Hendrik Johannes Liebenberg v IP Australia
[2024] FWCFB 460
•12 DECEMBER 2024
| [2024] FWCFB 460 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Hendrik Johannes Liebenberg
v
IP Australia
(C2024/7977)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT EASTON | MELBOURNE, 12 DECEMBER 2024 |
Appeal against decision [2024] FWC 2933 and order PR780482 of Deputy President Dean at Canberra on 22 October 2024 in matter number U2024/6953 – permission to appeal refused.
First Instance Decision
Hendrik Johannes Liebenberg was employed by IP Australia as a Patent Examiner from October 2012 until around 28 May 2024. There is no dispute that Mr Liebenberg resigned from his employment with IP Australia. Mr Liebenberg filed an unfair dismissal application on 18 June 2024 which alleged he was “dismissed” within the meaning of s.386(1)(b) of the Fair Work Act 2009 (FW Act) because IP Australia engaged in conduct, or a course of conduct, that forced him to resign.
On 22 October 2024, Deputy President Dean issued a decision in relation to Mr Liebenberg’s unfair dismissal application (Decision).[1] The Deputy President found that IP Australia did not engage in conduct, or a course of conduct, that was intended to bring the employment relationship with Mr Liebenberg to an end. The Deputy President also found that resignation was not the probable result of IP Australia’s conduct, or course of conduct. The Deputy President ordered that Mr Liebenberg’s unfair dismissal application be dismissed,[2] because he was not “dismissed” within the meaning of s.386 of the FW Act.
Permission to Appeal
Mr Liebenberg filed a notice of appeal against the Decision on 11 November 2024. Mr Liebenberg’s notice of appeal and submissions contain a range of complaints about the Decision. The complaints that could be characterised as grounds of appeal appear to be:
The Deputy President did not conduct an inquisitorial approach to the decision-making process.
(ii)The Deputy President erred in determining that Mr Liebenberg bore the onus of demonstrating he was forced to resign.
The Deputy President erred in concluding Mr Liebenberg was not forced to resign given a range of “disclosable conduct” that IP Australia engaged in.
(iv)The Deputy President erred in concluding that Mr Liebenberg had other options available to pursue his complaints and grievances and was not forced to resign.
Mr Liebenberg argued it is in the public interest for permission to appeal to be granted given the gravity and seriousness of the issues raised by Mr Liebenberg concerning the conduct of IP Australia.
The matter was listed for permission to appeal only. Mr Liebenberg and IP Australia both filed submissions in relation to the appeal. Mr Liebenberg and IP Australia consented to the question of whether permission to appeal should be granted being determined on the papers. We are satisfied it is appropriate to determine whether permission to appeal should be granted without holding a hearing.
Statutory provisions
Section 604 of the FW Act allows for appeals of decisions by Commission members and states:
Appeal of decisions
(1) A person who is aggrieved by a decision:
(a)made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
Section 400 of the Act applies to appeals from decisions under the unfair dismissal provisions and states:
Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the 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.
Authorities
An appeal cannot succeed unless the appellant can show that the original decision-maker made an error. However not all errors are appealable errors. Commission members exercise considerable discretion in unfair dismissal matters. Members make value judgments on matters about which there is room for reasonable differences of opinion - no particular opinion being uniquely right. As the High Court said in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 205, [2000] HCA 47 at [21], an appealable error is an error in the decision-making process:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
[Footnotes omitted]
The public interest test in s.400 requires more than just showing that an appealable error was made: permission can only be granted if the Full Bench is satisfied that it is in the public interest to do so. It might be in the public interest to grant permission to appeal if the matter raises important issues that have general application, or if there is a diversity of decisions at first instance so that guidance from a Full Bench is required, or if the decision at first instance reveals an injustice, or if the result is counter intuitive, or if the legal principles applied appear disharmonious when compared with decisions dealing with similar matters (per GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [2010] FWAFB 5343 at [27]). The public interest test in s.400 is a stringent one and the Full Bench must apply a broad value judgment on whether it is in the public interest to grant permission to appeal (per Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177, [2011] FCAFC 54 at [43]-[44]).
Consideration
The contention that the Deputy President erred by not conducting an inquisitorial proceeding is not arguable. A Full Bench of the Commission recently confirmed that unfair dismissal proceedings are adversarial and not inquisitorial:[3]
“More generally, we observe that it is not the Commission’s task to run the case of a party. The Commission’s responsibility is to conduct a fair hearing. This includes intervening only to the extent of ensuring that a self-represented party knows what is required of them, is directed to the matters in issue (and only the matters in issue), has a fair opportunity to present their case and test that of the other party, and to have its case understood. On balance, those thresholds were met in this matter.
We also observe that unfair dismissal proceedings, whether conducted by conference or hearing, are adversarial, not inquisitorial. Whilst under s 590(2) the Commission has power to inform itself as it sees fit (including by requiring a person to attend or provide documents) inter-partes litigation such as unfair dismissal proceedings are not general inquiries into workplace conduct or culture, or forums to ventilate broader concerns.”
[Footnote omitted]
The Deputy President concluded her decision as follows:
“The Applicant has not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that he was dismissed within the meaning of the Act. This application is therefore dismissed.”
In Teterin v Resource Pacific Pty Ltd[2014] FWCFB 4125, (2014) 244 IR 252 the Full Bench explored the notion of “onus of proof” in Commission proceedings. The Full Bench distinguished between a legal onus and an evidentiary onus, particularly for a statutory tribunal that is required to be “satisfied” about matters before exercising a discretion and linked the evidentiary onus to the party bearing the risk of failure. The Full Bench said at [25]-[27]:
“In considering the appellants’ submissions concerning onus, it is important to distinguish between a legal onus and an evidentiary onus. A legal onus, or burden of persuasion, “is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved” to the requisite standard of proof, with such a party bearing the risk of non-persuasion as to the fact in issue. The limited role of the legal onus in court proceedings is explained in Cross on Evidence in the following way:
Burdens of persuasion affect the outcomes only of cases in which the trier of fact thinks the plaintiff’s and the defendant’s positions equi probable. Burdens of persuasion are, in other words, tie-breakers. If the trier of fact, having heard all the evidence, comes to a definite conclusion, there is no occasion to invoke a burden of persuasion.
The evidentiary onus was described by the High Court in Sidhu v Van Dyke “in its strict legal connotation” as being “the burden of adducing or pointing to sufficient evidence to raise an issue for determination by the court”. It has also been referred to as the burden of adducing evidence.
In most of the decisions relied upon by the appellants to support the proposition that in the case of jurisdictional objections based on s 389 it will be the respondent who bears the onus, it is apparent that an evidentiary onus was being referred to…”
[Footnotes omitted]
Although the Deputy President refers to an “onus to demonstrate” certain matters it is clear in context that she was referring to the evidentiary burden carried by the Mr Liebenberg to provide sufficient evidence upon which the Deputy President could have been “satisfied” that he was dismissed.
In the proceedings it fell to Mr Liebenberg to persuade the Deputy President that he did not resign voluntarily and to establish that his employer forced his resignation.[4] The Deputy President clearly explained the reasons for finding that IP Australia did not intend to end the employment relationship and for finding that resignation was not the probable result of IP Australia’s conduct. Mr Liebenberg has not demonstrated an arguable case of error in that approach.
Nor is it arguable, in our view, that the Deputy President erred in assessing what Mr Liebenberg refers to as “reportable conduct” by IP Australia. We agree with the Deputy President’s finding that it was not strictly necessary to delve into Mr Liebenberg’s assertions of unlawful conduct. In any event, as IP Australia submitted on appeal, evidence IP Australia relied upon to refute Mr Liebenberg’s claims was not contested by Mr Liebenberg via cross-examination. An arguable case of appealable error is not disclosed in the Deputy President’s approach to Mr Liebenberg’s claims.
The Deputy President’s finding that Mr Liebenberg had other options available rather than resigning was clearly open on the evidence. Mr Liebenberg’s appeal submissions specifically refer to him pursuing complaints in two separate forums. Both types of complaint could have been pursued while Mr Liebenberg remained employed. IP Australia took several steps to try and maintain the employment relationship after Mr Liebenberg initially resigned in writing on 6 February 2024. IP Australia allowed Mr Liebenberg to rescind his resignation and then to take an extended period of leave. It appears Mr Liebenberg then subjectively formed the view that his employment relationship with IP Australia had to end. Mr Liebenberg’s subjective view does not establish IP Australia’s objective intention was to end the employment relationship. Mr Liebenberg’s subjective view also does not establish resignation was the probable result of IP Australia’s conduct based on an objective assessment.
The Deputy President correctly identified and applied the legal tests concerning constructive dismissal in the Decision. Mr Liebenberg’s appeal is essentially a request for a Full Bench to decide that he was forced to resign based on the same arguments he made before the Deputy President. It is not appropriate for permission to appeal to be granted for that purpose.
For the purposes of s.400(1) of the FW Act, we do not consider that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Given Mr Liebenberg has not identified an arguable case of error in the Decision, we do not consider that it would be in the public interest to grant permission to appeal and s.400(1) therefore requires that permission to appeal not be granted.
Conclusion
Permission to appeal is refused.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] Hendrik Johannes Liebenberg v IP Australia [2024] FWC 2933.
[2] PR780482.
[3] Komeyui Management Pty Ltd v Guy Goonewardena [2024] FWCFB 425 at [35]-[36].
[4] Rick Adaszko v Mitford Investments Pty Ltd ATF the JJG Trust t/as Integro Private Wealth[2021] FWCFB 719 at [27].
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