Health Services Union-Victoria No. 1 Branch v Mr Sel (Selcuk) Sanli

[2018] FWCFB 745

[2018] FWCFB 745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Health Services Union-Victoria No. 1 Branch
v
Mr Sel (Selcuk) Sanli
(C2017/6996)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT BEAUMONT
COMMISSIONER JOHNS MELBOURNE, 6 FEBRUARY 2018

Appeal against decision [2017] FWC 6156 of Deputy President Gooley at Melbourne on 28 November 2017 in matter number U2017/5798 – significant error of fact – public interest – permission to appeal granted – appeal upheld – rehearing – costs application dismissed.

1. Introduction

[1] This matter concerns an appeal by the Health Services Union-Victoria No. 1 Branch (the HSU; the Appellant) from a decision by Deputy President Gooley on 28 November 2017 1 (the Decision) dismissing the HSU’s application for an order that Mr Sel (Selcuk) Sanli (the Respondent) pay the costs incurred in defending his unfair dismissal claim.

[2] Mr Sanli was an organiser employed by the HSU from July 2013 until the termination of his employment on 22 May 2017. He subsequently filed an unfair dismissal application. The HSU lodged a jurisdictional objection to the application on the ground that Mr Sanli resigned from his employment and hence there was no dismissal within the meaning of s.386 of the Fair Work Act 2009 (Cth) (the FW Act).

[3] Directions were issued for the HSU to file material in support of its objection to the application by 21 August 2017 and Mr Sanli was to reply to the objection and to file material in support of his claim by 28 August 2017. On 22 August 2017, the HSU filed an outline of submissions and one witness statement. On 24 August 2017, the HSU filed a report prepared by Deloitte Risk Advisory setting out an analysis of Mr Sanli’s work laptop. On 28 August 2017, Mr Sanli’s representative advised that they had only just received the additional material filed by the HSU. On 31 August 2017, Mr Sanli filed a notice of discontinuance.

[4] The HSU filed a costs application under s.400A (unreasonable act or omission) and s.611(2)(b) (no reasonable prospect of success) (the Costs Application). The HSU submitted that it should have been reasonably apparent to Mr Sanli that his claim had no reasonable prospects of success because he had twice resigned in writing and therefore there was no reasonable prospect of the Commission being satisfied that there had been a ‘dismissal’ within the meaning of s.386. Further, the HSU submitted that Mr Sanli knew that he had engaged in misconduct by accessing internet pornography during working hours; that he was aware of this material prior to the conciliation; and hence his discontinuance after the compliance date for the HSU to put on its material was unreasonable and caused the HSU to unnecessarily incur costs.

[5] Mr Sanli submitted that he had an arguable case that his employment had been terminated at the initiative of the HSU. As to the allegation that he had accessed internet pornography during working hours, Mr Sanli accepted that he had received some evidence to support this allegation prior to the conciliation, but submitted that at that time it did not concern him because he maintained that he did not access any inappropriate sites when he should have been working. It was only after Mr Sanli received the CD attached to the Deloitte Report that he became aware of the full extent of the information and then decided to discontinue his application. Mr Sanli submitted that the decision to discontinue at that time was not unreasonable.

[6] Paragraphs [8]-[24] of the Decision traverse the important facts which occurred from 20 May 2017 until 22 May 2017:

‘[8] Mr Sanli was a delegate from the Federal Electoral Assembly for the seat of Gellibrand to the ALP State Conference held on the weekend of 20 May 2017. At that conference Mr David Asmar, the husband of the HSU branch secretary Ms Diana Asmar, was a candidate for election. At the conference, Mr Sanli advised Mr Asmar that he would not be voting for him and Mr Koyu did not vote for him. Mr Sanli met with Mr Asmar at the conference and advised him of his reasons for not voting for him. At the conclusion of that conversation, they shook hands. However, it was his unchallenged evidence that Mr David Asmar told him at the conference that if he did not resign, his employment would be terminated.

[9] On the Sunday night of the conference, Ms Asmar contacted Ms Hiba Salem who was Mr Sanli and Mr Koyu’s immediate supervisor and directed her to dismiss Mr Koyu and to speak to Mr Sanli about his actions on the weekend. 

[10] Ms Salem gave evidence that the decision to terminate Mr Koyu was because Mr Koyu was “not working out.” 

[11] Ms Salem said that Ms Asmar also wanted her to talk to Mr Sanli about his failure to be at the conference when she was giving speeches and for being uncontactable.  It was her evidence that Ms Asmar did not direct her to dismiss Mr Sanli.

[12] On the Sunday evening, Mr Sanli attempted to log onto his work emails and was not able to log in.  When he checked again on Monday morning he was still locked out so he went into the offices of the HSU. As he was going to work, he received a phone call from Ms Salem. It was his evidence that she called him and asked him to come into the office. When asked in cross examination why she wished to see him Ms Salem denied asking Mr Sanli to come into the office. She said she rang him and he said he was on Kingsway so she took it that he was coming into the office.

[13] When he arrived at the office, Mr Sanli saw Mr Dean Sherriff, an industrial officer, and waved at him to open the door. Mr Sherriff initially declined to open the door but then opened the door for Mr Sanli. Mr Sherriff did not speak to Mr Sanli.  It is not disputed that Mr Sherriff did this because Mr Sanli had not voted for Mr Asmar at the ALP conference in circumstances where he thought Mr Sanli had advised that he was going to vote for him. Mr Sherriff was clearly upset about Mr Sanli’s conduct describing it as being ‘lower than a snake’s belly.”

[14] Mr Koyu attended work on 22 May 2017 and attempted to log into his computer but was not able to. He checked with another colleague to see if the problem was wider than him and it was not. 

[15] Ms Salem called Mr Koyu into a meeting and told him that he was dismissed with immediate effect. Mr Koyu was still within his qualifying period at the time of his dismissal. Mr Koyu said that Ms Salem said words to the effect that Ms Salem said she was going to have to play bad cop and dismiss him. Mr Koyu said Ms Salem said that “obviously a number of events have occurred over the weekend.” He said he said that he understood and that unfortunately these things happen in politics. Mr Koyu said Ms Salem spoke about his work performance in a positive way. Ms Salem denied making these statements. She did say that Mr Koyu made a comment about “politics is politics.” She said she did not give a reason for the dismissal but agreed to be a referee for Mr Koyu. Ms Salem denied knowing what had happened at the conference.

[16] As he was going to retrieve his personal possessions from the car, Mr Koyu exchanged words with Mr Sanli and told him his employment had been terminated immediately.  Mr Sanli said that Mr Koyu had told him that he was dismissed because of what happened on the weekend and that he had been locked out of his computer.

[17] It was Mr Koyu’s evidence there were no issues about his work performance. Mr Koyu gave evidence that he had initially sought Mr Asmar and Mr Sanli’s assistance in obtaining employment. In about mid March 2017, as a result of providing his resume to Mr Asmar, a meeting was arranged with Ms Asmar and he was offered a position in the call centre. After some negotiations about wages, he was employed. 

[18] He said that after about 4-5 weeks he was required to attend a Branch Committee of Management meeting with Ms Asmar. It was his unchallenged evidence that his position was unanimously endorsed and he was advised that he would receive a new ongoing contract with the HSU. 

[19] It was Mr Koyu’s evidence that he completed his right of entry examination and had started his training to transition from the call centre to becoming an industrial officer. 

[20] While Mr Sanli was waiting to meet with Ms Salem he saw the IT manager, Mr Imad Elzind and he told him he was having trouble accessing his emails.  He said that the IT manager walked passed him shaking his head, showing four fingers and saying “four years working here.”

[21] Mr Elzind said he can lock people out of the computer system and that no other person can do this. He denied locking Mr Sanli out. He said he received no instruction from any person at the HSU to lock Mr Sanli out. Mr Elzind said he saw Mr Sanli on the 22 May 2017 and Mr Sanli told him he had a problem. He said he told Mr Sanli to give him five minutes and denied saying “four years working here. 

[22] Mr Sanli met with Ms Salem. It was his evidence that he said he was expecting to see Ms Asmar and Ms Salem said that she was around if he wanted to speak to her. He replied “I assume she is sending the message through you and what was it.” He said Ms Salem said “so are you going to hand in your resignation?”  Ms Salem accepted that Mr Sanli said he thought he would be seeing Ms Asmar and that she said she could see if she was available. She denied asking Mr Sanli if he was going to resign. It was her evidence that it was Mr Sanli who said he was going to resign without any prompting from her.

[23] Mr Sanli said that because of the events of the morning and his conversation with Mr Asmar at the conference, he believed that if he did not resign, his employment would be terminated so he decided to resign his employment.  He typed out a resignation letter on his laptop but it could not be printed. Ms Salem took a screen shot of the typed letter. He then wrote out his resignation letter by hand. He also, in Ms Salem’s presence, changed his message on his mobile phone advising that he no longer worked at the HSU and directed callers to a number and an email address for them to contact the union.

[24] Mr Sanli said that as he was leaving he saw Ms Rhonda Barclay, the Honorary Branch President and Receptionist, and he said to her “I am leaving” and when she said OK he said “I am leaving for good” and she said I know.  Ms Barclay denied that this conversation took place. She said she only found out about Mr Sanli’s resignation later in the week. 2 [Footnotes omitted]

[7] The Deputy President dismissed the s.611(2)(b) aspect of the Costs Application as she was not satisfied that it should have been reasonably apparent to the Respondent that his application had no reasonable prospect of success. In particular:

(i) the Deputy President was not satisfied that the Respondent’s claim – that he was forced to resign by his employer – did not have a reasonable prospect of success (see [50]-[59] of the Decision);

(ii) the Deputy President was satisfied that the Respondent used his own phone (not union resources) to access inappropriate sites, but was not satisfied that accessing those sites during working hours on his own phone would necessarily lead to a finding that his dismissal was fair. On that basis the Deputy President was not satisfied that the Respondent’s contention that his dismissal was unfair had no reasonable prospect of success (see [60]-[64] of the Decision).

[8] The Deputy President dismissed the s.400A aspect of the Costs Application on the basis that she was not satisfied that it was unreasonable for the Respondent to wait until he saw the material filed by the HSU before deciding to discontinue his application (see [65]-[66]).

[9] The Deputy President subsequently made an order dismissing the Costs Application 3 (the Order).

[10] The Appellant seeks permission to appeal against the Deputy President’s Decision and Order. The appeal only relates to part of the Decision and Order – namely, that part concerning the dismissal of the s.611(2)(b) application.

2. The Appeal

2.1 The test on permission to appeal

[11] An appeal under s.604 of the FW Act is by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. An appeal is not as of right and permission to appeal must first be obtained. 4 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.⁵ However, the fact that the member at first instance made an error is not necessarily sufficient basis for the grant of permission to appeal.⁶

[12] Subsection 604(2) of the FW 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 judgment. 7 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 8

[13] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 9

[14] Section 400 modifies s.604(2) in relation to a certain category of decisions. It provides:

‘400 Appeal rights

(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by the FWC under this Part unless FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’

[15] The reference in s.400(1) to ‘this Part’ is a reference to Part 3-2 of the FW Act, which is concerned with unfair dismissal. If s.400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the Appeal Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not open for an Appeal Bench to grant permission to appeal on discretionary grounds. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 10

[16] The parties were at odds as to whether the Decision was one to which s.400(1) applies.

[17] The Appellant contended that s.400(1) did not apply because the decision subject to appeal was made under s.611 (which is in Part 5-1 of the FW Act) and hence the present matter was not an ‘appeal from a decision made by the FWC under [Part 3-2 of the FW Act]’, within the meaning of s.400(1).

[18] The Appellant acknowledged that ss.400(1) and (2) employ different expressions to govern their scope of operation. Subsection 400(1) speaks of appeals ‘from a decision made by the FWC under [Part 3-2]’; whereas s.400(2) applies to ‘an appeal from a decision made by the FWC in relation to a matter arising under [Part 3-2]’ (emphasis added). The Appellant also acknowledged that the expression in s.400(2), particularly the use of the words ‘in relation to a matter arising’, is broader than the expression used in s.400(1). A proposition we accept.

[19] The Appellant conceded that the Decision was ‘in relation to a matter arising’ under Part 3-2 and on that basis accepted that s.400(2) was engaged. Hence, it is put, to the extent that it is an appeal on a question of fact it can only be made on the ground that the Decision involved a significant error of fact. 11

[20] Contrary to the literal approach taken by the Appellant, the Respondent submits that a purposive construction should be taken of s.400 and that on such an approach the more stringent test in s.400(1) applies to decisions under s.611 which are directly linked to an unfair dismissal decision. 12

[21] The scope of s.400 has been the subject of consideration in a limited number of decisions. In Australian Postal Corporation v Gorman 13 (Gorman) the Federal Court (Besanko J) gave consideration as to whether, in an appeal from an order dismissing an unfair dismissal application under s.587 of the FW Act, s.400(1) applied. Section 587 is in Part 5-1 of the FW Act.

[22] The two main issues addressed in Gorman were first, whether, in circumstances where an unfair dismissal claim had been settled between the parties, the Commission could dismiss the application pursuant to s.587, and, second, whether s.400(1) applied to permission to appeal a decision to dismiss the application pursuant to s.587(1)(b).

[23] In relation to the second issue, Besanko J found at [37]:

‘The question of whether there was or was not a binding settlement agreement is a question of fact, although no doubt informed by legal principles. In this case in considering whether permission to appeal should be granted and in considering the appeal itself the Full Bench was required to apply s 400 of the Act. I did not understand the first respondent to contend otherwise. It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first respondent’s application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.’ 14 [Emphasis added]

[24] It is apparent that the Court focussed on the broad characterisation of the decision made, rather than on the particular section under which it was made. Hence a decision to dismiss an application for an unfair dismissal remedy was a decision under Part 3-2, even if the power to dismiss is in s.587(3).

[25] The Court’s reasoning appears to proceed on the basis that an order to dismiss an application is of a similar character to an order for re-instatement or compensation. It does not necessarily follow from this reasoning that any decision made in relation to an application under Part 3-2 is a decision ‘under Part 3-2’ for the purposes of s.400(1). It might be suggested that an order to pay costs is of a quite different character. Accordingly, we propose to confine the Court’s reasoning to decisions that dispose of an application under Part 3-2, for example, decisions to dismiss an application without remedy.

[26] It may be that the Court was compelled to adopt the approach it took because of its view that the Commission’s ‘general power to dismiss is contained in subsection 587(3)’. If that view is accepted, then a decision to dismiss an unfair dismissal application on its merits is also a decision to exercise a power under Part 5-1. To not regard such a decision as a decision ‘under Part 3-2’ would seem to lead to absurdity: pursuant to s.400(1), appeal of a decision to order a remedy for unfair dismissal under s.390 would be subject to the public interest threshold, but appeal of a decision to dismiss an application on its merits would not.

[27] Gorman has been applied by the Commission, for example, in Clermont Coal Pty Ltd v Brown 15(Clermont Coal)and Mark Kirkman v DP World Melbourne Limited16 (Kirkman). Clermont Coal and Kirkman were both appeals against decisions concerning an order for production of documents in relation to an unfair dismissal application. The orders were made in the exercise of procedural powers in s.590(2)(c), which is in Part 5-1 of the FW Act. In each case the Full Bench approached the appeal on the basis that s.400(1) applied. However, for abundant caution, they alternatively stated the conclusion they would have reached if s.400(1) did not apply.

[28] A number of other Full Bench decisions have addressed the application of s.400(1) to decisions associated with unfair dismissal applications, but that utilise powers under Part 5-1 of the FW Act. 17 None of these decisions has authoritatively determined the issue before us.

[29] The point in contention in these proceedings turns on the proper construction of s.400; a task not without a degree of complexity.

[30] The starting point is to construe the words of s.400 according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law and the mischief the legislative provisions was intended to remedy. 18 As the High Court observed in Project Blue Sky:

‘… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’ 19

[31] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue 20 (Alcan)the High Court described the task of legislative interpretation in the following terms:

‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’ 21

[32] Section 15AA of the Acts Interpretation Act1901 (Cth) requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act in the light of its purpose, not to rewrite it. 22

[33] Turning first to the words used in s.400; as mentioned earlier, ss.400(1) and (2) employ different expressions to govern their scope of operation. Subsection 400(1) speaks of appeals ‘from a decision made by the FWC under this Part’. The reference to ‘this Part’ is a reference to Part 3-2 of the FW Act. Hence, on its face, the public interest test posited in s.400(1) applies to appeals from decisions made under Part 3-2.

[34] In contrast, s.400(2) applies to an appeal ‘from a decision made by the FWC in relation to a matter arising under this Part’. As we have mentioned, the expression ‘in relation to a matter arising under’ Part 3-2 is broader in compass than the expression, in s.400(1), ‘a decision made … under’ Part 3-2.

[35] It is, of course, usually assumed that if different expressions are used in a statute then a different meaning is intended. As Irvine CJ observed in Scott v Commercial Hotel Merbein Pty Ltd: 23

‘[T]hough it is not to be conclusive, the employment of different language in the same Act may show that the legislature had in view different objects.’

[36] Applying this general proposition to s.400, it may be assumed that the use of the different expressions to govern the scope of ss.400(1) and (2) was deliberate and reflected an intention to give the two subsections a different field of operation. Although courts have departed from this general approach where the context warrants a different outcome. 24

[37] If ‘decision made by the FWC under’ Part 3-2 in s.400(1) is read as being confined to decisions that dispose of applications and decisions under the unfair dismissal-specific provisions for dismissing applications and costs in Part 3-2 (but not decisions to exercise other general powers in Part 5-1), it would seem to follow that:

• the wording in s.400(1) will be given a reading that is of different effect to the wording in s.400(2) and arguably is a more natural reading;
• appeals of substantive decisions under Part 3-2 and decisions under the unfair dismissal-specific provisions for dismissing applications and costs in Part 3-2, will be subject to the public interest threshold and the ‘significant error of fact’ requirement; and
• appeals of procedural decisions, decisions to dismiss applications and decisions to order costs under the general provisions in Part 5-1 in relation to unfair dismissal applications, will be subject only to the ‘significant error of fact’ requirement.

[38] What then are the consequences of such a construction? Interpretation by reference to consequences has been characterised as a ‘shorthand version’ of the purposive approach to construction. 25 Further, as Gibbs J observed in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd,26 ‘where two meanings are open …. it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust’.

[39] While the adoption of a literal construction of s.400(1) supports the construction for which the Appellant contends, it may be said to give rise to some anomalous results. For example, the public interest hurdle in s.400(1) would apply to an appeal from costs orders under ss.400A or 401 (as they are in Part 3-2), but not to a costs order under s.611(2) (as it is in Part 5-1). This would be so despite the fact that the substantive application in each case – by reference to which the costs order is determined – is an application made under Part 3-2 of the FW Act.

[40] Similarly, decisions to dismiss an application for an unfair dismissal remedy may be made under either s.399A (which is in Part 3-2) or s.587 (which is in Part 5-1). On a literal construction of s.400(1), the public interest requirement would apply to an appeal from a decision to dismiss an application under s.399A, but not to an appeal from a decision to dismiss an application under s.587.

[41] A literal construction of ss.400(1) and (2) may also be said to give rise to an internal anomaly. A particular decision may be said to fall within the scope of s.400(2), but not s.400(1). Indeed the Appellant says that this is the situation in this case. It is difficult to discern any rational legislative purpose that could be said to give rise to such an outcome.

[42] We now turn to consider the Respondent’s contention that contrary to the literal approach taken by the Appellant, a purposive construction should be taken of s.400 and that on such an approach the more stringent test in s.400(1) applies to decisions under s.611 which are directly linked to an unfair dismissal decision.

[43] It may be accepted that the purpose of s.400 is to impose a higher hurdle in respect of applications for permission to appeal from decisions under Part 3-2 (ie unfair dismissal decisions) than that pertaining to appeals generally. 27 As mentioned earlier, the test under s.400 has been characterised as stringent. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’. Unlike appeals from other decisions, in an appeal to which s.400(1) applies it is not open to the Appeal Bench to grant permission to appeal on discretionary grounds.

[44] It may be inferred from the imposition of the higher hurdle that the legislative intention was to make it more difficult to appeal such decisions; reflecting an intention that such matters be determined, insofar as possible, at first instance. Such a legislative intention is consistent with the object of Part 3-2, in s.381(1)(b)(i), that is:

‘(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal’.

[45] The adoption of a purposive construction of s.400 may be said to support a broad reading of the words ‘a decision made by the FWC under this Part’, in s.400(1).

[46] If ‘decision by the FWC made under’ Part 3-2 in s.400(1) is read as including decisions to exercise procedural powers, dismiss applications and order costs under Part 5-1 in the course of dealing with an unfair dismissal application, it would seem to follow that:

• the wording in s.400(1) will be given the same effect as the different wording in s.400(2);
• appeals of substantive decisions under Part 3-2 and decisions under the unfair dismissal-specific provisions for dismissing applications and costs in Part 3-2, will be subject to the public interest threshold and the ‘significant error of fact’ requirement;
• appeals of procedural decisions, decisions to dismiss applications and decisions to order costs under the general provisions in Part 5-1 in relation to unfair dismissal applications, will also be subject to the public interest threshold and the ‘significant error of fact’ requirement; and
• arguably, s.601 will require that all decisions made pursuant to the general procedural provisions in Part 5-1, at least in relation to unfair dismissals, be in writing and published (as such decisions will not be treated as being ‘made under’ Part 5-1 for the purposes of s.601(1)(a)).

[47] We would also observe that such a construction may itself give rise to anomalies. For example, decisions as to whether to extend time (under ss. 366(2) and s.394(3)) would be subject to different permission to appeal thresholds despite the fact that the substantive statutory provisions are in the same terms.

[48] It seems to us that the adoption of such a construction fails to give sufficient weight to the express terms of ss.400(1) and (2). A consequence of the purposive construction proposed by the Respondent is that the wording of s.400(1) will be given the same effect as the (different) wording of s.400(2). Had Parliament intended the scope of operation of these two subsections to be the same then it would have chosen the same language to describe that scope. But it did not do so.

[49] We would also observe that the adoption of a literal construction will result in all decisions made under the general provisions in Part 5-1 (whether in the context of an unfair dismissal proceeding or otherwise) being subject to the same test in respect of permission to appeal.

[50] As we have mentioned, a purposive approach requires us to construe the FW Act in light of its purpose, not to rewrite it. To read s.400(1) in the manner contended by the Respondent would be for the Commission to impose an additional limitation on permission to appeal where the Parliament has itself directed attention to that very issue. 28

[51] We agree with the Appellant’s contention that s.400(1) does not apply in this instance, because the decision subject to appeal was made under s.611 (which is in Part 5-1 of the FW Act). Such a contention is entirely consistent with the ordinary meaning of the words of ss.400(1) and (2). We also agree with the proposition that the decision subject to appeal was ‘in relation to a matter arising’ under Part 3-2 and hence to the extent that it is an appeal on a question of fact, it can only be made on the ground that the decision involved a significant error of fact (see s.400(2)).

2.2 The grounds of appeal

[52] The HSU seeks permission to appeal against the Deputy President’s Decision and Order. The appeal only relates to part of the Decision and Order – namely, that part concerning the dismissal of the s.611(2)(b) application on the basis that the Deputy President was not satisfied that there was no reasonable prospect of the Commission finding that there had been a dismissal within the meaning of s.386.

[53] The graveman of that part of the Decision which is challenged on appeal is set out at [50]-[59] of the Decision:

‘[50] However having regard to the material before me, I am not satisfied that Mr Sanli’s claim, that he was forced to resign by his employer, did not have a reasonable prospect of success. This is not to say his case was strong. Mr Sanli did write out two resignation letters. If I accept his evidence that Ms Salem asked him if he was going to resign, that alone, would not provide a basis to conclude he had been constructively dismissed.

[51] However, the following is not contested.

[52] Mr Sanli was told by Mr David Asmar, after advising him that he would not be voting for him, that if he did not resign he would be sacked. Now I accept that Mr Asmar is not an official of the HSU and his comments are not those of the Branch Secretary. However the unchallenged evidence was that Mr Asmar has some unofficial role in the HSU. For example, he played a role in obtaining employment for Mr Koyu with the HSU.  He organised meetings involving Mr Sanli, Ms Asmar and other members of what he called the “Plumbers Group” during working hours.

[53] Further, it was clear from Mr Sherriff’s reaction that morning, that there was significant anger about Mr Sanli’s failure to vote for Mr Asmar from Mr Sherriff who was a supporter of Mr Asmar.

[54] I am satisfied that Mr Sanli was asked by Ms Salem to meet with her. I found Ms Salem’s explanation about why she called Mr Sanli on that Monday morning unconvincing. She did not satisfactorily explain why she called him when she had seen him only the previous week  for their usual catch up. Ms Salem had been contacted by Ms Asmar out of hours on Sunday night and she had been directed to dismiss Mr Koyu and speak to Mr Sanli. I am satisfied that it was because of Ms Asmar’s phone call that Ms Salem contacted Mr Sanli. There was no reason for Mr Sanli to meet with Ms Salem that morning and I am satisfied that he did so because she told him to meet with her.

[55] Mr Koyu, who also did not vote for Mr Asmar, had been dismissed immediately before Mr Sanli’s meeting with Ms Salem. It was not unreasonable for Mr Sanli to conclude that Mr Koyu was dismissed for failing to vote for Mr Asmar.

[56] I am satisfied that Ms Salem did ask Mr Sanli if he was going to resign. I prefer Mr Sanli’s version of the conversation with Ms Salem to the extent that it conflicts with Ms Salem’s. Ms Salem did not come across as an uninterested bystander reporting what she heard and what she said. For example, Ms Salem’s evidence in relation to organiser’s work patterns was unconvincing. While I am satisfied that Mr Sanli exaggerated the amount of out of hours work he performed, Ms Salem’s evidence that Mr Sanli only occasionally worked disparate hours was unconvincing, particularly given Mr Sanli received an additional week’s annual leave and a monthly ADO for, from time to time, working more than normal office hours including on evenings and occasional weekends. Her evidence about why Mr Koyu was dismissed was also unconvincing particularly the evidence that he was dismissed because it was not working out given the unchallenged evidence that Mr Koyu had only recently had his employment confirmed by the BCOM. Ms Salem was also reluctant to concede that there were no issues with Mr Sanli’s performance. She was unwilling in her oral evidence to say that Ms Asmar told her to sack Mr Koyu despite stating in her witness statement that Ms Asmar directed that she should end his employment.

[57] I am not satisfied that Mr Sanli’s internet access was cut off deliberately but it is not surprising that, given Mr Asmar’s comment at the conference, that his lack of internet access contributed to his view that his employment was at risk because of his failure to vote for Mr Asmar.

[58] I am satisfied that Mr Sanli thought that he, by not voting for Mr Asmar, had put his employment in jeopardy.

[59] I am satisfied that when one objectively assesses these factors it is not possible to conclude that the jurisdictional objection put forward by the HSU was bound to succeed.’ 29

[54] There is no challenge to the Deputy President’s Decision to dismiss part of the s.611(2)(b) application on the basis that she was not satisfied that the Respondent’s contention that his dismissal was unfair had no reasonable prospect of success (see paragraph [7](ii) above; paragraphs [60]-[64] of the Decision). Nor is there any challenge to the Deputy President’s decision to dismiss the s.400A application. The appeal only concerns that part of the Decision and Order which relate to the dismissal of the s.611(2)(b) application.

[55] In considering the s.611(2)(b) part of the Costs Application the Deputy President characterised the question to be resolved in the following terms:

1. Should it have been reasonably apparent to Mr Sanli that his claim had no reasonable prospect of success?

[56] At paragraph [48] the Deputy President referred to Baker v Salva Resources Pty Ltd 30 (Baker) as a leading authority on the construction and application of s.611(2)(b).

[57] The Appellant takes no issue with the Deputy President’s characterisation of the question to be resolved and submits that the Deputy President correctly identified Baker as a leading authority on s.611(2)(b).

[58] The sole ground of appeal is the Deputy President’s finding (at [3], [8], [52] and [57] of the Decision) that Mr Asmar had said to Mr Sanli at the ALP Conference that if he did not resign he would be sacked, was made in the absence of evidence to support it. The Appellant submits that the Deputy President mistook the facts in a significant way and that her discretion miscarried by reason of an error in the decision-making process. 31

[59] The essence of the submission put is that there was no evidence that Mr. Asmar had said to Mr. Sanli that if he did not resign he would be sacked and that Mr. Sanli’s evidence was that Mr. Asmar said nothing to him about his employment. The Appellant submits that the Deputy President attributed words to Mr Asmar that were never said. While acknowledging that Mr Sanli’s state of mind may have been that if he did not resign he would be terminated, the Appellant submits that nothing Mr Asmar said provided an objective foundation for that belief.

[60] In reply, the Respondent submits that the Deputy President accurately characterised paragraph [34] of Mr Sanli’s statement as being ‘unchallenged’, in the sense that he was not cross-examined on this part of his evidence in chief, but concedes that other evidence in the proceedings ‘cast doubt on the accuracy of … paragraph 34 of the statement’. 32 During the course of oral argument counsel for the Respondent conceded that the Deputy President’s finding as to what Mr Asmar had said to Mr Sanli at the ALP Conference was an error.33

[61] The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

2.3 Consideration

[62] We turn first to consider the evidence before the Deputy President.

[63] In finding that Mr. Asmar said to Mr Sanli that if he did not resign he would be sacked, the Deputy President identified the relevant evidence as paragraph [34] of Mr Sanli’s witness statement. 34 The Deputy President did not identify any other evidence in support of the finding. The relevant part of Mr Sanli’s witness statement (at [34]) is as follows:

‘It was clearly apparent from the reactions of Mr. Sheriff, the IT person, my conversation with Hamdi and the unsolicited request for a resignation from my manager together with the events that had occurred at the weekend including my conversations with David Asmar that if I did not resign I would be terminated.’ 35

[64] In his evidence in chief Mr. Sanli did not assert that Mr. Asmar had said to him that if he did not resign his employment would be terminated. At paragraph [22] of his witness statement Mr Sanli addressed the content of his conversation with Mr Asmar:

‘I again met with David [Asmar] on Saturday evening of the 20th May 2017 at about 9:00 PM and we discussed issues again. I advised him why I have made a decision not to vote for David Asmar as I did not agree with his motives and direction. At that stage we shook hands as my decision was final and firm.’ 36

[65] Mr. Sanli was cross-examined on this aspect of his evidence as follows:

‘PN872

Dealing with this whole issue of the conference on the weekend, in terms of paragraph 22 of your statement, you had a discussion with David Asmar in terms of what had occurred at the conference; isn't that right?---Yes.

PN873

And you explained to him, and I don't need for you to explain to us, that you had voted in a particular way and that you had your own reasons for it; is that right?---I said that I wasn't going to vote for him.

PN874

That what?---I said that I wasn't going to vote for David himself.

PN875

You shook hands?---Yes.

PN876

Certainly Mr. Asmar never said anything about your employment to you?---No.

PN877

No, didn't say anything about anything, just shook hands and you continued with the conference individually; correct?---Yes.’  37 [Emphasis added]

[66] Mr. Sherriff was cross-examined as to whether Mr. Asmar had said to him that Mr. Sanli “had to go”,which he denied. The exchange was as follows:

‘PN765

In terms of the discussion with Mr. Asmar, did he say to you that Sel had done the wrong thing and he had to go or words to that effect?---No.

PN 766

I put it to you that he did?---You can put it to me all you like.  I can just sit here and tell the truth.  I'm on oath.’ 38

[67] It appears to us that, seen in its proper context, Mr. Sanli’s evidence (at [34] of his Statement) was not that Mr. Asmar had said to him at the ALP Conference that if he did not resign his employment would be terminated, but rather that the conversation he had with Mr. Asmar (the content of which he does not set out) in combination with other events led to Mr Sanli’s state of mind that he had no real choice but to resign. We agree with the Appellant’s submission that the Deputy President erred in converting Mr. Sanli’s reportage of his own state of mind into a report of what Mr Asmar had said to him.

[68] The Appellant goes on to contend that the erroneous finding was significant to the Deputy President’s ultimate conclusion (at [50] of the Decision) that, objectively, it could not be said that it should have been reasonably apparent to Mr Sanli that his claim had no reasonable prospect of success. In particular, the Appellant submits that, on the Deputy President’s analysis, Mr Asmar’s ALP Conference statement (resign or be sacked) provided the context for the subsequent events on 22 May 2017.

[69] The Appellant submits that permission to appeal should be granted on the basis that the Deputy President made a significant error of fact which was ‘important to, and consequential for, the final decision’ 39 and that:

‘…the public interest is attracted in circumstances in which the decision is counterintuitive because there was a significant error in the decision-making process. To that extent, the decision in respect of which permission to appeal is sought, worked an injustice.’ 40

[70] The Respondent sought to downplay the significance of the erroneous finding in the Deputy President’s reasoning, characterising it as ‘a misreading of a single fact’ in circumstances where a range of other factors supported the Deputy President’s conclusion. 41 The Respondent submitted that the appeal did not attract the public interest and permission to appeal should be refused. The Respondent submits, in essence, that even if the Appeal Bench were to conclude that the Deputy President made an error in her finding as to the reported conversation between Messrs Sanli and Asmar that would not enliven the public interest and would not provide a sufficient basis for the grant of permission to appeal. This is said to be so because it is necessary to have regard to ‘the overall findings within the decision and the conclusions reached’.42

[71] We agree with the Appellant’s contention that the erroneous finding was significant in the Deputy President’s reasoning process. So much is clear from the extracts from the Decision set out below.

[72] First, the Deputy President accepted (at [56] of the Decision) that Ms Salem asked Mr Sanli if he was going to resign, but, at [50] of the Decision observed that:

‘… that alone, would not provide a basis to conclude he had been constructively dismissed.’ 43 [Emphasis added]

[73] The Appellant advances the following submission about this passage from the Decision:

‘On the Deputy President’s own analysis at [51] – [52] Mr Asmar’s earlier statement lent a different colour to (or gave a greater significance to) Ms Salem’s later question of Mr. Sanli as to whether he was going to resign. Mr Asmar’s earlier statement meant that Ms Salem’s question carried with it a threat: if he did not resign he would be sacked. The question had a different character because of what Mr Asmar had said. The Deputy President had found that Ms Salem’s question “alone” (Reasons, [50]) was not enough for an objective basis for a belief that he had no choice but to resign, but in combination with Mr. Asmar’s statement it provided a basis for Mr. Sanli to argue that his resignation was forced because of conduct engaged in by his employer.’ 44

[74] The second relevant passage is at [57] of the Decision, where the Deputy President said:

‘I am not satisfied that Mr Sanli’s internet access was cut off deliberately but it is not surprising that, given Mr Asmar’s comment at the conference, that his lack of internet access contributed to his view that his employment was at risk because of his failure to vote for Mr Asmar.’ 45 [Emphasis added]

[75] We are satisfied that the erroneous finding – that at the ALP Conference Mr Asmar had told Mr Sanli that if he did not resign his employment would be terminated – was central to the Deputy President’s reasoning process and, as such, it was a significant error of fact.

[76] The Appellant submits that permission to appeal should be granted; the appeal upheld; and in rehearing the matter the Full Bench should grant the HSU’s Costs Application then delegate the calculation of the quantum of costs to a member of the Full Bench.

[77] On the basis of the significant error of fact identified we consider that it is in the public interest to grant permission to appeal. The erroneous finding was plainly significant in the Deputy President’s reasoning process. We grant permission to appeal. On that basis we have decided to uphold the appeal and rehear the s.611(2)(b) part of the Costs Application.

[78] Section 611 provides as follows:

‘611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).’

[79] As was the case in the proceedings before the Deputy President, the determination of the s.611(2)(b) part of the Costs Application requires us to consider the following question: Should it have been reasonably apparent to Mr Sanli that his claim had no reasonable prospects of success?

[80] It is common ground that in rehearing the matter we will have regard to the evidence before the Deputy President. 46

[81] In the proceedings before the Deputy President the HSU called five witnesses:

•  Kylie Marie Rodman (legal secretary Holding Redlich) 47

•  Hiba Salem (HSU Organiser) 48

•  Rhonda Barclay (HSU President) 49

•  Imad Elzind (HSU IT Officer) 50

•  Dean Andrew Sherriff (HSU Industrial Officer) 51.

[82] The Respondent called two witnesses:

•  Sel (Selcuk) Sanli 52

• Hamdi Koyu. 53

[83] As to the rehearing of the matter and why the Full Bench should grant the Costs Application, the Appellant advances the following submission:

‘Mr. Sanli, an industrial organiser, with specialist employment knowledge twice resigned in writing. There was no evidence that Mr Asmar said that if he did not resign he would be sacked. Other facts - Mr. Koyu’s dismissal, Mr. Sherriff not opening the door, Mr. Elzind’s statement “four years working here” and Ms Salem’s question as to whether he was going to resign - even taken cumulatively meant it should still have been reasonably apparent to Mr. Sanli that his claim had no reasonable prospects of success. In aggregate, those factors did not afford a reasonable prospect of success for an argument of forced resignation. It is an objective test (Baker, above).’ 54

[84] The Respondent identified the following matters as supporting the Deputy President’s conclusion (at [59] of the Decision) that ‘it is not possible to conclude that the jurisdictional objection put forward by the HSU was bound to succeed’:

• I am satisfied that Mr Sanli was asked by Ms Salem to meet with her;

• Ms Salem’s explanation about why she called Mr Sanli on that Monday morning was unconvincing. She did not satisfactorily explain why she called him when she had seen him only the previous week;

• There was no reason for Mr Sanli to meet with Ms Salem that morning and I am satisfied that he did so because she told him to meet with her;

• Mr Koyu, who also did not vote for Mr Asmar, had been dismissed immediately before Mr Sanli’s meeting with Ms Salem. It was not unreasonable for Mr Sanli to conclude that Mr Koyu was dismissed for failing to vote for Mr Asmar;

• I am satisfied that Ms Salem did ask Mr Sanli if he was going to resign;

• Her evidence about why Mr Koyu was dismissed was also unconvincing particularly the evidence that he was dismissed because it was not working out given the unchallenged evidence that Mr Koyu had only recently had his employment confirmed by the Branch Committee of Management (BCOM); and

• I am satisfied that Mr Sanli thought that he, by not voting for Mr Asmar, had put his employment in jeopardy. 55

[85] The Respondent also relies on the Deputy President’s finding as to a conversation between Mr Koyu and Mr Sanli, at paragraph [16] of the Decision:

‘As he was going to retrieve his personal possessions from the car, Mr Koyu exchanged words with Mr Sanli and told him his employment had been terminated immediately. Mr Sanli said that Mr Koyu had told him that he was dismissed because of what happened on the weekend and that he had been locked out of his computer.’

[86] The Respondent advances the following submissions in respect of the factors set out above:

‘It is submitted that when one has regard to the factors above quite apart from a conversation with Mr Asmar at the conference it is apparent that the Respondent would have had/did have an arguable case on an objective basis that his employment resignation was brought about by the conduct of the employer and that objectively he had been constructively dismissed from his employment.

That is not to say that the Respondents arguments in this regard were bound to succeed in the event that the maters were ventilated before a member of the Commission only that the Applicant as he was would have had an arguable case to put.’ 56

[87] In reply, the Appellant contends that taking all of the matters upon which the Respondent relies, in aggregate and at their highest, it should have nevertheless been reasonably apparent to Mr Sanli that his claim that he had been dismissed had no reasonable prospect of success. 57

[88] We propose to set out the relevant facts before turning to the question for determination.

[89] On 18 or 19 May 2017 Mr Sanli had his regular fortnightly meeting with his manager, Ms Salem. The meeting was unexceptional – other than a reminder about the need to recruit more new numbers and a general discussion about entering calendar visits for 12 months, no issues were raised. 58 It was Mr Sanli’s unchallenged evidence that:

‘I never had any issues or concerns during my time working at the HWU. I was occasionally advised that no complaints arise from my region and I always return my calls and emails.’ 59

[90] Mr Sanli and Mr Koyu attended the ALP Conference on the weekend of 20-21 May 2017 as FEA delegates. 60

[91] Mr Sanli and Mr Koyu did not vote for Mr Asmar in a ballot held during the course of the ALP Conference. At the Conference Mr Sanli met with Mr Asmar on two occasions, Mr Sanli told Mr Asmar that he had decided not to vote for him as he ‘did not agree with his motives and direction’. 61

[92] Mr Sherriff, an industrial officer with the HSU, also attended the ALP Conference. During the course of the weekend he had a number of discussions with Mr Asmar about Mr Sanli’s decision not to vote for Mr Asmar. 62 In his witness statement Mr Sherriff says:

‘…Mr Sanli had changed his support for candidates in a party conference ballot, after previously indicating his support for those candidates – I thought that this was the wrong thing to do and that he should not have done it.’ 63

[93] Mr Sherriff puts it a little more colourfully in his oral evidence where he says that ‘[t]he general consensus was that it was an act that was ‘lower than a snake’s belly’. 64

[94] In cross-examination Mr Sherriff was asked whether Mr Asmar concurred with his view about Mr Sanli’s conduct, he replied:

‘In a general sense, I believe so, but I think he used different phraseology that I probably wouldn’t like to repeat here. If you force me to, I’ll repeat it, but I don’t think it’s the sort of thing you should have on a transcript … He wasn’t happy.’ 65

[95] It is reasonable to infer that Mr Asmar’s reaction to the decision of Messrs Sanli and Koyu not to vote for him was one of hostility.

[96] Mr Asmar is the husband of Ms Diana Asmar who is the Secretary of the HSU. Mr Asmar exerts a degree of influence in the HSU 66 as evidenced by the fact that he was instrumental in securing a position for Mr Koyu at the HSU.67

[97] The evidence suggests that Mr and Ms Asmar discuss matters concerning the ALP and HSU. 68 Ms Asmar attended the ALP Conference.69 It is reasonable to infer that Ms Asmar was made aware of the fact that Messrs Sanli and Koyu had not voted for Mr Asmar and of Mr Asmar’s reaction to their decision.

[98] Ms Salem gave evidence of a conversation she had with Ms Asmar in the evening of Sunday 21 May 2017:

‘8. Sometime in the evening of Sunday 21 May 2017, I spoke by telephone with Ms Diana Asmar, Branch Secretary. In the course of our conversation, Ms Asmar spoke to me about Mr Koyu and Mr Sanli.

9. As to Mr Koyu, Ms Asmar and I agreed that his employment with the Union was not working out as we had hoped. Because Mr Koyu was still in a period of probation in his employment, Ms Asmar directed, and I agreed, that because things were not working out I should end his employment.

10. In the conversation on Sunday evening, Ms Asmar also said to me that I was going to have to speak to Mr Sanli about what had happened at the conference over the weekend. Ms Asmar had said that he was not there during her speeches when he was required there and was not contactable. Ms Asmar did not direct me to dismiss Mr Sanli from the Union’s employment but asked that I speak to him regarding his actions over of the weekend.’ 70

[99] In cross-examination Ms Salem denied that Ms Asmar had instructed her to terminate Mr Sanli’s employment because he had voted the wrong way at the ALP Conference. 71

[100] As to Mr Koyu, Ms Salem says that Ms Asmar spoke to her and she ‘agreed that Mr Koyu’s employment with the HSU was ‘not working out’: ‘we both spoke and we both agreed’. 72

[101] In the Decision the Deputy President prefers the evidence of Messrs Sanli and Koyu, to that of Ms Salem:

‘[54] I am satisfied that Mr Sanli was asked by Ms Salem to meet with her. I found Ms Salem’s explanation about why she called Mr Sanli on that Monday morning unconvincing. She did not satisfactorily explain why she called him when she had seen him only the previous week for their usual catch up. Ms Salem had been contacted by Ms Asmar out of hours on Sunday night and she had been directed to dismiss Mr Koyu and speak to Mr Sanli. I am satisfied that it was because of Ms Asmar’s phone call that Ms Salem contacted Mr Sanli. There was no reason for Mr Sanli to meet with Ms Salem that morning and I am satisfied that he did so because she told him to meet with her.

[55] Mr Koyu, who also did not vote for Mr Asmar, had been dismissed immediately before Mr Sanli’s meeting with Ms Salem. It was not unreasonable for Mr Sanli to conclude that Mr Koyu was dismissed for failing to vote for Mr Asmar.

[56] I am satisfied that Ms Salem did ask Mr Sanli if he was going to resign. I prefer Mr Sanli’s version of the conversation with Ms Salem to the extent that it conflicts with Ms Salem’s. Ms Salem did not come across as an uninterested bystander reporting what she heard and what she said. For example, Ms Salem’s evidence in relation to organiser’s work patterns was unconvincing. While I am satisfied that Mr Sanli exaggerated the amount of out of hours work he performed, Ms Salem’s evidence that Mr Sanli only occasionally worked disparate hours was unconvincing, particularly given Mr Sanli received an additional week’s annual leave and a monthly ADO for, from time to time, working more than normal office hours including on evenings and occasional weekends. 73 Her evidence about why Mr Koyu was dismissed was also unconvincing particularly the evidence that he was dismissed because it was not working out given the unchallenged evidence that Mr Koyu had only recently had his employment confirmed by the BCOM. Ms Salem was also reluctant to concede that there were no issues with Mr Sanli’s performance. She was unwilling in her oral evidence to say that Ms Asmar told her to sack Mr Koyu despite stating in her witness statement that Ms Asmar directed that she should end his employment.’74

[102] There is no challenge to the Deputy President’s assessment of Ms Salem’s evidence and, having reviewed the evidence, we agree with the Deputy President’s assessment and her findings. Ms Salem was an unimpressive witness, she gave answers in cross-examination which were evasive and inconsistent with her witness statement. 75

[103] Further, the proposition that Mr Koyu was terminated because he was ‘not working out’ simply doesn’t withstand scrutiny. In the weeks prior to the ALP Conference Mr Koyu had been advised that his temporary position had been unanimously endorsed by the BCOM and that he would receive an ongoing contract with the HSU. Mr Koyu’s unchallenged evidence in this regard is set out at paragraphs [8]-[9] of his witness statement:

‘I was in my position for about 4 to 5 weeks before I was called into the BCOM meeting by Diana Asmar. I was introduced to BCOM members from Diana and she spoke extremely highly of me and what I had achieved in the very short time that I had been at the Union. My position was endorsed unanimously and I was advised that I would receive a new ongoing contract from the Union.

Everything was going really well at the Union. I was regularly complimented by my Line Manager Hiba Salem and from Diana Asmar. I was asked to complete my Right of Entry examination as they had in mind for me to start to visit sites and members one on one. I had just completed a visit with my colleague to the Frankston Hospital and another site as part of my training to transition into becoming an Industrial Officer. Both Diana Asmar and my Line Manager Hiba Salem were extremely keen for me to take on extra responsibilities and my Line Manager advised me that she was confident that I was competent enough to start to hit the roads as in their terms to visit members and do disciplinaries.’ 76

[104] As Mr Koyu observes in his statement ‘all this changed very quickly’, that is, it all changed after the events at the ALP Conference.

[105] Mr Koyu attended work on Monday 22 May 2017 and attempted to log into his computer but was unable to do so. He was called into a meeting with Ms Salem who told him that he was dismissed with immediate effect; Mr Koyu was within the ‘minimum period of employment’, and hence not ‘protected from unfair dismissal’ at the time his employment was terminated (see ss.382-383 of the FW Act).

[106] The Deputy President made the following findings about the meeting between Mr Koyu and Ms Salem:

‘Ms Salem called Mr Koyu into a meeting and told him that he was dismissed with immediate effect. Mr Koyu was still within his qualifying period at the time of his dismissal. Mr Koyu said that Ms Salem said words to the effect that Ms Salem said she was going to have to play bad cop and dismiss him. Mr Koyu said Ms Salem said that “obviously a number of events have occurred over the weekend.” He said he said that he understood and that unfortunately these things happen in politics. Mr Koyu said Ms Salem spoke about his work performance in a positive way. Ms Salem denied making these statements. She did say that Mr Koyu made a comment about “politics is politics.” She said she did not give a reason for the dismissal but agreed to be a referee for Mr Koyu. Ms Salem denied knowing what had happened at the conference.’ 77

[107] There is no challenge to the findings set out above and we adopt them. Further, we find that Mr Koyu’s employment was terminated because he had not voted for Mr Asmar at the ALP Conference.

[108] Returning to Mr Sanli, on the evening of Sunday 21 May 2017 Mr Sanli attempted to log on to his work emails, but was unable to do so. He checked again on the morning of Monday 22 May 2017 but still unable to log on and so he went into the HSU offices. As he was travelling to the HSU Mr Sanli received a phone call from Ms Salem asking him to come into the office. 78 At paragraph [13] of the Decision the Deputy President describes what happened when Mr Sanli arrived at the HSU:

‘When he arrived at the office, Mr Sanli saw Mr Dean Sherriff, an industrial officer, and waved at him to open the door. Mr Sherriff initially declined to open the door but then opened the door for Mr Sanli. Mr Sherriff did not speak to Mr Sanli. It is not disputed that Mr Sherriff did this because Mr Sanli had not voted for Mr Asmar at the ALP conference in circumstances where he thought Mr Sanli had advised that he was going to vote for him. 79 Mr Sherriff was clearly upset about Ms Sanli’s conduct describing it as being ‘lower than a snake’s belly.’’80

[109] Before Mr Sanli met Ms Salem he had a brief conversation with Mr Koyu. This conversation occurred after Mr Koyu had been dismissed by Ms Salem. The content of the conversation is dealt with in Mr Koyu’s statement, 81 in Mr Sanli’s statement82 and in Mr Sanli’s oral evidence.83 At paragraph [16] of the Decision the Deputy President describes the conversation between Messrs Koyu and Sanli:

‘As he was going to retrieve his personal possessions from the car, Mr Koyu exchanged words with Mr Sanli and told him his employment had been terminated immediately. Mr Sanli said that Mr Koyu had told him that he was dismissed because of what happened on the weekend and that he had been locked out of his computer.’ 84

[110] There is no challenge to the findings set out above and we adopt them.

[111] As mentioned earlier, the issue to be determined is whether we are satisfied that in all the circumstances, ‘it should have been reasonably apparent to [Mr Sanli] … that [his unfair dismissal application] had no reasonable prospect of success’, within the meaning of s.611(1)(b). Mr Sanli’s application could only succeed if he had been ‘dismissed’. Section 386(1)(b) provides:

‘(1) A person has been dismissed if:

…

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’

[112] Hence, in these proceedings the relevant question is whether it should have been reasonably apparent to Mr Sanli that his claim that he had been dismissed within the meaning of s.386(1)(b) had no reasonable prospect of success.

[113] The observations of the High Court in Spencer v The Commonwealth 85as to the meaning of the expression ‘no reasonable prospect’ in s.31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), are apposite to the matter before us:

‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.’ 86

[114] Section 31A of the Federal Court Act is a power to enter summary judgment and accordingly is not directly relevant to the matter before us. However, the High Court’s observation (in Spencer) that full weight must be given to the expression as a whole and that descriptors such as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ do not provide a sufficient chart of the metes and bounds of the power, are also applicable to s.611(1)(b).

[115] The evidence and findings may be summarised as follows:

1. Prior to the ALP Conference no issues of any substance had been raised with Mr Sanli about his performance or conduct as a HSU organiser.

2. At the ALP Conference on the weekend of 20-21 May 2017 Messrs Sanli and Koyu did not vote for Mr Asmar. Mr Asmar’s reaction to their decision was hostile.

3. Mr Asmar exerts a degree of influence in the HSU.

4. The evidence suggests that Mr and Ms Asmar discuss matters concerning the ALP and HSU. Ms Asmar attended the ALP Conference. It is reasonable to infer that Ms Asmar was made aware of the fact that Messrs Sanli and Koyu had not voted for Mr Asmar and of Mr Asmar’s reaction to their decision.

5. On the evening of Sunday 21 May 2017 Ms Asmar telephoned Ms Salem and told her to terminate Mr Koyu’s employment and ‘to speak to Mr Sanli about what happened at the conference over the weekend’.

6. Ms Salem met Mr Koyu on the morning of 22 May 2017 and terminated his employment. Mr Koyu’s employment was terminated because he did not vote for Mr Asmar at the ALP Conference.

7. As he was travelling to the HSU Mr Sanli received a phone call from Ms Salem asking him to come into her office. When he arrived at the HSU Mr Sherriff initially refused to let him in.

8. Before Mr Sanli met Ms Salem he had a brief conversation with Mr Koyu. This conversation took place after Mr Koyu had been dismissed by Ms Salem. Mr Koyu told Mr Sanli that he had been dismissed with immediate effect because of what happened on the weekend – this is, because he had not voted for Mr Asmar.

9. In the meeting between Ms Salem and Mr Sanli, Ms Salem said: ‘so are you going to hand in your resignation?’

[116] On the basis of the evidence and findings to which we have referred we are not satisfied that it should have been reasonably apparent to Mr Sanli that his claim that he had been dismissed (within the meaning of s.386(1)(b)) had no reasonable prospect of success. It follows that the power to order costs pursuant to s.611(2)(b) is not enlivened and the HSU’s Costs Application must be dismissed.

[117] Accordingly, we dismiss the HSU’s Costs Application.

PRESIDENT

Appearances:

Mr M Champion of counsel for the Appellant.

Mr M Addison of counsel for the Respondent.

Hearing details:

2018.

Melbourne.

24 January.

 1   [2017] FWC 6156.

 2   [2017] FWC 6156 at [8]-[24].

 3   PR597949, 28 November 2017 per Gooley DP.

 4 Section 604(1) Fair Work Act 2009 (Cth).

5 Wan v AIRC (2001) 116 FCR 481 at [30].

6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27].

 7   GlaxoSmithKline Australia Pty Ltd v Making[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 8 (2010) 197 IR 266 at [27].

 9   Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.

 10 (2011) 192 FCR 78 at [43].

 11   Transcript of proceedings 24 January 2018 at [33]-[38] and [43]-[44].

 12 Ibid at [185].

 13 (2011) 196 FCR 126.

 14 Ibid at [37].

 15   [2015] FWCFB 2460.

 16   [2015] FWCFB 3995.

 17   Holland v Nude Pty Ltd[2012] FWAFB 6508 ((2012) 224 IR 16; Macdougall v Health Axis [2012] FWAFB 8109; Miss Jill Lambert v Jetscape Travel [2014] FWCFB 1353; Hutton v Sykes[2014] FWCFB 3384; Clermont Coal Pty Ltd v Brown[2015] FWCFB 2460; Mark Jackson Racing v Samantha McAlpine[2015] FWCFB 2303; Stupar v Australian Postal Corporation[2015] FWCFB 2316; Asciano Services v Hadfield[2015] FWCFB 2618; Djula v Centurion Transport[2015] FWCFB 2371; Singh v Metro Trains[2015] FWCFB 3502; Mond v Seymour-Gross [2015] FWCFB 3707; Kirkman v DP World[2015] FWCFB 3995; Woolston v Uniting Church in Australia Property Trust[2015] FWCFB 4032; Chen v Monash University [2015] FWCFB 4037; Callychurn v ANZ[2015] FWCFB 5254; The Trustee for The MTGI Trust v Johnston[2015] FWCFB 6168; Lombardo v Tidewater Marine Australia [2015] FWCFB 6788; King v Patrick Projects[2016] FWCFB 5069; Diocese of Lismore v Mott [2016] FWCFB 8180; Rayner v Little Moreton Pty Ltd[2017] FWCFB 756; Baxter Healthcare v Portelli[2017] FWCFB 3891; Spectrum v Valenzuela[2017] FWCFB 4524; King and Ors v Patrick Projects [2017] FWCFB 6515.

 18   See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [4]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at p. 408.

 19 (1998) 194 CLR 355 at [78] per McHugh, Gummow, Kirby and Hayne JJ; also see Taylor v The Owners – Strata Plan No 11564 253 CLR 531 at [65]–[66].

 20 (2009) 239 CLR 27.

 21 Ibid at [47].

 22   Mills v Meeking (1990) 169 CLR 214 at para 235 per Dawson J; R v L (1994) 49 FCR 534 at para 538.

 23 [1930] VLR 75 at 30.

 24   McGraw-Hinds (Aust) Pty Ltd v Smile (1978) 144 CLR 633 at 643: Australian Telecommunications Commission v Colpetts (1986) 12 FCR 395 and Murphy v Farmer (1988) 165 CLR 19 at 26-28.

 25   Turner v George Weston Foods Ltd t/as Tip Top Bakeries (Newcastle) [2007] NSWA 67 at [56] per Campbell JA, with whom Beazley JA and Hodgson SA agreed.

 26 (1975) 132 CLR 336 at 350.

 27   WorkPac Pty Ltd v Bambach[2012] FWAFB 3206 at [14].

 28   J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [30] per Jessup J and [63] per Flick J.

 29   [2017] FWC 6156 at [50]-[59].

 30   [2011] FWAFB 4014.

 31   Citing House v King (1936) 55 CLR 499 at 505.

 32 Respondent’s Outline of Submissions at [3].

 33   Transcript of proceedings 24 January 2018 at [146]-[157].

 34   See [2017] FWC 6156 at [8], footnote 5 and [23] footnote 35.

 35 Exhibit R1 at [34].

 36 Appeal Book, page 233. Mr Sanli also referred to an earlier meeting with Mr Asmar at the conference at [21]. There is no evidence as to what was said.

 37   Transcript of proceedings 25 October 2017 at [872]-[877], Appeal Book page 86.

 38   Transcript of proceedings 25 October 2017 at [765]-[766].

 39 Appellant’s Outline of Submission 15 January 2018 at [40].

 40 Ibid at [37].

 41   Respondent’s Outline of submissions at [4] and [8]-[15].

 42 Ibid at [4].

 43   [2017] FWC 6156 at [50].

 44 Appellant’s Outline of Submission 15 January 2018 at [25].

 45   [2017] FWC 6156 at [57].

 46   Transcript of proceedings 24 January 2018 at [58]-[72].

 47   See Exhibit A2; Transcript of proceedings 25 October 2017 at [16]-[142].

 48   See Exhibit A4 and A5; Transcript of proceedings 25 October 2017 at [146]-[441].

 49   See Exhibit A6; Transcript of proceedings 25 October 2017 at [448]-[545].

 50   See Exhibit A7; Transcript of proceedings 25 October 2017 at [549]-[660].

 51   See Exhibit A8; Transcript of proceedings 25 October 2017 at [667]-[772].

 52   See Exhibit R1; Transcript of proceedings 25 October 2017 at [853]-[1174].

 53   See Exhibit R2; Transcript of proceedings 25 October 2017 at [1194]-[1266].

 54 Appellant’s Outline of Submission 15 January 2018 at [41].

 55 Respondent’s Outline of Submissions at [10].

 56   Ibid at [12]-[13].

 57   Transcript of proceedings 24 January 2018 at [84]-[102].

 58 Exhibit R1 at [18].

 59   Ibid.

 60   Exhibit R1 at [16] and [19].

 61   Exhibit R1 at [21] and [27].

 62   Transcript of proceedings 25 October 2017 at [734] and [750].

 63 Exhibit A8 at [4].

 64 Transcript of proceedings 25 October 2017 at [734].

 65   Transcript of proceedings 25 October 2017 at [758]-[759].

 66   Exhibit R1 at [8] and [11]-[12].

 67   Exhibit R1 at [17] and Exhibit R2 at [3]-[4].

 68 Exhibit R1 at [12].

 69 This is evident from her conversation with Ms Salem – she complained that Mr Sanli ‘was not there during her speeches’: Exhibit A4 at [10].

 70   Exhibit A4 at [8]-[10].

 71   Transcript of proceedings 25 October 2017 at [328]-[332] and [348]-[349].

 72   Ibid at [350]-[352].

 73 Exhibit A4 at [4].

 74   [2017] FWC 6156 at [54]-[56].

 75   Transcript of proceedings 25 October 2017 at [145]-[441].

 76   Exhibit R2 at [8] and [9].

 77   [2017] FWC 6156 at [15].

 78   Exhibit R1 at [24] and Exhibit A4 at [12].

 79   Ibid.

 80   [2017] FWC 6156 at [13].

 81 Exhibit A2 at [18].

 82 Exhibit R1 at [28].

 83   Transcript of proceedings 25 October 2017 at [987]-[995].

 84   [2017] FWC 6156 at [16].

 85 (2010) 241 CLR 118.

 86   Ibid at [59]-[60] per Hayne, Crennan, Kiefel And Bell JJ.

Printed by authority of the Commonwealth Government Printer

<PR600113>