Adrian Praljak v Services Australia
[2022] FWCFB 62
•25 MAY 2022
| [2022] FWCFB 62 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Adrian Praljak
v
Services Australia
(C2022/1529)
| VICE PRESIDENT CATANZARITI | SYDNEY, 25 MAY 2022 |
Appeal against decision [2022] FWC 442 of Deputy President Lake at Brisbane on 28 February 2022 in matter number C2021/7902 – permission to appeal refused.
Mr Adrian Praljak (Mr Praljak) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision of Deputy President Lake (Deputy President) issued on 28 February 2022.[1] The Decision dealt with an application made pursuant to s.365 of the Act to deal with a general protections dispute in relation to the alleged termination of Mr Praljak’s employment by Services Australia (Application).
In the matter at first instance, Services Australia raised a jurisdictional objection to the Application asserting that Mr Praljak resigned from his employment with Services Australia and was not ‘dismissed’ for the purposes of s.365 of the Act.
This matter was listed for permission to appeal only. Directions were issued for the filing of material by the Appellant. The Appellant indicated that he consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow permission to appeal is refused.
Decision Under Appeal
Mr Praljak commenced employment with Services Australia on 20 September 2021. As part of his onboarding he was asked to disclose any relevant medical or criminal history. He did not disclose that he was suffering from a number of medical conditions. He says that he did so because he was told that the information was not relevant to his employment by his employment agent. In the same onboarding documents he did not disclose that he had been convicted in May 2018 for stalking. He says that he did not disclose this information because:[2]
a.he believed he was wrongly convicted;
b.he is seeking to have the conviction quashed; and
c.he says the Judge who imposed the conviction told him that it would not be necessary to disclose the conviction if he was applying for employment.
Services Australia subsequently became aware of his medical conditions and conviction and summonsed him to a meeting on 1 November 2021 to:[3]
a.inform him that they intended to conduct an investigation into the matter; and
b.to provide him with an opportunity to respond to the proposal that he be suspended on full pay pending an investigation into the matter.
During the 1 November 2021 meeting, Mr Praljak indicated on several occasions that he wanted to resign with immediate effect. He was told that his verbal resignation would not be accepted and that he should go home, read the letter given to him and consider his position.[4]
Later the same day Services Australia confirmed in writing that it had not accepted his verbal resignation and that if he wished to resign he would need to do so in writing.[5]
On 2 November 2021, Mr Praljak sent an email to Services Australia stating that he resigned from his employment effective 1 November 2021. The same day Services Australia responded to advise that his resignation had been accepted. [6]
At the hearing at first instance Mr Praljak submitted that he was forced to resign because:[7]
a.of harassment and micromanagement he says that he suffered during the term of his employment;
b.the embarrassment he says he suffered due to the manner in which he was summonsed in front of his colleagues to the 1 November 2021 meeting; and
c.he was offended and insulted that his response to the allegations was not immediately accepted and that Services Australia had indicated that it intended to proceed with its investigation.
Having considered the evidence before him the Deputy President found that:[8]
a.the allegations of harassment and micromanagement were not substantiated;
b.the conduct of Services Australia was reasonable management action; and
c.resignation was not the only alternative available to Mr Praljak.
After considering the relevant legal principles and authorities the Deputy President concluded that Mr Praljak was not dismissed for the purposes of the Act. Consequently, the Deputy President ordered that the Application be dismissed.
Principles of Appeal
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.[9] There is no right to appeal. 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.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] The public interest is not satisfied simply by the identification of error,[11] or a preference for a different result.[12] In GlaxoSmithKline Australia Pty Ltd v Makin[13] 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[14]
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.[15] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Grounds of Appeal and Submissions
Mr Praljak’s grounds of appeal and submissions can be summarised as follows:
a.The Deputy President incorrectly applied the law (Ground One).
b.The Deputy President made errors of fact and omitted relevant facts (Ground Two).
c.Deputy President omitted to take into account when assessing the conduct of Services Australia that Mr Praljak was medicated and suffering from acrophobia and anxiety (Ground Three).
d.The Deputy President failed to help Mr Praljak obtain legal advice and representation (Ground Four).
e.The Deputy President was biased towards Mr Praljak because he “wrote mainly facts by the respondent” in the Decision which caused distress and reputational harm to Mr Praljak (Ground Five).
f.The Deputy President failed to disclose conflicts of interest between Services Australia, its legal representatives and the FWC (Ground Six).
g.The Deputy President failed to help Mr Praljak have his criminal conviction overturned (Ground Seven).
Mr Praljak submits that it is in the public interest for him to be granted permission to appeal on the same grounds.
Consideration
Ground One
In relation to Ground One, Mr Praljak did not identify the legal principles which he says the Deputy President wrongly applied nor identify any which the Deputy President failed to apply. Mr Praljak did not file any written submissions in support of his case at first instance. He did not identify any relevant authorities orally in the proceedings before the Deputy President. We do not consider that the Deputy President made any such errors. The Deputy President applied established legal principles in an orthodox way, relying on frequently cited authorities. Ground One is therefore rejected.
Ground Two
In relation to Ground Two, Mr Praljak did not identify which facts he alleges the Deputy President omitted or wrongly decided. Many of the relevant facts were conceded by the parties and the key elements were corroborated by documentary evidence. For example, that:
a.Mr Praljak provided inaccurate information in his onboarding documentation;[16]
b.it was reasonable for Services Australia to investigate this allegation;[17]
c.Mr Praljak was informed that the purpose of the 1 November 2021 meeting was only to determine whether he should be stood down and not to determine the validity of allegations;[18]
d.Mr Praljak attempted to resign orally at the 1 November 2021 meeting;[19]
e.Mr Praljak was informed that his oral resignation was not accepted and that he should go home and consider his position;[20] and
f.Mr Praljak submitted a written resignation on 2 November 2021.[21]
The only significant factual matter that the Deputy President found against Mr Praljak was in relation to Mr Praljak’s allegations that he had been subjected to harassment, micromanagement and bullying, stating at [34] of the Decision:[22]
“The Applicant made some very serious allegations of being poorly treated, gaslighted, harassed and micromanaged, for which he produced little evidence in support. I was therefore not satisfied that these claims were substantiated. I am thus not satisfied that the Respondent acted in a way that left the Applicant with no choice to resign prior to the meeting on 1 November 2021.”
We note that Mr Praljak conceded during the proceedings that he provided no particulars or evidence of the alleged conduct.[23]
In these circumstances we are satisfied that this finding of fact by the Deputy President was open to the Deputy President. Appeal Ground Two is therefore rejected.
Ground Three
In relation to Ground Three, Mr Praljak asserts that Services Australia owed him a duty of care during his employment and in particular during the discussions held on 1 November 2021 because he was medicated and suffering from anxiety and acrophobia. He submits that the decision of the Deputy President is flawed because the Deputy President failed to take into account that Services Australia were negligent in their discharge of this duty.
At first instance, Mr Praljak gave evidence that:[24]
“PN269: There are then a number of other questions to which you'd answered 'No', including, 'Do you have or have you had a history of mental health condition?'; that's correct, isn't it?---I've always had excellent health. I've had anxiety since what happened with the wrongful conviction in 2017/18 I suffered during law school, I've had anxiety, but I've had no - I've always had excellent (audio malfunction) anxiety.
PN270: You've - - -?---Then I became permanently sensory disabled and then I just have a little bit of claustrophobia, but I've never been diagnosed with claustrophobia, so overall I'd say at 36 years of age my mental and physical health is very, very good.”
To the extent that Mr Praljak required some special accommodation he does not identify what that was. In fact, in defence to the assertion that he failed to properly complete his on boarding document he asserted that his various medical conditions were not relevant to his employment.[25] To the extent that his ill health or medication impacted on his capacity to make a reasoned decision at the meeting on 1 November 2021 this was addressed when Services Australia declined to accept his oral resignation and insisted that he give further consideration to his options. No arguable case of error is made out in relation to this ground. Ground Three is therefore rejected.
Ground Four
Ground Four cannot succeed as the Deputy President has no authority or responsibility to secure legal advice or representation for Mr Praljak. Relevantly, the ‘normal position’ under the Act is that a party must appear on his own behalf, unless an application for permission to be represented has been made and granted by a Member of the Commission.[26]
Relevantly, Mr Praljak also gave evidence that he:
a.has a law degree from Bond University and a Master of Applied Law;
b.is admitted to the Supreme Court of the ACT and the High Court of Australia; and
c.has ambitions to be a High Court judge.[27]
Furthermore, the proceedings were conducted in a determinative conference format. It is apparent from the transcript that throughout the proceedings the Deputy President sought to assist Mr Praljak present his case to the extent the Deputy President might fairly and reasonably do so.[28] Ground Four is therefore rejected.
Ground Five
Ground alleges that the Deputy President ‘wrote mainly Facts by the Respondent’ which caused Mr Praljak distress and reputational harm.
Notwithstanding the directions issued to the parties by the Deputy President, Mr Praljak did not file a witness statement setting out his recollections of the events leading to his separation from Services Australia in advance of the proceedings. The Deputy President therefore had to determine the factual matrix of the Application from the oral and written evidence of Services Australia and the limited oral evidence given by Mr Praljak during the proceedings.
We consider that the Decision accurately reflects the oral and written submissions of the parties and the tendered evidence. Ground Five is therefore rejected.
Ground Six
In relation to Ground Six, Mr Praljak did not identify the nature of the conflicts of interest between Services Australia, its legal representatives and the FWC that he alleges that the Deputy President failed to disclose. In the absence of particulars, Ground Six must fail.
Ground Seven
Ground Seven cannot succeed as the Deputy President has no jurisdiction in relation to criminal matters and therefore has not capacity to assist Mr Praljak have his criminal conviction overturned.
Public Interest
Having considered Mr Praljak’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of the Application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence before him.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
a.there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
b.the appeal raises issues of importance and/or general application;
c.the Decision at first instance manifests an injustice, or the result is counter intuitive; or
d.the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal.
Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Appellant, 15 March 2022.
[1] Adrian Praljak v Services Australia[2022] FWC 442.
[2] Appeal Book (AB), 3.
[3] Ibid 3.
[4] Ibid 4.
[5] Ibid 4.
[6] Ibid 4.
[7] Ibid 6-7.
[8] Ibid 8.
[9] 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).
[10] 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].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[12] 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 (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].
[13] (2010) 197 IR 266.
[14] Ibid at [27].
[15] Wan v AIRC (2001) 116 FCR 481 at [30].
[16] Transcript 15 February 2022, PN283-284 (Transcript).
[17] Ibid PN293, PN321.
[18] Ibid PN207, PN 209, PN324.
[19] Ibid PN210, PN330.
[20] Ibid PN327, PN331-PN3347; AB (n 2) 179.
[21] Ibid PN244; AB (n 2) 177-1178.
[22] AB (n 2) 8.
[23] Transcript (n 16) PN294, PN354, PN363.
[24] Ibid PN269-270.
[25] See for example, ibid at PN272.
[26] Fair Work Act 2009 (Cth) s.596; Warrell v Fair Work Australia [2013] FCA 291, [24].
[27] Transcript (n 16) PN192, PN187; AB (n 2) 85, 86.
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