact on the recruitment process”. (Decision based on merit and equity)

[17] In his written submissions Mr Heading expanded on these grounds and added an additional ground of appeal. In full the grounds of appeal are:

1. a determination of whether Rose Stewart had either a perceived or real conflict of interest whereby possible favouritism and bias is likely to have influenced the recruitment decision [and if] Rose Stewart should have removed herself from the selection process. (Conflict of interest)

2. a determination of whether the Principals had conversations amongst themselves and how this impacted on the recruitment process. (Reference checks)

3. a determinations of whether the recruitment process was undertaken in a fair, comparative and consistent assessment of all applicants. (Selection based on merit and equity)

4. how it was concluded that Mr Heading accepted he may not have put his best case forward. (The best case at interview)

Ground 1 – Conflict of interest

[18] In his submissions Mr Heading said that the matters he raised with respect to the Decision of the Commissioner warranted review by the Full Bench as he considers that the selection panel did not determine his application on the basis of merit and equity.

[19] Mr Heading disagrees that Ms Stewart, a member of the selection panel, did not have a conflict of interest given that she had supervised one of the other applicants for the position in question. Mr Heading accepts that members of selection panels may know applicants for the position they are selecting for. He submits however that it is a different circumstance when a member of the panel has supervised an applicant.

[20] Despite the submissions of Mr Heading there was no evidence before the Commissioner that Ms Stewart had an intense personal relationship with the applicant she had supervised. The evidence from Ms Stewart was that she supervised many students over the years and did not develop a personal relationship with them and did not invite them to her home. 20

[21] On the basis of the evidence before him it was open to the Commissioner to conclude that “there was [no] actual or perceived conflict of interest from the inclusion of Ms Stewart in the selection panel”. 21 In reaching his decision the Commissioner was mindful of the make-up of the selection panel (there were three other members of the panel) and the lack of evidence that each of those members failed to exercise their own assessments of the applicants and that no fair-minded observer would conclude that Ms Stewart should disqualify herself.

[22] We are not satisfied that there is any error in the conclusion reached by the Commissioner on this question. He properly considered all of the evidence before him. The principles relevant to a consideration of a claim of apprehended bias are set out in Ebner v Official Trustee in Bankruptcy. 22 Whilst Mr Heading suggests that this case is not relevant as the facts are quite different, those differences in fact do not adversely affect the application of the principles to the matter at hand. These principles have been properly applied in the circumstances of this case.

[23] We see no error in the Decision of the Commissioner on this matter.

Ground 2 – Reference checks

[24] Mr Heading submits that there is no evidence to suggest that Ms Stewart did not have any contact with Mr Wells and Ms Williamson (the two school Principals) prior to the selection decision being made such that it warrants a reconsideration of effect of her communication with them.

[25] The Commissioner found that it was “inescapable that [Mr Wells and Ms Williamson] each had a conversation amongst themselves and wanted to make it plain to Ms Stewart, perhaps as a surrogate for the panel, that they did not want Mr Heading appointed under any circumstances.” 23 Whilst the basis on which the Commissioner reached this conclusion is unclear, it is not relevant to the decision he reached. The critical issue in relation to the decision is whether there was contact between Ms Stewart and the two Principals prior to the decision of the selection panel being made such that the Principals may have influenced that decision. The Commissioner found that, whilst there was contact by the Principals with Ms Stewart, it was after the selection decision had been made and Mr Heading advised that he was not successful.24 For this reason, it had no impact on the selection panel decision.

[26] Mr Heading’s claims that evidence of contact between Ms Stewart and the Principals prior to the decision on the successful candidates being decided may have been destroyed or withheld from the Commission are without foundation. They are not matters put to any witnesses in the initial hearing. The lack of evidence proving something occurred is not evidence that material has been withheld – it is more likely, in this case, that there was no such material or contact and hence records were not destroyed. It was not improper for the Commissioner not to engage in speculation or question the parties on matters for which no suggestion was made or evidence produced. The Commissioner did not make any findings that there were inappropriate conversations that may have impacted on the recruitment processes because there was no evidence before him that would enable such a finding to be made.

[27] The conclusions of the Commissioner on this matter were reasonably open to him and we find no error in the Decision in this respect.

Ground 3 – Selection based on merit and equity

[28] Mr Heading says that there is evidence that he was more meritorious than those selected for the positions and that this was ignored. He submits that the Commissioner failed to take into account that different members of the selection panel ranked applicants differently – some ranked other applicants, including Mr Heading, higher than the successful candidates on some of the selection criteria. Mr Heading says that this is evidence that the panel has not undertaken a fair comparative consistent assessment of all applicants and this was not considered by the Commissioner in coming to his conclusion.

[29] It is unremarkable that members of a selection panel may have differing views as to the ranking of various candidates in a selection process. The process of a selection panel working through differences, understanding the basis of each other’s opinion and reaching a consensus on the best candidate for a position is a critical part of the selection process.

[30] It appears to us that the Commissioner undertook a thorough consideration of the evidence before him with respect to the process of shortlisting candidates for selection interviews for the positions and the result of that process. The conclusion reached by the Commissioner was open to him on that evidence.

Ground 4 – Best case at interview

[31] Mr Heading challenges the statement of the Commissioner that, on Mr Heading’s own evidence, “there appears to be an acceptance that he may not have put forward for employment [the] best case that he could have.” 25 Mr Heading says that he did not make such a statement or accept that this was the case. Mr Heading submits the conclusion of the Commissioner is apparently based on the evidence of members of the selection panel and not on the basis of any statement he made.

[32] The Department suggested that this conclusion was properly drawn by the Commissioner on the basis of admissions Mr Heading made in cross-examination including in relation to his nerves during interview 26, that he may have spoken too quickly in the interview27 and that the interview panel may have interpreted this behaviour in the interview.28

[33] It does not seem to us that this evidence provides a reasonable basis on which the Commissioner could safely conclude that Mr Heading appeared to accept that he may not have put his best case forward. However, this does not create error such that the finding of the Commissioner should be set aside. The remainder of the evidence was properly considered and supports the conclusion that:

● On the evidence of the members of the selection panel, Mr Heading did not do well at interview; and

● It could not be said that Mr Heading was unjustifiably marked down. 29

Conclusion

[34] We are not satisfied that any of the matters raised by Mr Heading suggest that it is in the public interest to grant permission to appeal. Mr Heading’s appeal does not raise any issue of law or policy which is novel and/or has broader implications. Further, the Decision is not attended by sufficient doubt that it would warrant reconsideration or that a substantial injustice would arise if leave was not granted.

[35] In lodging his appeal Mr Heading primarily sought the clarification of the basis on which the Commissioner reached his decision or the removal from the Decision of that which he considered to be incorrect conclusions of the Commissioner based on the evidence. None of these matters create doubt with respect to the Decision of the Commissioner.

[36] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

B. Heading on his own behalf.

B. Avallone of counsel for The Department of Education and Training on behalf of the State of Victoria.

Hearing details:

2017.

Melbourne:

24February.

 1   [2016] FWC 8949

 2   AE402151

 3   Decision at [3]-[7]

 4   Johnson v Johnson (2000) 201 CLR 488 at para [11]; Livesey v. The New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41

 5   (2000) 205 CLR 337, p.345

 6   Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd and Another (1992) 42 IR 352, p.353

 7   Decision at [54]

 8   Decision at [58] - [72]

 9   Decision at [73]

 10   Decision at [101]

 11   Decision at [110]

 12   This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 13   O’Sullivan v Farrer and Another (1989) 168 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]

 14   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

 15  Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler and Others (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]

 16   [2010] FWAFB 5343, 197 IR 266 at [27]

 17   Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]

 18   Wan v AIRC (2001) 116 FCR 481 at [30]

 19   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 20   Transcript of 29 August 2017 at PN347

 21   Decision at [49]

 22   (2000) 205 CLR 337

 23   Decision at [85]

 24   Decision at [87]

 25   Decision at [111]

 26   Transcript of 29 August 2017 at PN108

 27   Transcript of 29 August 2017 at PN109

 28   Transcript of 29 August 2017 at PN110

 29   Within context it appears that the words “on no” are missing from the beginning of the third sentence of [111]

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