Jeremy Snyder v Helena College Council, Inc. T/A Helena College
[2019] FWCFB 3992
•11 JUNE 2019
| [2019] FWCFB 3992 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jeremy Snyder
v
Helena College Council, Inc. T/A Helena College
(C2018/4170)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 11 JUNE 2019 |
Section 603 of the Fair Work Act 2009 (Cth) - Application to revoke a decision of a Full Bench of the Fair Work Commission – application dismissed.
Background
[1] On 27 July 2018, Commissioner Gregory issued a decision 1 (the Decision) in which he refused the application of Mr Jeremy Snyder (Mr Snyder) for an extension of time within which to lodge his application for an unfair dismissal remedy.
[2] Mr Snyder sought permission from this Full Bench to appeal the Decision (the First Appeal). On 20 December 2018, we issued a decision 2 refusing permission for Mr Snyder to appeal (First Appeal Decision).
[3] On 16 January 2019, Mr Snyder lodged a second Notice of Appeal against the Decision. This second appeal was filed outside the time period prescribed in the Fair Work Commission Rules 2013 (the Rules) and the application to extend time was heard by a separately constituted Full Bench of the Commission on 5 February 2019. In its decision (Second Appeal Decision), that Full Bench was not persuaded that it was in the interests of justice to extend time to file the second appeal and refused Mr Snyder’s application. 3
[4] On 12 February 2019, Mr Snyder filed a Form F1 – Application form, making application pursuant to s.603(2)(b)(i) of the Fair Work Act 2009 (the Act) for the First Appeal Decision to be revoked (Revocation Application) and for reconsideration of his appeal against the Decision, taking into account all submissions made by him and Helena College Council, Inc. T/A Helena College (the Respondent).
[5] On 16 February 2019, Mr Snyder filed further material described by him as being “submissions that were not considered” in the First Appeal Decision, amongst which he “highlighted the significant aspects that were not considered in any way in the [First Appeal] Decision and would influence the outcome of the Appeal.” Mr Snyder also submitted we did not consider “any aspect of the oral submissions at the Appeal Hearing.” 4
[6] Mr Snyder subsequently filed a document dated 19 February 2019 entitled “Grounds for Revoking Decision [2018] FWCFB 4734.”
[7] A telephone mention for the Revocation Application was held on 7 March 2019 and following this, the Respondent filed submissions on the Revocation Application dated 15 March 2019.
[8] Mr Snyder then filed a document dated 18 March 2019 entitled “Response to Respondent’s Submissions regarding Revocation of Appeal Decision” (Submissions in response) and a copy of the transcript from the hearing of the second appeal.
[9] On 8 March 2019, Mr Snyder also sought a determination from us in relation to two applications he made on 20 October 2018 and 29 November 2018 respectively, for a total of five persons to attend before the Commission, together with an application he made on 20 October 2018 for the production of documents. We advised Mr Snyder that we declined to make the orders he sought prior to the hearing for the Revocation Application but stated that in the event the Revocation Application was granted, we would proceed to consider this request.
[10] The hearing for the Revocation Application took place on 20 March 2019. Mr Michael Jensen was granted permission to represent the Respondent pursuant to s.596 of the Act.
Mr Snyder’s Submissions
Form F1-Application form dated 12 February 2019
[11] In the Form F1-Application form dated 12 February 2019 that gave rise to the Revocation Application, Mr Snyder submitted that in contravention of ss.577(a) and 578(b) of the Act, we did not consider most of the submissions he had made and that our decision to adjourn the hearing of the First Appeal until 2 November 2018 contravened s.577(b) of the Act.
[12] Mr Snyder submitted that apart from those he outlined in the Notice of Appeal, we did not consider his written or oral submissions regarding the Merits of the Appeal and Permission to Appeal and we did not consider his response to the Respondent’s submissions. Specifically, Mr Snyder submitted we did not take into account the following:
• His submissions relating to the Merits of Appeal and Permission to Appeal submitted on 17 August 2018;
• An email from the Chair of the Respondent’s Council dated 24 January 2018;
• His correspondence with the Commission dated 3 April 2018;
• Response by the Respondent to statements made by him submitted on 6 September 2018;
• His Submissions (Multiple Actions) submitted on 13 September 2018;
• Respondent’s Submissions (Multiple Actions) submitted on 21 September 2018;
• His Response to the Respondent’s Submissions (Multiple Actions) submitted on 21 September 2018;
• His Response to the Respondent’s submissions submitted on 19 October 2018;
• His Form F51 Application dated 20 October 2018;
• His Form F52 Application dated 20 October 2018;
• His Comparison of Decisions document submitted on 21 October 2018;
• His submissions (Form F51 and F52) submitted on 23 October 2018;
• The Respondent’s submissions (Form F51 and F52) submitted on 26 October 2018;
• The oral submissions of the parties made on 2 November 2018; and
• His Form F51 Application dated 29 November 2018.
[13] Mr Snyder submitted our omissions are of great significance and influenced the outcome of the Appeal for the following reasons:
• Paragraphs 26-35 of his submissions outlined an entire point of appeal regarding merits considerations in relation to the Respondent’s misrepresentation of the appropriate industrial instrument. Mr Snyder said this was referred to as “and merits considerations” in the subheadings prior to Paragraphs [23] and [37] of the First Appeal Decision, but omitted in our consideration of the grounds of appeal. Mr Snyder submitted this error was made because we only considered the Notice of Appeal and not the more refined points of appeal stated in his submissions, and that we therefore did not consider reason for the delay related to the industrial instrument.
• We had considered the Multiple Actions sections only in terms of the utility of the Appeal and not in terms of the merits of the Appeal. In particular, Mr Snyder submitted we made no consideration of the secondary objective of these sections as stated in Paragraph 2711 of the relevant Explanatory Memorandum, which was “to ensure a person does not miss out on a remedy because they were unable to make a competent application for another remedy.” Mr Snyder said he had specifically stated in Paragraph 19 of his response that this is an additional reason why the Decision should be quashed, but this was not considered by us.
• Because we did not consider “Evidence 7” attached to his Submissions dated 17 August 2018, we erroneously concluded in Paragraph [58] of the First Appeal Decision that Mr Snyder’s lawyer’s advice of 14 March 2018 was conclusive. This was also despite us quoting in Paragraph [56] in the First Appeal Decision that the lawyer had also advised “WAIRC should have jurisdiction and power to determine your employment disputes.”
• Because we did not consider “Evidence 1” attached to his Submissions dated 17 August 2018, which stated that his complaint would be investigated and concluded within 20 days (which he submitted was before the Commissioner, but not included in the Appeal Book by error), we erroneously concluded in Paragraph [66] of the First Appeal Decision that Mr Lyons’ correspondence on 25 January 2018 was a response to his letter. Mr Snyder submitted there is no evidence of this and Mr Lyons himself had denied this. Mr Snyder submitted his second Form F51 sought to clarify this matter, but we ignored that application. Further, Mr Snyder submitted we stated errors in the timeline for this correspondence in Paragraph [66] because we had not considered this evidence or his written and oral submissions for the Merits of the Appeal.
• Because we did not consider any of his response to the Respondent’s submissions dated 19 October 2018, the corresponding Comparison of Decisions document dated 21 October 2018, Khan v Anglican Schools Commission T/A Swan Valley Anglican Community School (Khan) 5 or his oral submissions at the hearing on 2 November 2018, we had no consideration of the extensive similarities between the circumstances of the Decision and Khan and their contradictory conclusions.
[14] Finally, Mr Snyder submitted the First Appeal Decision contravenes paragraphs 12 and 13 of the Commission’s Fair hearings practice note, which state that matters should be dealt with expeditiously and that the Commission must consider all evidence, together with paragraphs 18 and 32 of the Orders to attend and orders to produce practice note, which state that the Commission must inform the requesting party whether or not the application has been approved.
Mr Snyder’s 16 February 2019 material
[15] There were multiple documents filed on 16 February 2019.
[16] The first document included amongst the material Mr Snyder filed on 16 February 2019 was the outline of submissions he had filed ahead of the hearing for the First Appeal. Mr Snyder contended there were parts of those submissions, which he highlighted, that were not considered by us in the First Appeal Decision.
[17] In relation to the submissions he made going to the reason for his delay, the passages Mr Snyder highlighted firstly go to his explanation as to why he initially applied for an unfair dismissal remedy in the Western Australian Industrial Relations Commission (WAIRC) and he outlined actions by the Respondent and the Independent Education Union of Western Australia (IEUWA) that lay behind his decision to do so. Mr Snyder then highlighted parts of the submission that addressed the period of the delay from 13-22 March 2018.
[18] The next submissions Mr Snyder highlighted were those going to the merits of his unfair dismissal application and concerned his characterisation of what occurred in the periods of 11-23 January 2018 and 24-25 January 2018. Mr Snyder submitted that the Respondent “suddenly decided” that he did not need to work the notice period. He also submitted the Respondent “suddenly and unilaterally” brought forward the effective date of the redundancy.
[19] Mr Synder then highlighted parts of the submission relating to the consideration of the public interest, before highlighting submissions he made in relation to research he conducted and advice he received after he had lodged his application for unfair dismissal.
[20] The second document included amongst the material Mr Snyder filed on 16 February 2019 was entitled “Appellant’s statement regarding Part 6-1: Preventing Multiple Actions.” From this document, Mr Snyder highlighted Paragraph 2711 from the Explanatory Memorandum of the Fair Work Bill 2008, which states the intention behind the Act’s anti-double dipping provisions not applying where an initial application has been withdrawn or has failed for want of jurisdiction 6 was “to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.”7
[21] The third document included amongst the material Mr Snyder filed on 16 February 2019 that Mr Snyder raises is entitled “Appellant’s response to Respondent’s statement regarding Part 6-1: Preventing Multiple Actions” and in this, Mr Snyder seeks to emphasise his position that it was the Respondent’s ‘erroneous’ agreement that led to delays in him filing his unfair dismissal application and that he moved quickly once he became aware he should pursue it.
[22] The fourth document included amongst the material Mr Snyder filed on 16 February 2019 that Mr Snyder raises is entitled “Appellant’s response to Respondent’s submissions” dated 19 October 2018. In this document, Mr Snyder highlighted:
• Submissions he made in response to evidence he claims the Respondent put in its submissions in the First Appeal that was not before the Commissioner;
• His reliance on Khan 8 and his submission that the Decision is disharmonious with that decision;
• His submission that the Commissioner’s decision set a precedent for any employer in similar circumstances to the Respondent to circumvent unfair dismissal remedies by delaying proceedings in the WAIRC;
• His submission that the Decision plainly manifests an injustice;
• His submission that the Respondent created the concept of a partial redundancy;
• His submission that there was not a “genuine redundancy” within the meaning of s.389 of the Act;
• The manner in which he characterised the circumstances leading to the termination of his employment and his attitude towards it; and
• His submission that the Respondent had addressed “his second point of Appeal” with new evidence that was not available to the Commissioner.
[23] The fifth document included amongst the material Mr Snyder filed on 16 February 2019 that Mr Snyder raises is entitled “Comparison of Decisions” dated 21 October 2018, in which he compared his circumstances to the circumstances and decision in Khan. .9 Mr Snyder submitted it is in the public interest to quash the Decision on the basis that it was disharmonious with Khan.
[24] The sixth document included amongst the material Mr Snyder filed on 16 February 2019 that Mr Snyder raises is entitled “Appellant’s submissions regarding new evidence” dated 23 October 2018. Mr Snyder seeks to highlight his submission in this document that the Respondent had submitted eight new pieces of evidence to support three new claims not made at or prior to the hearing before the Commissioner. In response to this evidence and these claims, Mr Snyder had filed a Form F51 Application and Form 52 Application and had requested we:
• Not allow the Respondent’s new claims or evidence; or in the alternative
• Allow his Form F51 Application; and, in any event
• Allow his Form F52 Application.
Mr Snyder’s “Grounds for Revoking Decision [2018] FWCFB 4734” document dated 19 February 2019
[25] Mr Snyder submitted that we only considered his Form F7-Notice of Appeal. He further submitted that while we did not consider his Form F51 and Form F52 Applications, we took into account new, untested evidence from the Respondent, did not adequately consider his submission on “Multiple Actions” and did not consider his oral submissions.
[26] Mr Snyder again took issue with our consideration of the period between 11-23 January 2018 and our consideration of the merits of his unfair dismissal application, in terms of whether or not it was a genuine redundancy within the meaning of s.389 of the Act. Mr Snyder also reiterated the issue he had with the manner in which we summarised correspondence that passed between the parties and how this was outlined at paragraph [66] of the First Appeal Decision. He submits this resulted in paragraph [67] of the First Appeal Decision being inaccurate.
[27] Mr Snyder also again referred to the advice he received on 26 March 2018, after he had lodged his application for unfair dismissal, and submitted the advice he had received from his lawyer on 14 March 2018 was inconclusive. He submitted we did not take these factors into account.
[28] Mr Synder then repeated his submission that we did not take into account what he had submitted in relation to the consideration of the public interest.
[29] While Mr Snyder then took issue with paragraphs [37]-[41] of the First Appeal Decision, we would point out that these paragraphs were an outline of the Respondent’s submissions, just as there was also an outline of the submissions of Mr Snyder and our consideration of the submissions of both parties and our ultimate decision were outlined in different sections of the First Appeal Decision.
[30] Turning to why it is appropriate that we utilise s.603(2) of the Act to revoke the First Appeal Decision, Mr Synder contended:
• Section 603 is intended to fix errors that fall somewhere in between an "obvious... defect or irregularity" and an error that requires the matter to be reheard;
• While s.603 has a broad scope on its words alone, it is not to be used to fix minor and obvious errors on the one hand, as that is the purpose of s.602, and on the other hand it is not to be used to re-‐litigate the original case with new submissions, as that would be an abuse of process;
• The First Appeal Decision was based on “incomplete or false information,” as we did not take into account all of the submissions;
• He is not raising new arguments that he failed to put during the original hearing, with the arguments he is raising being the ones raised in the original hearing and preceding submissions. The reason he is raising them is not for these submissions to be reconsidered or re-‐litigated, but because they were not considered in the first instance;
• There is material information that was not considered in the First Appeal Decision and such a circumstance fits within the scope of s.603, as it does not require the extra level of determination that there has been a change in circumstance; 10
• Revoking the Decision due to it not taking into account material submissions is within the scope of s.603;
• We have not finalised our responsibility in determining the Appeal as we have not yet taken into account material submissions. As such, a further decision must be issued to rectify this matter and make a final determination based on all of the submissions; 11
• The Decision is at most a preliminary view, based on some submissions only, and it would not be appropriate to take the matter to the Court for judicial review because we have not yet finalised our responsibility; and
• In the interests of justice, our mistake must be rectified and it is in the best interests of both parties and the Commission that we rectify our mistake by revoking the First Appeal Decision and forming a Decision based on all of the submissions.
Respondents Submissions
[31] In its submissions dated 15 March 2019, the Respondent contends:
• The burden on an Applicant seeking revocation of a decision using s.603 of the Act is extensive and difficult to discharge because for the Commission to do so would typically be inconsistent with the public interest that there be finality in litigation;
• Mr Snyder is attempting for a third time to have the application for an extension of time heard by a Full Bench, relying on the same evidence already submitted and reviewed by us;
• Acceding to Mr Snyder’s request would undermine the statutory appeal process and be inconsistent with the public interest that there be finality in litigation;
• Mr Snyder has not discharged the significant burden of demonstrating there has been a “change in circumstances” or that the initial decision was “based on incomplete or false information”; 12
• Mr Snyder’s only evidence that certain written and oral submissions were not considered by us is a lack of specific reference to the contents of those submissions but when read in totality, the First Appeal Decision considered all the material;
• That fact that we did not specifically advert to the submissions does not of itself demonstrate that submissions were not considered; 13 and
• It would be unduly prejudiced by the revocation of the First Appeal Decision, having already expended significant time and legal costs.
[32] The Respondent concluded by submitting that the application to revoke the First Appeal Decision is another attempt by Mr Snyder to appeal the Decision and that to accede to the Revocation Application would be to undermine the statutory appeal process and would be inconsistent with the public interest that there be finality in litigation. It was submitted by the Respondent that Mr Snyder had neither demonstrated the First Appeal Decision was based on incomplete information nor that s.577 of the Act had been breached.
Mr Snyder’s Submissions in response
[33] In his Submissions in response dated 18 March 2019, Mr Snyder contended that the Respondent had not referred to the document he attached to his material filed on 16 February 2019 which he said highlighted material facts not considered by us in the First Appeal Decision.
[34] Mr Snyder also contended that the Respondent did not respond to paragraphs (4)-(17) of his “Grounds for Revoking Decision [2018] FWCFB 4734” document dated 19 February 2019.
[35] Mr Snyder submitted that for the Respondent to show that his submissions were considered, it is necessary for it to show that each of the submissions was taken into account in the consideration of the First Appeal Decision and the Respondent had failed to do this. Mr Snyder then submitted he would demonstrate that specific statements in the First Appeal Decision are inconsistent with the evidence and the facts, thus demonstrating that we must not have paid due consideration to his specific submissions. Further, Mr Snyder submitted that we did not address an entire point of the appeal, nor the merits of the appeal from his submissions relating to multiple actions. Mr Snyder then repeated submissions already made in relation to the Revocation Application.
[36] Mr Snyder submits we did not take material considerations into account when considering the period of the delay from 13-22 March 2018 and, in support of his position, again cited advice he received after he lodged his unfair dismissal application on 22 March 2018.
[37] Mr Snyder also disagrees with our conclusion that ultimately the decision as to whether he either continued to pursue or withdrew the WAIRC Application was a matter for him, not the Respondent, making the unsubstantiated claim that the Respondent had set aside its jurisdictional objection to the WAIRC Application. Further, Mr Snyder challenges our conclusion that “the conciliation before the WAIRC on 22 March 2018 was not a formal determinative hearing of the jurisdictional objection and we were not taken to any evidence led before the Commissioner revealing that further material was adduced during the WAIRC conciliation that could have unequivocally resolved Mr Snyder’s claimed confusion.” 14
[38] The next part of Mr Snyder’s Response to Respondent’s Submissions was in relation to our finding regarding the merits of his unfair dismissal application. He asserted we made no conclusion on what he termed as “the consultation period between 10 and 22 January 2018,” which he said led to the termination of his employment, and nor did we make any conclusion regarding the appropriate consultation provisions.
[39] In a section of his Submissions in response entitled “Decision to summarily terminate employment 24-25 January 2018,” Mr Snyder submitted again that the findings we made in paragraph [67] of the First Appeal Decision were erroneous.
[40] In the section of his Submissions in response entitled “Multiple Actions,” Mr Snyder submitted that the Commissioner’s failure to consider ss. 725, 729 and 732 of the Act may have impacted the Decision in multiple ways and this should have been considered by us as part of the merits of the First Appeal. Mr Snyder says his submissions before us were that to have dismissed his unfair dismissal application because it was made before he had withdrawn the WAIRC Application would have been against what he describes as the “secondary intention” of ss. 725, 729 and 732 of the Act, which is to ensure a person does not miss out on a remedy because they were unable to make a competent application for another remedy.
[41] Mr Snyder’s Submissions in response also included a section with the heading “Prejudice” and in that section he states he is addressing the submission from the Respondent that it will experience prejudice from us considering his application to revoke the First Appeal decision. Mr Snyder submits that if we are able to identify our own errors, the Respondent will be less prejudiced and that we were on notice of the errors in our decision from the date upon which Mr Snyder identified them. Mr Snyder further submitted that he was only informed of s.603 of the Act by the Full Bench at the hearing of the second appeal, at which time he formed the view that it would be a suitable option.
[42] Mr Snyder submits that the Respondent was therefore on notice from the time the First Appeal Decision was issued that he took issue with it and on notice from the date of the hearing of the Second Appeal that he considered the process of making the Revocation Application was appropriate. Mr Snyder submits the Revocation Application is more efficient than an appeal to the Court.
[43] As to the submission of the Respondent that a revocation of the First Appeal Decision would undermine the statutory appeal process, Mr Snyder submits his Revocation Application is an application for the revocation of a decision made in error by a person affected by the First Appeal Decision.
[44] Mr Snyder then responded to the submission of the Respondent that there should be finality to litigation by submitting there has not been finality because significant contested matters have not been considered or decided by anyone at the Commission.
[45] Mr Snyder submits the Respondent is attempting to impose arbitrary limits on the powers of s.603 of the Act contrary to the conclusion in Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd 15 and in contradiction of its submission that a decision based on omitted submissions would be appropriately dealt with through s.603 of the Act. Mr Snyder otherwise relied on submissions he made in his “Grounds for Revoking Decision [2018] FWCFB 4734” document dated 19 February 2019 at (28)-(46).
[46] Mr Snyder concludes by submitting that mistakes were made by us, the mistakes need to be fixed and s.603 of the Act is the appropriate means for fixing our mistakes.
Oral Submissions on 20 March 2019
[47] At the hearing of the Revocation Application, both parties stated they relied on the written material they had filed. Mr Jensen submitted that in his Submissions in response, Mr Snyder had included submissions that went beyond reply submissions on the issue of s.603 of the Act and so sought to address these. This in turn prompted Mr Snyder to respond. In substance, both parties repeated written submissions they had previously made.
Consideration
[48] Mr Snyder seeks for the First Appeal Decision to be revoked. Section 603 of the Act relevantly provides:
“Varying and revoking the FWC's decisions
603 (1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
603 (2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.”
[49] Section 603 was considered by Justice Ross in Grabovsky v United Protestant Association of NSW Ltd T/A UPA (Grabovsky), 16 in which His Honour stated:
“[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?
[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision 17 or, where the initial decision was based on incomplete18 or false information, fraudulently procured or otherwise.19
[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.” 20
[50] In Grabovsky, His Honour described the application being made asan application seeking that he overturn a Full Bench decision on the basis that it was wrongly decided. His Honour declined to do so, stating:
“Acceding to the Applicant’s applications would undermine the statutory appeal process and would be inconsistent with the public interest that there be finality in litigation. In my view the apparent scope of the power in s.603(1) must be construed such that it does not permit a single Member to vary or revoke an appeal decision by a Full Bench. Absent such a limitation a Member whose decision was overturned on appeal could act on their own motion (pursuant to s.603(2)(a)), or on the application of the respondent to the appeal (pursuant to s.603(2)(b)(i)), and vary or revoke the appeal decision. Such an outcome cannot have been intended by the legislature.” 21
[51] One of the cases His Honour referred to in Grabovsky in the passage we have outlined above was Re Endeavour Energy. 22In that case, application was made to Senior Deputy President Hamberger to vary a decision he had made which had already been the subject of an appeal dismissed by a Full Bench of Fair Work Australia. What was sought by the application to vary was for the Senior Deputy President’s original decision to be varied by replacing a reference to oral fluid testing with urine based drug testing. The application to vary was made based upon an assertion that it had become impossible for Endeavour Energy to comply with the original decision due to changed circumstances, whereby it was no longer possible to carry out oral fluid testing in accordance with s.3 of the Australian Standard 4760-2006.
[52] The Senior Deputy President noted in relation to s.603 of the Act:
“[8] Section 603 of the Act empowers the Fair Work Commission to vary or revoke a decision made under the Act (with certain exceptions), either on its own motion or on application by a person affected by the decision. There are no legislative criteria prescribing when or how this power should be exercised. However, as the applicant acknowledged during the proceedings, it is a power that is rarely exercised and in many respects is exceptional because it is contrary to the principle regarding the finality of decisions.
[9] Applications to vary or revoke a decision should not be used to re-litigate the original case. It would generally be unacceptable, for instance, to allow a party, after a case has been decided against it, to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so. In this case, the applicant submitted that since the original decision was made, there has been a change in circumstances such that the applicant can no longer comply with the original decision. I agree that if there has been such a change this could constitute a reasonable basis for a variation of the original decision.” (our emphasis, references omitted)
[53] While the Senior Deputy President was not persuaded the use of oral fluid testing required changing, he considered whether the applicant in the case could comply with the requirement that oral fluid testing be conducted in accordance with AS 4760-2006. Having found it was possible that the lack of accreditation under s.3 of the Australian Standard 4760-2006 might mean that strict compliance with the standard was not possible, the Senior Deputy President determined that the most appropriate course in the circumstances was a variation to the original decision so that it provided that as far as was practicable, drug testing was to be done on the basis of AS 4760-2006.
[54] The second case referred to by His Honour in Grabovsky in the passage we have outlined above was Rainshield Roofing Pty Ltd t/as Rainshield Roofing v Peter Paerau (Rainshield Roofing). 23In that case,Commissioner Wilson considered it appropriate to exercise the power under s.603 of the Act to vary a decision he had previously issued so as to take into account material the applicant in that matter sought, but failed, to bring to the attention of the Commissioner because it had been sent to the incorrect Commission email address.
[55] The third case referred to by His Honour in Grabovsky in the passage we have outlined above was Re Rubber, Plastic and Cablemaking Industry Award 1972. 24 In that case, Justice Gaudron of the Australian Conciliation and Arbitration Commission, as she then was, considered it appropriate to set aside an award she considered was obtained without the disclosure of material facts to the Commission by the parties.
[56] His Honour’s statements in Grabovsky about the nature of the s.603 revocation power have subsequently been endorsed by the Full Bench in Health Services Union – Victoria No. 1 Branch, Diana Asmar and Nick Katsis. 25
[57] Mr Snyder referred us to Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking v Transport Workers’ Union of Australia (Glen Cameron). 26In Glen Cameron, the initial decision of the Full Bench refused the appellant permission to appeal despite a clause of the agreement in question conferring the right of appeal. The Full Bench subsequently considered its decision did not resolve the dispute in question and therefore, a further decision was required to rectify the initial decision it had reached and bring the dispute to finality. The Full Bench was satisfied it was open for it to exercise the power under s.603 of the Act to revoke its decision.
[58] In approaching the nature of the Commission’s power under s.603 of the Act, we have noted His Honour’s statements in Grabovsky and consider the following principles in relation to s.603 of the Act can be discerned from the recent decision of the Full Court of the Federal Court in Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd (Esso): 27
a) Section 603 is applicable to the whole of the broad range of decisions which may be made by the Commission, other than those specified in s.603(3) of the Act; 28
b) This circumstance, together with provisions in the Act concerning the establishment of the Commission and the discharge of its functions, suggests that the power in s.603(1) should not be narrowly confined but should have a broad flexible operation; 29
c) The Act does contemplate that the Commission should have both the power to vary and revoke pursuant to s.603, and the power to determine matters on appeal pursuant to s.604; 30
d) There is no discernible basis upon which it could be concluded that the correction of error is solely within the preserve of s.604. On the contrary, it would be inconsistent with the relatively broad powers available under s.603 for the correction of error somehow to be carved out from its purview; 31
e) The fact that there might be a degree of overlap between s.604 and s.603 so that there might be scope to deploy each to achieve the same practical result does not alter the position; 32
f) The discretionary power in s.603(1) to vary or revoke a decision is not cast in terms of a power to be exercised only in particular stated events or circumstances and, apart from the decisions that are excluded by s.603(3), the power is not subject to any other express limitations; 33
g) There may be circumstances in which the discretionary power under s.603 properly should not be exercised because the applicant for the order is a person who is aggrieved by the decision and should pursue an appeal under s.604; 34 and
h) However, the fact that one can contemplate the existence of a range of potential circumstances in which the discretionary power under s.603 might properly not be exercised does not warrant the implication of arbitrary limits on the power itself. 35
[59] The circumstances in this Revocation Application differ from the circumstances in the cases of Re Endeavour Energy, Rainshield Roofing and Re Rubber, Plastic and Cablemaking Industry Award 1972, eachreferred to by His Honour in Grabovsky. That is to say:
• there has not been a change in circumstances such as to warrant the variation or revocation of the First Appeal Decision, as was the case in Re Endeavour Energy;
• the material before us when we determined the first appeal was not incomplete in the manner of Rainshield Roofing; and
• a charge that the First Appeal Decision was procured through false information, fraudulently procured or otherwise, in the manner articulated in Re Rubber, Plastic and Cablemaking Industry Award 1972, cannot be sustained.
[60] Similarly, Glen Cameron also involved circumstances that differ from the circumstances in this Revocation Application. In contrast to Glen Cameron, the scenario giving rise to the Revocation Application is not one in which Mr Snyder has a right of appeal. Rather, he is required to seek and obtain permission to do so. Further, the statement of the Full Bench in Glen Cameron upon which Mr Snyder relies to assert we have not yet finalised our responsibility, was made having regard to particular circumstances in a different context to the one before us. We do not consider Glen Cameron is applicable to the Revocation Application before us.
[61] Nonetheless, Esso establishes that our discretionary power under s.603is broad and, apart from the decisions that are excluded by s.603(3), not subject to any other express limitations. It is said that the power in s.603(1) should have a broad, flexible operation.
[62] The premise of Mr Snyder’s Revocation Application oscillates between a charge that we drew conclusions that were erroneous because they were contradicted by the evidence and one which alleges we failed to consider submissions he had made. Regardless, for the reasons we outline below, we do not agree. Mr Snyder simply seeks to rerun an application, the substance of which has already been heard and determined.
[63] Mr Snyder’s material filed in support of the Revocation Application included material that addresses why he firstly applied for an unfair dismissal remedy in the WAIRC and the actions of the Respondent and the IEUWA that he says lay behind his reason to do so. This theme was also a feature of what he highlighted in the “Appellants response to the Respondent’s statement regarding Part 6-1: Preventing Multiple Actions” filed on 16 February 2019.
[64] As to these submissions, we dealt with the period of Mr Snyder’s delay up to 12 March 2018 in paragraphs [47]-[51] of the First Appeal Decision. We noted Mr Snyder’s confusion and that he attributed this to representations made to him by the Respondent during the course of his employment. We considered it open to conclude that the Commissioner had acknowledged Mr Snyder’s confusion, had regard to it and accepted his reason for the delay up until 9 March 2018. That we specifically addressed the period from 10-12 March 2018 is now acknowledged by Mr Snyder.
[65] Mr Snyder’s material also addressed parts of his submissions that covered the period of the delay between 13-22 March 2018. This period was addressed in paragraphs [52]-[63] of the First Appeal Decision. We had outlined the nature of the advice Mr Snyder had received from his lawyer from at least 14 March 2018, which he repeated in his Submissions in response. It seems Mr Snyder simply disagrees with our conclusion that from 14 March 2018, it would have been apparent to him that there was a real risk that he had lodged an application in the wrong jurisdiction and he had the choice between persisting with the WAIRC Application or discontinuing and pursuing an application for unfair dismissal remedy in the Commission. The paragraphs highlighted by Mr Snyder from the outline of submissions he had filed ahead of the hearing for the First Appeal did not persuade us when considering this period and reaching our conclusion in the First Appeal Decision.
[66] When we addressed the merits of Mr Snyder’s application for unfair dismissal in paragraphs [64]-[76] of the First Appeal Decision, we had apprehended that Mr Snyder challenged the basis of the reason he was given for the termination of his employment and disputed that it was a case of genuine redundancy. Mr Snyder submits we made no conclusion on the period between 10 and 23 January 2018, which he said led to the termination of his employment, and nor did we make any conclusion regarding the appropriate consultation provisions. The First Appeal Decision makes clear we had noted Mr Snyder’s position was that he was not genuinely redundant and we took account of the references in the Decision to the discussions held after Mr Snyder had been notified of the redundancy and his disagreement with the rationale for what was being proposed. 36
[67] We also dealt with correspondence passing between the parties which included:
• Mr Snyder advising on 11 January 2018 that he would accept the offer of a 0.39 redundancy but with an effective date of 29 January 2018;
• The Respondent’s subsequent rejection of this effective date communicated by letter dated 19 January 2018;
• Mr Snyder withdrawing his intention to accept the 0.39 redundancy and asserting an entitlement to a “1.0 Full Redundancy” on 22 January 2018 and then indicating he would accept “the 1.0FTE redundancy effective 29/1/2018 with the 7 weeks’ notice paid out in lieu” as a “reasonable means of resolving this dispute”;
• The Respondent agreeing to the “1.0 Full Redundancy” but requiring the notice period to be worked out, communicated on 23 January 2018;
• Mr Snyder sending further correspondence on 25 January 2018 requesting that his request for the full 1.0 FTE redundancy with payment in lieu of the seven weeks’ notice be dealt with by the close of business on Friday 25 January 2018; and
• The Respondent sending correspondence to Mr Snyder agreeing to Mr Snyder’s request for a full 1.0 FTE redundancy and advising of the withdrawal of the requirement for Mr Snyder to work out the seven week notice period, with his final payment to be made on 25 January 2018.
[68] The submissions highlighted by Mr Snyder in relation to the periods of 10-23 January 2018 and 24-25 January 2018 for the Revocation Application simply proffer a different version of events to what this contemporaneous correspondence passing between the parties recorded.
[69] The correspondence we referred to in the First Appeal Decision and above at [67] discloses a different unfolding of events to that which Mr Snyder put forward and it was upon this correspondence, that was also before the Commissioner, that we formed our conclusions at [67] of the First Appeal Decision. The paragraphs highlighted by Mr Snyder from the outline of submissions he had filed ahead of the hearing for the First Appeal for the Revocation Application did not persuade us when reaching our conclusion.
[70] Mr Snyder appears now to deny there was a dispute about how the notice of termination of his employment was to be treated. Mr Snyder also appears to deny he had a preference to be paid notice in lieu as opposed to working out a period of notice. He referred to correspondence he received from Mr Johnston, Head of the College Council of the Respondent on 24 January 2018 that referred to an investigation period of twenty days.
[71] We outlined our finding that the chain of correspondence indicated the parties were disputing how the notice of termination of Mr Snyder’s employment was to be treated. As to this correspondence, in his letter to Mr Johnston dated 22 January 2018, Mr Snyder offered to resolve his dispute with the Respondent on the basis that there be a “1.0FTE redundancy effective 29/1/2018 with the 7 weeks’ notice paid out in lieu, associated 2.1 weeks holiday pay and the required 6 weeks’ severance pay …” In his further letter dated 25 January 2018, Mr Snyder stated, “Thank you for your email received at 10.05pm Wednesday 24/1/2018 and for considering this dispute. Please note that due to the nature of the dispute, I have requested that it be dealt with by close of business today, Thursday 25/1/2018. Given that I have requested for my redundancy to commence on Monday 29/1/2018 to coincide with the change of timetable, I feel it would only be appropriate to resolve this before 29/1/2018, irrespective of the maximum allowable time...” Then, the Respondent, in a letter from its principal dated 25 January 2018, withdrew its previous requirement that Mr Snyder work a notice period and agreed to pay Mr Snyder seven weeks’ notice in lieu, 2.1 weeks holiday pay and six weeks’ severance pay.
[72] The correspondence we outlined in the First Appeal Decision spoke for itself and established there were discussions between the parties after the Respondent had made the decision to terminate the employment of Mr Snyder on the basis of redundancy and, in particular, regarding its implementation and the issue of notice of termination. There then arose a dispute about notice of termination and the dispute was resolved. While Mr Snyder has a different view as to how this correspondence should be regarded, this correspondence led us to conclude the Respondent acceded to requests of Mr Snyder that matters be resolved by close of business on 25 January 2018 and for him to be paid in lieu of notice.
[73] The settled principle is that in considering the merit of a substantive unfair dismissal application for the purpose of s.394(3)(e) of the Act, the Commission is not in a position to make findings of fact on contested issues, unless evidence is called in respect of these issues. 37 The Commissioner had correctly observed this.38 Additionally, the Commissioner correctly observed, as was observed by the Full Bench in Long v Keolis Downer T/A Yarra Trams (Long),39 evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application. In particular, “it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.”40
[74] We did not consider the Commissioner erred in his consideration of the merit of Mr Snyder’s unfair dismissal application. We concluded the following finding of the Commissioner was open to him:
“However, it is difficult to conclude, based on the materials now before the Commission, that Mr Snyder’s case has significant merit. There were a number of discussions held with him after it was decided that the maintenance of a full-time position could not be justified. He was also provided with some options in these circumstances. While it is accepted that Mr Snyder did not necessarily agree with the rationale for what was being proposed this does not mean that the College’s decision, and the processes put in place as a consequence of that decision, were necessarily misconceived or unwarranted.” 41
[75] As was held by the Full Bench in the Second Appeal Decision:
“The consideration in s.394(3)(e) does not invite a binary assessment; rather, the merit of the substantive application will fall somewhere on a continuum from no merit to substantial or overwhelming merit. An absence of significant merit will generally sound against a finding of exceptional circumstances.” 42
[76] Those of Mr Snyder’s various submissions concerning “Multiple Actions” that he said went to the merit of his appeal were another element of his argument that he had made the WAIRC Application due to the Respondent’s erroneous Agreement and this ultimately led to the delay. As outlined above at [64], we had considered the period of Mr Snyder’s delay up to 12 March 2018.
[77] Further, we were not attracted to Mr Snyder’s argument regarding Paragraph 2711 from the Explanatory Memorandum of the Fair Work Bill 2008, which he appeared to want to read in isolation, without regard to Paragraph 2710. Read in context, the Explanatory Memorandum simply makes clear that the anti-double dipping provisions of the Act (such as ss.725, 729 and 732) are not intended to operate such that a person misses out on a remedy in circumstances where an initial application has been withdrawn or failed for want of jurisdiction and the rationale for this. In addition, an applicant is not relieved of the obligations to withdraw the initial application and file an unfair dismissal application within the 21-day time limit, and seek an extension if he or she does not, by virtue of an overarching, “secondary intention” that was propagated by Mr Snyder. 43
[78] Our analysis in the First Appeal Decision of the reasons for Mr Snyder’s delay related to our consideration of matters that would have been apparent to Mr Snyder in the period leading up to his filing of his application for unfair dismissal remedy on 22 March 2018. The research he performed and advice he received after that date was not relevant to the assessment of the reasons for his delay. We further observe that while Mr Snyder now claims he submitted that the appropriate jurisdiction was revealed at the conciliation before the WAIRC on 22 March 2018, and this enabled him to overcome his confusion, this contradicts his statement in his grounds of Appeal that following the conciliation before the WAIRC, he “was still not entirely convinced.”
[79] We wholly reject Mr Snyder’s submissions that we did not take into account what he had submitted in relation to the consideration of the public interest. In substance, Mr Snyder’s position in relation to public interest considerations in the Form F7-Notice of Appeal and his outline of submissions was the same and it was addressed by us in paragraph [78] of the First Appeal Decision.
[80] As to Mr Snyder’s two Form F51 Applications and his Form F52 Application, these were made in response to what Mr Snyder alleged was new evidence and claims submitted by the Respondent. As outlined above, Mr Snyder had submitted that we should not allow this new evidence or these new claims. On 30 October 2018, correspondence was sent to the parties stating:
“The Full Bench has considered both the Applications made by Mr Synder for Orders requiring persons to attend the hearing of the Appeal on 1 November 2018 and for the production of documents and the subsequent submissions made by both parties pursuant to the directions of Deputy President Clancy dated 22 October 2018.
Mr Synder’s submissions dated 23 October 2018 suggest the orders he seeks are in fact in response to what he asserts is an attempt by the Respondent to submit and rely on 8 new pieces of evidence through the submissions it filed, dated 27 August 2018 and 5 September 2018 respectively, for the purposes of the Appeal. The Respondent submits these submissions it made were in response to matters raised by Mr Synder in both his Form F7 - Notice of Appeal and an email dated 27 August 2018.
Having regard to these submissions, the Full Bench has determined that the requested Orders will not be made prior to the hearing of the Appeal on 1 November 2018. The Appeal hearing will proceed with both parties having the opportunity to present oral argument in support of the written material they have previously filed and if, during the course of oral argument, either party seeks to rely on further evidence that was not before Commissioner Gregory at first instance, they will be required to make application and explain their position. The other party will then be given an opportunity to respond.” (our emphasis)
[81] At the hearing of the Appeal on 1 November 2018, the Respondent did not make application to rely on further evidence that was not before the Commissioner at first instance. As a consequence, we did not rely on “new” claims or evidence that, according to Mr Snyder, the Respondent was seeking to rely upon.
[82] Finally, while Mr Snyder submitted that the Decision is disharmonious with Khan, we had found the nature of the advice he received from his lawyer on 14 March 2018, that we outlined in the First Decision, was significant and that Mr Snyder’s application for an extension of time turned entirely on its own facts. 44 In Khan, the applicant did not receive advice of the same nature from her lawyer.
Conduct of the First Appeal
[83] As to Mr Snyder’s submission that we did not perform our duties in accordance with s.577(b) of the Act, the timeline that transpired was substantially in accordance with the Commission’s Appeal proceedings practice note. Even with the extra time required so the parties could file material relating to ss.725, 729 and 732 of the Act, the hearing of the First Appeal was listed to take place only two days in excess of the 12 week benchmark (time of filing to hearing) that is set out in the Appeal proceedings practice note. It was then subsequently rescheduled to one week later so as to accommodate the work commitments of Mr Snyder.
[84] Further, the First Appeal Decision was handed down in accordance with the Commission’s timeliness benchmarks for the publication of decisions.
Conclusion
[85] We reject the premise of the Revocation Application and decline to exercise the discretionary power in s.603(1) of the Act to vary or revoke the First Appeal Decision.We will not entertain what is an attempt to rerun an application, the substance of which has already been heard and determined.
[86] We dismiss the Revocation Application and do not propose to engage further with Mr Snyder about either of our decisions.
DEPUTY PRESIDENT
Appearances:
J Snyder on his own behalf
M Jensen (Solicitor) for Helena College Council, Inc. T/A Helena College
Hearing Details:
2019.
Melbourne:
20 March.
Printed by authority of the Commonwealth Government Printer
<PR709169>
1 [2018] FWC 4432.
2 [2018] FWCFB 4734.
3 [2019] FWCFB 815.
4 Email from Mr Snyder to the Commission dated 16 February 2019.
5 [2017] FWC 6057.
6 Paragraph 2710 from the Explanatory Memorandum of the Fair Work Bill 2008.
7 Paragraph 2711 from the Explanatory Memorandum of the Fair Work Bill 2008.
8 [2017] FWC 6057.
9 Ibid.
10 Citing Mrs InnaGrabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 5161 and Application by Endeavour Energy [2014] FWC 198.
11 Citing Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking v Transport Workers’ Union of Australia [2017] FWCFB 4636.
12 Relying on Mrs InnaGrabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 5161 at [38].
13 Citing Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd [2019] FCAFC 26 at [87].
14 [2018] FWCFB 4734 at [61].
15 [2019] FCAFC 26 at [74].
16 [2015] FWC 5161.
17 See Re Endeavour Energy[2014] FWC 198.
18 Rainshield Roofing Pty Ltd t/as Rainshield Roofing v Peter Paerau[2014] FWC 3946.
19 Re Rubber, Plastic and Cablemaking Industry Award 1972 (1975) 167 CAR 929 at paragraph 931 per Gaudron J.
20 Metwally v University of Wollongong [1985] HA 28 at paragraph [7].
21 [2015] FWC 5161 at [45].
22 [2014] FWC 198.
23 [2014] FWC 3946.
24 (1975) 167 CAR 929.
25 [2015] FWCFB 5621.
26 [2017] FWCFB 4636.
27 [2019] FCAFC 26.
28 Ibid at [33].
29 Ibid at [34].
30 Ibid at [72].
31 Ibid.
32 Ibid.
33 Ibid at [73].
34 Ibid at [74].
35 Ibid, citing FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283-4 (Wilson J).
36 [2018] FWCFB 4734 at [70] and [74]-[75].
37 Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [72].
38 [2018] FWC 4432 at [46].
39 [2018] FWCFB 4109 at [72].
40 Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000 per Giudice P, Acton SDP and Gay C at [14].
41 [2018] FWC 4432 at [47].
42 [2019] FWCFB 815 at [38].
43 Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660 at [31].
44 [2018] FWCFB 4734 at [79].
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