Dr Hassan Zaghloul v Woodside Energy Limited
[2013] FWCFB 7905
•9 OCTOBER 2013
| [2013] FWCFB 7905 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Woodside Energy Limited
(C2013/5182)
| VICE PRESIDENT CATANZARITI | SYDNEY, 9 OCTOBER 2013 |
Appeal against decision [[2013] FWC 4051] of Commissioner Cloghan at Perth on 27 June 2013 in matter number C2013/514.
[1] This is an appeal by Dr Hassan Zaghloul against a decision of Commissioner Cloghan which relates to an application made pursuant to s.365 of the Fair Work Act 2009 (the Act). Dr Zaghloul was dismissed by Woodside Energy Limited (Woodside) on 5 March 2013. Applications under s.365 of the Act must be filed within 21 days of the date the dismissal took effect or within such further period as the Fair Work Commission (the Commission) may allow. Dr Zaghloul’s application was filed 17 days out of time. In the decision below, the Commissioner declined to exercise his discretion to extend the time for filing the application and it is against that decision that Dr Zaghloul has filed this appeal.
Appeal principles
[2] The appeal is brought pursuant to s.604(1) of the Act, and accordingly, Dr Zaghloul is required to obtain permission from the Commission to appeal the decision below. The conventional considerations for the granting of permission under s.604(1) apply, namely whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice would result if permission was refused. Section 604(2) of the Act also provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so.
[3] If the Full Bench is persuaded to grant permission, the appeal proceeds by way of a re-hearing. However, the appellant needs to identify some error in the Commissioner’s decision before we would do so. No jurisdictional error has been identified by Dr Zaghloul and to the extent we are able to categorise the grounds contained in the Notice of Appeal, they relate to the manner in which the Commissioner exercised his discretionary powers as contained in s.366 of the Act.
[4] Accordingly, the decision subject to appeal in this matter is properly viewed as a discretionary decision and the approach to be taken by the Full Bench is outlined by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 1 Although the High Court decision concerned s.45 of the Workplace Relations Act 1996,it is equally applicable to s.604 of the Act.
[5] The appeal is to be considered in accordance with the principles of House v R. 2 Those principles are as follows:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[6] In considering whether he should exercise his discretion to extend the time for filing of the s.365 application, the Commissioner was required to take into account the factors contained in s.366 of the Act. That section states:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as FWC allows under subsection (2).
(2) FWC may allow a further period if FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The Commissioner’s decision
[7] The chronology of events as outlined in the Commissioner’s decision is as follows:
● Dr Zaghloul initially lodged a s.365 application 3 on 27 February 2013 (original application). Dr Zaghloul’s Form F8 states that he was terminated on 5 February 2013.
● On 14 March 2013, Woodside provided its Form F8A response, stating that the employment was terminated on 5 March 2013, and asserts that the FWC did not have jurisdiction, as the original application was lodged prematurely.
● Notwithstanding this, the original application was listed for a conference on 5 April 2013, and resulted in the matter being discontinued on the same day. A notice of discontinuance (Form F50) was provided by Dr Zaghloul.
● On the 7 April 2013, the FWC received a Form F1 from Dr Zaghloul, to request a further period of time, until 12 April 2013, to file another s.365 application (the request). The request outlined the reasons for delay in filing the application as:
○ misunderstanding by Dr Zaghloul of the day of termination and when the time limit commenced;
○ Dr Zaghloul’s unfitness for work since 13 February 2011 due to bullying; and
○ the submission of the company in its Form F8A on 14 March 2013.
● Dr Zaghloul lodged a second s.365 application 4 on 12 April 2013 (second application). This application was 17 days out of time.
[8] The Commissioner noted in his decision, with respect to the request and the second application, that Dr Zaghloul’s reasons for the delay in filing were due to severe memory loss, a mental condition and excessive anxiety 5, because of this he had forgotten about the requirement to lodge the application within 21 days. The evidence supporting this submission consisted of clinical notes made by Dr Roy Kolnik of what Dr Zaghloul had said to him during a session on 15 March 2013. The Commissioner noted that no other evidence was provided to support the reason for the delay.
[9] The Commissioner goes on to consider the time period during and shortly after Dr Zaghloul was hospitalised. It was not disputed that from 7 to 21 March 2013 Dr Zaghloul was an inpatient at the Perth Clinic (Psychiatric Hospital). The Commissioner made the following observations about Dr Zaghloul’s activities during this time in relation to an application before the Federal Court of Australia (FCA) that also concerned the termination of his employment by Woodside:
“[27] However, Dr Zaghloul does not dispute that during his period of hospitalisation and shortly afterwards he was involved in the following:
Federal Court Proceedings (ACD62 of 2012)
| Email to Rene Moore (Federal Court listings coordinator) about attending the Federal Court mediation by phone. | 14 March 2013 |
| Email to Jacqui Young and David Parker (Ashurst Australia) attaching schedule of damages for the purposes of the Federal Court mediation. | 15 March 2013 |
| Steven Blyth (Lewis Blyth & Hooper) and the Applicant (by phone) appeared at the Federal Court mediation. | 20 March 2013 |
| Email to David Parker (Ashurst Australia) asking for correspondence to be sent directly to the Applicant. | 20 March 2013 |
| The Applicant filed a Notice of termination of lawyer’s retainer in the Federal Court Proceedings. | 22 March 2013 |
| Email to David Parker (Ashurst Australia) regarding the Applicant’s observations of the Federal Court mediation. | 22 March 2013 |
| Email to Jacqui Young (Ashurst Australia) responding to a letter about the Respondent’s intention to apply for summary judgment in the Federal Court proceedings. | 22 March 2013 |
| Email to Jacqui Young (Ashurst Australia) regarding termination of retainer of Steven Blyth (Lewis Blyth & Hooper) | 22 March 2013 |
| Email to Jacqui Young (Ashurst Australia) regarding correspondence with Steven Blyth (Lewis Blyth & Hooper) | 23 March 2013 |
| Email to Rene Moore (Federal Court listings coordinator) regarding use of a mobile phone number for a directions hearing in the Federal Court proceedings. | 23 March 2013 |
| Email to Jacqui Young (Ashurst Australia) regarding correspondence with Steven Blyth (Lewis Blyth & Hooper) | 23 March 2013 |
| Email to Rene Moore (Federal Court listings coordinator) regarding use of a mobile phone number for a directions hearing in the Federal Court Proceedings | 23 March 2013 |
| Email to Associate to Justice Gilmour attaching letter to Justice Gilmour dated 25 March 2013 regarding transfer of the Federal Court proceedings, the trial date and the respondent’s summary judgment application. | 26 March 2013 |
| Email to Associate to Justice Gilmour regarding email referred to by Respondent in its affidavit filed in the Federal Court Proceedings. | 26 March 2013 |
| The Applicant appeared at a directions hearing in the Federal Court by telephone. | 26 March 2013 |
First General Protections Application (C2013/3373)
| Email to Associate to Commissioner Cloghan regarding attendance at conciliation conference by phone. | 24 March 2013 |
[28] Put simply, the Applicant is putting to the Commission that the reason for the delay in filling his application within 21 days was due to “severe memory loss”, “mental condition” and “excessive anxiety”. For the Applicant, such reasons are exceptional and conclusively demonstrate that he was unable to “discontinue application C2013/3373” and start, “a new application within 21 days after the dismissal took effect on 5 March 2013”.”
[10] Considering the above chronology, the Commissioner noted that there was a “striking incompatibility” 6 between Dr Zaghloul’s ability to engage in proceedings before the FCA and his inability to lodge a s.365 application within the required 21 day time frame.
[11] Furthermore, the Commissioner also pointed out that it was not disputed that Dr Zaghloul had “pursued various actions in relation to his employment both in the Commission and the Federal Court and elsewhere. This fact, of itself, demonstrates that the Applicant is familiar with jurisdictional issues and Tribunal processes”. 7 The Commissioner was not persuaded any of these reasons were adequate to satisfy him that he should extend time.
[12] The Commissioner ultimately decidednot to exercise his discretion to extend time. Accordingly, Dr Zaghloul’s s.365 application was dismissed.
Preliminary issues
[13] Prior to the appeal being heard by the Full Bench in Perth, Dr Zaghloul had made two requests, namely that:
● the matter be transferred to a different Registry of the Commission, and heard by “an anonymous panel”, due to Woodside’s “influence, power, resources and connections” in Western Australia; and
● for arrangements to be made such that the parties were not in the same room for the hearing of the appeal due to Dr Zaghloul’s concerns regarding his health.
[14] Dr Zaghloul’s first request, to have the matter transferred to another Registry, was denied as the reasons provided were deemed insufficient to warrant a transfer. Notably, the accusations of bias on the part of the Commission and “influence” on the part of Woodside were completely unsupported and, needless to say, highly offensive to the Commission. Furthermore, in line with the principles of open justice, the Commission was not inclined to hear the matter “anonymously”.
[15] As for Dr Zaghloul’s second request, the Commission made special arrangements whereby the Appellant and the members comprising the Full Bench were in one hearing room, and the Respondent in another - connected via video-link. A security guard was also provided so that Dr Zaghloul would enter and exit the premises without coming into contact with the representatives of Woodside.
[16] On 16 September 2013, following the hearing of the appeal, Dr Zaghloul requested that the matter be re-heard in a State other than Western Australia and “preferably with media coverage” as he considered that the Full Bench would “WITHOUT A DOUBT, return a verdict to dismiss the Appeal.” (emphasis in original) This request was once again denied by the Full Bench. The members comprising the Full Bench, two of whom are not based in Western Australia, did not consider that Dr Zaghloul had established that there was actual bias or apprehension of bias simply because the matter was heard in Perth and because Dr Zaghloul perceived he would not be successful in his appeal.
Legal representation
[17] Woodside sought permission to be represented by Ashurst Australia, who would be instructing counsel, during the hearing of the appeal. The application was made on the basis that:
[18] Dr Zaghloul opposed Woodside’s application for representation on the broad grounds, as best as we understood them, that they have not provided a sufficient basis upon which permission should be granted, and that permission for Woodside to be represented would prejudice him and create unfairness between the parties.
[19] Having considered the application, and Dr Zaghloul’s objections, the Full Bench permitted Woodside to be represented at the hearing of the appeal. This was decided on the basis that, in accordance with s.596(2)(a) of the Act, representation would assist the Full Bench in dealing with the real issues, noting the complexity of the matter and the large amount of material filed with the Commission. The Full Bench was of course conscious of Dr Zaghloul’s position as an unrepresented litigant, and noted to Woodside’s representatives that permission could be withdrawn at any time if the Full Bench was of the view that representation was no longer assisting with the efficiency of the hearing.
[20] Given the issues raised by Woodside’s representatives, Dr Zaghloul was afforded an opportunity to file further written submissions to address any new matters raised during the hearing. We note that that opportunity was taken up by Dr Zaghloul, although most of those submissions focused on his objections to the Full Bench’s decision to allow representation and the alleged “bias” of the Full Bench.
Summary of submissions
[21] Dr Zaghloul’s appeal was based on the following grounds:
[22] Dr Zaghloul alleged that the evidence before the Commissioner was sufficient to support an outcome more favourable to him and further, that there was no evidence before the Commissioner to support the findings made.
[23] In response, Woodside submitted that:
Consideration
[24] The Full Bench has carefully considered the decision of Commissioner Cloghan and the matters raised by Dr Zaghloul in the Notice of Appeal.
[25] Having considered Dr Zaghloul’s explanation for the delay in filing the s.365 application, and having considered the known circumstances surrounding the delay period, Commissioner Cloghan concluded that there was a “striking incompatibility” between the Appellant’s actions and his explanation of memory loss, and that this alleged memory loss appeared to be “self selected”. Having made this finding, and having weighed this finding against the other factors outlined in s.366(3), the Commissioner concluded that he was not satisfied that exceptional circumstances exist such that time to file the application should be extended.
[26] The Full Bench does not accept that the Commissioner erred by not contrasting loss of memory with loss of function. It is plainly evident to this Full Bench that in the decision below, the Commissioner considered all the evidence before him and having given appropriate weight to the factors of s.366(3) of the Act, found that there were no exceptional circumstances warranting the granting of an extension of time. It was a finding which was clearly available to the Commissioner.
[27] Dr Zaghloul also alleged that the Commissioner was biased “towards” Woodside. The impartiality of the Commission is central to a fair hearing. Bias, whether actual or apprehended, connotes the absence of impartiality. The governing principle is that a member is disqualified if a fair minded observer might reasonably apprehend that the member might not bring an impartial mind to the resolution of the question that the member is required to decide. The principle gives effect to the requirement that justice should both be done and be seen to be done. 8
[28] There is no substance to Dr Zaghloul’s bias allegation. The basis for the allegation is either not particularised or is not substantiated by a review of the available material. Bias is not made out simply because a decision maker comes to a conclusion or a finding which is not favourable to one party. Indeed, most findings will not be favourable to at least one party. In this instance, there is nothing to suggest that the Commissioner’s decision was affected by actual or apprehended bias.
[29] Dr Zaghloul further claimed that the Commissioner had denied him procedural fairness because the Commissioner had not granted permission, or permission was revoked, for him to attend the hearing on 7 June 2013 via a telephone link. However, it appears that there was some confusion regarding the alleged request to attend the hearing via telephone link. From what we understand the Appellant’s submission to be, because of previous occasions on which he was permitted to attend via telephone, due to the anxiety he experiences when he is in the same room as the representatives of Woodside, he understood that permission to attend via telephone link was on-going. There does not appear to be any correspondence between Dr Zaghloul and the Commission prior to the hearing in which Dr Zaghloul sought to attend via telephone, or was permitted to attend via telephone. This is in light of the fact that Woodside, through their representative, notified the Commission that the Respondent did not wish to be heard and will not be attending the hearing. The only correspondence on the matter appears to be an email from Dr Zaghloul to the Commissioner’s chambers at precisely 3:00pm on 7 June 2013, when the hearing was listed to begin, advising the Associate of the relevant telephone number that he could be reached on. In response to that email, the Associate advised that permission to appear via telephone link was not granted and that the Commissioner will provide a copy of the transcript to Dr Zaghloul once it is available.
[30] Although the Full Bench is sympathetic to Dr Zaghloul’s position, we do not consider that the Commissioner erred in proceeding despite Dr Zaghloul’s non-attendance. Dr Zaghloul was provided with a notice of listing which advised him of the time and location of the hearing. He did not make a request to attend that hearing via telephone link and, importantly, he was told that Woodside’s representatives would not be in attendance. Accordingly, it cannot be said that Dr Zaghloul was not afforded procedural fairness. It should be noted that Dr Zaghloul was afforded the opportunity to file written submissions, which he did, and those submissions were considered by the Commissioner.
[31] Dr Zaghloul’s also raised grounds associated with the Commissioner’s consideration of the merit of the application. The Commissioner found as follows:
“[40] In dealing with the criterion in s.366(2)(c)-(e), I received approximately 800 pages as part of the Applicant’s application and submissions. My impression from the Employer’s response is that much is in dispute and, for this reason alone, it would be almost impossible to form a view on the merits of the application.”
[32] The consideration of the merit of the application in this context is limited to an initial assessment on the face of the matter. Dr Zaghloul refers, amongst other issues, to the fact that Woodside had apparently accepted the basis of his workers compensation claim and that this was linked to this application. Given the nature of his application before the Commission, the merit of that application is fundamentally whether Dr Zaghloul’s dismissal was because of the actual or potential exercise of relevant workplace rights. 9 The issue of alleged discriminatory conduct may also arise.10 Woodside contended that the basis of the dismissal was Dr Zaghloul’s alleged on-going incapacity to perform the work required and strongly rejected any connection to workplace rights or discriminatory conduct. It was not necessary or appropriate for the Commissioner to determine whether either party’s position was correct. The findings that were made on this issue were clearly open to the Commissioner.
Conclusion
[33] We do not identify any errors in the Commissioner’s decision which could properly form the basis of a ground of appeal. Accordingly, we find that it is not in the public interest that permission to appeal be granted. We have not been persuaded there are any other grounds which may warrant the grant of permission and consequently we refuse permission to appeal.
VICE PRESIDENT
Appearances:
H Zaghloul appearing for himself.
J Blackburn of counsel for Woodside Energy Limited.
Hearing details:
2013.
Perth:
September 4.
Final written submissions:
Appellant, 22 September 2013.
Respondent, 30 August 2013.
1 [2000] 203 CLR 194, [2000] HCA 47.
2 [1936] 55 CLR 499.
3 C2013/3373.
4 C2013/514.
5 [2013] FWC 4051 at [24].
6 Ibid at [28].
7 Ibid at [35] - [36].
8 Ebner v The Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 per Gleeson CJ, McHugh, Gummow and Hayne JJ., Re Finance Sector Union of Australia Ex parte Illaton Pty Ltd (1992) 107 ALR 581.
9 Fair Work Act 2009, s.340.
10 Fair Work Act 2009, s.351.
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