Dr Manu Chopra v Al Siraat College Inc T/A Al Siraat College, Mr Fazeel Arain, Mr Vis Naidu, Ms Esra Boz, Ms Fatema Faoual, Ms Naga Thayalakrishna, Ms Dilek Komser
[2023] FWCFB 266
•22 DECEMBER 2023
| [2023] FWCFB 266 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Dr Manu Chopra
v
Al Siraat College Inc T/A Al Siraat College, Mr Fazeel Arain, Mr Vis Naidu, Ms Esra Boz, Ms Fatema Faoual, Ms Naga Thayalakrishna, Ms Dilek Komser
(C2020/5655)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 22 DECEMBER 2023 |
Appeal against decision [2020] FWC 3491 of Deputy President Clancy at Melbourne on 2 July 2020 in matter number AB2019/728 –application for recusal – application to reconstitute Full Bench – permission to appeal refused
On 21 July 2020, Dr Manu Chopra lodged an appeal against a Decision[1] and Order[2] issued by Deputy President Clancy on 2 July 2020 for which permission to appeal is required.
The Deputy President dismissed Dr Chopra’s anti-bullying application under s 587(1)(c) of the Fair Work Act2009 (Cth) (Act). The Deputy President accepted the respondents’ contention that Dr Chopra’s maximum term contract of employment had ended, and that Al Siraat College Inc (College) had no intention of rehiring Dr Chopra. Accordingly, the Deputy President was satisfied that there was no risk that Dr Chopra would continue to be bullied at work within the meaning of s 789FF(1)(b)(i) and (ii). In addition, the Deputy President declined a recusal application made in relation to him by Dr Chopra.
The matter was listed for permission to appeal only. The respondents to this matter advised the presiding member’s Chambers that they did not wish to be heard, subject to any requirement of the Commission.
At the permission to appeal hearing, Dr Chopra sought that each member of the Full Bench recuse themselves and that the Full Bench be reconstituted. For the reasons set out in this decision, we have refused this application.
Further, for the reasons that follow, Dr Chopra’s application for permission to appeal is refused.
Procedural history
Much of the procedural history for this matter was detailed in an interlocutory decision[3] (Interlocutory Decision) issued by this Full Bench on 17 November 2023, dealing with Dr Chopra’s recusal application against the presiding member. We refer to and adopt paragraphs [4] to [19] of the Interlocutory Decision, which provide as follows:
“[4] Dr Chopra made an application in the Commission pursuant to s 789FC of the Act on 18 December 2019. The application contended that Dr Chopra had been bullied by members of staff and students in his capacity as a teacher at the College. While initially allocated to Deputy President Gostencnik, the application was transferred at Dr Chopra’s request and was thereafter dealt with by Deputy President Clancy.
[5] Following receipt of submissions from the respondents and, thereafter, an application that Dr Chopra’s anti-bullying application be dismissed pursuant to s 587 of the Act, the Deputy President convened a mention on 18 March 2020. On 23 June 2020, Dr Chopra made an application that the Deputy President recuse himself. The Deputy President decided to determine both Dr Chopra’s recusal application and the application under s 587 by the respondents on the papers.
[6] As earlier stated, in the Decision the Deputy President declined Dr Chopra’s recusal application. Further, the Deputy President exercised his discretion to grant the respondents’ application to dismiss Dr Chopra’s anti-bullying application on the basis that it had no reasonable prospects of success.
[7] Dr Chopra filed a notice of appeal in respect of the Decision on 21 July 2020. On 28 July 2020, Dr Chopra lodged an application under s 608 of the Act seeking the referral of questions of law to the Federal Court of Australia. Dr Chopra’s application under s 608 was allocated to Deputy President Colman for determination.
[8] On 7 September 2020, Dr Chopra made an application seeking that Deputy President Colman recuse himself from determining the s 608 application. That application was declined and the referral application under s 608 was refused.
[9] Dr Chopra’s application for permission to appeal was listed for a hearing to proceed before a differently constituted Full Bench on 13 July 2021. On 25 June 2021, Dr Chopra made a recusal application against the earlier Full Bench and in an affidavit dated 5 July 2021, sought that the Full Bench be reconstituted. That affidavit also annexed a medical certificate which resulted in the 13 July 2021 hearing being vacated and the appeal application being held in abeyance.
[10] On 27 July 2023, Dr Chopra confirmed his intention to pursue his appeal application, sought an oral hearing and proposed a timetable for the filing of written submissions in support of his appeal by 17 November 2023, with a hearing to be scheduled in late November or December 2023.
[11] On 13 October 2023, Dr Chopra was advised that his preferred timetable could not be accommodated, that a Member of the earlier Full Bench had retired during the period the matter had been held in abeyance, and that the appeal application would be referred to the President of the Commission for reallocation to a different Full Bench.
[12] On 16 October 2023, the President of the Commission allocated Dr Chopra’s application to the December 2023 permission to appeal roster. On 17 October 2023, the presiding member of this Full Bench issued directions advising the parties that Dr Chopra’s application would proceed to a hearing on the question of permission to appeal and extension of time on 6 December 2023. Dr Chopra’s submissions and an appeal book were to be filed and served by 31 October 2023.
[13] On 24 October 2023, Dr Chopra sent correspondence to the Chambers of the presiding member in which Dr Chopra drew attention to, inter alia, the following:
(1)The “further amended directions” issued by the earlier Full Bench on 12 July 2021 which provided that Dr Chopra would receive 14 days’ notice of the Full Bench hearing and stated that the Full Bench hearing would commence at 10:00am and conclude by 4:00pm; and
(2)A “statement” issued by the earlier Full Bench on 12 July 2021 which waived the three-page limit on Dr Chopra’s written submissions, the thirty-minute timeframe for oral submissions and the requirement to file an index of authorities.
[14] Dr Chopra sought a variation to the 17 October 2023 directions on the basis that with the passage of time, he had gained further knowledge of the law and appeals processes and with additional time he may be able to “better” focus the grounds of appeal. Dr Chopra sought that his appeal application be listed for hearing in January or early February 2024 for a six-hour period between 10:00am and 4:00pm “if the Full Bench happens to be available,” and sought that his written submissions and appeal book be filed and served on 22 January 2024.
[15] By email dated 24 October 2023, the Chambers of the presiding member relevantly advised Dr Chopra that the matters he had raised did not demonstrate a basis for varying the directions, or the date and duration of the permission to appeal hearing and consequently that these matters remained unchanged.
[16] On 25 October 2023, Dr Chopra sent correspondence to the Chambers of the presiding member in which he relevantly stated, inter alia, that (a) the appeal was lodged within the 21-day timeframe and an extension of time was not required, (b) his oral submissions in support of the application for permission to appeal could not be heard within 30 minutes, (c) Dr Chopra did not have the time, “physically or mentally” to prepare an appeal book by 31 October 2023 given his “other work and priorities,” and (d) the directions were otherwise unfair and unjust. In further correspondence sent by Dr Chopra on 26 October 2023, Dr Chopra restated the concerns raised by his 25 October 2023 correspondence and advised that he needed “time to locate the other factual evidence and communications” to support his appeal application. Dr Chopra submitted that he could not address the appealable errors in the Decision within a 30-minute hearing and did not have time to work on his written submissions and prepare an appeal book because it is “humanly impossible” for him to do so.
[17] By email dated 26 October 2023, the Chambers of the presiding member noted Dr Chopra’s concerns as to the filing date of his written submissions and an appeal book and advised Dr Chopra that these dates could be extended without impacting the 6 December 2023 hearing date. Further, Dr Chopra was advised that it would not be necessary for his written submissions to address the question of an extension of time, the presiding member being satisfied that the appeal application was lodged within time. In addition, Dr Chopra was advised that the time allocated to oral submissions at the 6 December 2023 hearing may be further considered following receipt of his written submissions. Amended directions were issued dated 26 October 2023 which provided for the filing and service of Dr Chopra’s written submissions in support of his appeal, and an appeal book, by 29 November 2023.
[18] On 27 October 2023, Dr Chopra sent correspondence to the Chambers of the presiding member in which he submitted, inter alia, that (a) the erroneous reference to an extension of time in the 17 October 2023 directions is to be regarded as an attempt to “throw out” the appeal on a non-existent issue, (b) it is “humanly impossible” for Dr Chopra to do any work on this appeal until the Christmas and New Year holidays, (c) the 26 October 2023 directions, while a step in the right direction, remained impossible to comply with in Dr Chopra’s current circumstance (although no evidence as to these circumstances was produced, and nor were these circumstances explained), (d) the questions posed by Dr Chopra including as to why the hearing is to proceed on 6 December 2023 had not been answered, (e) a full day hearing was required to address the appeal, and (f) Dr Chopra considers that his time is at the “beck and call” of the presiding member and that the presiding member is keeping him “on a leash” which caused Dr Chopra to feel disrespected. Dr Chopra concluded that the permission to appeal process is a “sham” and sought an oral mention, which was declined on 27 October 2023.
[19] By email dated 27 October 2023, Dr Chopra requested that a new Full Bench be constituted without the presiding member. Upon request, Dr Chopra was informed of the Members of this Full Bench on 31 October 2023, and on 10 November 2023 upon its reconstitution. Despite Dr Chopra stating on 30 October 2023 that he would advise whether the recusal application was sought in respect of individual members of the Full Bench, or the Full Bench collectively, Dr Chopra did not clarify this matter. Rather, on 31 October 2023, Dr Chopra advised the Chambers of the presiding member that he had not had time to look into this issue and that he would respond on this matter in the week commencing 6 November 2023, although he did not do so. In the absence of correspondence otherwise, Dr Chopra was advised that his recusal application in respect of the presiding member would proceed to an interlocutory hearing to determine the recusal application. A revised notice of listing was issued on 13 November 2023 specifying that this hearing would proceed before the Full Bench.”
The Full Bench determined in the Interlocutory Decision, consistent with the approach of the High Court of Australia in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[4] and having regard to the presiding member’s view in response to the recusal application, that the Commission as presently constituted retains jurisdiction to determine Dr Chopra’s application for permission to appeal. Dr Chopra’s recusal application was therefore dismissed.[5]
The Full Bench also confirmed that the amended directions issued on 26 October 2023 and notice of listing for the permission to appeal hearing on 6 December 2023 would remain unchanged, save for allocating a period of three hours for the hearing.
On 20 November 2023, Dr Chopra made a further request to the Full Bench to adjourn the hearing listed for 6 December 2023 until January or February 2024. Dr Chopra’s request was declined on the basis that no compelling grounds had been provided to justify the adjournment.
On 29 November 2023, Dr Chopra did not comply with the direction to file his outline of submissions on the issue of permission to appeal. On 30 November 2023, the presiding member’s Chambers sent correspondence to Dr Chopra to notify him of his non-compliance and to remind him that the hearing would proceed as listed on 6 December 2023. Dr Chopra was also directed to confirm his attendance at the hearing.
On 30 November 2023, Dr Chopra informed the presiding member’s Chambers that, “the Orders you have sent are erroneous” and confirmed his attendance for the hearing. Dr Chopra did not file submissions on the issue of permission to appeal.
On 5 December 2023, Dr Chopra requested that the hearing be vacated and relisted on a date no earlier than 7 February 2024 on the basis that he was unwell. A medical certificate was attached in support of Dr Chopra’s request.
The medical certificate was addressed to the Fair Work Commission and certified that Dr Chopra was suffering from laryngitis and the recurrence of an unspecified prior injury that necessitated strong painkillers that impact his alertness, cognitive ability and capacity to be on a computer for the next two or so weeks. The medical certificate also “medically advised” that the 6 December 2023 hearing should be rescheduled to 2024.
The medical certificate further “medically recommended” that due to the background for Dr Chopra’s s 789FC application, the Commission should give Dr Chopra, “sufficient time to prepare his written arguments and restate his appeal grounds, and then to provide him sufficient time to orally argue his grounds. To accommodate this, it is medically recommended that [Dr Chopra] be given at least until 31 January to provide his written material and that the Oral Hearing not be scheduled before 7 February 2024 and that the actual date of the hearing be scheduled in consultation with [Dr Chopra] when he is available and not imposed on him which affects his mental health.”
On 5 December 2023, the presiding member’s Chambers advised Dr Chopra that the Full Bench had considered his adjournment request and the medical certificate. The Full Bench noted that:
At the interlocutory hearing on 15 November 2023 before the Full Bench, Dr Chopra had foreshadowed producing a medical certificate if his request to adjourn the 6 December 2023 hearing was not acceded to by the Full Bench. Dr Chopra further indicated during the interlocutory hearing that if the Full Bench revised the hearing date from 6 December to 13 December 2023, he would produce a supplementary medical certificate in support of an adjournment.
These matters were set out at paragraph [94] of the transcript of proceedings dated 15 November 2023, which provides:
“[94] Blah, blah, blah. And I went on to talk about some travel coming up and so forth. Giving those reasons, that's the reasons I've already given. You've taken over from the previous Full Bench. You can't flush that down to the toilet, which is shocking to me, and that when you say you've now made 6 December I have to start all over again. It's like a ping pong ball. And I'll say 6th is not good, I'll give you reasons. You'll submit, you'll put it on the 13th. So then I go to a doctor, get another one for the 13th, then you'll put it on the 20th.”
Contrary to the Amended Directions of the Commission dated 26 October 2023, Dr Chopra had not filed any written submissions in support of his application for permission to appeal on the basis that the Commission’s orders “are erroneous.”
The medical certificate expresses opinions outside the remit of a general practitioner, in particular, in relation to the programming by the Fair Work Commission of applications before it. The Full Bench did not consider that the opinions expressed by the General Practitioner who issued the medical certificate are appropriate and nor did they demonstrate that reasonable grounds exist for an adjournment.
Having regard to the above, the Full Bench did not accept the grounds advanced for an adjournment and declined Dr Chopra’s request that the 6 December 2023 hearing be adjourned.
Dr Chopra has made it clear throughout his appeal that he is aggrieved by this Full Bench not granting his adjournment requests and not programming the matter in the manner that he prefers. It is worth emphasising some key points with regards to the procedural history of Dr Chopra’s application for permission to appeal, which has been on foot since 21 July 2020. The application has been allocated to two differently constituted Full Benches due to the effluxion of time. In July 2023, Dr Chopra informed the Commission that he sought to progress his application and indicated a preference for a hearing in November or December 2023. In October 2023, Dr Chopra was notified that the application would be heard in December 2023. Since then, it appears that Dr Chopra has focussed his energies on repeated requests to adjourn this hearing. The merits of each request, and Dr Chopra’s grounds in support of each request, have been considered by this Full Bench in an expedient and transparent fashion so as to afford Dr Chopra as much notice as possible.
The permission to appeal hearing commenced on 6 December 2023, in accordance with the amended directions. Dr Chopra appeared on his own behalf and was repeatedly invited to make submissions in support of the matters set out in detail in his Notice of Appeal. Dr Chopra’s submissions, which proceeded for approximately 90 minutes, evinced clear unhappiness with the Full Bench, illustrated by Dr Chopra stating, inter alia, that the Full Bench had acted shamefully,[6] that he did not have time to read every “little detail, crappy things you sent,”[7] that he was being treated improperly due to his race,[8] that he was being bullied by the Full Bench,[9] and involved occasions whereby Dr Chopra was shouting,[10] and using profanities.[11] Dr Chopra made a further application to adjourn the hearing. The Full Bench briefly adjourned to deliberate, before informing Dr Chopra that the hearing would not be adjourned and again invited Dr Chopra to make any oral submissions in support of his application for permission to appeal.
Dr Chopra subsequently made an oral application, with reasons, for the “recusal of the entire Full Bench”[12] on the grounds of actual and apprehended bias.[13] Dr Chopra sought the opportunity to file written submissions in support of his recusal application before terminating his connection to the hearing. By way of an email sent to Dr Chopra following the conclusion of the hearing, Dr Chopra was advised that the hearing had been convened for the purposes of receiving his oral submissions in support of his application for permission to appeal and, noting the recusal application there made, was directed to file any written submissions in support of his recusal application to supplement the oral submissions advanced during the hearing. Such submissions were to be filed by 14 December 2023. No submissions were received by the deadline.
On 15 December 2023, Dr Chopra filed written submissions which we have taken into consideration. We are satisfied that Dr Chora’s recusal application can be dealt with on the material before us and that an oral hearing is not required.[14]
Full Bench recusal application
During the hearing on 6 December 2023, Dr Chopra submitted that the conduct of the members of the Full Bench demonstrated bias for the following reasons:[15]
The decision of the Full Bench to decline Dr Chopra’s adjournment request showed that the members of the Full Bench had closed minds.
The Full Bench chose to not to accept the medical certificate in support of Dr Chopra’s adjournment request on 5 December 2023 as the Full Bench wanted Dr Chopra to attend the hearing on 6 December 2023. Though not explicitly articulated, we understand that Dr Chopra’s argument is that the Full Bench wanted Dr Chopra to attend so that the Full Bench could dispose of his matter quickly.
On 15 December 2023, Dr Chopra wrote an email in support of his recusal application. In summary, Dr Chopra’s written submissions advance the following grounds:
That he does not accept that the Full Bench as currently constituted can determine his application for permission to appeal in an unbiased manner based on both actual and apprehended bias.
That the refusal of the Full Bench to accept the medical certificate of 5 December 2023 is evidence of clear bias against him.
That the direction of the Full Bench that Dr Chopra file written submissions by 14 December 2023 is contrary to the medical certificate and therefore the Full Bench is not affording him fairness or natural justice.
That the Full Bench is determined to “sweep [his] appeal under the carpet” as there will be “egg on the face” of many members of the Commission if his appeal of the Decision is successful.
That the transcript from the hearing on 6 December 2023 was not provided until 13 December 2023, and thus he requires more time to make submissions in support of his recusal application.
Dr Chopra’s submissions also proposed withdrawing his recusal application if the Full Bench accedes to his request to effectively convene a second hearing for him to make oral submissions in support of his application for permission to appeal. Further, that if the Full Bench does not comply with his request, Dr Chopra will also make complaints against the members of the Full Bench pursuant to s 581A of the Act. The Full Bench does not comment on these matters beyond noting that to engage with them would be improper.
A claim of actual bias requires clear and direct evidence that a decision-maker was in fact biased. This includes proof that the decision maker(s) approached the issues with a closed mind, prejudged the matter, or could not be swayed by the evidence due to prejudice or partiality in favour of a party.[16] Dr Chopra has not advanced any evidence to support his contention of actual bias. The fact that this Full Bench did not grant the adjournment request is not telling of actual bias. Dr Chopra’s assertion that the Full Bench would prejudge the application for permission to appeal with a closed mind because his adjournment request was declined is illogical. There being no other matters raised capable of grounding an arguable case of actual bias, we reject this contention.
In relation to the contention of apprehended bias, the High Court in Ebner v The Official Trustee in Bankruptcy[17] explained the apprehended bias test as follows:[18]
“… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
The test involves two steps. First, there must be identification of what it is said that might lead a decision-maker to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the case on its merits.[19]
We understand that Dr Chopra contends that the decision of the Full Bench to not accept the grounds advanced by him for an adjournment demonstrates apprehended bias. We reject this contention. The basis for declining Dr Chopra’s request for an adjournment was addressed in correspondence to Dr Chopra on 5 December 2023. These grounds are entirely unrelated to any matter connected to the merits of his application. Nor has Dr Chopra identified a logical connection between the refusal to grant the adjournment and the fear that his application for permission to appeal will not be determined on its merits. There is no basis to conclude that a fair-minded lay observer might reasonably apprehend that this Full Bench might not bring an impartial mind to the resolution of the issue we are required to determine, being Dr Chopra’s application for permission to appeal, because of our decision not to adjourn the oral hearing or for any other reasons. The Full Bench is capable of assessing Dr Chopra’s Notice of Appeal by reference to the issues raised, separate to matters of procedure which are directed towards the timely and efficient resolution of the application before us, noting Dr Chopra’s advice of 27 July 2023 that he sought to progress his Notice of Appeal (see [6] above), and considerations of fairness insofar as it concerns the respondents to the appeal. We reject Dr Chopra’s contention of apprehended bias.
For the reasons given, Dr Chopra’s recusal application is declined by the Full Bench.
The Decision under appeal
The Decision deals two matters: Dr Chopra’s recusal application against the Deputy President and the dismissal of Dr Chopra’s s 789FC application.
Recusal application and case management
Dr Chopra made three requests in relation to the case management of the matter at first instance:[20]
That the Deputy President, as National Practice Leader, appoint a member who has not yet decided any anti-bullying applications who can look at the case of Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines (Shaw)[21] and subsequent cases, and Dr Chopra’s arguments, with fresh eyes;
Through an application under ss 615 and 615A of the Act, that the President direct a Full Bench to deal with Dr Chopra’s s 789FC application; and
That the President refer the question of the correct interpretation of the provisions in Part 6-4B and in particular s 789FF, for the opinion of the Federal Court pursuant to s 608 of the Act.
The Deputy President declined the first request, noting that a member of the Commission is required to deal with applications before them on its own terms. With regards to the second and third request, the Deputy President noted that they were not powers he could exercise.[22]
Dr Chopra’s recusal application was based on comments the Deputy President made at a Telephone Mention on 18 March 2020. Dr Chopra contended that the approach indicated by the Deputy President that would be used to determine the application before him to dismiss Dr Chopra’s bullying application pursuant to s 587 of the Act was incorrect. Accordingly, Dr Chopra submitted that the Deputy President might not bring an impartial mind to the resolution of his bullying application.
The Deputy President did not grant Dr Chopra’s recusal application, noting that the comments made at the Telephone Mention were in the context of issuing directions for the further conduct of the application and he would be waiting on the parties’ submissions before making any decision.[23] In applying the test in Ebner, the Deputy President was not persuaded that there was a basis for concluding that a fair-minded, lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the s 587 dismissal application.[24]
Dismissal pursuant to section 587
The Deputy President proceeded to consider the application before him to dismiss Dr Chopra’s bullying applying pursuant to s 587 of the Act. This may be summarised in the following way:
Dr Chopra was employed under a fixed term contract that expired on 19 December 2019. Dr Chopra’s employment with the College had therefore ceased and he had not been asked to perform work or provide any services since that time. On this basis, it was contended that Dr Chopra was no longer a “worker” within the meaning of s 789FC(2) of the Act.[25]
Prior to the expiry of the term of Dr Chopra’s employment contract, Dr Chopra was found to have engaged in serious misconduct.[26]
There was no risk that Dr Chopra would “continue to be bullied at work” in circumstances where the College no longer employed him and is unlikely to re-employ him in the future.[27]
There is no mandatory requirement under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) to provide a worker with suitable employment or pre-injury employment, and in Dr Chopra’s situation, it was not reasonable to do so.[28]
It is unlikely and purely speculative to consider that a return to work would be ordered in the event that any of Dr Chopra’s general protections applications are successful. However, in the event that such an order is made, Dr Chopra would be able to make another s 789FC application at that time.[29]
The Deputy President summarised Dr Chopra’s submissions as follows:
If a person is a “worker” at the time of making a s 789FC application, then they remain a “worker” for the purposes of s 789FF.[30]
The decision in Shaw is incorrect, despite being upheld by two Full Bench decisions.[31]
The reliance upon the decision of Spencer v The Commonwealth of Australia[32] in Shaw to inform the understanding of “no reasonable prospects of success” in s 587 of the Act is erroneous, as the High Court in Spencer was considering that phrase in a different statutory context.[33]
The Full Bench decisions in Obatoki v Mallee Track Health Community Services and Others (Obatoki)[34] and Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Others (Atkinson)[35] apply the wrong test for summary dismissal and, amongst other things, ignore that Parliament has contemplated that an anti-bullying application could be heard for former employees.[36]
The Full Bench decision in Baker v Salva Resources Pty Ltd (Baker)[37] illustrates the correct approach to concluding an application had no reasonable prospects of success.[38]
In light of these matters, Dr Chopra’s position is that his bullying application must not be dismissed and s 789FF(1)(b)(ii) should be assessed only after a substantive hearing of the matter and a finding of bullying is made.[39]
There is a question over whether Dr Chopra’s employment was in fact pursuant to a fixed term contract.
The Deputy President relevantly concluded, in summary, as follows:
The power to make an order to stop bullying is discretionary and only exercisable if the Commission is satisfied that the worker has been bullied at work by an individual or a group of individuals and there is a risk that the worker will continue to be bullied at work by the individual or group.[40]
Dr Chopra’s employment contract was for a fixed term and he is no longer at work. The College has no duties for Dr Chopra to perform and has no intention of re-hiring him as it believes he engaged in serious misconduct. There have been no proceedings initiated in relation to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and there is no general protections court application on foot. In these circumstances, it cannot be concluded that there is a risk that Dr Chopra will continue to be bullied at work.[41]
The material before the Commission clearly establishes that Dr Chopra is not and will not for the foreseeable future be at work for the College. The Deputy President was satisfied that the pre-requisites for making an order pursuant to s 789FF(1) of the Act could not be met and Dr Chopra’s bullying application had no reasonable prospects of success.[42]
Section 587 provides the Commission with a broad discretionary power to dismiss an application before it. The Deputy President was satisfied that it was appropriate to exercise his discretion and dismissed Dr Chopra’s bullying application, having regard to, amongst other things, the need to deal with bullying matters quickly, avoid unnecessary expense, proceedings and adjournments, and Dr Chopra’s ability to commence fresh bullying proceedings in the event he succeeds in an order for reinstatement in some other legal proceeding.[43]
Principles – permission to appeal
An appeal under s 604 of the Act is an appeal by way of rehearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker.[44] There is no right to appeal and an appeal may be made only with the permission of the Commission.
Section 604(2) of the Act 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 judgement.[45] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[46] The public interest might be attracted where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, 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.[47]
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.[48] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[49] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal
In relation to the Deputy President’s decision to dismiss Dr Chopra’s s 789FC application, Dr Chopra contends that the Deputy President made errors of jurisdiction, of law and in the exercise of his discretion. We summarise Dr Chopra’s lengthy and often overlapping grounds of appeal in the following way:
The Deputy President erred when he dismissed Dr Chopra’s application pursuant to s 587, including as the onus was on the respondent to prove that his s 789FC application was “manifestly hopeless.”
The Deputy President erred in his construction of s 587(1)(c) by effectively reversing the onus of proof in summary dismissal applications. This had the improper effect of placing the burden of proof on Dr Chopra to prove that his s 789FC application had reasonable prospects of success at an early stage in the proceedings.
In doing so, the Deputy President erred by applying the incorrect test to Dr Chopra’s application. The Deputy President erred in his interpretation of s 789FF(1) which does not contain a power to summarily dismiss an application made under s 789FC.
The Deputy President erred in his construction of s 789FF(1). In particular, he only had the jurisdiction to conduct a hearing on the merits once an application was properly made under s 789FC. Dr Chopra’s application should have proceeded to a hearing via s 789FE. Only after the hearing was complete would the two limbs of s 789FF(1) be triggered.
Even if the Deputy President correctly interpreted these provisions, he made errors of law in finding facts which were not reasonably open to him. In doing so, he misconstrued at least two additional provisions in the Workers Injury Rehabilitation and Compensation Act 2013 (Vic) and the Work Health and Safety Act 2011 (Cth).
Even if the findings of fact were properly made, the Deputy President erred in considering his discretion under s 587(1)(c) had been enlivened, and in exercising his discretion to dismiss Dr Chopra’s application as he applied an incorrect test and erroneously referred to the s 587 application as a jurisdictional objection.
The Deputy President “controlled” what evidence was admitted. The Deputy President did not permit the parties to tender evidence even though they were strongly disputed. It should have been obvious that these disputed facts would be tied to what Dr Chopra says are “hotly disputed questions of law.”
The Deputy President foreshadowed at the Telephone Mention in the proceedings that he would consider the jurisdictional objection; would follow Shaw; and would not hold a hearing on the s 587 application. The Deputy President followed through on this even through Dr Chopra argued at the time that the circumstances did not give rise to a jurisdictional objection; that Shaw was incorrect; and he requested a hearing on the dismissal application. The Deputy President’s reliance on written submissions and unsworn witness statements to determine disputed facts is an appealable error.
The Decision followed the jurisprudence in Shaw; Obatoki and Atkinson. As these were all incorrectly decided, this has tainted the Decision.
The Deputy President erred when he made findings of fact in the s 587 application that were not open to him. In summary dismissal applications, the decision-maker must construe all factual disputes in favour of the party responding to the dismissal application to determine if the application subject to the dismissal application is manifestly hopeless. More commonly, summary dismissal is simply not granted if there is any genuine factual disputation.
The Deputy President erred by dismissing Dr Chopra’s s 789FC application in circumstances where there were facts in dispute; where there were disputes on questions of law; without allowing the tendering of evidence; without conducting a hearing; and contrary to ss 577 and 578.
The Deputy President erred in finding that Dr Chopra was no longer a “worker” and that there was no risk of him returning to the workplace, even though Dr Chopra was receiving workers’ compensation payments and had applications pursuant to ss 372 and 365 on foot.
The Deputy President erred in the proper construction of ss 789FC to 789FH by concluding that Dr Chopra’s standing to continue his bullying application was lost upon the cessation of his employment.
The Decision was irrational, illogical, plainly unjust and unreasonable.
The Deputy President did not engage with Dr Chopra’s arguments and submissions.
With regards to the Deputy President’s decision to not recuse himself, Dr Chopra contends that the Deputy President had prejudged his approach and did not engage with the factual bases in his recusal application. Further, Dr Chopra advances that as the Deputy President was the National Practice Lead for stop-bullying order applications, the Deputy President should have referred his matter to a Member who had not yet made a determination following Shaw.
Dr Chopra further takes issue with the Deputy President’s refusal to refer the s 587 dismissal application to the President of the Commission. Dr Chopra submits that this should have occurred so that the President could refer his matter to the Federal Court to determine what he says are erroneously decided precedents.
Dr Chopra contends that it is in the public interest to grant him permission to appeal on the following grounds:
The matter raises issues of genuine importance and general application.
The reasoning in the Decision continues to manifest an injustice and is plainly contrary to the intent of the Parliament when it enacted the anti-bullying provisions in the Act.
The reasoning in Shaw, and the decisions that have applied and affirmed Shaw, have created a rule that after an applicant applies under s 789FC, an employer can fire them to dismiss the application without a hearing on the merits. This result is counter-intuitive and plainly absurd. It perversely incentivises employers to terminate the employment of employees who file applications pursuant to s 789FC.
The legal principles applied in the Decision appear disharmonious when compared with other recent decisions such as Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Ors (Bibawi).[50]
The Commission does not have an “at large” power to summarily dismiss an application without a hearing on the merits. Whilst s 587 does confer such a power, it must be validly invoked. It was not validly invoked in Dr Chopra’s matter.
The Notice of Appeal indicates that Dr Chopra relies upon other public interest considerations described in written submissions and a statutory declaration filed by Dr Chopra with the Commission between 21 May and 22 May 2020. We have considered this material in our overall assessment of Dr Chopra’s application for permission to appeal. While Dr Chopra has not directed the attention of the Full Bench to any particular aspects of this material upon which he specifically seeks to rely to support his contention that the grant of permission to appeal is in the public interest, we note that it is said that there is an enormous public interest in ensuring that his bullying application is considered by a Member who “has not yet decided any anti-bullying application at all and who can look at Shaw and its progeny and my arguments with fresh eyes and a fresh mind.”[51]
By way of the 15 December 2023 written submissions, filed after the oral hearing of Dr Chopra’s application on 6 December 2023, Dr Chopra submits as follows:
There is a threshold question regarding whether or not the FWC has jurisdiction is fundamentally different from a question regarding the exercise of its powers within its jurisdiction.
It is an inappropriate procedure to adopt to rely upon an application made under s 587(1)(c) which assumes that there is a threshold question regarding jurisdiction, and because of this reliance and procedure, not permit factual evidence to be allowed into the hearing in order to resolve the factual disputes.
This assumes the employer's version of the facts, contrary to what should be assumed in a summary dismissal application wherein the non-moving party's facts must be considered at the highest.
Based on this 'acceptance' of the employer's version of the facts without hearing the factual dispute on the issue (which cannot and should not be done under s 587(1)(c) anyway which is why it is an inappropriate procedure), determining that the complainant alleging bullying cannot return to the workplace.
As a result, deciding that the requirements of s 789FF(1)(b)(ii) are not met. Therefore, stop bullying orders cannot be issued. Hence, the s789FC application should be dismissed under s 587(1)(c).
The above is self-evidently a circular argument. The Commission assumes the truth of the premise it ought to be resolving in a hearing to decide on evidence, and facts, whether or not the employee can return to the workplace. This hearing ought to occur under s789FF itself. If the Commission finds - after a factual hearing - that the requirements of s789FF(1)(b)(ii) are not met, then it has the power to dismiss the s789FC application right there and then.
There is absolutely no need to jump over to s 587(1)(c) to dismiss the application. The power is right there in s789FF itself.
This is one of the serious errors of principle which the Commission has been committing in the past 8+ years.
While Dr Chopra submits that his correspondence to the Commission does not constitute his submissions in the application, we consider it appropriate to take these matters into consideration in circumstances where they address Dr Chopra’s position. It is difficult to discern a basis for advancing these arguments if not to inform the Full Bench of considerations Dr Chopra regards as relevant to his application.
Consideration
We have considered the grounds advanced by Dr Chopra in his Notice of Appeal and the matters raised by Dr Chopra’s written submissions as set out at [46] of this decision. We are not persuaded that any of these arguments give rise to an arguable case of appealable error. Nor are we satisfied that it would be in the public interest to grant permission to appeal. Our reasons are explained briefly as follows.
The Notice of Appeal seeks to challenge the Decision, made pursuant to the Commission’s discretionary power in s 587(1) of the Act, to dismiss an application if the application has no reasonable prospects of success.
The Commission’s power in the anti-bullying jurisdiction is conferred by s 789FF of the Act, which provides as follows:
“FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i)the worker has been bullied at work by an individual or a group of individuals; and
(ii)there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.”
There are two prerequisites of which the Commission must be satisfied before it has the power to make an order to stop bullying. First, that the worker making the application under s 789FC of the Act has been bullied at work by an individual or a group of individuals and second, that there is a risk that the worker will continue to be bullied at work by the individual or group.
On the material before him, which included a copy of Dr Chopra’s fixed term contract of employment, the Deputy President found that Dr Chopra’s employment had ceased, and he was no longer “at work” or providing services to the College. Having regard to the maters raised by grounds (5) and (12), it is apparent that the Deputy President took into consideration the impact of Dr Chopra’s general protections applications and workers compensation claim against the College in his assessment of any future prospect of Dr Chopra returning to work.[52] No appealable error is apparent from the Deputy President’s finding that the prospect of Dr Chopra being at work for the College and at risk of continued bullying is hypothetical and unlikely to change in the foreseeable future.
Accordingly, the Deputy President found there was no risk that Dr Chopra will continue to be bullied at work by the respondents. The Deputy President concluded that there were no reasonable prospects that the bullying application could succeed by the making of an order to stop bullying. This is because the Commission could not be satisfied that the second of the two above identified prerequisites could be met.
We do not consider it to be arguable, as contended by grounds (3) and (4) and in Dr Chopra's 15 December 2023 written submissions, that the Deputy President erred in his construction of s 789FF(1). The Deputy President had regard to Shaw, Obatoki, Atkinson and Bibawi, each of which support the proposition that when a worker has made an application pursuant to s 789FC of the Act, but there is no longer a risk that worker will continue to be bullied at work by the individual or group named in that application, and there is no evidence before the Commission as to a likely return to that work, then the application will have no reasonable prospects of success because s 789FF(1)(b)(ii) cannot be satisfied. We do not consider it to be arguable that the decisions in Shaw, Obatoki and Atkinson were incorrectly decided or that by his reliance upon them, the Deputy President applied an incorrect test, misunderstood the task before him, or improperly construed ss 789FC to 789FH, as contended by grounds (6), (9) and (13).
We are not persuaded that grounds (1) or (2) demonstrate an arguable case that the Deputy President erred in concluding that Dr Chopra’s bullying application had no reasonable prospects of success, or with respect to the approach he adopted as contended by ground (10). The Decision indicates that the Deputy President approached these issues having regard to the observations made in Townsley v State of Victoria (Department of Education & Early Childhood Development)[53] and Toma v Workforce Variable Pty Ltd[54] which emphasise that the power to dismiss applications should be exercised cautiously and sparingly, consistent with the principle to that effect stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW), which the Deputy President extracted in the Decision.[55]
In light of the Deputy President’s conclusion that Dr Chopra’s bullying application had no reasonable prospects of success, the Deputy President exercised his discretion under s 587(1)(c) of the Act and dismissed Dr Chopra’s bullying application. Contrary to the contentions made by grounds (7), (8) and (11) and in Dr Chopra’s 15 December 2023 written submissions, this power may be exercised summarily, such that an application may be dismissed pursuant to s 587(1) prior to a full hearing being conducted.[56]
Dr Chopra’s contention by ground (15) that the Deputy President did not engage with his arguments and submissions is not arguable. Dr Chopra has not identified any matters he considers were unaddressed. The Decision demonstrates that the Deputy President considered the various matters advanced by Dr Chopra in support of his contention that the s 587 dismissal application should fail and thereafter placed weight on nine key matters in the exercise of considering whether it was appropriate to exercise his discretion to dismiss Dr Chopra’s application.[57] The exercise of that discretion was available to the Deputy President under s 587(1)(c).
Nor are we persuaded that the grounds advanced at [42]-[43] of this decision establish an arguable case of appealable error with respect to the Deputy President’s approach to determining the recusal application and other procedural requests before him. That the Deputy President did not determine these matters in Dr Chopra’s favour does not give rise to a reasonable apprehension of bias or indicate that the Deputy President had predetermined any of the matters in issue between the parties.
It follows that we consider Dr Chopra’s Notice of Appeal to be entirely devoid of merit. In these circumstances, ground (14) cannot possibly succeed.
Having considered each of the matters raised by Dr Chopra with respect to his application for permission to appeal, we are not persuaded that the public interest is enlivened. Specifically, we are not satisfied that:
(a)there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) the appeal raises issues of importance and/or general application;
(c)the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d)the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Order and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Dr M Chopra on his own behalf
No appearance by the respondents
Hearing details:
2023.
Melbourne and Perth (video hearing):
6 December.
Final written submissions:
15 December 2023
[1] [2020] FWC 3491
[2] PR720707
[3] [2023] FWCFB 214
[4] [2023] HCA 15; 97 ALJR 419
[5] [2023] FWCFB 214 at [26] and [39]
[6] Transcript of proceedings dated 6 December 2023, PN311
[7] Ibid, PN323
[8] Ibid, PN390, PN425
[9] Ibid, PN412, PN495
[10] Ibid, PN314, PN321
[11] Ibid, PN314, PN316, PN317, PN318, PN327-PN331, PN339, PN350, PN392, PN394
[12] Ibid, PN439
[13] Ibid PN443
[14] Fair Work Act 2009 (Cth), ss 589(1) and s 593
[15] Transcript of proceedings dated 6 December 2023, PN439 – PN446
[16] Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39]
[17] [2000] HCA 63; (2000) 205 CLR 337 (Ebner), per Gleeson CJ, McHugh, Gummow and Hayne JJ
[18] Ebner at [6]
[19] Ibid at [8]
[20] Decision at [16]
[21] [2014] FWC 3408
[22] Decision at [17] – [18]
[23] Decision at [19], [27]
[24] Decision at [21] – [24]
[25] Decision at [29] – [31]
[26] Decision at [32]
[27] Decision at [33]
[28] Decision at [35]
[29] Decision at [36]
[30] Decision at [38]
[31] Decision at [39]
[32] (2010) 241 CLR 118
[33] Decision at [40]-[45]
[34] [2015] FWCFB 1661
[35] [2015] FWCFB 6503
[36] Decision at [46], [54]
[37] [2011] FWAFB 4014
[38] Decision at [47]-[49]
[39] Decision at [51]-[52]
[40] Decision at [61]-[63]
[41] Decision at [64]-[65]
[42] Decision at [66]
[43] Decision at [69]
[44] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[45] O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46]
[46] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [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]
[47] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266
[48] Wan v AIRC (2001) 116 FCR 481 at [30]
[49] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[50] (2019) FWCFB 1314
[51] Submissions by Dr Chopra in reply to application for summary dismissal dated 21 May 2020 at [45]
[52] Decision at [64]-[65]
[53] [2013] FWCFB 5834 at [17]-[19]
[54] [2018] FWCFB 5811 at [15]
[55] Decision at [60]
[56] See Fair Work Act 2009 (Cth), s 593(1); cf ss 589 and 590
[57] Decision at [69]
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