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Fox v Australian Industrial Relations Commission

Fox v Australian Industrial Relations Commission

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FEDERAL COURT OF AUSTRALIA
Fox v Australian Industrial Relations Commission [2007] FCAFC 150
INDUSTRIAL LAW – Application for prerogative relief in relation to a decision of a Full Bench of the Industrial Relations Commission – Termination of employment – Where single Commissioner found termination to be valid – Where a Full Bench of the Industrial Relations Commission declined leave to appeal from the Commissioner’s decision
ADMINISTRATIVE LAW – Procedural Fairness – Where lengthy delay between the hearing and delivery of the Commissioner’s decision – Where case primarily based on issues of fact and concerns the credibility of a crucial witness – Where Commissioner provided no explanation for the delay having occurred or the means by which he refreshed his memory when making a determination on the credibility of the applicant’s oral evidence – Where the Full Bench held that any denial of procedural fairness to the applicant could not have affected the outcome of the case – Where Full Bench did not rule on or consider the arguments advanced in support of the procedural fairness ground – Whether the approach of the Full Bench to the delay issue constitutes jurisdictional error
Held – The Full Bench committed jurisdictional error – This was not a case where a denial of procedural fairness could have made no difference to the outcome of the trial – The matter be remitted to the Full Bench for a hearing and determination according to law
Workplace Relations Act 1996 (Cth) ss 108, 145, 170, 170CE, 170CG, 170JF
Judiciary Act 1903 (Cth) s 44
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Cobham v Frett [2001] WLR 1775 referred to
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 considered
Craig v South Australia (1995) 184 CLR 163 discussed
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 referred to
Linett v McIntyre (2002) 117 FCR 189 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 considered
Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 referred to
Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17 referred to
R v Ludeke; ex parte Customs Officers’ Association of Australia (1985) 155 CLR 513 referred to
SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 referred to
Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to
GREGORY FOX v AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND ALLIANZ AUSTRALIA SERVICES PTY LIMITED
NSD 488 OF 2007
MARSHALL, TRACEY AND BUCHANAN JJ
27 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 488 OF 2007

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

GREGORY…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCAFC 150
Decision Date: 27 September 2007

CaseChat Overview and Summary

The case of Fox v Australian Industrial Relations Commission involved the applicant, Mr Fox, who sought judicial review of a decision made by the Full Bench of the Australian Industrial Relations Commission. Mr Fox had been dismissed from his employment by Allianz due to conduct at a company-organised event on 3 September 2004. The dismissal was based on an allegation that Mr Fox had made offensive and confrontational statements to a colleague, Ms Kathy Lyon. Mr Fox denied the allegations and claimed to have no recollection of the incident due to excessive alcohol consumption. Following an investigation and subsequent appeal, the Full Bench of the Australian Industrial Relations Commission dismissed Mr Fox's application for leave to appeal the decision of Commissioner Roberts.

The central legal issues the court had to address were whether Mr Fox was denied procedural fairness in the proceedings before the Full Bench, and whether any jurisdictional errors were made by the Full Bench in its handling of the appeal. Additionally, the court considered whether the Full Bench correctly exercised its discretion in deciding the application for leave to appeal and if there were any jurisdictional errors in the decision-making process.

The court found that there was no basis to conclude that Mr Fox was denied procedural fairness or that any other jurisdictional error occurred. It was determined that the Full Bench properly attended to its responsibilities and exercised its discretion correctly in dismissing the application for leave to appeal. The court could not identify any jurisdictional errors in the Full Bench's decision or decision-making process, and any potential errors were considered to be within jurisdiction rather than jurisdictional in nature. Consequently, the court ruled that the Full Bench's decision was valid, and no relief was warranted.

The court granted leave for the order to show cause to issue and issued a writ in the nature of certiorari to quash the decision of the Full Bench made on 14 September 2006. Additionally, a writ in the nature of mandamus was issued to direct the Full Bench to hear and determine the applicant’s application for leave to appeal from the decision of Commissioner Roberts according to law.

Orders

Orders of the court

1. Leave is granted for the order to show cause to issue.

2. A writ in the nature of certiorari issue to quash the decision of the Full Bench of the Australian Industrial Relations Commission (“the Full Bench”) made on 14 September 2006 in C No 2527 of 2006.

3. A writ in the nature of mandamus issue to direct the Full Bench to hear and determine the applicant’s application for leave to appeal from the decision of Commissioner Roberts according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL, TRACEY AND BUCHANAN JJ

For reasons which will appear I am unable to see any foundation for a conclusion that Mr Fox was denied procedural fairness (or that any other jurisdictional error occurred) or that the Full Bench was incorrect in its conclusions, so far as it found it necessary to express them, about such issues. Furthermore, I can identify no jurisdictional error in the way the Full Bench attended to its own responsibilities or in its decision or decision-making process. If the Full Bench made an error, which does not seem to me to have been established, such an error would be one within jurisdiction and would not provide a basis for relief of the kind sought. COMMISSIONER ROBERTS’ DECISION Mr Fox was dismissed by letter dated 29 September 2004, after an investigation by Allianz, because of conduct on the evening of Friday, 3 September 2004. On that evening he attended a Trivia Night held at the Bowlers’ Club of New South Wales which had been organised by Allianz. He became involved in a confrontation with Ms Kathy Lyon, another employee of Allianz. If Ms Lyon’s account of his statements to her is accepted (as it was by Commissioner Roberts) his conduct was highly confronting and offensive. Mr Fox said, in written and oral evidence to Commissioner Roberts, that his excessive consumption of alcohol caused him to have no recollection of the confrontation. It follows that he was not able to contradict Ms Lyon about those matters through his own evidence. He adopted, in the investigation and before Commissioner Roberts, the position that Allianz (and Commissioner Roberts) had insufficient evidence to accept Ms Lyon’s allegations. His position is outlined in a letter written by him to Allianz on 22 September 2004 in which the following appears:‘This letter serves as my official response to your letter dated the 13th September 2004.Before I outline my response to the allegations made against me, I would like to confirm my advice to you and Tim Dawson when we met on the 13th September 2004 that I was stunned when I learned of the allegations against me and have no recollection of the most serious matter, that being the alleged incident at the Bowlers Club.Therefore, like you, I have had to rely on factual evidence to comment on the Bowlers Club incident.After considering the evidence that you have supplied to me and the information that I have been able to gather, I do not believe that there is sufficient evidence to support Kathy Lyon’s allegation to the extent that you were in the position to make a written allegation against me; the evidence provided in support of Kathy Lyon is at best hearsay.’and:‘There is no evidence to prove that I said anything to Kathy Lyon when she was standing in front of me. Given that no evidence exists, I contend that there was no factual reason for you to make an allegation against me.’and further:‘In summary, I strongly refute the Bowlers Club related allegation made against me in your letter dated the 13th September 2004 and am particularly concerned that the allegation was made when there is insufficient factual evidence to prove that I said anything to Kathy Lyon when she approach [sic] me, let alone the aggressive dialogue that you allege.’

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL, TRACEY AND BUCHANAN JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 488 OF 2007