James Willis v Marie Gibson

[2015] FWC 5050

[2015] FWC 5050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.602 - Correcting obvious errors etc. in relation to the FWC's decisions

James Willis
v
Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll
(AB2014/1425)

COMMISSIONER LEWIN MELBOURNE, 27 JULY 2015

Application for correction in relation to written reasons for decision for an application for an FWC order to stop bullying.

[1] This decision concerns an application by Capital Radiology Pty Ltd, Ms Marie Gibson and Ms Pieta Carroll (Respondents) for the Fair Work Commission (Commission) to make a correction to the reasons expressed for a decision in relation to an anti-bullying application by Mr James Willis (the bullying application). The reasons for decision in relation to the bullying application were issued by the Commission on 22 May 2015 [[2015] FWC 3538, PR567702]. The bullying application was dismissed.

[2] The Respondents in this matter have made an application to the Commission to correct an error in the decision relating to the bullying application decision. The error concerns paragraph [7], [11], [13] and [14] of the decision. The corrections sought are as follows:

A. By deleting the text of paragraph [7] and replacing it with the following: On 22 September 2014, Capital Radiology sought the dismissal of the application on the ground that the Respondent’s behaviour, which formed the factual basis of Mr Willis’s originating application, was reasonable management action carried out in a reasonable manner. At the time of the application, Mr Willis relied upon action taken by Ms Gibson and Ms Carroll in visiting his place of work and conducting an interview. It is alleged that during this meeting, Ms Gibson behaved unreasonably by berating him, whilst Ms Carroll visually demonstrated amusement at his predicament.

B. By deleting the text of paragraph [11] and replacing it with the following: In my view, it was unreasonable for Ms Gibson, the General Manager, and Ms Carroll, the Human Resources Manager, to arrive at Mr Willis’s place of work to berate him about matters which were in some, if not most cases, a consequence of Mr Willis having only very recently commenced work as a radiographer and who the Respondents knew had undergone a relocation of residence in order to take up his position with Capital Radiology.

C. By deleting the text of paragraph [13] and replacing it with the following: I reject the characterisation of the visit as routine. To be subject to severe criticism based on complaints by a person employed by a different entity, I consider was unreasonable action carried out in an unreasonable manner. I consider that a simple and reasonable course of action would have been to advise Mr Willis of the purpose of the meeting and attempt to explain the expectations of Mr Willis’ performance of his duties in the particular circumstances obtaining at the Clinic, in a supportive way.

D. By deleting the text of paragraph [14] and replacing it with the following: It does not require the wisdom of the ancients to appreciate the effect upon an employee, who has only recently started work and who is still working during a probationary period, of the actions of Ms Gibson and Ms Carroll. I judge that at one level or another Mr Willis would have experienced the actions and behaviour of Ms Gibson and Mr Carroll as threatening.

[3] The basis upon which the correction is sought is that the evidence of the witness for the Respondents in the matter and the evidence of Mr Willis is in agreement, in that there was a telephone call prior to a meeting between the witnesses for the Respondents and Mr Willis on 30 May 2014.

[4] Section 602 of the Act concerns correcting obvious errors etc. in relation to the Commissions decisions. Section 602 is as follows:

“Correcting obvious errors etc. in relation to the FWC's decisions

(1)  The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1:       If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2:       The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.

(2)  The FWC may correct or amend the error, defect or irregularity:

(a)  on its own initiative; or

(b)  on application.”

[5] It is submitted that s.602(1) of the Fair Work Act 2009 (Cth) (the Act) empowers the Commission to make to make the correction upon application pursuant to s.602(2)(b). In the case of the Australian Federation of Air Pilots v Australian International Pilots Association [2012] FWA 2627 (AFAP v AIPA), Deputy President Sams was asked to make a correction under s.602(1) of the Act upon application pursuant to s.602(2)(b). Relevantly, the Deputy President referred to what will constitute an obvious error:

“For an error to be ‘obvious’ it must be ‘easily perceived or understood, clear, self-evident, or apparent’. An examination of the decisions in The Maritime Union of Australia v Boskalis Australia Pty Ltd[2011] FWA 4619; Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FWA 3278; Bank of Queensland Limited re BOQ Enterprise Agreement 2011 [2011] FWA 3479 and the Theiss Pty Ltd; Balfour Beatty Pty Ltd re Theiss Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011 [2011] FWA 8921, under s 602 of the Act, demonstrates the significant burden facing the AFAP, or any party, which seeks to have substantive, and contested alterations made to an order or decision of FWA.”  1

[6] Deputy President Sams referred to the Explanatory Memorandum to the Fair Work Bill 2009, which explained that s.602 is analogous to a court’s ability to apply the ‘slip rule’ in order to correct errors in decisions or orders of the Commission.  2 Deputy President Sams identified the Explanatory Memorandum’s reference to Munroe J’s decision in Re: Timber & Allied Industrial Award 1999 Print R5055, where Munroe J stated:

“The rule is concerned with a discretion, in the exercise of which considerations of fairness and the justice of the amendment are relevant. Because of the nature of the power, and circumstances in which it will be exercised, the Correction Order operates from the date of the earlier Order with retrospective effect, to make the corrected Order operate with full force as corrected.

Of particular relevance to the matter before the Commission, the slip and error rule enables a correction in the following circumstances:

● where there has been an unintentional omission in an Order or judgement of the Court;

● where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;

● where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and

● where the error is manifestly clear; where an "officious bystander would reply when asked if the amendment was appropriate: `Of course'".

Similar principles prevail in Commission proceedings. As a matter of course, caution must be exercised when applying the slip and error rule. However, in the circumstances of this case the slip and error rule may be brought to bear. It may reasonably be surmised that the incorrect reference was due to a clerical or other like error; the omission of Regulation 131A was unintended; the substitution of Regulation 131A of the Workplace Relations Regulations for Regulation 131 of the Act gives effect to the intention of the Commission at the time the Award was simplified; there is no controversy between the parties that this is what was intended; it is an amendment consistent with an outcome that a Court might reach through construing the clause’.”  3

[7] For the Commission to be able to correct an error under s.602 of the Act, the error must be obvious. The basis upon which the correction is sought are facts that the evidence of the witnesses for the Respondent in the matter and the evidence of Mr Willis is in agreement that there was a telephone call prior to the meeting between the witnesses and Mr Willis on 30 May 2014.

[8] The correction reflects uncontroversial aspects of the evidence of facts in relation to the matter. Mr Willis’ own comment in response to the application was that the Respondents are seeking to “muddy the waters”. Mr Willis did not otherwise reply to the Respondents’ application for the correction, or to the effect that the Respondents’ submissions about the uncontroversial nature of the evidence concerning the notice of the meeting by telephone was wrong.

[9] Moreover, in this case the changes sought are not to the Commission’s findings or the axis of the decision to dismiss the application, which was consideration of the risk of Mr Willis being subject to bullying in the workplace in the future. There would therefore be no prejudice to Mr Willis arising from acknowledgement that the reasons for decision did not acknowledge the fact of a telephone call prior to the meeting of 30 May 2014 as this fact in no way determined the decision to order the dismissal of the application.

[10] However, while the correction would be fully justified by reference to the evidence it is questionable if the error is “obvious” as is required in order to make the correction to the text of the decision. What will constitute an obvious error is a matter of importance to ensure finality in decision making and the efficient function of the appellate jurisdiction.

[11] I have reached the conclusion that the corrected text is justifiable by the reference to the evidence, however, the error is not of the kind contemplated by s.602(1) of the Act. Consequently, an order to make the correction sought is not available for the reasons referred to above, being that the error is unclear and not obvious from the decision the subject of this application. In this respect, I note that part of the Deputy President’s decision in AFAP v AIPA whereby the Deputy President observed that the correct apprehension of the circumstances in the matter before him would be apparent from a reading of the decision in that matter as follows:

“In light of the above considerations, I do not believe it would be appropriate to correct my decision in the manner sought by the AFAP. Just as my decision in the approval proceedings is publically available, this decision will also be in the public domain. It is not my intention to support any perceived leverage or advantage to one party or the other, particularly given the earlier position of the AFAP as recorded in para [18] above. The parties will no doubt adopt their own interpretation of this decision in light of their own respective interests. This decision itself will sufficiently clarify the factual matrix to the Agreement negotiations.”  4 (emphasis added)

[12] The same situation arises here. What is set out above makes the relevant fact of the telephone call apparent. The application is therefore dismissed.

COMMISSIONER

 1   Australian Federation of Air Pilots v Australian International Pilots Association [2012] FWA 2627, [10]

 2   Ibid, [18]

 3   Re: Timber & Allied Industrial Award 1999, Print R5055, [33]-[35]

 4   Australian Federation of Air Pilots v Australian International Pilots Association [2012] FWA 2627, [23]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR569776>