Cook v Australian Postal Corporation

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FEDERAL COURT OF AUSTRALIA

Cook v Australian Postal Corporation [2018] FCAFC 208

Appeal from: Cook v Australian Postal Corporation [2018] FCA 81
File number: NSD 296 of 2018
Judges: RARES, PERRY AND CHARLESWORTH JJ
Date of judgment: 21 August 2018
Catchwords: INDUSTRIAL LAW – unfair dismissal – Fair Work Act 2009 (Cth) Pt 3-2 – appeal from decision of primary judge to refuse judicial review application – whether ss 725 and 728 prevailed when considering in application under Pt 3-2 if dismissal occurred for proscribed reason based on applicant’s claim that employer terminated him because he was a workplace representative
Legislation:

Constitution

Fair Work Act 2009 (Cth) Div 4 of Pt 3-2, Pt 6-4, ss 3, 381, 385, 387, 391, 392, 394, 400, 570, 604, 725, 729, 771, 772, 773, 774

Federal Court Rules 2011 Pt 25

Convention Concerning Termination of Employment at the Initiative of the Employer done at Geneva on 22 June 1982

Cases cited:

Adams v Director of the Fair Work Building Industry Inspectorate (2017) 351 ALR 379

Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66

Calderbank v Calderbank [1976] Fam 93

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Cook v Australian Postal Corporation [2017] FCA 509

Duncan v New South Wales (2015) 255 CLR 388

House v The King (1936) 55 CLR 499

Lambert v Weichelt (1954) 28 ALR 282

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Quentin Cook v Australian Postal Corporation t/a Australia Post [2016] FWC 5692

Quentin Cook v Australian Postal Corporation t/a Australia Post [2016] FWCFB 7203

Tajjour v State of New South Wales (2014) 254 CLR 508

Walton v Gardiner (1993) 177 CLR 378

Date of hearing: 21 August 2018
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 58
Counsel for the Appellant: Mr P King
Solicitor for the Appellant: Roderick Storie Solicitors
Counsel for the First Respondent: Ms K Eastman SC with Mr J McLeod
Solicitor for the First Respondent: Lander & Rogers
Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

ORDERS

NSD 296 of 2018
BETWEEN:

QUENTIN REDVERS COOK

Appellant
AND:

AUSTRALIAN POSTAL CORPORATION

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGES:

RARES, PERRY AND CHARLESWORTH JJ

DATE OF ORDER:

21 AUGUST 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Order 2 made on 23 March 2018 in proceeding NSD 1978 of 2016, to the extent it is still operative, be vacated.

3.There be no order as to costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. The appellant, Quentin Cook, worked for the respondent, Australia Post, for almost 38 years until he was dismissed on 17 December 2015.  He applied to the Fair Work Commission for his…

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Details
Case
[2018] FCAFC 208
Decision Date

CaseChat Overview and Summary

Cook v Australian Postal Corporation is an appeal against the decision of the primary judge to refuse judicial review remedies to Mr Cook, who claimed his dismissal from Australia Post was unfair because it contravened s 772(1) of the Fair Work Act 2009. Mr Cook argued that his termination was because he acted as a workplace representative, a protected activity under the Act. The legal issues in this case centred on whether the primary judge erred in concluding that the Commissioner did not need to consider sections 772(1)(d) and 772(1)(e) when deciding Mr Cook's dismissal was valid. These sections prohibit dismissal for activities related to workplace representation or proceedings against the employer. The Court found no error in the primary judge's decision, concluding that the Commissioner's reasons showed no finding that Mr Cook's dismissal was due to his representative activities. Therefore, the dismissal was deemed valid.

The reasoning of the Court focused on the distinction between administrative evaluations and judicial decisions, particularly in the context of the Commissioner's role. The Court noted that it was not inclined to find error in statements that were not intended to be reasons for a decision. The Commissioner's decision did not indicate that Mr Cook's dismissal was for a reason prohibited by s 772(1)(d) or (e). Consequently, the primary judge's refusal to grant judicial review was upheld. The appeal was dismissed, and the orders made on 23 March 2018 in proceeding NSD 1978 of 2016 were vacated, with no order as to costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. Order 2 made on 23 March 2018 in proceeding NSD 1978 of 2016, to the extent it is still operative, be vacated.

3. There be no order as to costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Under s 773, if an employer terminated an employee’s employment and the employee or an industrial association entitled to represent his or her industrial interests alleged that the employee’s employment had been terminated in contravention of s 772(1), the employee or industrial association could apply to the Commission for it to deal with that dispute within 21 days after the employment had been terminated or such further period as the Commission allowed (see: ss 773 and 774).Background The circumstances in which the present issues arise emerge from the reasons of the Commissioner. He found that Mr Cook had worked for Australia Post for almost 38 years as a postal delivery officer or a postman. The Commissioner found that Mr Cook’s employment appeared to have involved a long history of activities associated with the representation of his co-workers in respect to workplace-related issues, and:The applicant undertook the admirable role of what may be described and understood to be a workplace representative, whereby he provided help to his co-workers by acting on their behalf. This workplace representative role of the applicant did not appear to involve any connection with an organisation of employees registered under the Act. The Commissioner found that in substance that activity changed in its nature in about mid-2014. He found that on 28 April 2014, Mr Cook had become the sole shareholder and director of a company named ELISA Pty Ltd, trading as Employee Legal Industrial Services Australia. In May 2014, the Commissioner found that Australia Post became aware of what it understood to be an expansion of Mr Cook’s workplace activities to include payment for service arrangements between some of his co-workers and Mr Cook, or a company or organisation that he controlled. On 10 June 2014, Mr Bold, the area manager with responsibility for Mr Cook, met with him and discussed the nature of his activities as a representative, which appeared to have extended to the provision of industrial and legal services on a paid basis. Mr Bold, the Commissioner found, told Mr Cook that that amounted to a conflict of interest and warned him that his activities in conducting paid representation services breached the relevant policies of Australia Post and jeopardised Mr Cook’s employment. Mr Cook rejected those assertions. The Commissioner found that on 22 June 2015, Mr Bold wrote to Mr Cook, giving him notice that he was required to attend a warning counselling interview to discuss what was alleged to be unacceptable behaviour arising from his representative activities in a conciliation before the Commission the previous month, and again, concerning the alleged conflict of interest. The counselling interview occurred on 13 July 2015 and the Commissioner found that a warning letter was sent to Mr Cook the next day, confirming that Australia Post considered his activities as a paid employee representative constituted a conflict of interest that breached Australia Post’s code of ethics. The letter of 14 July 2015 advised Mr Cook that any further breaches of the employer’s code of ethics could result in his dismissal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Cook also contended that the Constitutional point arose because, if his Honour’s reasoning were correct, the structure of the Act had somehow immunised the Commission, in an application for unfair dismissal under s 387, from being able to have regard to whether the activity complained of was protected by what was said to be the implied Constitutional freedom of association as a corollary of the implied Constitutional freedom of communication on government and political matters. He argued that the primary judge had found that Australia Post had been entitled to dismiss him because he had exercised his representative rights and that he had no remedy for doing so. He contended that communication by one employee to the employer concerning the rights of another employee under the Fair Work Act was within the implied Constitutional freedom of communication and that, to the extent that the primary judge’s construction of the Act were otherwise correct, it impermissibly burdened that freedom of communication, being the right to complain in support of an assertion of a workplace right. He contended that the source of the burden was somehow to be found in s 725 and he also argued that the purpose of the legislation, on the primary judge’s construction, was to restrict workers’ rights to avail themselves of their freedom of association in unfair dismissal cases and that this was not compatible with the Constitutional scheme.Consideration This is an appeal from the primary judge’s decision to refuse judicial review remedies to Mr Cook on the basis that his Honour found no occasion to grant Constitutional writs to the Commission or Full Bench. On the principles applicable to the present case, the appellant must demonstrate error on the part of the primary judge. It is also important to have regard to the fact that it is well settled that, in the context of administrative decision making, the Court is not astute to discern error in a statement by an administrative officer (including the Commission or the Full Bench, which is part of the executive arm of the Commonwealth under Ch II of the Constitution) which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185 per French CJ, Bell, Keane and Gordon JJ. The primary judge concluded that the Commissioner was not bound to take into account s 772(1)(d) or (e) in the circumstances. Of course, in considering whether there was a valid reason for Mr Cook’s dismissal within the meaning of s 387(a), a dismissal that contravened s 772(1)(d) or (e) would not be one that occurred for a valid reason. As we understand his Honour’s reasons, the primary judge proceeded on the basis that, having regard to the reasons which the Commissioner gave, those reasons demonstrated that he made no finding that the, or a, reason for Mr Cook’s termination was that he had acted in the capacity of a representative of employees or otherwise participated in proceedings against Australia Post involving any alleged violation of law or regulations or recourse to competent administrative authorities, such as appearing in the Commission. If it had been found that the reason or a reason for Mr Cook’s termination involved either s 772(1)(d) or (e), then the decision to terminate him may not have been valid, but that was not this case.