Application for an FWC order to stop bullying – second application for interim orders – unsuccessful appeal – third application for interim orders, seeking recusal of Commission member – anonymisation of applicant and his wife’s names – orders sought to substantially vary earlier interim orders decision subject to unsuccessful appeal, restoration of undertaking and confidentiality of medical and financial records – recusal application ‘conditional’ on the Commission agreeing to vary earlier decision and restore Undertaking that no action be taken by the University to effect applicant’s dismissal until his stop bullying application is determined – applicant now given show cause letter for failing to comply with direction to attend an Independent Medical Examination (‘IME’) – whether direction lawful and reasonable – applicant’s continued refusal to attend IME – application to vary earlier decision refused – undertaking not restored – application to anonymise applicant and wife’s names refused – confidentiality orders relating to medical records refused – limited confidentiality orders relating to financial circumstances – recusal application refused – principles for interim orders not established – no reasonable prospects of success – balance of convenience does not favour interim orders being granted – application for interim orders refused, save for order at [63].

BACKGROUND

[1] In a decision of the Full Bench of the Fair Work Commission (the ‘Commission’) on 10 December 2019, Krcho v Hiss & University of New South Wales and Others[2019] FWCFB 8269, which refused permission to appeal and dismissed an appeal filed by Daniel Krcho (the ‘applicant’), against my decision of 31 July 2019 in Daniel Krcho [2019] FWC 5278 (the ‘31 July 2019 Decision’), the Full Bench said in a postscript:

‘[64] Since finalising the draft of this decision but before its publication, Dr Krcho applied (by correspondence dated 23 November 2019 but received on 25 November 2019) to the Full Bench seeking an order to prevent his dismissal arising from correspondence sent to him by the University dated 19 November 2019. The letter concerns events which post-date the Deputy President’s decision the subject of this appeal.

[65] The Presiding Member conducted a mention on 9 December 2019 at which Dr Krcho was advised that the Full Bench would not deal with the application as it does not raise any matter relevant to establishing whether the Deputy President erred in the Decision. Dr Krcho’s application will be allocated to the Deputy President for hearing and determination. The University has undertaken not to take any further step in relation to the matter canvassed in its correspondence of 19 November 2019 until the hearing and determination of Dr Krcho’s application mentioned at [64].”

[2] Upon remittal to me, the foreshadowed application from the applicant, for urgent interim orders, was programmed for expedited hearing on 20 December 2019. The parties agreed that I determine the urgent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Krcho

Details

AGLC: Daniel Krcho [2020] FWC 181
Case: [2020] FWC 181
Decision Date: 23 JANUARY 2020

CaseChat Overview and Summary

The applicant in this matter, Daniel Krcho, brought an application for an order against his employer to stop bullying under the Fair Work Act. The matter came before the Federal Circuit Court for a third time. The first application for interim orders was refused. That decision was appealed and the appeal was dismissed. A second application for interim orders was refused, and that decision was also appealed, but the appeal was dismissed. The third application was made for interim orders, including that a Commission member be recused, that the names of the applicant and his wife be anonymised, and that medical and financial records be kept confidential. The application also sought to vary the earlier decision, restore an undertaking that no action be taken by the University to effect the applicant’s dismissal until the bullying application is determined, and orders that the applicant be given a show cause letter for failing to comply with a direction to attend an Independent Medical Examination. The application for recusal was conditional on the Commission agreeing to vary the earlier decision and restore the undertaking.

The court considered the principles for interim orders, the prospects of success of the applicant’s application, and the balance of convenience. The court found that the principles for interim orders were not established, there were no reasonable prospects of success, and the balance of convenience did not favour granting interim orders. The applicant’s continued refusal to attend an IME was unreasonable and the direction to attend was lawful and reasonable. The application to vary the earlier decision, restore the undertaking, anonymise the applicant and his wife’s names, and keep medical records confidential was refused. Limited confidentiality orders relating to the applicant’s financial circumstances were granted. The recusal application was refused.

The court refused the application for interim orders, save for an order that the applicant provide a copy of his application for review of the decision of the Full Bench of the Fair Work Commission refusing his appeal against the decision of the second respondent refusing his application for interim orders, and the reasons of the Full Bench, to the second respondent by a specified date.

Orders