Leon Wolff v Queensland University of Technology

[2021] FWC 5967

[2021] FWC 5967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.608— Referring questions of law to the Federal Court

Leon Wolff
v
Queensland University of Technology
(C2021/4098)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 SEPTEMBER 2021

Application for referral of a question of law to the Federal Court – application refused

[1] Mr Leon Wolff has made an application in the Fair Work Commission for the referral of a question of law to the Federal Court under s 608 of the Fair Work Act 2009 (FW Act). On 6 September 2021, pursuant to ss 582 and 584 of the FW Act, the President delegated to me his functions and powers under s 608 and transferred to me Mr Wolff’s s 608 application for determination. The question concerns whether in certain circumstances an employee is to be regarded as having been ‘dismissed’ within the meaning of s 386 of the FW Act. The question arises in the context of an application made by Mr Wolff under s 365 of the FW Act, presently before Lake DP, in which Mr Wolff contends that he was dismissed by Queensland University of Technology (QUT) in contravention of his workplace rights in Part 3-1 of the FW Act.

[2] The essential background to this matter is as follows. Mr Wolff was employed by QUT as an associate professor in its school of law. In May 2019, Mr Wolff made a public interest disclosure complaint to QUT about the conduct of certain colleagues (PID complaint). In June 2019, Mr Wolff made a further complaint about his colleagues to the university (staff complaint) and lodged related anti-bullying applications in the Commission and with Workplace Health and Safety Queensland. QUT appointed an investigator to examine the PID and staff complaints. The investigator’s report of November 2019 concluded that the allegations in Mr Wolff’s complaints were generally unsubstantiated, but that some criticisms that had been made of Mr Wolff had been unjustified and that certain incorrect information had been provided to him concerning university policy. On 13 December 2019, QUT gave Mr Wolff a letter which stated that the university would write to relevant colleagues and draw their attention to the unjustified criticisms and incorrect information. The letter also issued Mr Wolff with administrative directions concerning his conduct towards the persons against whom he had made the complaints, some of whom QUT believed to be highly distressed and anxious as a result of his complaints and associated applications. The letter stated that the directions were to ensure a safe workplace for all members of staff, and that they were not disciplinary in nature, but that QUT would regard any failure to follow them as a serious breach of Mr Wolff’s obligation to comply with reasonable directions.

[3] On 23 December 2019, Mr Wolff and QUT entered into a deed of settlement and release, in which the parties agreed that Mr Wolff’s employment with QUT would end on 25 June 2021 or on any earlier date of Mr Wolff’s choosing, and that QUT would pay to Mr Wolff a sum of money. Under the deed, the parties released one another from all liability, which was broadly defined and included liability arising out of or related to Mr Wolff’s employment, whether at law or under statute, including under the FW Act or the Public Interest Disclosure Act 2010 (Qld) (PID Act). The deed also stated that Mr Wolff had obtained, or had had the opportunity to obtain, independent legal advice in relation to the deed, and that the deed was signed voluntarily. Mr Wolff’s employment with QUT ended on 25 June 2021. He was paid the settlement monies. From the date of the deed of settlement until the end of his employment, Mr Wolff was prohibited from entering QUT premises without approval. Save for certain subjects and tasks to be undertaken remotely, Mr Wolff was not required to work during this period.

[4] On 15 July 2021, Mr Wolf filed his s 365 application. QUT objects to the application on the jurisdictional basis that he was not dismissed. Mr Wolff contends that he was forced to retire because the administrative directions issued to him by QUT following the investigation into his complaints contained a threat to repudiate his contract and gave him no choice but to agree to the deed, which he contends is vitiated by illegality. QUT has asked Lake DP to determine its jurisdictional objection and dismiss Mr Wolff’s s 365 application. A hearing date was listed but then vacated after Mr Wolff lodged his s 608 application.

[5] At a telephone mention on 7 September 2021, the parties agreed, and I decided, that it was appropriate to determine the s 608 application on the papers. I noted that Mr Wolff’s application already contained a detailed submission and directed QUT to file a written submission in response by 5.00pm on 14 September 2021. I directed Mr Wolff to file any reply by 5.00pm on 21 September 2021. After hearing from the parties, and for reasons given on transcript, I granted QUT permission under s 596 to be legally represented, and declined Mr Wolff’s request for an order deidentifying him as the applicant in these proceedings.

[6] The original question that Mr Wolff asked the Commission to refer to the Court was the following:

“On a statutory construction of the Public Interest Disclosure Act 2010 (Qld) (“PID Act”), especially ss 36 and 40-42, has a worker been “dismissed” under s 386 of the Fair Work Act 2009 (Cth) when —

(a) the worker made a valid public interest disclosure which the employer has accepted;

(b) the worker, on the objective evidence, had no genuine motivation or good reason to leave employment at the time of making the disclosure or any time afterwards (for example, there were no adverse performance reviews against the worker, no disciplinary proceedings on foot or planned; and no illness nor injury rendering the worker incapable of fulfilling duties);

(c) the employer, after the investigation concluded, issued administrative directions to the worker, including directions relating to the substance of the worker’s disclosure, with the threat or intimation of contract repudiation if the worker did not comply; and

(d) pursuant to the administrative directions, the parties executed a deed of settlement and release with (what the employer regards is) a generous payout but with (what the worker regards as) “detrimental” financial, reputational and career consequences for the worker compared to the benefits available had the employment relationship continued.”

[7] In his reply submission, Mr Wolff recast the question that he asks to be referred to the Court. Presenting a revised question is not in the nature of a reply submission. It is in effect a separate or amended application. Nevertheless, as will become apparent, this is no prejudice to the respondent and therefore I have decided to accept the revised question, which is set out below, together with the changes to the original question that were marked up by Mr Wolff in his reply submission:

“On a statutory construction of the Public Interest Disclosure Act 2010 (Qld) (“PID Act”), especially ss 36 and 40-42, has a worker been “dismissed” under s 386 of the Fair Work Act 2009 (Cth) when —

(a) the worker made a valid public interest disclosure staff grievance which, in part, the employer has accepted and investigated as a public interest disclosure;

(b) at the time of making the staff grievance and at all times during its investigation, there is no evidence that the worker (who, at age 50, was not close to the normal retirement age) on the objective evidence, had no genuine motivation or good reason to leave employment at the time of making the disclosure or any time afterwards (for example, there were no adverse performance reviews against the worker, no disciplinary proceedings on foot or planned; and no illness nor injury rendering the worker incapable of fulfilling duties):

a. was injured or otherwise incapable of performing his duties;

b. was facing or threatened with unsatisfactory work performance review;

c. was facing or threatened with a disciplinary process for misconduct; and/or

d. had unhappy or unproductive working relationships with his supervisor or colleagues with whom he had to collaborate with in teaching, research or service.

(c) the employer, after the investigation concluded, issued administrative directions to the worker mandating he respond in a particular way to the workplace investigator’s report; , including directions relating to the substance of the worker’s disclosure, with the threat or intimation of contract repudiation if the worker did not comply; and

(d) pursuant to the those administrative directions, the parties executed a deed of settlement and release which, among other things, required:

a. the worker’s early retirement at a future date;

b. loss of office and access to campus;

c. discontinuance of Fair Work Commission applications;

d. the execution of deeds of release with staff members against whom he had initiated legal actions for bullying or adverse action; and

e. a defined payout. with (what the employer regards is) a generous payout but with (what the worker regards as) “detrimental” financial, reputational and career consequences for the worker compared to the benefits available had the employment relationship continued.”

[8] Section 608(1) states that the President ‘may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court’. The principles that are relevant to the Commission’s consideration of an application under s 608(1) were summarised by the President in Grabovsky v United Protestant Association of NSW Ltd [2015] FWC 5161 as follows:

“[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.

[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another [[2001] FCA 1589, 115 FCR 78] the Full Federal Court held that a question does not ‘arise’, within the meaning of what is now s 608(1), ‘unless it pertains to an issue that actually exists’. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australia [(1925) 36 CLR 442] in support of this proposition:

“It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. Remote or merely possible relation of the question of law to the facts is not enough to make the question ‘arise’ in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of ‘arising’.”

[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146 [(1998) 82 FCR 391].

[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s 577 of the FW Act provides that the Commission must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.”

[9] In my opinion, Mr Wolff’s revised question is not one that falls within s 608. First, the question of whether Mr Wolff was dismissed within the meaning of s 386 is not simply a question of law, but a mixed question of law and fact. Although the ultimate conclusion as to whether a person has been dismissed within the meaning of s 386 is a legal one, it is a conclusion that is dependent on facts, which in the present case are not agreed. Mr Wolff’s revised question seeks to remove reference to disputed facts, but this does not change the reality that various facts are indeed disputed. Critically, it is clear from Mr Wolff’s s 365 application that he contends that he was forced to retire, whereas QUT disputes this and contends that Mr Wolff freely agreed to end his employment in exchange for the benefits he received under the deed.

[10] Secondly, the revised question formulated by Mr Wolff is not one that arises in the matter before Lake DP. Mr Wolff framed his revised question as a general and hypothetical one. However, the question that in substance arises for determination in the s 365 matter is not whether workers in general are to be regarded as dismissed in the circumstances set out in the question, but rather whether Mr Wolff was dismissed. Further, it is a dimension of the requirement that a question arise in a matter before the FWC that the question be categorically answerable. The question of whether Mr Wolff has been dismissed within the meaning of s 386 of the FW Act could not properly be answered by reference only to the circumstances referred to in the revised question. All of the relevant circumstances would need to be taken into account. The revised question is defective.

[11] For these reasons, the preconditions for a referral of a question of law to the Court have not been met. However, even if I were to accept that Mr Wolff’s revised question is one of law arising in a matter before the Commission, such that the Commission’s discretion had been enlivened, I would not exercise my discretion to refer the revised question to the Court, for the following reasons.

[12] First, Mr Wolff seeks to refer to the Court not a discrete question of law, but rather, in effect, the entire jurisdictional objection of QUT to the s 365 application. The decision of the Full Federal Court in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 (Milford) makes clear that it is the Commission’s task to determine this matter. The Full Court held that where in a s 365 matter a respondent asserts that there has been no dismissal, such a dispute falls to be determined under s 365 and is an ‘antecedent dispute going to the entitlement of the applicant to apply’ (at [67]). The Full Court noted that administrative tribunals such as the Commission may determine the limits of their own power, and that the relevant matter before the Commission in that case had been whether the Commission had authority to deal with the dispute under s 368 (at [68]). In my opinion it would be inappropriate for the Commission to refer to the Court the very work which the Court has found to be the task of the Commission, absent a persuasive discretionary reason to do so. There is no such reason in this case.

[13] Secondly, even if a mixed question of law and fact may be referred to the Court under s 608, the absence of agreement between the parties as to all of the relevant facts is a powerful discretionary consideration telling against referral. Mr Wolff contended in his reply submissions that there were no disputed facts at all, and that all disputed matters were questions of law. This is wrong. Again, a centrally relevant contention in Mr Wolff’s s 365 application is that he was forced to retire, and that he was left with no choice but to sign the deed. QUT denies that this was the case. This is a disputed fact. Mr Wolff misapprehends the distinction between questions of fact and law. A question of fact does not become a question of law simply because it has a legal implication. In order to decide whether Mr Wolff was dismissed, the Court would need to resolve the factual dispute about whether Mr Wolff was forced to resign. It is not appropriate for the Commission to burden the Court with factfinding.

[14] Thirdly, Mr Wolff has endeavoured to make his question abstract and thereby of potential relevance to persons other than himself, however the substance of the revised question simply asks the Court to decide whether he was dismissed in the peculiar circumstances of his own case. There is no good reason why Mr Wolff should receive special treatment by having his matter determined finally by the Court, rather than by the Commission in the manner endorsed by the Full Court in Milford.

[15] Fourthly, and contrary to Mr Wolff’s submission, it would clearly not be timelier or more efficient to have the Court, rather than the Commission, determine the question of whether he was dismissed. It is only to be expected that the Commission will determine the jurisdictional objection to the s 365 application well before the Court could reasonably be expected even to list a referred question of law for hearing. The discretion conferred by s 608 should be approached with due regard to the importance of avoiding delay in the determination of matters before the Commission.

[16] Fifthly, Mr Wolff’s question is simply not one that warrants the Court’s attention. The proposition behind Mr Wolff’s question, namely that the answer to it is ‘yes’, lacks intrinsic merit. Mr Wolff was an associate professor of law. He signed a deed of release in which he agreed to end his employment and release QUT from liability in exchange for a payment. He acknowledged that he signed the deed freely. He advances no credible argument that his will was overborn. The contention that Mr Wolff was forced to retire or to sign the deed is fanciful.

[17] One of the arguments advanced by Mr Wolff in support of his referral application was that the Court would be better placed to consider what he believed to be the possible criminal behaviour of various persons, including a senior officeholder of the university, and QUT’s former and current legal representatives. I see no proper basis at all for Mr Wolff’s contentions about possible criminal behaviour. In any event, the Commission is perfectly able to have regard to all relevant laws when carrying out its functions.

[18] Mr Wolff said that there were ‘public policy’ reasons supporting his application to refer his question to the Court, including the importance of determining the extent to which the PID Act limits the discretion of public sector employers to issue directions to ‘whistle-blowers’, and questions concerning the role of lawyers who advise such employers. I reject this submission. If such matters are relevant to the s 365 application in some way, there is no reason why the Commission cannot take account of them. More generally, I perceive no public policy or other discretionary considerations weighing in favour of referring Mr Wolff’s question to the Court.

[19] Finally, Mr Wolff submitted that the referral of his question to the Court would be preferable to an ‘inevitable marathon’ of hearings and appeals. I would remind Mr Wolff that any proceedings in the Commission that are brought without reasonable cause, or that have no reasonable prospect of success, may expose him to applications for costs under s 611.

Conclusion

[20] There is no power for the Commission to refer Mr Wolff’s revised question to the Court because it is not a question of law arising in a matter before the Commission. Even if the question were to be regarded as one capable of referral under s 608, I would refuse to refer it to the Court on discretionary grounds.

[21] The application is refused.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

<PR734174>