King v Patrick Projects Pty Ltd
[2015] FWCFB 2718
•4 MAY 2015
| [2015] FWCFB 2718 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Patrick Projects Pty Ltd
(C2015/1994)
VICE PRESIDENT CATANZARITI | SYDNEY, 4 MAY 2015 |
Appeal against an email from Chambers of Commissioner Williams at Perth on 4 March 2015 in matter number U2014/7097.
[1] This is an appeal by Mr Daniel King (the Appellant) against a decision contained in an email dated 4 March 2015 (Decision) of Commissioner Williams in relation to various requests for orders to be made against Patricks Project Pty Ltd (the Respondent) in an application that the Appellant made under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for what he contended was an unfair dismissal.
[2] At the commencement of the hearing, the Respondent sought permission to be represented by lawyers in the proceedings. In the related proceedings between the same parties (matter C2015/1941) the primary issue on appeal was whether representation should be granted to the Respondent in circumstances where the Appellant was unrepresented. Having regard to s.596 of the Act and the reasons provided in the related decision in King v Patrick Projects Pty Ltd 1 we did not form the view that allowing representation would enable the matters to be dealt with more effectively. Permission to appear was not granted.
Background
[3] Between 20 February 2015 and 3 March 2015, the Appellant sought a range of orders from the Fair Work Commission (FWC). The various orders under the heading of the date they were requested as found in the Decision are as follows:
20 February 2015 - Orders
a. Barring the Respondent from claiming costs;
b. Requiring the Respondent to provide a copy of the “Little Red Book”; and
c. Barring the Respondent from communicating with the Commissioner rather than via Mr Burton (the Respondent’s Business Manager).
21 February 2015 -Orders to attend
a. Mr Burton; and
b. Mr McKay.
22 February 2015 - Orders to attend
a. Mr Hogg.
22 February 2015 - Orders to produce documents
a. A two-page schedule with 11 categories of documents.
3 March 2015 - Orders
a. A further request that all the above orders are ordered immediately;
b. That the Respondent’s submissions be rejected immediately and that the Respondent be barred from representation and that their representatives (K&L Gates) be barred from taking any part in these or any other related FWC proceedings.
[4] The Commissioner’s Decision with respect to the requested orders was stated as follows in an email to the parties:
“Commissioner Williams has considered all of your requests for orders and the respondent’s response to some of those requests which they provided on 25 February 2015 and also your response to their submissions which you provided on 26 February 2015.
Commissioner Williams advises that as you know the respondent has filed with the Commission and served on you yesterday a single witness statement in this matter which is from Mr Burton. If his evidence is to be considered by the Commission he will need to attend the hearing in person next week consequently there is no need for the Commission to order him to attend. You will have the right to cross-examine Mr Burton after he has given his evidence.
Commissioner Williams advises that he will not be issuing any of the other orders that you have requested.”
Permission to Appeal
[5] Before turning the merits of the appeal, we must make a finding pursuant to s.604(1) of the Act which requires the permission of the Commission in order to appeal a decision made by the Commission. In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 2 In GlaxoSmithKline Australia Pty Ltd v Colin Makin3 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“...the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[6] In all the circumstances of this matter, we consider that substantial injustice to the Appellant may result if leave is refused. We find that this enlivens the public interest and for that reason permission to appeal is granted.
Consideration of Appeal
[7] The primary issue on appeal is whether the Commissioner made an error in exercising his discretion under s.590 of the Act not to grant the Appellant’s requested orders. The Appellant submitted that there is an error on the basis that no reasons whatsoever were given for the Commissioner’s refusal to make the orders. The Respondent contended that no error was made and the Commissioner was not obliged pursuant to s.601 of the Act to produce substantive reasons for his decision.
[8] We find that, whilst it does not follow that detailed substantive reasons need to be given when denying a request for orders, the fact that no reasons were given at all causes difficulties and injustice to the Appellant in circumstances where some of the requested orders were reasonable and directly relevant to the Appellant’s unfair dismissal case.
[9] We find that the Commissioner erred in his decision. Permission to appeal is granted and the appeal upheld in part. The orders which we have either found are relevant to the unfair dismissal case, or the Responded has conceded he takes no issue with, will be made below.
[10] We now turn to a consideration of the requested orders which will not be made and give a brief explanation for each of these.
[11] With reference to the orders requested on 20 February 2015, an order will not be made on costs as this request is prematurely made. This is a matter that would be agitated at the conclusion of the substantive proceedings in the ordinary course. Regarding the request for an order barring the Respondent from communicating with the Commissioner rather than via Mr Burton, the Appellant clarified that this was in relation to the Respondent being legally represented and given that the Respondent’s request to be legally represented was declined, this order falls away.
[12] In respect of the 21 and 22 February 2015 request for orders to attend, there is no need for an order to be made for Mr Burton to attend as he has stated on the record that he will be in attendance at the substantive hearing. In regards to Mr McKay and Mr Hogg, if the Appellant still seeks an order for the attendance of these two individuals, this is matter he can agitate in the substantive proceedings.
[13] In relation to the 22 February 2015 two- page schedule of documents the subject of the request for orders to produce, we find that items 6-11 of the schedule are not relevant to the Appellant’s unfair dismissal case or are too broad in their scope or would reveal confidential information of third parties that have no connection to the dispute.
[14] Regarding the orders requested on 3 March 2015, these are no longer relevant given the outcome of these proceedings and as such, they fall away.
Orders
[15] We make the following orders:
(1) Permission to appeal is granted.
(2) The appeal is upheld in part.
(3) The Commissioner’s Decision is varied insofar as the following requested orders are made only:
a. The Respondent to provide a copy of the “Little Red Book” to the Appellant.
b. Documents numbered 1-5 listed in Appellants two-page Schedule dated 22 February 2015 are to be produced by the Respondent.
VICE PRESIDENT
Appearances:
P. King in Person.
D. Burton for the Respondent.
Hearing details:
Sydney via video-link to Perth.
31 March
2015.
1 [2015] FWCFB 2679 at [15]-[21].
2 Fair Work Act 2009, s.400(1).
3 [2010] FWAFB 5343 at [27].
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