Julian Nicolas Jr v Nortask Pty Ltd
[2014] FWCFB 1263
•21 FEBRUARY 2014
[2014] FWCFB 1263 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Nortask Pty Ltd
(C2013/6512)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 21 FEBRUARY 2014 |
Appeal against decision in transcript of Senior Deputy President Richards at Brisbane on 11 October 2013 in matter number C2013/5637 refusing to amend a discontinued application and refusing to extend time for the lodgement of a general protections application - prior contact with Associate - not disclosed - apprehended bias - permission to appeal granted - appeal upheld.
[1] This is an appeal by Julian Nicolas Jr (the appellant) from a decision of Senior Deputy President Richards on 11 October 2013 in which his Honour refused an application to amend the appellant’s discontinued unfair dismissal application made under s.394 of the Fair Work Act 2009 (the Act) and declined to exercise his discretion to extend the time for the appellant to make a general protections application under s.365 of the Act. The background facts and procedural history of matters were complex, but unnecessary to recount for the purposes of this decision.
[2] In short form as to matters relevant to this decision, the appellant’s employment with Nortask Pty Ltd (the respondent) terminated on 19 June 2013. The appellant and his friend, Kay Byrnes, attended an office of the Fair Work Ombudsman on 25 June 2013 and met with a member of the Ombudsman’s staff. After explaining the circumstances of his termination of employment, the appellant was provided with an application form for an unfair dismissal remedy. The appellant completed the application and it was lodged by the Ombudsman on his behalf.
[3] The appellant’s unfair dismissal application was the subject of a telephone conciliation conference with a Fair Work Commission (“Commission”) conciliator on 31 July 2013. The conciliation did not resolve the matter, but at the end of the conference the conciliator informed the appellant that there was another possible course of action and recommended the appellant obtain legal advice. 1
[4] Ms Byrnes then contacted a number of solicitors on the appellant’s behalf and was informed the appellant should have lodged a general protections application instead of an application for an unfair dismissal remedy.
[5] In the week commencing 12 August 2013, Ms Byrnes made a number of visits to the Ombudsman’s office. On 16 August 2013, Ms Byrnes returned to the Ombudsman’s office to make a complaint about what she characterised as the lodging of an incorrect application. 2 Ms Byrnes gave the Ombudsman’s representative a completed general protections application form. At the top of the form is the handwritten notation ‘Replacing U2013/3666’ (that is, the unfair dismissal application, albeit that matter number was incorrect) The Ombudsman’s representative lodged the application with the Commission on behalf of the appellant on 16 August 2013.
[6] Ms Byrnes was informed by Commission staff it was automatic that the unfair dismissal application should be withdrawn. On 17 August 2013, Ms Byrnes, as the appellant’s representative, lodged a notice of discontinuance in respect of the appellant’s unfair dismissal application.
[7] The respondent notified an objection to the appellant’s general protections application, on the basis that it was made outside the prescribed time. After learning of the respondent’s objection to the general protections application, Ms Byrnes returned to the Ombudsman’s office. Ms Byrnes’ evidence in this regard is set out later in this decision.
[8] The matter was listed for a jurisdictional hearing before Senior Deputy President Richards on 11 October 2013.
[9] In the proceedings before the Senior Deputy President the appellant’s representative advanced two alternative submissions:
(i) the general protections application sought to amend the unfair dismissal application lodged within the required time in accordance with s.586 of the Act or, in the alternative;
(ii) the Commission should grant an extension of time to make the general protections application pursuant to s.366 of the Act in light of the exceptional circumstances of the matter.
[10] As to the first matter, the Senior Deputy President rejected the application to amend the appellant’s unfair dismissal application.
[11] His Honour then went on to consider the appellant’s alternative submission, that the Commission extend the time for the lodgement of the general protections application.
[12] The Senior Deputy President decided that he was not satisfied that there were exceptional circumstances and refused the application to extend time.
[13] In the course of his reasons for decision, the Senior Deputy President canvassed the matters referred to in s.366(2)(a)-(e) of the Act. As to s.366(2)(a), the Senior Deputy President rejected the appellant’s principal submission that the Ombudsman had acted erroneously or had misrepresented the appellant’s rights in relation to the lodgement of the unfair dismissal application.
[14] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 3 There is no right to appeal, rather an appeal may only be made with the permission of the Commission.
[15] Section 604 reads:
(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 by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
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.
[16] Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Apart from the circumstances referred to in s.604(2) the grounds for granting permission to appeal are not specified.
[17] In Wan v Australian Industrial Relations Commission the Full Federal Court made the following observation regarding the operation of s.45 of the then Workplace Relations Act 1996 (“WR Act”), a statutory predecessor to s.604:
“Section 45 does not specify grounds for granting leave to appeal other than in the special case referred to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have included considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. These “grounds” should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.” 4
[18] Given the similarities between s.45 of the WR Act and s.604 of the Act the observations in Wan are still apposite. 5
[19] A hearing of the appeal was held on 4 December 2013, after which we reserved our decision.
[20] On 11 February 2014, the Commission informed the parties that we proposed to relist this matter for further hearing to provide the parties with an opportunity to comment on an aspect of the evidence of Ms Byrnes in the proceedings at first instance, about a conversation she had with an employee of the Ombudsman, which was not addressed during the appeal hearing on 4 December 2013.
[21] The relevant part of Ms Byrnes’ evidence is set out at paragraph [259] of the transcript of the proceedings before the Senior Deputy President, as follows:
“... I went back to the Fair Work Ombudsman, seeking again for [named Ombudsman employee], because I felt the blame lay with her. I don't know whether what she did was standard practice, although I have learnt since it probably is. But definitely on that day, I did not feel that she had given Julian's situation a fair start, and for it to come to this affray, I was rather incensed, actually. When I arrived there seeking her, I was told that she was on holidays and that she would not be back until the following Tuesday. So I unfortunately had to wait for that four weeks, and on the Tuesday I went back and I was told on that day that she had rung in ill and that she would not be coming in at all that day. The gentleman again that I was speaking to virtually wanted to off put me and say that I had no other recourse but to wait for [names Ombudsman employee] because nobody else could answer on her behalf. I wanted her to be able to give me a letter to state that she had only given the form of an unfair dismissal action to Julian and had made no mention nor produced any other form of any contrary nature, and the gentleman said, no, that nobody else could do that but she, and I stood my ground and I said, "Well, in that case I want to speak to somebody higher," and he said "no" at first by then conceded that maybe he could contact his leader in New South Wales, which he did, and this gentleman agreed to speak to me in the boardroom on the phone. I explained the whole situation and his reply to me was that he would contact [named Commission employee] at Fair Work Australia and that he would outline what I had explained to him, put forward our (indistinct) and more or less feel the situation out, and that is what he did and he came back to me the next day and he said that he had spoken with her and that she had said that - was a general practice that if - in all Fair Work Ombudsman offices, it is only the unfair dismissal that is given to the client, and he also added that she had said that even if we had gone into a Fair Work Australia office and sought advice, they would have done the same thing.So it would not have mattered whether I went to a Fair Work Ombudsman or Fair Work Australia, it would only have been the unfair dismissal form that we would have received.” [emphasis added]
[22] There is only one person employed by the Commission with the same name as the person referred to by Ms Byrnes and she is Senior Deputy President Richards’ associate. On Ms Byrnes’ evidence, it appears that the Senior Deputy President’s associate may have been provided with information about what the Ombudsman had done and the Ombudsman’s representative may have provided details of the appellant’s case and sought to ‘more or less feel the situation out’. This is in circumstances where the advice provided by the Ombudsman to the appellant was a central issue in the subsequent proceedings before the Senior Deputy President.
[23] In the decision subject to appeal the Senior Deputy President dealt with the appellant’s central contention - that the appellant was misled by the advice given by the Ombudsman’s representative - as follows:
“[352] There is no evidence in my view that the conduct of the Fair Work Ombudsman can be properly characterised as being erroneous or misleading or misrepresentative or in some way negligent. At all times the Fair Work Ombudsman had taken steps to facilitate an application to address the concerns annunciated by the applicant in approaching that organisation. The evidence then, in my view, is not sufficiently dense as to direct me to a conclusion that the Fair Work Ombudsman had been erroneous in its advice or in some way had misled the applicant.
[353] I add: attending a government agency for the purposes of advice does not absolve an individual from responsibility for properly apprehending the course of action they seek to take, or establishing a practical or at least a basic working understanding of the jurisdiction that they seek to evoke for purposes of seeking a remedy. They may do this on their own, as they do on many occasions, and the Internet has developed, and commission home pages have developed for the purposes of providing a rich source of information to the layperson, easily accessible by the Internet, and there are also telephone help lines that provide a comprehensive range of oral and verbal assistance to persons who are seeking to properly frame and understand their circumstances and to properly structure their prospective course of action.
[354] So a person may approach a government agency for advice and assistance, but it does not absolve that person from having to acquire any understanding of any kind whatsoever. It is not in effect a ticket to pass all responsibility to that government agency and the person representing that agency for purposes of the conduct of the matter. The role of the government agency only falls into question when its conduct or advice is erroneously founded or misleading, and in this respect, that is not what occurred. There was nonetheless an obligation on the employee himself, the applicant himself, and his support person and any other representative he wishes to engage, to properly comprehend his circumstances and to supplement that advice and to redirect that course of action as might be found to be desirable.
[355] In this particular case, the applicant's support person was aware upon part completion of the unfair dismissal form as to its proper identity and what its purpose was. If that understanding had emerged at that time, there was ample time between 25 June, when the application was filed, and 31 June, when the conciliation conference occurred, for the matter to be investigated, for the terms of the application to be explored, and for where it sits in the jurisdiction to be comprehended, but no such efforts were made, and reliance was placed solely on the form given to it by the Fair Work Ombudsman.
[356] I think there is an inherent issue here of personal responsibility for which there must be careful consideration, and we must not be too quick to cast aspersions on bodies which conduct themselves as appropriately as they can in the circumstances, but cannot in all circumstances be exhausted as to all the permutations and combinations that might potentially arise for an applicant at some stage in the future, on the basis of prospective legal advice they might be given, as was the case in this circumstance.
[357] I also point out, this is not a circumstance in which the applicant had suffered or was exposed to some incapacity in relation to his ability to comprehend the jurisdiction or access the rich sources of advice that are readily at his disposal, that I mentioned earlier. The applicant has been in Australia for five years. He has competent English skills, as has been evidenced over the course of these proceedings and through his witness statement. In fact, his communication skills generally are superior to many that I encounter on a day-to-day basis for whom English is not a second language.
[358] That is to say, in general, the applicant was not a person who was in some sense inherently disadvantaged such that he lacked the capacity to access and understand the jurisdiction. Indeed, his own conduct has been such that he has displayed a capacity to interact with the administrative or bureaucratic structures in the governmental system. He has been interacting with WorkCover. He has been able to access the Fair Work Ombudsman and has managed to articulate a range of contraventions regarding his dismissal and his contract of employment with the Fair Work Ombudsman. That is, in short, this is not a person who is in some manner incapacitated and unable to access the organs of government.”
[24] The Senior Deputy President made no mention in the proceedings of the fact that the Commission employee identified by Ms Byrnes in her evidence was his associate.
[25] There are a number of authorities relevant to communications with a member or a member’s associate outside the scope of formal proceedings. In Re JRL; Ex parte CJL (Re JRL), Gibbs CJ observed:
“4. It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v. Government of Malaya; (1962) AC 322, at p 337. McInerney J. stated the practice as it is generally understood in the profession in Reg. v. Magistrates' Court at Lilydale; Ex parte Ciccone; (1973) VR 122, at p 127, as follows:
‘The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.’
The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court: see Halsbury's Laws of England, 4th ed., vol.9, par.28 and cases there cited.” 6
[26] A Full Bench of Fair Work Australia had cause to consider the application of these principles in MJ Holly v SMS Operations Pty Ltd trading as Swick Mining Services Ltd (Holly). 7 That matter concerned an unfair dismissal proceeding in which a party had sent two emails related to the proceedings to the associate of the Commissioner determining the matter without informing the other side. The Full Bench granted permission to appeal and quashed the Commissioner’s decision. The gravamen of the Full Bench’s decision is set out at paragraphs [8] to [9] and [11] to [12]:
“[8] The private communications, which the emails from the respondent’s Human Resources Manager were, contained some submissions which were repeated during the hearing. Whether Mr Holly’s case was prejudiced as a result of not seeing what was contained in the emails in that respect is difficult to say. The private communications, however, also contained allegations concerning Mr Holly’s character and behaviour. Those allegations had the potential to operate to Mr Holly’s prejudice when the Commissioner was deciding the case. This is particularly so because the main issue in the proceedings was whether Mr Holly’s version of events was to be preferred over the conflicting testimony of the respondent’s witnesses. Questions of credibility were obviously central.
[9] In an action between parties, such as an application for an unfair dismissal remedy, the requirements of natural justice apply without modification. The law is well established. The relevant principle is set out in the following passage from the reasons for decision of Lord Parker CJ in R v Registrar of Building Societies, Ex parte A Building Society:
“The principle laid down in Errington’s case is still good law, and it is beyond doubt that...it is wrong for... a tribunal to hear evidence from one party in the absence of another, or to get outside information which may tell against one of the parties without giving that party an opportunity of dealing with it.” 8
...
[11] The requirements of natural justice will not be met if private representations made by one party might operate to the prejudice of another party. The representations in the emails sent by the respondent in this case were representations of that kind. The fact that the emails were sent to the Commissioner’s associate does not appear to us to be a relevant point of distinction. In the ordinary course, and in the absence of any indication to the contrary, it is to be assumed that the Commissioner would have read the emails or become aware of their content through some other means. While there is no suggestion that the Commissioner was in fact influenced by the private communications, it is sufficient that he might have been.
[12] The Commissioner’s decision was affected by a failure to observe the requirements of natural justice. Given the nature of the error, it is in the public interest that we grant permission to appeal. We do so. In the circumstances it is appropriate that the Commissioner’s decision be quashed. This means that Mr Holly’s application remains to be determined. In light of our reasons for upholding the appeal we think it is appropriate that the application be dealt with by another member of Fair Work Australia. We refer the application to Commissioner Williams to deal with in accordance with the Act. An order giving effect to our decision is published separately.”
[27] In relisting the matter for further hearing on 19 February 2014 we also referred the parties to Re JRL and Holly. During the course of the hearing on 19 February 2014 it was submitted on behalf of the appellant that in the circumstances he was denied procedural fairness. In reply, the solicitor for the respondent, advanced six principal points.
[28] First, it was submitted that Ms Byrnes’ evidence in relation to the conversation between the Ombudsman’s representative and the Senior Deputy President’s associate was ‘unreliable’. It was submitted that it was hearsay and it was suggested that Ms Byrnes had made a mistake in referring to the Senior Deputy President’s associate as the person who had a conversation with the Ombudsman’s representative. This ‘mistake’ was said to arise from the fact that the name of his Honour’s associate was on correspondence from the Commission to the parties and Ms Byrnes mistakenly identified her as the person contacted by the Ombudsman’s office.
[29] We do not find this argument persuasive. Ms Byrnes was not cross-examined about this aspect of her evidence and it was never put to her that she was mistaken as to the parties to the relevant conversation. As to the contention that Ms Byrnes’ evidence was ‘unreliable’ we accept that her evidence about the conversation between the Ombudsman representative and his Honour’s associate was hearsay, but note that this aspect of her evidence was not challenged in cross-examination. Further, in the proceedings at first instance the respondent did not contend that this aspect of Ms Byrnes’ evidence was unreliable. In its written submission at first instance the respondent submitted, at paragraphs [46]-[47]:
“It is submitted that at paragraph 8 of the Applicant's witness statement and at paragraph 3 of Kay Byrnes' witness statement, there is insufficient evidence provided to demonstrate that the FWO gave 'erroneous advice' to the Applicant with respect to the types of claims that were available to him.
In the absence of credible, particularised evidence relating to the Applicant's allegations of 'erroneous advice' of the FWO, it is respectfully submitted that the Commission ought to exercise a degree of caution in considering whether the alleged 'erroneous advice' of the FWO constitute an adequate reason for the delay.”
[30] In the course of oral argument the submissions of the respondent’s representative about this issue are confined to paragraph [320] of the transcript of the proceedings at first instance:
“Now, your Honour, you have heard evidence from two witnesses, Ms Byrnes and Mr Nicolas, and we would admit that there hasn't been a sufficient amount of evidence provided that Mr Nicolas and Ms Byrnes provided the Fair Work Ombudsman with enough information to draw the assertion that the Fair Work Ombudsman gave negligent, in effect, advice to Mr Nicolas.”
[31] The second point advanced on behalf of the respondent is that all parties were well aware that the person referred to by Ms Byrnes was the Senior Deputy President’s associate and no party raised any issue about that. The basis for the imputed knowledge is said to be that the name of his Honour’s associate was on a number of items of correspondence between the Commission and the parties. We are not prepared to assume that the parties were ‘well aware’ of the facts, as submitted by the respondent. In this regard, it is important to note that Ms Byrnes’ witness statement did not identify the Commission employee with whom the Ombudsman’s representative had a conversation. The relevant conversation and identification of that person only arose during her oral evidence. It is entirely likely that the appellant’s representative simply did not make the connection at the time.
[32] The third point advanced on behalf of the respondent is that a Jones v Dunkel inference should be drawn from the fact that the appellant failed to call either the Ombudsman’s representative or his Honour’s associate in the proceedings at first instance. We decline to draw any such inference. The point was not taken at first instance and, as we have said, it cannot be assumed that the appellant’s representative drew the connection between the name of the Commission employee said to have had the conversation with the Ombudsman’s representative and his Honour’s associate.
[33] The fourth point advanced on behalf of the respondent is that the only party that could be prejudiced by the communication between the Ombudsman’s representative and his Honour’s associate was the respondent. This submission is based on a false premise - that is it was only the respondent which could be prejudiced. We do not know that to be the case because we do not know the full extent of what may have been discussed during the private communication.
[34] The fifth point advanced on behalf of the respondent was the proposition that regardless of any conversation his Honour’s associate had and irrespective of whether that was communicated to his Honour, the resulting decision would have been the same. The difficulty with this submission is that we simply do not know whether - if the conversation was communicated to his Honour - it would have made a difference.
[35] Finally, the respondent submitted that the facts in this case distinguishable from the facts in Re JRL and Holly.
[36] The factual circumstances in Holly are different from those in the matter before us, but the same principles apply. While the private communication was not made by one of the parties to the proceeding it was made about a fact in issue in the proceedings, without the knowledge of the parties. We note that Re JRL is authority for the proposition that the private communication need not come from a party. While there is no suggestion that the Senior Deputy President was in fact influenced by the private communication it is sufficient that he might have been. It is important that justice not only be done but that it be seen to be done.
[37] The Senior Deputy President’s decision was affected by a failure to observe the requirements of procedural fairness. Given the nature of the error, it is in the public interest that we grant permission to appeal and we do so. In the circumstances, the appropriate course is to quash the Senior Deputy President’s decision and remit the appellant’s application to another Commission member in Brisbane for determination. We will remit the matter to Deputy President Asbury.
PRESIDENT
Appearances:
K. Byrnes for the appellant
B. Favaro, solicitor, for the respondent
Hearing details:
4 December 2013 (Brisbane) and 19 February 2014 (by telephone)
1 Ms Byrnes’ witness statement Exhibit A2 in the proceedings at first instance at paragraph [4]
2 Ibid at paragraph [6]
3 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 (2001) 116 FCR 481 at [30]
5 Also see the Explanatory Memorandum at paragraph [2327]: ‘It is intended that this would call up all the existing jurisprudence about granting leave to appeal - see e.g. Construction, Forestry, Mining and Energy Union v Australia Industrial Relations Commission (1998) 89 FCR 200; and Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.
6 (1986) 161 CLR 342 at 346-347
7 [2011] FWAFB 6640
8 (1960) 2 All ER 549 at 555; cited in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24, by Brennan J at paragraph 14.
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