Appeal against decision [2019] FWC 8343 of Deputy President Anderson at Adelaide on 10 December 2019 in matter number AB2019/601 – s.596 representation – recusal – postponement of proceedings – interim application – application to revoke stay decision – application to reconstitute Full Bench.

[1] Mr Igor Grabovsky has lodged an appeal, for which permission is required, against a statement issued by Deputy President Anderson on 10 December 2019 (Statement) 1 and consequential directions (Directions).2 The Statement and Directions were made in respect of Mr Grabovsky’s application for an order to stop bullying (stop bullying application).

[2] Mr Grabovsky sought a stay of the Statement and Directions pending the hearing and determination of the appeal. The stay application was not granted (Stay Decision). 3

[3] Mr Grabovsky also made an application that we revoke the Stay Decision on the basis that it was made illegitimately (revocation application) and sought that this Full Bench be reconstituted based on an erroneous view that the presiding member is now a named respondent to the stop bullying application.

[4] For the reasons that follow, we have decided:

(a) not to grant permission to appeal in relation to the Statement and Directions;

(b) to dismiss the revocation application; and

The Statement and Directions

[5] Mr Grabovsky filed the stop bullying application on 21 October 2019. He named the Commission as the employer respondent. Mr Grabovsky contends that while representing his wife, Mrs Inna Grabovsky in other proceedings before the Commission, he was bullied by each of the persons set out at Attachment A to the stop bullying application. These persons comprise of a number of current and former Commission members, the General Manager and a staff member of the Commission.

[6] On 18 November 2019, the Commonwealth lodged a response to the stop bullying application in which it raised a number of jurisdictional objections.

[7] The stop bullying application was the subject of a directions hearing before the Deputy President on 9 December 2019. Mr Grabovsky appeared on his own behalf. Australian Government Solicitors (AGS) appeared for the Commonwealth. At the directions hearing:

(a) Mr Grabovsky objected to AGS appearing for the Commonwealth. 4 The Deputy President delivered a provisional decision ex tempore on the representation issue which was subsequently recorded in the Statement (provisional representation decision).5

(b) Mr Grabovsky made an oral application that the Deputy President recuse himself. 6 The Deputy President delivered a decision ex tempore on the recusal application, which was subsequently recorded in the Statement (recusal decision).7

(c) The Deputy President sought to obtain the parties’ views on case management matters before adjourning the proceedings in light of Mr Grabovsky’s “unruly conduct.” 8 The Deputy President subsequently issued the Directions.

(d) Mr Grabovsky made an application to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Igor Grabovsky v Fair Work Commission

Details

AGLC: Igor Grabovsky v Fair Work Commission [2020] FWCFB 1014
Case: [2020] FWCFB 1014
Decision Date: 20 MARCH 2020

CaseChat Overview and Summary

Igor Grabovsky sought to appeal a decision made by the Fair Work Commission's Deputy President Anderson in the matter of AB2019/601. The underlying dispute involved a representation matter, with the appeal focusing on the decision dated 10 December 2019. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues in the appeal related to the Deputy President's decision to recuse themselves from the proceedings, the postponement of the proceedings, and the handling of interim applications, including an application to revoke a stay decision and an application to reconstitute the Full Bench. Specifically, Grabovsky contested the procedural fairness of the Deputy President's recusal, the appropriateness of the postponement, and the court's response to the interim applications.

The court examined the Deputy President's decision to recuse themselves, considering whether there was a reasonable apprehension of bias. It also assessed the procedural fairness of the postponement of proceedings, ensuring that it did not unduly prejudice Grabovsky's case. The court further deliberated on the handling of the interim applications, particularly focusing on the timeliness and merits of the applications to revoke the stay decision and reconstitute the Full Bench. The court found that the Deputy President's recusal and the handling of the interim applications were procedurally fair and justified. Consequently, the appeal was dismissed.

The court did not alter the original decision of the Deputy President, upholding the procedural integrity of the proceedings. As a result, the appeal was dismissed without any further orders.

Orders