Dr Jerzy Dyczynski v Remede Pty Ltd t/a Remede Wellness Medicine
[2016] FWCFB 7207
•21 OCTOBER 2016
| [2016] FWCFB 7207 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Remede Pty Ltd t/a Remede Wellness Medicine
(C2016/5028)
VICE PRESIDENT HATCHER |
|
Permission to appeal against the action taken by the Commission to close matters C2015/7291 and C2016/4278.
Introduction
[1] On 23 August 2016 Dr Jerzy Dyczynski lodged a notice of appeal in which he applied for permission to appeal and appealed under s.604 of the Fair Work Act 2009 (FW Act) against:
- the action taken by the Commission on 27 June 2016 to close matter C2015/7291 which was an application made under s.365 of the FW Act by Dr Dyczynski in relation to alleged adverse action taken by Remede Pty Ltd t/a Remede Wellness Medicine (Remede); and
- the action taken by the Commission on 5 July 2016 to close matter C2016/4278 which was an application made under s.372 of the FW Act by Dr Dyczynski in relation to alleged adverse action taken by Remede.
[2] At the hearing before the Full Bench Dr Dyczynski appeared on his own behalf. Mr Broomeand MsClasen appeared for Remede.
Matter C2014/6437 (2014 Application)
[3] A search of the Commission records indicate that on 18 September 2014, Dr Dyczynski lodged an application under s.365 of the FW Act. A Deed of Settlement was executed in that matter in March 2015.
Matter C2015/7291 – s.365 Application (2015 Application)
[4] This application was made on 12 November 2015 by Dr Dyczynski. In the section of the application form headed “General protections dismissal” the application stated that Dr Dyczynski had been dismissed effective from 28 August 2014.
[5] The 2015 Application was regarded by the administrative arm of the Commission as an application under s.365 of the FW Act and the details on the file record that fact. Section 365 is the section that governs general protection applications where termination of employment is involved.
[6] Remede submitted a “Form F8A – Response to general protections application” on 18 November 2015 which was served on Dr Dyczynski on 19 November 2015. In its response to the 2015 application, Remede noted that Dr Dyczynski had made a previous s.365 application (2014 Application) and this matter had settled.
[7] A search of the Commission records of the 2015 Application discloses a chain of correspondence and telephone contact between Dr Dyczynski and Commission staff between December 2015 to June 2016, which in essence involved inquiries being made as to the following issues:
- whether the application had been made pursuant to s.365 or s.372 of the FW Act;
- whether or not the 2015 Application differed from the 2014 Application; and
- whether or not Dr Dyczynski wished to proceed with the 2015 Application given that the 2014 Application had settled.
[8] On 27 June 2016, Dr Dyczynski advised he did not intend to make the 2015 application under s.365 of the FW Act and that he no longer wished to proceed with that application. Further, Dr Dyczynski attached a Form F8C (2016 Application) and asked the Commission to deal with this new application under s.372 of the FW Act.
[9] On 28 June 2016, the Commission wrote to Dr Dyczynski via email advising that the 2015 Application had been discontinued in accordance with his written request.
Matter C2016/4278 – s.372 Application (2016 Application)
[10] On 5 July 2016, the Commission wrote to Dr Dyczynski via email. He was advised that Remede had informed the Commission that it refused to participate in a conference to be convened by the Commission in relation to the 2016 Application, that under s.374 of the FW Act the Commission was unable to deal with the dispute where the other party did not agree to participate, and accordingly the Commission would treat the 2016 Application as closed.
[11] On 23 August 2016, Dr Dyczynski wrote to the Commission via email attaching a lengthy letter of complaint in relation to the Commission closing matters C2015/7291 and C2016/4278.
The Role of the Commission in General Protection matters
[12] The FW Act contains alternative procedures for alleged contraventions of the general protection provisions. If the alleged contravention involves dismissal a general protections court application cannot be made unless the Commission has issued a certificate under s.368 of the FW Act that it is satisfied that all reasonable steps to the dispute other than by arbitration have been or are likely to be unsuccessful.
[13] For other alleged general protections contraventions where the alleged adverse action does not involve dismissal, there is no requirement for a certificate to be granted before a matter is pursued in an appropriate Court. An applicant may apply for the Commission to deal with the dispute. The Commission must hold a conference to deal with the dispute if the parties to the dispute agree to participate. 1 It is not otherwise empowered to deal with the matter.
The s.604 Appeal
[14] As noted above, on 23 August 2016, Dr Dyczynski lodged a notice of appeal in which he applied for permission to appeal and appealed under s.604 of the FW Act against:
- “the decision made by Miss Natasa Cosoleto, Associate to Commissioner Williams in her email from 5 July 2016 to close the claim C2016/4278”; and
- “the decision made by the Fair Work Commission on 28 June 2016 to discontinuance [sic] the claim C2015/7291.”
[15] The subsequent chronology is as follows:
- on 23 August 2016, Dr Dyczynski submitted a Form F7 – Notice of Appeal in relation to matters C2015/7291 and C2016/4278.
- on 9 September 2016, the Associate to Vice President Hatcher wrote to Dr Dyczynski via email noting his Form F7 and explaining why matters C2015/7291 and C2016/4278 had been closed. Further, it was explained that Dr Dyczynski’s s.372 general protections claim had not been:
“... disposed of, rejected or terminated. The function of adjudicating such claims lies with the Federal Court of Australia and the Federal Circuit Court of Australia (see s.539 of the FW Act). It remains open to you to make an application to either of these courts to have your claim heard and determined. You are encouraged to seek legal advice about this.”
[16] Dr Dyczynski’s notice of appeal alleged three grounds for appeal, namely:
- a substantial delay caused by the Commission Canberra Registry staff in progressing his 2015 Application;
- the provision of misleading information to Dr Dyczynski by Commission staff on 3 June 2016 which led him to discontinue his 2015 Application and lodge his 2016 Application; and
- the actions taken by Commission staff to close matters C2015/7291 and C2016/4278 on 28 June 2016 and 5 July 2016 respectively “were made without considering the principles of impartiality”.
[17] In support of his application for permission to appeal 2, lengthily expressed, Dr Dyczynski submitted that:
- he had brought the “high value of his Intellectual Property” to Remede and contributed to build up the start-up company;
- his decision to appeal matters C2015/7291 and C2016/4278 3 addressed Remede’s discrimination towards him based on his “dependent immigration status” and Remede’s imposition on Dr Dyczynski to abide by their internal regulations which contradict the Code of Practice for Skin Penetration (WA);
- it was in the public interest to view Remede’s offences and safety issues as contravening the Occupational Health and Safety Act 1984 (WA);
- matter C2014/6437 was “directed against the unlawful dismissal and protection of [the] Appellant’s rights”. This matter is not being appealed and has no relevance to the matter currently at hand;
- his 2015 Application lodged on 12 November 2015 was meant to be a claim not involving dismissal and that Remede “abused the Appellant’s immigration status and applied undue influence/pressure, section 344(d)(e)”;
- it was in the public interest to demonstrate Remede had “financially exploited” Dr Dyczynski “based on discrimination relating to this dependent immigration status”;
- his appeal raised a “systematic problem existing by is the private health providers [sic]”.
Consideration
[18] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
[19] A “decision” for the purpose of an appeal under s.604 is defined in s.598(1) as follows:
(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes).
[20] Section 595(2) empowers the Commission to deal with a dispute which the FW Act expressly authorises it to deal with as it considers appropriate, except by arbitration, including by mediation or conciliation and by making a recommendation or expressing an opinion.
[21] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 The public interest is not satisfied simply by the identification of error6, or a preference for a different result.7 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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
[22] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 9 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.10 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.11
[23] In relation to the 2015 Application, we do not consider that there is any “decision” which may be the subject of an appeal under s.604. The 2015 Application was treated as discontinued in accordance with Dr Dyczynski’s communication that he did not wish to proceed with it. A discontinuance is self-executing and operates to bring a proceeding to an end without any decision having to be made by the Commission. 12
[24] In any event, even if there was an appealable decision, we do not consider that Dr Dyczynski has demonstrated any arguable case that the Commission erred in treating as discontinued his 2015 Application and therefore closing matter C2015/7291. The decision was taken by the Commission after receiving Dr Dyczynski’s email correspondence dated 27 June 2016 advising he did not intend to make the 2015 Application under s.365 of the FW Act and he no longer wished to proceed with that application.
[25] In relation to the 2016 Application, we likewise do not consider that the Commission has made any decision capable of being appealed under s.604. Once Remede indicated that it did not wish to participate in a conference under s.374, there was nothing further which the Commission was empowered to do in relation to the application. The closure of the file was merely an administrative step taken as a consequence. In any event, even if there was an appealable decision, we do not consider that Dr Dyczynski has demonstrated any arguable case that the Commission erred in closing matter C2016/4278. As earlier stated, the matter was closed due to the requirement for the consent of the parties to participation in a conference in s.374(1)(b) of the FW Act not being satisfied, as advised to both parties on 5 July 2016.
[26] As earlier stated, Dr Dyczynski was advised via email that his general protections claim had not been disposed of, rejected or terminated. It remained and remains open to Dr Dyczynski to make an application to the Federal Court of Australia or the Federal Circuit Court.
[27] At the hearing Vice President Hatcher confirmed that Commissioner Williams did not conduct a conciliation conference in relation to matter C2016/4278 because Remede refused to participate. Dr Dyczynski conceded that “the decision of the Commissioner probably is correct”. 13 Further, the Vice President asked Dr Dyczynski whether he understood that if he wished to agitate his 2016 Application, he could make an appropriate application to the Federal Court of Australia or the Federal Circuit Court of Australia.14 Dr Dyczynski replied “Yes I am aware of it”.15 Dr Dyczynski’s submissions were concerned with the merits of the 2015 Application and the 2016 Application and the substance of his dispute with Remede, and were consequently not relevant.
[28] We do not consider that Dr Dyczynski has demonstrated any arguable case that the Commission erred in closing matters C2015/7291 and C2016/4278. We do not consider that it would be in the public interest to grant permission to appeal, or that there are discretionary grounds for the grant of permission to appeal. Further we consider the appeal to be incompetent because no appealable decision has been identified in respect of the 2015 Application or the 2016 Application. Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
J. Dyczynski on his own behalf.
D. Broome and C. Clasen for Remede Pty Ltd t/a Remede Wellness Medicine.
Hearing details:
2016.
Melbourne:
10 October.
1 Section 374 of the FW Act
2 The Appellant’s Outline of Submissions submitted 4 October 2016
3 The Appellant mistakenly wrote “C2016/5028”
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 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]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
8 [2010] FWAFB 5343, 197 IR 266 at [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
12 Narayan v MW Engineers Pty Ltd[2013] FWCFB 2530 at [6]
13 Hearing, 10 October 2016, 14:25
14 Hearing, 10 October 2016, 14:26
15 Hearing, 10 October 2016, 14:26
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