FEDERAL COURT OF AUSTRALIA
Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157
Citation: Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 Parties: LINFOX AUSTRALIA PTY LTD v FAIR WORK COMMISSION and GLEN STUTSEL File number: NSD 1623 of 2012 Judges: DOWSETT, FLICK AND GRIFFITHS JJ Date of judgment: 13 December 2013 Catchwords: INDUSTRIAL LAW – unfair dismissal – order for reinstatement – no jurisdictional error in decision of Full Bench
ADMINISTRATIVE LAW – no failure to entertain submissions made – no failure to resolve submissions as to inconsistencies in evidence – right to free speech
Legislation: Fair Work Act 2009 (Cth) ss 385, 387, 390, 391, 394, 400, 562, 563, 570, 604, 607
Federal Court of Australia Act 1976 (Cth) ss 21, 22, 23
Judiciary Act 1903 (Cth) s 39BCases cited: Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) [2012] FCAFC 103, 203 FCR 430
Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194
Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78
Commissioner of Taxation v Glennan [1999] FCA 297, 90 FCR 538, 99 ATC 4467, 41 ATR 413
Culley v Australian Securities and Investments Commission [2010] FCAFC 43, 183 FCR 279
Donaldson v NSW National Parks and Wildlife Service (1997) 74 IR 168
Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726
Fox v Australian Industrial Relations Commission [2007] FCAFC 150
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1, 211 CLR 441
Reece v Webber [2011] FCAFC 33, 192 FCR 254
Soliman v University of Technology, Sydney [2012] FCAFC 146, 207 FCR 277
Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, 75 ALD 630
WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319Date of hearing: 6 and 7 May 2013 Date of last submissions: 9 May 2013 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 93 Counsel for the Applicant: Mr A Moses SC with Mr J Murphy Solicitor for the Applicant: K & L Gates Solicitor for the First Respondent: The First Respondent filed a submitting appearance Counsel for the Second Respondent: Mr M Gibian with Mr A Howell Solicitor for the Second Respondent: Maurice Blackburn
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 1623 of 2012
BETWEEN: LINFOX AUSTRALIA PTY LTD
ApplicantAND: FAIR WORK COMMISSION
First Respondent
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Details
- Case
- [2013] FCAFC 157
- Decision Date
CaseChat Overview and Summary
Linfox Australia Pty Ltd was involved in a legal dispute with the Fair Work Commission, which pertained to an alleged unfair dismissal and the subsequent order for reinstatement. The matter was heard in the Federal Court of Australia. The core legal issues revolved around whether the Full Bench of the Fair Work Commission made any jurisdictional errors in its decision-making process and whether there were failures to entertain or resolve submissions regarding inconsistencies in the evidence.
The court examined Linfox's claims that the Full Bench failed to address an alleged inconsistency in the evidence presented by Mr. Stutsel regarding his understanding of the privacy settings on his Facebook page. The court found that the Commissioner did indeed consider this inconsistency and ultimately accepted Mr. Stutsel's account of the events. The Commissioner's reasons for decision detailed the evidence given by both Mr. Stutsel and Ms. Neill, and ultimately concluded by accepting Mr. Stutsel's version of events. This demonstrated that the Commissioner had not erred in failing to address the inconsistency, as they had considered and resolved the issue in favor of Mr. Stutsel.
The court further considered the relevant statutory provisions, specifically Section 607, which governs the process for appealing or reviewing decisions made by the Fair Work Commission or the General Manager. The court clarified that an appeal to the Full Bench is not a de novo hearing and cannot result in a quashing or variation of the decision unless there is a demonstration of error on the part of the Commissioner. The court concluded that the Full Bench did not make any jurisdictional errors in its decision, and therefore the appeal could not be successful based on the grounds presented by Linfox.
The court dismissed Linfox's Further Amended Originating Application, affirming that no jurisdictional error had been made by the Full Bench of the Fair Work Commission. The name of the First Respondent was changed to the Fair Work Commission, and the parties were instructed to bring in short minutes of orders to give effect to these reasons within 21 days.
The court examined Linfox's claims that the Full Bench failed to address an alleged inconsistency in the evidence presented by Mr. Stutsel regarding his understanding of the privacy settings on his Facebook page. The court found that the Commissioner did indeed consider this inconsistency and ultimately accepted Mr. Stutsel's account of the events. The Commissioner's reasons for decision detailed the evidence given by both Mr. Stutsel and Ms. Neill, and ultimately concluded by accepting Mr. Stutsel's version of events. This demonstrated that the Commissioner had not erred in failing to address the inconsistency, as they had considered and resolved the issue in favor of Mr. Stutsel.
The court further considered the relevant statutory provisions, specifically Section 607, which governs the process for appealing or reviewing decisions made by the Fair Work Commission or the General Manager. The court clarified that an appeal to the Full Bench is not a de novo hearing and cannot result in a quashing or variation of the decision unless there is a demonstration of error on the part of the Commissioner. The court concluded that the Full Bench did not make any jurisdictional errors in its decision, and therefore the appeal could not be successful based on the grounds presented by Linfox.
The court dismissed Linfox's Further Amended Originating Application, affirming that no jurisdictional error had been made by the Full Bench of the Fair Work Commission. The name of the First Respondent was changed to the Fair Work Commission, and the parties were instructed to bring in short minutes of orders to give effect to these reasons within 21 days.
Orders
Orders of the court
1. The name of the First Respondent be changed to the Fair Work Commission.
2. The parties are to bring in short minutes of orders to give effect to these reasons within 21 days.
Note: Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
None of the arguments now sought to be advanced in this Court should prevail. The Further Amended Originating Application should be dismissed. Inconsistent evidence The first matter relied upon by Linfox as exposing jurisdictional error is an alleged “failure to address a submission that there was inconsistent evidence from Mr Stutsel about his understanding of the private nature of his Facebook page”. The fact of Mr Stutsel providing an inconsistent account of his actions was common ground. When being interviewed by Ms Neill, Mr Stutsel accepted that he was aware that a statement on Facebook was “out in the public forum”. Mr Stutsel later, however, sought to “back track” from this concession. Before the Commissioner, in his written statement of evidence, he denied Ms Neill’s account and said that his “recollection [was] that Ms Neill asked ‘Do you understand how Facebook works?’ and I answered ‘As far as I understand, its conversations back and forth between friends”. His written account was that his wife and daughter had set the “privacy settings” on the computer to “full privacy restrictions”. This argument fails for a number of reasons. First, while emphasising that it is the decision of the Full Bench which is the subject of judicial review, it is also relevant to say something about how the Commissioner dealt with this matter, having regard to how Linfox put its case. It is plain that the Commissioner did take into account this inconsistency. In his reasons for decision, the Commissioner summarised the evidence given by Mr Stutsel and made specific reference to his evidence as to the privacy settings being set by his wife and daughter to “full privacy restrictions” and his evidence that his understanding was that “nothing I said or did could be seen by anyone but the people I had invited to be my Facebook ‘friends’…”: [2011] FWA 8444 at [14]. The Commissioner also separately addressed the evidence given by Ms Neill, including her evidence that during the interview “Mr Stutsel admitted …. that his Facebook page was in a public forum…”: [2011] FWA 8444 at [34]. Having set forth the evidence, the Commissioner ultimately went on to address the evidence that had been given relevantly as follows:The evidence[78] A thorough examination of the evidence leads me to a number of conclusions which have guided me in making my decision in this matter. Firstly, I accept as truthful the evidence of Mr Stutsel that his Facebook account was set up by his wife and daughter and that he believed that the account had been set on the maximum privacy setting available and that he did nothing to vary that setting. That is, he believed that the comments posted on his page could only be viewed by himself and those persons he had accepted as Facebook friends. I further accept Mr Stutsel’s evidence that he was unaware that he could delete comments from Facebook friends once they had been posted.Rather than there being a failure to address a submission as to the inconsistency in the evidence being relied upon, the Commissioner set forth the inconsistent evidence and thereafter proceeded to accept the account provided by Mr Stutsel.
Decision
Reasons for decision
Section 607 is also relevant. It deals with the process for appealing a decision, as well as the powers of the Full Bench. It provided as follows:Process for appealing or reviewing decisions (1)An appeal from, or a review of, a decision of FWA or the General Manager may be heard or conducted without holding a hearing only if: (a)it appears to FWA that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and (b)the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing. (2) FWA may: (a) admit further evidence; and (b) take into account any other information or evidence. (3) FWA may do any of the following in relation to the appeal or review: (a) confirm, quash or vary the decision; (b)make a further decision in relation to the matter that is the subject of the appeal or review; (c)refer the matter that is the subject of the appeal or review to an FWA Member (other than a Minimum Wage Panel Member) and: (i)require FWA Member to deal with the subject matter of the decision; or (ii)require FWA Member to act in accordance with the directions of FWA. Where “permission” has been granted, an appeal is in the nature of a rehearing. The nature of the jurisdiction being exercised was explained by Gleeson CJ, Gaudron and Hayne JJ in respect to the former Full Bench of the Industrial Commission in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194 as follows: [18] The Full Court was in error in thinking that the nature of an appeal under s 45 differs according to the nature of the decision under appeal. However, it was correct to hold that, in the case of a discretionary decision, the exercise by a Full Bench of the Commission of its powers under s 45(7) depends on the decision at first instance being attended by appealable error. …[19] “Discretion" is a notion that "signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.…[21] Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ] in these terms:“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”In thereafter seeking to distinguish between errors within jurisdiction and jurisdictional errors, their Honours went on to observe: [32] In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J [the Commissioner at first instance]. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution.In explaining the nature of an appeal to the Full Bench, Kirby J there likewise observed: [75] The appeal to the Full Bench under the present Act is by way of rehearing. However, it is not a hearing de novo. Absent a demonstration of error on the part of the member of the Commission whose decision or act is the subject of an appeal, it is not open to the Full Bench to quash or vary the decision or act concerned. …See also: Lambley v DP World Sydney Ltd [2013] FCA 4 at [14] per Katzmann J.
Ratio Decidendi
Legal Principle Established
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