Dr Ruwan Suwandarathne v Canberra Health Services
[2022] FWCFB 181
•12 OCTOBER 2022
| [2022] FWCFB 181 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dr Ruwan Suwandarathne
v
Canberra Health Services
(C2022/5793)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 12 OCTOBER 2022 |
Appeal against decision [2022] FWC 2011 of Commissioner Matheson at Sydney on 29 July 2022 in matter number C2021/8419
The appellant, Dr Ruwan Suwandarathne, is employed by the respondent, Canberra Health Services, as a specialist intensive care medical practitioner and has been so employed since 2 March 2015. The appellant has been in dispute with the respondent about his advancement to a position of senior specialist and on 10 December 2021 he applied under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement term of the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 (Agreement). In substance, the appellant sought by way of relief that he should be advanced to senior specialist retrospectively with effect from July 2019.[1]
By a decision published on 26 July 2022,[2] Commissioner Matheson determined the dispute by arbitration. The Commissioner refused the relief claimed and dismissed the application.[3]
Relevantly, the Commissioner identified three questions arising from the appellant’s dispute application requiring determination. First, whether the respondent applied the criteria and robust competency framework set out in “Advancement to Senior Specialist guidelines”, to which reference is made in clause 14.3 of the Agreement, to the appellant’s application for advancement to senior specialist?[4] Second, whether the appellant met the criteria and robust competency framework so that he should progress to senior specialist?[5] Third, whether the respondent breached its consultation obligations under clause 14.5 and/or clause 124 of the Agreement?[6]
The Commissioner answered these questions as follows:
[463] Notwithstanding this, in relation to the matters that I need to determine as a part of this dispute, I have found as follows:
· As to the question of whether the Respondent has complied with clause 14.3 of the Agreement, I find that the Respondent has not strictly complied with clause 14.3 of the Agreement in one respect. In particular, I find that, in its assessment of the Applicant against the “Teaching” criterion in CHS20/333, the Discussion Guidelines applied by the Review Panels had the effect of both narrowing the scope of the criterion as well as setting a higher bar in order for it to be satisfied. However, as I have found, the Second Review Panel actually found the Applicant was competent in relation to the “Teaching” criteria. As such, it is not the Second Review Panel’s assessment of the Applicant against this criterion that resulted in the “action” or decision that is now the subject of this dispute. In this regard, I do not consider that this technical breach by the Respondent is material to this particular dispute.
· Based on the evidence before me, I am unable to find that the Applicant should advance to the level of Senior Specialist.
· I am not satisfied, based on the evidence before me, that there was any failure in consultation on the part of the Respondent in relation to the criteria that the Respondent was required to apply to the Applicant’s application, being CHS20/333. While it appears that the Respondent may not have reviewed work level standards and competency requirements in consultation with ASMOF during the life of the Agreement, as required by clause 14.5 of the Agreement, I do not consider this to be material to the dispute before me and the question of whether I should grant the Applicant the relief he seeks as there were existing arrangements in place that should have been applied, being those in CHS20/333.[7]
By his notice of appeal dated 19 August 2022, the appellant applies for permission to appeal, and if granted, he appeals the Commissioner’s decision.
Consideration
Before turning to consider the “appeal grounds” advanced and whether permission to appeal should be granted, it is necessary to briefly set out some of the background facts surrounding the dispute.
As earlier noted, the appellant has been employed by the respondent as a specialist medical practitioner in the respondent’s intensive care unit since 2 March 2015.[8] In around April 2019, the appellant became eligible to apply for advancement to senior specialist.[9] Between that time and early in 2021, the appellant sought, unsuccessfully, guidance and information from the respondent about the application process for advancement to senior specialist.[10] On 3 March 2021 an expression of interest (EOI) process inviting applications for advancement from specialist to senior specialist opened.[11] Dr Nicholas Coatsworth, who at that time was the respondent’s Executive Director of Medical Services, was responsible for applications and advancement to senior specialist.[12]
On 19 March 2021, the appellant applied for advancement to senior specialist and requested that his appointment be backdated to 1 July 2019.[13] The appellant’s application was considered by a five-person review panel of which Dr Coatsworth was chair. The review panel recommended to Bernadette McDonald, then the respondent’s Chief Executive Officer and Head of Service, that the appellant not advance.[14] The Head of Service accepted the recommendation on 25 June 2021[15] and the appellant was advised that his application was unsuccessful on 29 June 2021.[16]
Section P of the Agreement contains an internal review procedure allowing an employee to seek a review of certain management action affecting the employee’s employment (clause 135). The appellant sought a review under section P of the Agreement, of the decision to accept the review panel recommendation that the appellant is not to advance to senior specialist.[17]
Clause 136.4 of the Agreement requires the Head of Service to arrange for an application for review made under clause 135 to be reviewed by an independent person (the reviewer). Mr Greg Smith AM was appointed as the reviewer. In a review report to the Head of Service dated 15 September 2021,[18] as required by clause 136.10, Mr Smith recommended that the appellant be interviewed by the review panel.[19] The review report was provided to the appellant on 20 September 2021.[20] On 13 October 2021, pursuant to clause 136.13, Meg Brighton, the then Deputy Director-General of ACT Health, as the delegate of the Head of Service decided that the appellant should be interviewed by the review panel.[21]
On 9 November 2021, the appellant was interviewed by a four-person review panel.[22] The review panel recommended to the respondent’s CEO that the appellant not be advanced to senior specialist and on 18 November 2021, Dr Coatsworth advised the appellant of the decision not to advance him to senior specialist.[23] As earlier noted, on 10 December 2021 the appellant lodged the dispute application with the Commission.
The appellant’s notice of appeal sets out in narrative form rather than particularised appeal grounds, the basis on which he contends the Commissioner erred. In substance the appellant contends the Commissioner erred in the following respects.
First, the appellant contends that the Commissioner erred at [318] of the decision by concluding that although the respondent had unsatisfactorily failed to provide the appellant with clarity about the application process and the failure had the practical effect of slowing down his application process for two years, the appellant did not raise a dispute under the Agreement during this time. The appellant says that having made the observation about the respondent’s conduct and its effect at [318], the Commissioner ought to have concluded that the conduct prevented the appellant from earlier advancement to senior specialist and so the respondent breached clause 14 of the Agreement.[24]
Second, the appellant contends that the Commissioner erred by failing to take into account her finding at [401] of the decision that the ‘discussion guidelines’ applied by the review panel to assess the appellant’s suitability for advancement to senior specialist[25] had the “effect of both narrowing the scope of the criterion as well as setting a higher bar in order for it to be satisfied”.[26] The appellant says that the adoption of the discussion guidelines had the effect of setting the selection criteria above the level required for advancement under the respondent’s procedure for advancement to senior staff specialist,[27] with the consequence that he was unsuccessful in his advancement application when on the evidence he had provided he ought to have been successful.[28]
Third, the appellant contends the Commissioner erred in failing to find that the CEO’s decision as Head of Service not to advance the appellant to senior specialist (as advised by Dr Coatsworth on 18 November 2021) was not a valid decision because there was no evidence that the recommendation of the review panel was approved in writing by the CEO or any delegate. The appellant says that the respondent’s procedure for advancement to senior staff specialist[29] requires “sign off” by the CEO (or delegate), of the recommendations of the review panel, including recommendations as to unsuccessful applicants, and there was no evidence before the Commissioner of the requisite sign off.[30]
Fourth, the appellant contends the Commissioner erred at [434]-[435] in attaching more weight to the evidence of Dr Coatsworth than that of the appellant, about whether the appellant met the criteria for advancement to senior specialist. In assessing and apportioning weight, the appellant says that the Commissioner failed to consider that Dr Coatsworth had a “conflict of interest”, having created the “higher bar” in the ‘discussion guidelines’[31] and given his unfavourable interactions with the appellant as noted in Mr Smith’s report[32] amounting to antipathy towards the appellant.[33]
Fifth, the appellant contends the Commissioner erred in not finding that he should have been advanced to senior specialist based on the weight of evidence about his competence and suitability given by the appellant, and his supervisor and peers.[34]
Sixth, the appellant contends that the Commissioner erred in not finding the respondent breached clauses 14.5 and 124 of the Agreement by failing to consult about changes to level standards and competency requirements for progression when it replaced the ‘Specialist to Senior Specialist Selection Process – Guidelines for Promotion of Specialist to Senior Specialist’ (DGD13-033) with the ‘Canberra Health Services Procedure Advancement to Senior Staff Specialist’ (CHS20/333).[35]
It is convenient to first deal with the third and fourth errors for which the appellant contends. As to the fourth error alleged, the Commissioner ascribed greater weight to the evidence of Dr Coatsworth’s assessment of whether the appellant met the criteria for advancement to senior specialist than the evidence proffered by the appellant for the reasons she explained at [433]-[436] of the decision. Without more, an assessment by a Member at first instance about the weight assigned to a particular matter is generally not reviewable on appeal. Of course, care should be taken to ensure that a relevant matter of great importance is given adequate weight and that excessive weight to a relevant matter of no great importance is not ascribed,[36] and that weight is not given to any irrelevant matter. Where this occurs, such decisions may be reviewable on the ground that the decision is manifestly unreasonable, or that the decision maker took into account an irrelevant consideration. No such ground is here advanced. The appellant does not say Dr Coatsworth’s evidence was irrelevant, but instead that the weight ascribed to it should have been discounted (and presumably that the evidence on which the appellant relied should have been preferred). It is uncontroversial that the appellant did not submit below that the Commissioner ought to have discounted or given less weight to Dr Coatsworth’s evidence for the reasons he now articulates. This is advanced for the first time on appeal.[37]
As to the third error alleged, the Commissioner made no finding about the validity of the CEO’s decision as Head of Service not to advance the appellant to senior specialist (as advised by Dr Coatsworth on 18 November 2021). A contention that the decision was invalid because there was no evidence that the recommendation of the review panel was approved in writing by the Head of Service (or delegate) was also not advanced below.[38] The only issue raised below appears to be whether another member of the review panel, Kalena Smitham, the respondent’s Executive Group Manager People and Culture,[39] agreed with the recommendation as the Commissioner noted at [422] of the decision:
[422] The Applicant put to Dr Coatsworth that Ms Smitham did not agree with the recommendation to which Dr Coatsworth responded he believed she did agree and signed a copy. Ms Smitham did not appear as a witness and I do not have any evidence before me that would lead me to a conclusion that she did not agree with the recommendation of the Second Review Panel.
For completeness, the relevant exchange recorded in the transcript of the proceeding before the Commissioner to which [422] relates is set out below.
PN439
DR SUWANDARATHNE: All right. I'll keep it there. I'll go back to – so I draw your attention again to the (indistinct) clinician(?) need to demonstrate the teaching, and the enrolment of the teaching, so the – sorry, I draw your attention to review panel recommendation 2?‑‑‑Sorry, Ruwan, which page is that?
PN440
That is page 239, Nick?‑‑‑Thank you. Yes, go ahead.
PN441
So, in this one, this is not a signed one, it's only – and I think you said to me this is in a form that's easier for me to understand. Alina Smithem, our Director of People and Culture hasn't signed that. Can you confirm that?‑‑‑Yes. Just for clarity, because you did mention that we provided this to you because it was a readable PDF and there was a signed version of the same document which obviously you can't scroll down because it's (indistinct).
PN442
Yes, so it's the member to, it's not agreed with this?‑‑‑No, Ms Smithem did agree and has signed an additional copy, I believe.
PN443
Yes, but that's yes, no and it's not completed there, that's fine. Leave it there. Now, I'll take you to – so you agree that I made the clinical criteria, I leave it there. So - - -?‑‑‑What did I agree on?[40] [Underlining added]
Before the Commissioner, Dr Coatsworth’s sworn statement contained an email to the appellant dated 18 November 2021 in which Dr Coatsworth writes that “a signed hard copy” of the recommendation is available. Presumably, this means that a hard copy signed by the review panel members was available. On our review of the transcript of proceeding before the Commissioner, Dr Coatsworth was not asked by the appellant whether the Head of Service (or delegate) approved the recommendation by signing it. The Commissioner does not appear to have been asked to determine whether a copy of the recommendation signed by the Head of Service (or delegate) exists much less to determine what consequences flow from the absence of such a signed copy. There was no contention by the appellant below that the recommendation was not signed by the Head of Service (or delegate). The appellant was at liberty to apply for an order that the Head of Service (or delegate) attend to give evidence or for an order that the copy of signed recommendation be produced to the Commission. He took no such step. Nor did the appellant contend that signing the recommendation was a condition precedent in the circumstances to the validity of the decision that he should not advance to senior specialist.
A party to a proceeding should raise issues relevant to the proceeding at first instance when they have been given an opportunity to do so. It is not the function of an appeal process to provide a further opportunity for an unsuccessful party to redress deficiencies in the case the party advanced (or failed to advance) at first instance. In Metwally v University of Wollongong[41] the High Court observed that it “is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”[42]
The fact that a party raises on appeal a matter which could have but was not raised during the first instance proceeding is also relevant to the public interest as Gibbs CJ, Wilson, Brennan and Dawson JJ explained in Coulton v Holcombe:[43]
“. . . To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …
The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:
‘the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court’.
. . . the principles to which we have referred earlier in this judgment have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice. So it is in the present case. The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied.”[44] [Footnotes omitted]
There are no exceptional circumstances identified by the appellant which might now permit the matters raised by the third and fourth contended errors to be considered. The matters now sought to be agitated could and should have been raised at first instance, where the respondent would have had the opportunity to lead further evidence and to make further submissions which might have answered the matters now raised and allowed the Commissioner to determine each of them. The matters raised now are plainly controversial and are not admitted by the respondent. Consequently, we do not consider the appellant should be permitted to argue these matters on appeal in the circumstances. Moreover, it would be contrary to the public interest to allow these matters to now be raised on appeal. We therefore refuse permission to appeal on these grounds.
Returning to the first error alleged, the appellant’s contention that the Commissioner ought to have concluded that the delaying conduct identified at [318] of the decision prevented the appellant from earlier advancement to senior specialist and so was a breach of clause 14 of the Agreement, is misconceived. Such a conclusion would be inconsistent with the Commissioner’s ultimate finding and conclusion at [433] and [463] that she was unable to find that the appellant meets the advancement criteria or that he should advance to the level of senior specialist. For reasons that will shortly be stated, we do not consider that the Commissioner’s ultimate conclusion is infected by appealable error. Thus, if the appellant should not have advanced as at 18 November 2021, he could not earlier have advanced. At its highest, and as the Commissioner found, the respondent’s conduct had the practical effect of slowing down the appellant’s application process, but on the evidence the delay could not have affected his advancement since he was assessed as not yet suitable. No appealable error is disclosed.
The appellant’s contended second error is also misconceived. The appellant contends the Commissioner failed to take into account her finding at [401] of the decision that the ‘discussion guidelines’ applied by the review panel to assess the appellant’s suitability for advancement to senior specialist had the “effect of both narrowing the scope of the criterion as well as setting a higher bar in order for it to be satisfied”. The expanded criteria to which the Commissioner refers at [401] is as to the teaching component of the assessment. So much is clear from [397]-[401].
At [402] of the decision the Commissioner observes that:
[402] Notwithstanding this finding, during cross-examination, Dr Coatsworth and the Applicant agreed that the recommendation of the Second Review Panel identified the Applicant as competent in relation to the “Teaching” criteria. It was not the Second Review Panel’s assessment of the Applicant against this criterion that resulted in the “action” that is now the subject of this dispute having been taken. In this regard, I do not consider that the departure from the criteria is material to this particular dispute. [Underlining add]
At [432] of the decision the Commissioner observes that:
[432] Dr Coatsworth and the Applicant agreed that the recommendation identified the Applicant as competent in relation to the “Teaching” criteria. [Underlining add]
And at [463] of the decision the Commissioner concluded:
[463] . . . I have found as follows:
· As to the question of whether the Respondent has complied with clause 14.3 of the Agreement, I find that the Respondent has not strictly complied with clause 14.3 of the Agreement in one respect. In particular, I find that, in its assessment of the Applicant against the “Teaching” criterion in CHS20/333, the Discussion Guidelines applied by the Review Panels had the effect of both narrowing the scope of the criterion as well as setting a higher bar in order for it to be satisfied. However, as I have found, the Second Review Panel actually found the Applicant was competent in relation to the “Teaching” criteria. As such, it is not the Second Review Panel’s assessment of the Applicant against this criterion that resulted in the “action” or decision that is now the subject of this dispute. In this regard, I do not consider that this technical breach by the Respondent is material to this particular dispute. [Underlining add]
The Commissioner plainly took the matter into account in that she made findings adverse to the respondent but reasoned, correctly in our view, that since the appellant was assessed as meeting the expanded criteria, nothing material turns on the expansion in determining the ultimate issue in dispute – whether the appellant should have advanced to senior specialist. No appealable error is disclosed.
The appellant’s contended fifth error – that the Commissioner should have concluded that he be advanced to senior specialist based on the weight of evidence about his competence and suitability – has no substance and is little more than a contention for a different result on appeal without showing error. Before the Commissioner, only the appellant gave evidence in support of his application. True it is that there was some other material in support of the appellant’s contention that he had met the criteria and should have advanced. For example, there were supporting written assessments from the respondent’s ICU Director, Bronwyn Avard[45] and email correspondence from the ICU Director dated 6 July 2021[46] expressing surprise that the appellant’s application for advancement has been unsuccessful. But Dr Avard did not give evidence. The appellant called no other witness to attest to the appellant’s suitability for advancement and in the end the Commissioner was left with a choice of preferring Dr Coatsworth’s evidence to that of the appellant. The choice made was one that was open to the Commissioner and the reasons given by her for the choice made are cogent. No appealable error is disclosed.
The sixth error contended by the appellant concerns the absence of a finding by the Commissioner that the respondent breached clauses 14.5 and 124 of the Agreement by failing to consult about changes to level standards and competency requirements for progression when it replaced the procedure in DGD13-033 with that in CHS20/333. This contention is wrong. At [452]-[460] of the decision the Commissioner relevantly observes and finds:
[452] The Applicant drew Mr Linton’s attention to the part of the response above which states:
“There has been to ASMOF’s knowledge no work done as yet on the requirements referred to in 14.5 of the MPEA.”
[453] The Applicant asked Mr Linton whether he agreed with the statement.
[454] Mr Linton responded that the comment was made in July 2021 and that the provisions of clause 14.5 of the New Agreement provide for a review of the current arrangements. Mr Linton stated that, while he won’t dispute that there hasn’t been work done to review those arrangements since that point in time, there is certainly in place existing competency arrangements for those assessments.
[455] In the context of this dispute, it is not in contention that arrangements were in place for advancement to Senior Specialist in CHS20/333. This is the criteria should have been applied. While clause 14.5 of the Agreement commits the Respondent to reviewing work level standards and competency requirements during the life of the Agreement, and while it is apparent that the Respondent has been tardy in reviewing these arrangements, it is not relevant to this dispute. The central question is really whether the correct criteria has been applied and I have answered this question in relation to those criteria that were relevant to the Applicant’s application for advancement.
. . .
[460] I am not satisfied, based on the evidence before me, that there was any failure in consultation on the part of the Respondent in relation to the criteria that the Respondent was required to apply to the Applicant’s application for advancement, being CHS20/333. While it appears that the Respondent may not have reviewed work level standards and competency requirements in consultation with ASMOF during the life of the Agreement, as required by clause 14.5 of the Agreement, I do not consider this to be material to the dispute before me and the question of whether I should grant the Applicant the relief he seeks, as there were existing arrangements in place, being those in CHS20/333. [Underlining added]
The Commissioner’s conclusion at [460] is repeated in the third dot point at [463]. The conclusion in the first sentence in [460] is supported by an email exchange between Terry Keel of the respondent and Steve Ross of the Australian Salaried Medial Officer Federation on 15 and 18 December 2020 (in which a document which became CHS20/333 is proposed and accepted),[47] and the evidence of Steven Linton that CHS20/333 was issued on 20 December 2020.[48] Consultation also took place when CHS20/333 was replaced by CHS21/311 in 2021.[49] In any event CHS20/333 was in operation before the Agreement commenced operation on 18 January 2021. Therefore, any complaint concerning the absence of consultation about changes to level standards and competency requirements for progression when the respondent replaced the procedure in DGD13-033 with that in CHS20/333 which were made in December 2020 could not amount to a breach of the Agreement because it was not in operation. The finding for which the appellant contends was not open on the evidence nor on a proper construction of the Agreement. No appealable error is disclosed.
The appellant contended that permission to appeal should be granted in the public interest. In essence the appellant contends that the appeal raises the public interest in “the general application of pay-level equity where the respondent’s approach to senior specialist salary increments is inequitable compared with other states and territories of Australia”. He contends that all other states and territories of Australia follow an automatic process to provide advancement to senior specialist, or an equivalent salary increment, based on seniority. We reject the contention. Whatever else may be the position in other states or territories as concerns the advancement of specialist medical practitioners to senior specialists, we do not accept that the appeal raises any issue which extends beyond the immediate interests of the appellant and the respondent. The matter the subject of the dispute is quintessentially a dispute inter partes, the outcome of which is of no moment to anyone other than the appellant and the respondent. The outcome below turned on the application of the Agreement and the attendant advancement guidelines to the appellant’s circumstances. The outcome is applicable only to the respondent and the appellant. The subject matter of the appeal raises no issue of importance nor of general application. And as the analysis of the appeal grounds above discloses, the decision at first instance manifests no injustice, nor is the result counter intuitive. Questions about disparity of first instance decisions or any disparity in the applicable legal principles do not arise.
Moreover, as the appeal grounds and the appellant’s contentions in support of them do not disclose appealable error, there is no discretionary basis on which permission might otherwise be granted. The appropriate course is for permission to appeal to be refused.
Before concluding, it is necessary to deal briefly with three further matters. On 16 September 2022 the respondent filed a notice of contention by which it contends that the Commissioner’s decision dismissing the appellant’s application should be affirmed on grounds other than those on which the Commissioner relied. In substance the respondent contends that on a proper construction of the Agreement, disputes arising under clause 14 would be processed through an application under clause 135 for a review of management action, and then initiating an external review under clause 137 if dissatisfied with the result given under clause 136.13. It says that the procedure in Section P operates as a code for disputes of that kind. As the appellant did not challenge the clause 136.13 outcome but proceeded to interview with the review panel – the recommendation for which was accepted the Head of Service (or Delegate) – the appropriate course under the Agreement was for the appellant to apply under clause 135 for a review of management action (the decision of the Head of Service (or Delegate)). In short, the further challenge should have been undertaken under Section P. The respondent therefore contends that the appellant could not apply to the Commission without first properly following the processes under Section P, which it says he did not do.[50]
Although there is some merit in the respondent’s contention, we do not consider that this appeal is the appropriate vehicle to deal with the contention for two reasons. First, as we do not propose to grant permission to appeal the question of affirming the Commissioner’s decision is moot. Such a power is exercisable only if we decide to grant permission to appeal.[51] Second, we consider that the notice of contention if correct will have an impact more broadly than the immediate parties. The contention would thus benefit from a contradictor equipped to deal with the issue rather than relying on the appellant who though obviously intelligent, lacks the legal training to fairly and adequately respond to the contention raised.
The second matter is to correct (at least by way of observation) that which we consider to be an incorrect assessment by the Commissioner of the case advanced by the respondent at first instance. At [12] of the decision, the Commissioner said that the “Respondent’s submissions raise jurisdictional considerations turning to highly complex and prescriptive procedures in the Agreement and do not engage with all of the materials in detail [underlining added].” The respondent’s written outline below made clear that it relied on its detailed background material contained in its employer response earlier filed.[52] That response contained an attachment comprising 12 pages which plainly engaged with the appellant’s merits materials[53] as did the evidence of Dr Coatsworth. It appears to us that the Commissioner overlooked the employer response. It is not referenced anywhere in the decision.[54]
The third matter is to note that the appellant’s submissions contained criticism of the conduct of the respondent by reference to its obligation as a model litigant. We have not dealt with the matters raised because they do not engage with any issue relevant to the question of permission to appeal or whether appealable error is disclosed in the Commissioner’s decision. That said, we should not be taken to have accepted the criticism levelled at the respondent.
Conclusion
For the reasons stated permission to appeal will be refused.
Order
We order that permission to appeal in C2022/5793 be refused.
DEPUTY PRESIDENT
Appearances:
Mr R Suwandarathne on behalf of himself
Ms S McCarthy of Counsel for the respondent
Hearing details:
2022
Melbourne (by Video)
21 September
[1] Suwandarathne v Canberra Health Services[2022] FWC 2011 at [91]
[2] Suwandarathne v Canberra Health Services[2022] FWC 2011
[3] Ibid at [464]
[4] Ibid at [88]
[5] Ibid
[6] Ibid at [89]
[7] Ibid at [463]
[8] AB716 at [3]
[9] AB748 at [9]
[10] Suwandarathne v Canberra Health Services[2022] FWC 2011 at [16], [318] and [461]
[11] AB748 at [11]
[12] AB747-8 at [3] and [8]
[13] AB748 at [12]
[14] AB749 at [14]-[16]
[15] AB699
[16] AB749 at [18]
[17] Suwandarathne v Canberra Health Services[2022] FWC 2011 at [44]-[47] and [256]
[18] AB688
[19] AB693
[20] AB750 at [26]
[21] AB751 at [27]
[22] AB751-2 at [32]-[34]
[23] AB752 at [34]-[35]
[24] Transcript (21 September 2022) PN84-PN85
[25] See Suwandarathne v Canberra Health Services[2022] FWC 2011 at [350]
[26] Transcript (21 September 2022) PN89-PN92
[27] AB291-AB297
[28] Transcript (21 September 2022) PN215
[29] AB291-AB297
[30] Transcript (21 September 2022) PN94-PN183; AB295 at Section 5
[31] See Suwandarathne v Canberra Health Services[2022] FWC 2011 at [350]
[32] See AB693
[33] Transcript (21 September 2022) PN183-PN210
[34] Transcript (21 September 2022) PN217-PN255
[35] Transcript (21 September 2022) PN28-PN29; appellant’s outline of submissions at p 6 [28(2)]
[36] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at [15]
[37] Transcript (21 September 2022) PN197-PN213, PN310
[38] Transcript (21 September 2022) PN310
[39] AB794
[40] Transcript (28 March 2022) PN439-PN443; See also AB141
[41] [1985] HCA 28; 9 (1985) 60 ALR 68
[42] Ibid at [7]
[43] [1986] HCA 33; (1986) 162 CLR 1
[44] Ibid at [9]-[15]
[45] AB349-AB358
[46] AB211
[47] AB441-2
[48] AB740 at [9]
[49] AB440-1
[50] Transcript (21 September 2022) PN326-PN345
[51] See Fair Work Act 2009 ss 613(1) and 607(3)
[52] AB 716 at [3]
[53] AB400-AB411
[54] See also Transcript (21 September 2022) PN303-PN309; Respondent’s Outline of Submissions, 16 September 2022 at [39]
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