David Rayner v Little Moreton Pty Ltd t/a H-R Products

[2017] FWCFB 756

[2017] FWCFB 756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

David Rayner
v
Little Moreton Pty Ltd t/a H-R Products
(C2016/7522)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HUNT

SYDNEY, 13 FEBRUARY 2017

Permission to appeal against decision of Deputy President Binet at Perth on 19 December 2016 in matter number U2016/10836 to grant permission to the respondent to be legally represented.

Introduction and background

[1] On 21 December 2016 Mr David Rayner lodged a notice of appeal in which he sought permission to appeal and appealed a decision issued by Deputy President Binet on 19 December 2016. The decision concerned an application by the respondent, pursuant to s.596 of the Fair Work Act 2009 (FW Act), for permission to be represented by lawyers at the hearing of an unfair dismissal remedy application lodged by Mr Rayner on 30 August 2016. Section 596 relevantly provides:

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
…

[2] The decision, which was communicated to the parties by email from the Deputy President’s Associate, simply stated:

“We note that the Applicant, Mr Rayner, has objected to the Respondent being represented in this matter, however, to enable the matter to be dealt with more efficiently, taking into account the complexity of the matters, leave has been granted for the Respondent to be represented at the Hearing.”

[3] Mr Rayner’s unfair dismissal remedy application contends that his dismissal was unfair for reasons which include that:

● he was denied a fair hearing, contrary to the principles of natural justice, prior to his dismissal;

● the dismissal was made “as a consequence of a fatal error”;

● in investigating Mr Rayner’s conduct and deciding to dismiss him, the respondent obtained and relied upon witness statements which were never shown to him;

● the respondent denied Mr Rayner’s request that he be provided with all documents relating to the matters in controversy;

● Mr Rayner was at the relevant time on workers’ compensation for a variety of illnesses including PTSD;

● the respondent proceeded on the basis of “Vague and unsubstantiated claims, dressed up, perhaps even concocted under duress, or worse...”;

● the dismissal was aimed wholly at seeking to avoid scrutiny of the respondent’s workplace practices and safety record;

● the respondent had failed to provide a safe working environment resulting in physical and mental injury to Mr Rayner;

● the dismissal was an attempt by the respondent to avoid its obligations under workers’ compensation legislation; and

● the respondent was aware that Mr Rayner’s state of mind was compromised as a consequence of the injuries which he had suffered in the workplace.

[4] Mr Rayner sought reinstatement and compensation as remedies.

[5] The respondent’s response to Mr Rayner’s unfair dismissal remedy application contended that he had been dismissed for serious and wilful misconduct, in that on 18 August 2016 he had initiated a physical assault on another employee at the workplace, and had also taken photographs of the respondent’s plant and equipment contrary to a previous direction not to engage in such conduct. The respondent further contended that it had properly investigated the matter and that in any event Mr Rayner had admitted to the misconduct. The respondent further responded in detail to the allegations made in Mr Rayner’s application, including the allegations of safety breaches, and denied that the dismissal was intended to avoid its workers’ compensation obligations.

[6] The respondent made its application for permission for legal representation in writing on 25 October 2016. In its application it relied upon the various allegations made against it in Mr Rayner’s application as raising a level of complexity which would cause the Commission to be benefitted by the participation of an experienced legal practitioner in the proceedings. The respondent also contended that its lack of relevant internal expertise meant that it would be more efficient if it was legally represented, and that if it did not obtain permission it would have to be represented by persons who would also be witnesses in the matter. Mr Rayner made written submissions against the grant of permission for legal representation on 25 October 2016 and 30 November 2016. It was against that background that the Deputy President issued her decision under s.596.

[7] Mr Rayner’s unfair dismissal remedy application is listed for hearing before the Deputy President on 3 March 2017.

Grounds of appeal and submissions

[8] In his notice of appeal and his submissions in support of his application for permission to appeal, Mr Rayner contended that:

● the Deputy President failed to properly and duly consider and correctly apply the Federal Court decision in Warrell v Walton 1;

● the Deputy President incorrectly applied the authority of Wesslink v Walker Australia Pty Ltd t/as Tenneco 2;

● the decision might reasonably be regarded as one where impartiality was not evidenced or that an apprehension of bias existed;

● the submissions of the respondent in support of its application for permission for legal representation contained inaccuracies which may have misled the Deputy President, including that Mr Olivieri was a key decision-maker in the dismissal decision when in fact the decision was made by the respondent’s two directors, Mr and Ms Kagi;

● the respondent had a number of other senior officers who could assist in the case such that it would not be prejudiced if permission for legal representation was refused; and

● it was in the public interest to grant permission to appeal, since the decision had the capacity to touch all applicants in person, was inconsistent and disharmonious with earlier decisions including Warrell v Walton, and was significantly prejudicial to Mr Rayner.

Consideration

[9] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and 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”. Permission to appeal may otherwise be granted on discretionary grounds.

[10] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

[11] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.

[12] The decision here was one made under s.596, which is not located in Part 3-2, but in relation to an unfair dismissal remedy application made under Part 3-2. In Asciano Services Pty Ltd v Hadfield 4, which was an appeal from a decision to refuse permission for legal representation under s.596, the Full Bench determined that it would approach the matter on the basis that s.400(1) applied, but that it would also state the conclusion it would reach if s.400(1) did not apply. In taking this approach, the Full Bench referred upon the decision of the Federal Court (Besanko J) in Australian Postal Corporation v Gorman.5In that matter, judicial review was sought of an appeal decision of a Full Bench of this Commission which quashed the decision of a single member to dismiss an unfair dismissal remedy application under s.587 (which provision is likewise not located in Part 3-2 of the FW Act). In that context, the question arose as to whether the Full Bench was required to apply s.400(1) to the appeal. Besanko J said:

“[37] ... It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first respondent’s application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.”

[13] We will likewise take the approach that s.400(1) applies to Mr Rayner’s appeal. However, we will also take the step of stating what conclusion we would reach if s.400(1) did not apply.

[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400(1) as “a stringent one”. 6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.7 In GlaxoSmithKline Australia Pty Ltd v Makin 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 the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 8

[15] 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. 9 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.10

[16] The appeal here is brought against an interlocutory decision. Courts and tribunals have generally discouraged appeals against interlocutory decisions, and it will not commonly be the case that permission would be granted to appeal against an interlocutory decision under s.604 of the FW Act, whether or not s.400(1) applies. 11

[17] The granting of permission under s.596 involves a two-step process 12. The first is that there must be satisfaction that at least one of the criteria in s.596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of a discretion”.13 The second is that the discretion conferred by s.596(2) must be exercised in favour of the applicant for permission. Accordingly in respect of either step it will not be sufficient for an appellant to invite the Full Bench simply to substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified in House v The King.14

[18] We are not satisfied that Mr Rayner has demonstrated any basis upon which permission to appeal could be granted in the public interest, for the following reasons:

(1) We do not consider that the appeal raises any issue of importance and general application concerning the interpretation of 596(2). The interpretation of that provision is a well-settled issue, having been dealt with in a number of Court and Commission Full Bench decisions including Warrell v Walton, King v Patrick Projects Pty Ltd 15 and Asciano Services Pty Ltd v Hadfield.

(2) We do not consider the proposition that the decision is inconsistent with the Federal Court decision in Warrell v Walton to be arguable. The outcome of that matter arose of its own facts, including that the applicant for an unfair dismissal remedy in the matter was “functionally illiterate and brain damaged” 16, that the record of the proceedings disclosed that the applicant had not been afforded a hearing that was fair and just as required by s.577(a) of the FW Act17, and that the decision-maker had failed to give reasons for the grant of permission.18 There is nothing to indicate that the decision of the Deputy President here was inconsistent with the general principles concerning the operation of s.596 stated by the Court Warrell v Walton at paragraph [22].

(3) The decision by a single member in Wesslink v Walker Australia Pty Ltd t/as Tenneco 19turned on its own facts and provides no assistance to Mr Rayner’s case.

(4) The proposition that the Deputy President’s decision lacked impartiality and gave rise to a reasonable apprehension of bias has no basis.

(5) The various allegations made by Mr Rayner against the respondent, which the respondent has denied, give rise to a degree of factual complexity in the matter beyond the ordinary. That is the case even if they are ultimately considered to be of no relevance to the issue required to be determined by the Deputy President. We consider in those circumstances that it was open for the Deputy President to exercise her discretion in favour of granting the respondent permission under s.596(2)(a). We also consider that it was open for the Deputy President to conclude that the hearing would be conducted with greater efficiency if the respondent did not have to be represented by persons who were not also witnesses.

(6) While we have taken into account Mr Rayner’s submissions that he suffers from PTSD, he presented at the hearing before us as a well-spoken and articulate applicant to adequately present his evidence and submissions. We note that the Deputy President, before making the decision concerning representation, conducted a preliminary conference in relation to the matter and would therefore have had the opportunity to make an assessment, as we have, of Mr Rayner’s capacity to advance his case. We do not consider it likely that Mr Rayner will suffer any real disadvantage from the grant of permission to the respondent for legal representation.

[19] Because we are not satisfied that it would be in the public interest to grant permission to appeal, permission to appeal must be refused in accordance with s.400(1). Alternatively, if s.400(1) does not apply to this appeal, we would still refuse permission to appeal for the reasons we have stated. No public interest or discretionary grounds have been made out which would justify the grant of permission to appeal.

[20] We note, from the directions made by the Deputy President on 29 November 2016, that the parties had until 8 December 2016 to request that the matter be determined by way of a hearing rather than a determinative conference. This direction reflects the position under the FW Act that a determinative conference under s.398 is the default process, and that a formal hearing is, under s.399, to be held only where the Commission considers it appropriate to do so. On 5 December 2016 Mr Rayner applied for a hearing on the basis that “It has become evident that there are a number of contested facts that must be resolved at an open hearing”. No such request was made by the respondent. On 6 December 2016, in response to Mr Rayner’s request, the Deputy President amended the listing of the matter so that it was set down for a hearing, not a determinative conference on 3 March 2017.

[21] It may be that, as a self-represented litigant, the less formal and adversarial determinative process of a conference under s.398 might better serve Mr Rayner’s interests and minimise any perceived disadvantage arising from the grant of permission to the respondent for legal representation. At the hearing before us the respondent confirmed that it preferred the matter to be dealt with by way of a determinative conference. This is a matter which it would be open for Mr Rayner to re-agitate before the Deputy President prior to 3 March 2017 in the event that he reconsiders his position.

[22] We order that permission to appeal is refused.

VICE PRESIDENT

Appearances:

D. Rayner on his own behalf.

R. Greig solicitor for Little Moreton Pty Ltd t/a H-R Products.

Hearing details:

2017.

Sydney:

6 February.

 1   [2013] FCA 291, 233 IR 335

 2  [2011] FWA 2267

 3   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 4  [2015] FWCFB 2618

 5   [2011] FCA 975

 6   (2011) 192 FCR 78 at [43]

 7   O’Sullivan v Farrer (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]

 8  [2010] FWAFB 5343, 197 IR 266 at [24] - [27]

 9   Wan v AIRC [2001] FCA 1803 at [30]

 10   GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 11   See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the decisions cited there

 12   Warrell v Walton [2013] FCA 291, 223 IR 335 at [24]

 13   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]

 14   (1936) 55 CLR 499 at 505

 15  [2015] FWCFB 2679

 16   Warrell v Walton [2013] FCA 291, 233 IR 335 at [22]

 17   Ibid at [23]

 18   Ibid at [11] and [22]

 19  [2011] FWA 2267

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