James Docherty v Minas Trialonas
[2017] FWCFB 6514
•11 DECEMBER 2017
| [2017] FWCFB 6514 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
James Docherty
v
Minas Trialonas
(C2017/5803)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 11 DECEMBER 2017 |
Appeal against decision [2017] FWC 5068 and Order PR596481 of Commissioner Johns at Sydney on 29 September 2017 in matter number U2016/15558 – permission to appeal refused.
[1] Mr James Docherty seeks permission to appeal the decision 1 of the Commission that found Mr Minas Trialonas was unfairly dismissed by Steric Solutions Pty Ltd and the order2 that Steric Solutions pay Mr Trialonas $25,765.22 gross less taxation as required by law.
[2] A stay of the decision was sought by Mr Docherty and the stay application was dismissed. 3
[3] At the permission to appeal hearing, Mr Trialonas sought permission to be represented by a lawyer. Mr Trialonas had not filed any submissions in support of this application as required by the directions. Mr Trialonas’ lawyer said that this was an oversight and sought to rely on the submission it had filed in the Steric Solutions appeal to support permission being granted. There was no evidence provided that this submission had been served on Mr Docherty. The Full Bench determined not to consider whether permission to appear should be granted until it heard Mr Docherty’s submissions.
[4] Mr Docherty was on notice from the stay hearing and from the directions issued to him on 26 October 2017 that he needed to establish that he was a person aggrieved by the decision of Commissioner Johns. This is because s.604 of the Fair Work Act 2009 provides as follows:
“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:
i. the General Manager (including a delegate of the General Manager); or
ii. the Registered Organisations Commissioner (including a delegate of the Commissioner);
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.”
[5] In Tooheys Ltd v Minister For Business And Consumer Affairs 4 Ellicot J said:
“The words “a person who is aggrieved” should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. …………………….This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (cf Robinson v Western Australian Museum(1977) 16 ALR 623 ; 138 CLR 283).”
[6] Mr Docherty submitted that he was aggrieved by the decision because “of the underhand way it was made by a very bias (sic) commissioner who used his name as the reason for his decision without asking him any questions.” He alleged that the Commissioner attacked his family for no reason and they did not have an opportunity to defend themselves.
[7] As was noted in the stay application, the parties to the decision under appeal are Steric Solutions and Mr Trialonas. The order was directed to Steric Solutions. Mr Docherty was the representative of 3D Scaffolding Pty Ltd in relation to an earlier decision of the Commission that dealt with the identity of the employer. Mr Docherty was a shareholder of 3D Scaffolding.
[8] 3D Scaffolding did not appeal that decision despite Mr Docherty appearing before the Commissioner at the commencement of proceedings at first instance (after the earlier decision concerning 3D Solutions had been delivered) demanding an apology from the Commissioner for findings made in his earlier decision. 5 While there is reference to Mr Docherty6 in the decision under appeal, it cannot be said that those references were an attack on Mr Docherty or his family. The Commissioner simply recited the evidence given by Ms Docherty on behalf of Steric Solutions and by Mr Docherty on behalf of 3D Scaffolding. Apart from these general submissions, Mr Docherty did not point to any particular part of the decision that he relied upon to support this submission.
[9] At the hearing Mr Docherty submitted that he had standing because it was his name and his decision to involve himself in the dismissal of Mr Trialonas that was being used against Steric Solutions to support Mr Trialonas’ case. He submitted that both he and Steric Solutions were denied the opportunity to explain at the first hearing or the second hearing why he made the decision that Mr Trialonas could no longer be employed in the factory.
[10] We are not satisfied that Mr Docherty has standing to appeal the decision. We are not satisfied that Mr Docherty has established that he will suffer a grievance as a result of the decision of the kind required to characterise him as an “aggrieved person” within the meaning of s.604(1). Mr Docherty made no submissions as to how this decision will have any effect on him. Mr Docherty did not submit that either the first decision 7 or the second decision had the potential to directly or indirectly affect his existing or future legal rights or that it could directly or indirectly affect him in the conduct of his business or that it could directly or indirectly affect his rights against third parties. We accept that Mr Docherty has a family connection to the directors and shareholders of Steric Solutions. That alone is not sufficient to render him an aggrieved person in the absence of evidence of direct or indirect impacts or effects on him.
[11] That Mr Docherty disagrees with the decision to which Steric Solutions was a party and the way the matter was conducted at first instance is beyond doubt but that is not sufficient to make him a person aggrieved under s.604 of the Act. We note that those matters will be considered in the appeal lodged by Steric Solutions against the same decision. The grounds relied upon by Steric Solutions are substantially the same as those raised by Mr Docherty.
[12] Accordingly, having found that Mr Docherty does not have standing to appeal, we dismiss his application for permission to appeal.
DEPUTY PRESIDENT
Appearances:
J. Docherty on his own behalf.
A. Jenshel for the Respondent.
Hearing details:
2017.
Melbourne and Sydney, by video link:
30 November.
<Price code A, PR598443>
1 [2017] FWC 5068
2 PR596481
3 [2017] FWC 5647
4 (1981) 36 ALR 64 at 79
5 Transcript 28 July 2017 PN5 – PN24
6 [2017] FWC 5068 at [10](o) and [42] point 5.
7 Minas Trialonas v 3D Scaffolding Pty Ltd [2017] FWC 3138
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