Daniel O'Brien v The Catholic Church of the Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin

[2024] FWCFB 456

[2024] FWCFB 456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Daniel O’Brien
v

The Catholic Church Of The Diocese Of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese Of Darwin

(C2024/7834)

DEPUTY PRESIDENT MILLHOUSE

COMMISSIONER CRAWFORD
COMMISSIONER SLOAN

MELBOURNE, 11 DECEMBER 2024

Appeal against decision [2024] FWC 2612 of Commissioner Riordan at Sydney on 16 October 2024 in matter number U2024/6052 – permission to appeal refused.

[1]      Mr Daniel O’Brien has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) in respect of a decision[1] of Commissioner Riordan issued on 16 October 2024, for which permission to appeal is required.

[2]      In the decision, the Commissioner relevantly concluded that the respondent to the appeal, The Catholic Church of The Diocese of Darwin Property Trust Inc T/A Catholic Education Northern Territory Diocese of Darwin, had a valid reason to dismiss Mr O’Brien for not following lawful and reasonable directions. However, the Commissioner concluded that Mr O’Brien’s summary dismissal was harsh, and therefore unfair. The Commissioner ordered that the respondent pay Mr O’Brien an amount equal to five weeks’ pay plus superannuation.

[3]      Notwithstanding this outcome, Mr O’Brien appeals the decision and broadly contends that it “overturned” the grounds for dismissal relied upon by the respondent. Mr O’Brien submits that the Commissioner impermissibly substituted an alternative reason for the dismissal.

[4]      The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions.

[5]      For the reasons that follow, permission to appeal is refused.

Grounds of appeal

[6]      In his notice of appeal, in response to the question “What are the grounds for your appeal?” Mr O’Brien lists the following 29 matters (without alteration):

(1)In seeking leave to appeal I consider it pertinent that Commissioner Riordan has been involved in an earlier General Protections Case applied for in March of 2024.  This subsequent unfair dismissal matter is a direct result of Commissioner Riordans contiguous carriage of my issues throughout the period. 

(2)Accordingly I seek the Fair Work Commission (FWC) to have regard to my preceding FWC case 2024/1680, as it is inextricably linked. 

(3)As this related case has progressed, I have increased my knowledge of the case management protocols and processes of the FWC.  

(4)It is my understanding that the process of assignment of cases has regard to potential conflict of interest, to avoid any such perception, assignment of matters should preclude Commissioners from subsequent carriage of related cases.

(5)I understand that there is a process that the Parties to each case are to be provided with a choice of two members to handle their case and the member to handle the case is by mutual agreement between the Parties. At no stage was I provided with an opportunity to select and agree to the assignment of Commissioner Riordan.

(6)On 9th September 2024, Commissioner Riordan published a decision regarding an invitation for Recusal.  In this decision Commissioner Riordan claims that I had agreed to his presiding over the matter U2024/6052.

(7)Accordingly, I consider the statement by Commissioner Riordan in his decision that I had agreed earlier to his presiding over the matter to be untrue.

(8)On three occasions I have sought that Commissioner Riordan should not be presiding over the matter U2024/6052

(9)On 3rd May 2024 I wrote to his Honour Justice Hatcher of the FWC expressing my concerns regarding Commissioner Riordans ongoing presiding over my unfair dismissal case 2024/6052.

(10)On 14 May 2024, his Honour Justice Hatcher wrote to me and advised inter-alia, that the assignment of my case followed process and that he did not consider that there was a conflict of interest.

(11)The fact remains that it should have been irrelevant on whether there was conflict of interest on a case or not, the protocol of assignment of each matter is designed to avoid any perception of conflict of interest or bias. His Honour Justice Hatcher indicated that were I to remain concerned, I could invite Commissioner Riordan to recuse himself from my matter U2024/6052.

(12)On 5 September 2024, I invited via email for Commissioner Riordan to recuse himself from presiding over the matter U2024/6052.

(13)On 9 September 2024, Commissioner Riordan issued a decision which advised that he declined to recuse himself from the matter U2024/6052.

(14)In the above decision, Commissioner Riordan stated that it is “not unusual for the same member to have carriage of subsequent cases”.  This indicates that there is a systemic breakdown in compliance with due process in the FWC.

(15)I need to emphasise my belief that FWC protocols and processes were not complied with, in enabling Commissioner Riordan to preside over my case U2024/6052, despite my expressed anxiety of his involvement.

(16)On 13 September 2024 I appealed in desperation to the FWC to seek a stay on Commissioner Riordan’s presiding over my matter.  

(17)The reply to me from the office of Deputy President Easton on 13 April 2024 then advised that Commissioner Riordan would continue to preside over my matter.  He indicated that I should expect fair consideration from Commissioner Riordan in a circumstance where I was unrepresented in my matter.

(18)On 13 April 2024 Deputy President Easton explained to me that if I were to be dissatisfied with the decision made by Commissioner Riordan that I would be entitled to appeal.

(19)It is now a matter of record that this assurance from Deputy President Easton that I would be provided with a fair hearing from Commissioner Riordan did not eventuate. 

Significant Errors of Fact 

(20)Commissioner Riordan cited information which was subject to Without Prejudice in his decision, specifically misrepresenting the sum total amount of $700, 000 as being a demand put to the Catholic Church by me. It was taken out of context by Commissioner Riordan, as it was intended as an opening negotiating point on 23 December 2023 to the Catholic Education Office NT, which was stated to be Without Prejudice.  This amount represented the full extent of exposed costs to the employer, if all adverse actions were proven. 

(21)Commissioner Riordan has made an error of fact by claiming in numerous references  within his decision that “ the applicant had resigned on 16 April 2024”, subject to settlement negotiations.  The 16 April 2024 FWC Conference concerning the earlier matter was in fact held in a non-prejudicial expectation, and therefore there is no existing basis concerning alleged resignation by the applicant.

(22)Improper Basis for Dismissal: The Commissioner acknowledged the original grounds for dismissal were invalid but sought alternative reasons to validate it, which were not cited by the employer. This exceeded the Commissioner’s role and demonstrated an inclination to support the respondent’s position rather than objectively assess the evidence.

(23)Right to Work Ignored: The Commissioner failed in his 16 October decision to recognize the applicant’s right to be at work on 22 April 2024 under Section 320 of the Fair Work Act. By neglecting to protect this right, the Commissioner undermined the applicant’s lawful presence at work and misinterpreted the Fair Work Act’s protections.

(24)Inappropriate Cross-Examination: The Commissioner raised irrelevant prior warnings during cross-examination to build a case against the applicant, which suggested a bias toward finding reasons for dismissal. This approach unfairly burdened the applicant by introducing unrelated or previously unverified matters, and which was not subject to material that the respondent relied upon.

(25)Questionable Instruction to “Leave the Workplace”: The Commissioner asserted that an instruction to leave the workplace was lawful, despite no justifiable reason being provided. The Commissioner failed to question the reasonableness of the instruction, displaying a one-sided view that favoured the employer.

(26)Introducing ‘Breach of Trust’ as Grounds for Dismissal: When previous dismissal grounds proved insufficient, the Commissioner introduced a lack of trust as the basis for dismissal which was not. Evidence based.  This represented a significant deviation from the employer’s original case and imposed an unfounded reason to deny the applicant relief.

(27)Unfounded Claim of Dishonesty: By labelling the applicant as “loose with the truth,” the Commissioner showed bias, as the applicant answered all questions under oath and explained potential areas of confusion. This disparagement was unwarranted and used to validate the employer’s position without substantiated evidence of dishonesty.

(28)Throughout his decision on 16 October, the Commissioner cited numerous references to what was said during the Conciliation hearing on 16 April 2024. Commissioner Riordan disregarded the fact that the conference was Without Prejudice and therefore he should not have used it to the applicant’s detriment. 

(29)Following the conference on 16 April 2024, during consideration of settlement with Catholic Education NT, it was quite clear that the intent of my employer was to force my resignation on unjust grounds. Effectively representing attempts at constructive dismissal.

[7]      In his written submissions, Mr O’Brien submits that the decision should be set aside, and the matter reheard by a different Member to “ensure fairness and impartiality.”[2]

[8]      Mr O’Brien contends that it is in the public interest to grant permission to appeal due to various breakdowns in the Commission’s protocols and processes, which have compromised Mr O’Brien’s right to procedural fairness. Mr O’Brien says that the appeal seeks to uphold the trust and protection of Australian workers and is not limited to his own circumstances.

Permission to appeal – principles

[9]      There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[3]

[10]    The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6]

[11]    It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[12]    An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

Consideration

[13]    We are not satisfied that the grant of permission to appeal would be in the public interest. Of significance, Mr O’Brien was successful in his application for an unfair dismissal remedy. The Commissioner determined that Mr O’Brien’s dismissal was harsh, and therefore unfair. Mr O’Brien has not challenged this finding in the appeal.

[14]    Mr O’Brien’s grounds of appeal broadly contend that he was not afforded procedural fairness, including because the Commissioner declined Mr O’Brien’s application to recuse himself.[8] However, Mr O’Brien does not explain how these matters compromised his capacity for a fair hearing. Nor is any disadvantage apparent in circumstances where Mr O’Brien was successful in securing an unfair dismissal remedy.

[15]    The contention that the Commissioner erred by substituting an alternative reason for Mr O’Brien’s dismissal does not disclose an arguable error. The respondent dismissed Mr O’Brien summarily for refusing to comply with lawful and reasonable directions. The Commissioner concluded that Mr O’Brien’s refusal provided a valid reason for his dismissal, and there is an evidentiary basis for this conclusion. However, the Commissioner did not consider that Mr O’Brien had engaged in serious misconduct. In reaching this conclusion, the Commissioner did not substitute an alternative reason for the dismissal, as contended. But even if he did, the question the Commissioner had to address was whether there was a valid reason for the dismissal. The reason need not be the reason advanced or given by the respondent.[9] 

[16]    The Commissioner determined, in the exercise of his discretion, that Mr O’Brien’s summary dismissal was harsh. The Commissioner ordered a remedy, being the payment of monetary compensation to Mr O’Brien of an amount representing five weeks’ pay, plus superannuation. The appeal does not challenge the decision to award compensation. Nor is there any cross appeal by the respondent in respect of the Commissioner’s liability finding or the conclusion in respect of remedy. In these circumstances, there is no apparent utility in the grant of permission to appeal.

[17]    We are not otherwise satisfied that the matters advanced by Mr O’Brien demonstrate an arguable case of appealable error in the decision, or that the alleged factual errors rise to the level of significance as required by s 400(2) of the Act. To the extent that Mr O’Brien seeks to adduce fresh evidence in the appeal, we decline to admit it as we are not satisfied that the principles governing the discretion to admit new evidence or consider further material in an appeal, as set down in Akins v National Australia Bank,[10] are met.

[18]    Mr O’Brien’s application for an unfair dismissal remedy was determined on the basis of its own particular facts and resulted in Mr O’Brien achieving a successful outcome. The appeal does not raise any issue of law or principle that might have a wider application. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.

Order and disposition

[19]    Permission to appeal is refused.

DEPUTY PRESIDENT

Hearing details:

Matter determined on the papers.

[1] [2024] FWC 2612

[2] Digital Appeal Book at p.1-2

[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[4] 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]

[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]

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

[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[8] [2024] FWC 2433

[9] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at pp.373, 377-378

[10] Akins v National Australia Bank [1994] 34 NSWLR 155

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