Igor Grabovsky v Dean Lewis, Fair Work Commission
[2021] FWCFB 6057
•1 DECEMBER 2021
| [2021] FWCFB 6057 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Igor Grabovsky
v
Dean Lewis, Fair Work Commission
(C2021/6534)
| DEPUTY PRESIDENT EASTON | SYDNEY, 1 DECEMBER 2021 |
Appeal against decision [[2021 FWC 5559]] of Deputy President Clancy at Melbourne on 7 September 2021 in matter number AB2021/43.
Background
Mr Igor Grabovsky has participated in a large number of proceedings in the Fair Work Commission since 2014 – in some proceedings as an advocate for his wife and in other proceedings on his own behalf. Mr Grabovsky says he has instigated over 50 proceedings in the Commission.
On 21 October 2019 Mr Grabovsky made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (“FW Act”). The person against whom bully was alleged was a member of the Commission’s staff. On 19 June 2020 Deputy President Anderson dismissed Mr Grabovsky’s application, finding amongst other things that Mr Grabovsky was not a “worker”, was not “at work” at any relevant time, and therefore his application failed for want of jurisdiction. Mr Grabovsky appealed Deputy President Anderson’s decision and on 8 December 2020 the Full Bench (Deputy President Millhouse, Deputy President Mansini and Commissioner Harper-Greenwell) dismissed Mr Grabovsky’s appeal, finding amongst other things that Deputy President Anderson did not err in finding that Mr Grabovsky was not “at work” and not a “worker”.
On 28 January 2021 Mr Grabovsky made another application for an order to stop bullying under s.789FC of the FW Act. The person against whom bully was alleged was another member of the Commission’s staff.
On 7 September 2021 Deputy President Clancy dismissed Mr Grabovsky’s application. The Deputy President found that Mr Grabovsky was not a “worker”, was not “at work” at any relevant time, and therefore his application had no reasonable prospect of success (per s.587 of the FW Act).
Mr Grabovsky has lodged an appeal against Deputy President Clancy’s decision. Under s.604(1) of the FW Act Mr Grabovsky must have permission from the Commission to appeal. Without permission he does not otherwise have a right to appeal the decision.
For the following reasons we are not satisfied that the grant of permission to appeal would be in the public interest, nor do we consider that there are discretionary grounds justifying the grant of permission.
Procedural History
The matter was listed for permission to appeal only and directions were set for the filing of material regarding permission to appeal. Mr Grabovsky filed written submissions in accordance with the directions made.
It appeared to the members of this Full Bench that the appeal could be adequately determined without Mr Grabovsky making oral submissions (per s.607(1)(a)). Mr Grabovsky was invited to consider whether his appeal could be determined without a hearing (per s.607(1)(b)).
In response to this invitation Mr Grabovsky asked for the first scheduled hearing to be “vacated”, and his request was granted. After the hearing was vacated Mr Grabovsky indicated that, although he had asked for the hearing to be vacated, he did not agree that his appeal could be determined without a hearing.
A second hearing date was set and Mr Grabovsky once again asked for the hearing to be vacated. The basis for the application to vacate was not clear: Mr Grabovsky submitted that the Fair Work Commission is in a state of disrepute and is not fit to deal with any matter, especially with matters that involve himself or his wife. Mr Grabovsky declared that each member of the Commission was no longer fit to exercise their statutory duty, that the “applicable law and principles” give Mr Grabovsky the right to make such a declaration [of the fitness of members of the Commission to exercise their statutory duty] prior to any decision of the Parliament; and the relief sought by Mr Grabovsky did not involve determination of the appeal (let alone determination of permission to appeal). Mr Grabovsky’s stated grounds did not constitute a proper basis to grant an adjournment or to otherwise vacate the hearing and Mr Grabovsky’s application was rejected.
Despite challenging the fitness of every member of the Commission to determine the application he made to the Commission, Mr Grabovsky did not invite the members of the Full Bench to recuse ourselves from hearing the appeal. Had he done so, his recusal application would have been rejected because none of the members of the Full Bench have had any involvement in any matter relating to Mr Grabovsky or his wife. As Deputy President Anderson found “it would be an intolerable frustration to the administration of justice if a litigant could impede the determination of claims by seeking to name the duly appointed arbitrator as a responding person to the very litigation being arbitrated.”[1]
In making arrangements for the second hearing date Mr Grabovsky was advised that:
“The Full Bench has scheduled a hearing at 2pm on 9 November 2021 to receive any further submissions you wish to make in support of your application for permission to appeal. If you choose not to participate in the hearing, your appeal of the Deputy President's decision will be determined on the materials already filed to date.”
Mr Grabovsky did not attend the hearing at the scheduled time and attempts to contact him by telephone were not successful. As foreshadowed to Mr Grabovsky, the Full Bench has determined this application for permission to appeal on the written materials filed.
Appeal Principles
Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[2] In GlaxoSmithKline Australia Pty Ltd v Makin[3] a Full Bench of the Commission identified considerations that might 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.”
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.[4] However, the fact that a member made an error at first instance is not necessarily a sufficient basis for the grant of permission to appeal.[5]
The Decision Under Appeal
The pertinent parts of the Deputy President’s decision are:
“[2] In the Form F72, Mr Grabovsky names a member of the Commission’s staff as the sole person against whom bullying is alleged and the basis of his bullying allegation is that this member of staff engaged in misbehaviour by not informing the former Commonwealth Attorney-General and Minister for Industrial Relations and the “Internal Audit Committee” about certain allegations Mr Grabovsky makes about various Members of the Commission.
[3] In a decision made on 19 June 2020, Deputy President Anderson dismissed a previous application Mr Grabovsky had made in which he named, inter alia, another member of the Commission’s staff as the person against whom bullying was alleged. The Deputy President dismissed that application insofar as it related to the Commission staff member on the basis that Mr Grabovsky was not a “worker” within the meaning of Part 6-4B of the Act and nor was he “at work” in the relevant sense Mr Grabovsky’s challenge to these findings of the Deputy President was rejected on appeal.
…
[5] Adopting the reasoning of Deputy President Anderson, I have determined I should exercise the discretion vested in me under s.587 of the Act and dismiss Mr Grabovsky’s application. This is because in making these latest allegations against a member of the Commission’s staff, Mr Grabovsky is neither a “worker” nor “at work” in the sense required to enliven the Commission’s jurisdiction under Part 6-4B of the Act. Accordingly, Mr Grabovsky’s application has no reasonable prospects of success and as such, I dismiss it pursuant to s.587(1)(c) of the Act.”
[Footnotes omitted]
Consideration on appeal
In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the decision of the Deputy President was attended by appealable error.
It is difficult to discern Mr Grabovsky’s precise grounds of appeal. Most of his submissions descend into various allegations about the fitness for office of members of the Commission. We do not see that any of these allegations are relevant to question of whether the Deputy President erred when he found that Mr Grabovsky was not a worker, and whether the Deputy President erred in finding that Mr Grabovsky was not at work at any relevant time.
Mr Grabovsky’s legal capacity to make his application in January 2021 was no different or better than his legal capacity in 2019 when he made his earlier application for a stop-bullying order.
Mr Grabovsky’s claims he was a worker and was at work because he has been a lay advocate and an applicant in proceedings before the Commission. None of the particulars of Mr Grabovsky’s allegations reveal any closer connection. Given that we are satisfied that Mr Grabovsky does not have any standing in this matter to make such allegations, we will not recite his allegations in this decision.
Deputy President Anderson comprehensively evaluated Mr Grabovsky’s standing to make his application in 2019 and found that he was not a worker nor was he at work when dealing with the FWC and its staff. Deputy President Anderson’s decision was upheld on appeal to a Full Bench.[6]
It was sufficient for Deputy President Clancy to “adopt the reasoning of Deputy President Anderson” (at [5]) without reproducing Deputy President Anderson’s comprehensive written reasons. Both Deputy Presidents and a Full Bench all arrived at exactly the same answer – that Mr Grabovsky’s application must be dismissed.
Mr Grabovsky submits that Deputy President Clancy was not fit to deal with any application made by him because Deputy President Clancy had sat on earlier proceedings that Mr Grabovsky was involved in and because Deputy President Clancy was one of the many FWC members about whom the Appellant complains. The same proposition was advanced before Deputy President Anderson[7] and on appeal[8].
Mr Grabovsky directed some submissions to what he says were errors in Deputy President Anderson’s decision. Whilst Deputy President Clancy adopted Deputy President Anderson’s decision in global terms rather than providing fulsome reasons himself, this reveals a fundamental difficulty with the present appeal. The application determined by Deputy President Clancy was in substance an attempt to re-litigate the same application run and lost before Deputy President Anderson. The appeal of Deputy President Clancy’s decision is similarly an attempt to re-litigate the same appeal of Deputy President Anderson’s decision that was run and lost before Deputy President Millhouse, Deputy President Mansini and Commissioner Harper-Greenwell.
Mr Grabovsky has not raised any new or relevant arguments that raise any possibility that, if permission to appeal was given, this Full Bench might arrive at a different conclusion to Deputy President Clancy. Similarly, Mr Grabovsky has not established any arguable case that this Full Bench might arrive at a different conclusion to Deputy President Anderson or the Full Bench that upheld Deputy President Anderson’s decision.
For the avoidance of doubt, we agree with the earlier Full Bench’s conclusion that the Appellant was not a worker:
“[57] Mr Grabovsky challenges the finding in the Decision that he is not a worker for the purposes of the stop bulling provisions of the Act. Mr Grabovsky submits that his submissions in respect of this matter were not taken into consideration by the Deputy President. In support of his position, Mr Grabovsky relies upon “Acts of the Parliament (FWA and WHS Acts).” He says that the Deputy President set a “deliberately false criteria” in upholding the jurisdictional objection made by the AGS.
[58] Mr Grabovsky submits that to be a worker he is not required to prove that “by assisting his wife with her proceedings before the Commission, he was working for the Commission or working for his wife with respect to a business or undertaking conducted by her.” Mr Grabovsky contends that he is a person of a “prescribed class” within the meaning of s 7(1)(i) of the WHS Act because he carried out work by participating in a process before the Commission in a manner prescribed by the law. This included filing applications in the Commission, making submissions, attending Commission proceedings, and performing work before Commission Members who held a duty to attend to the results of his work. Mr Grabovsky contends that he was bullied by the persons named in the course of undertaking the work as described.
[59] Part 6-4B of the Act allows “a worker who is being bullied at work to apply to the FWC for an order to stop that bullying.” The term “worker” is defined in s 789FC(2) of the Act to have the same meaning as in the WHS Act. By s 7(1)(i) of the WHS Act, “a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as…a person of a prescribed class.”
[60] We do not accept Mr Grabovsky’s contention that the Deputy President did not address the question of whether Mr Grabovsky was a worker by reference to his submissions. The Deputy President specifically dealt with Mr Grabovsky’s contention that he is a person of a prescribed class in the Decision. The Deputy President relevantly found that the Work Health and Safety Regulations 2011 (Cth) do not prescribe classes of persons for the purposes of s 7(1)(i) of the WHS Act such that Mr Grabovsky could be regarded as a person of a prescribed class. In any case, Mr Grabovsky’s contention that the Deputy President set a false criteria in applying s 7(1) of the WHS Act is rejected. Application of the provision necessitates an assessment of whether “a person carries out work in any capacity for a person conducting a business or undertaking.” This is precisely what the Deputy President did. No error in the Decision arises in this respect.”
Mr Grabovsky has not demonstrated any arguable case of appealable error.
Finally, Mr Grabovsky’s appeal does not raise any issue of law or principle that is of wider application such as to attract the public interest.
Overall we are not satisfied that it is in the public interest to grant permission to appeal Deputy President Clancy’s decision. We are similarly not satisfied that we should exercise our residual discretion to grant permission to appeal.
Accordingly, permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Determined on the papers
Written Submissions:
Appellant’s written submissions dated 27 October 2021 and 7 November 2021.
[1] See Igor Grabovsky [2020] FWC 3164 at [26] and also Igor Grabovsky [2020] FWCFB 5995 at [17].
[2] O’Sullivan v Farrer (1989) 160 CLR 210, [1989] HCA 61, applied in Hogan v Hinch (2011) 243 CLR 506, [2011] HCA 4 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, (2011) 207 IR 177, [2011] FCAFC 54 at [44] –[46].
[3] GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [2010] FWAFB 5343 at [27].
[4] Wan v AIRC (2000) 116 FCR 481, [2001] FCA 1803 at [30].
[5] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth (2010) 202 IR 388, [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, (2011) 207 IR 177, [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office (2014) 241 IR 177, [2014] FWCFB 1663 at [28].
[6] [2020] FWCFB 5995.
[7] [2021] FWC 3164 at [13].
[8] [2020] FWCFB 5995 at [75]-[77].
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