Mr Ben Buksh v Ramsay Health Care t/a Peninsula Private Hospital
[2020] FWCFB 4352
•18 AUGUST 2020
| [2020] FWCFB 4352 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Ben Buksh
v
Ramsay Health Care t/a Peninsula Private Hospital
(C2020/5156)
VICE PRESIDENT HATCHER | SYDNEY, 18 AUGUST 2020 |
Introduction
[1] Under s 604(1)(a) of the Fair Work Act 2009 (FW Act), a person who is aggrieved by a decision made by the Commission (other than a decision of a Full Bench or an Expert Panel) may appeal the decision with the Commission’s permission. Section 604(1)(b) also allows a person, with permission, to appeal a decision made by specified persons under the Registered Organisations Act 2009. Section 613(1) of the FW Act provides that permission to appeal must be determined, and the appeal heard if permission is granted, by a Full Bench of the Commission (subject to certain exceptions specified in s 613(2) which are not presently relevant). Section 618(1) provides that a Full Bench must be constituted by three members of the Commission which must include at least one Member who is the President, a Vice President or a Deputy President.
[2] For an appeal under s 604(1)(a) to be competent, it must identify what is, properly speaking, the “decision” of the Commission which is the subject of the appeal. Section 598 defines what is a “decision” for the purpose of (relevantly) s 604(1) as follows:
598 Decisions of the FWC
(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes).
Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.
(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC's decision to make or vary the instrument in the particular terms decided.
(3) A decision of the FWC that is described as an order must be made by order.
Note: An example of a decision that is described as an order is a bargaining order.
(4) A decision of the FWC that is not described as an order may be made by order.
[3] On 2 July 2020, Mr Ben Buksh filed a notice of appeal. In his notice of appeal, he described the decision he sought to appeal as follows:
“The Applicant is appealing provisions of the settlement agreement provided under Commissioner Harper Green-Well [sic] to matter number U2018/3939.
Article 2. The Respondent denies the allegations. &
Article 3. The Applicant and Respondent agree to fully and finally settle the matter on the following basis:
- 3.1: From 1 April 2019 the Applicant may apply for any position advertised by the respondent for which he is suitably qualified and the Respondent will apply their standard processes for assessing applications. &
Article 4. The Applicant releases and forever discharges and releases the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions, or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.”
[4] The notice of appeal set out the date of the decision sought to be appealed in these terms: “Settlement agreement: 20/09/2018 & F50 Notice: 05/10/2018”. The “F50 Notice” referred to is, as will become apparent, a reference to a notice of discontinuance. The matter the subject of the appeal is identified in the notice of appeal as one bearing the matter number U2018/3939, in which Mr Buksh was the applicant and Ramsay Health Care t/a Peninsula Private Hospital (Ramsay) was the respondent.
The proceedings the subject of the “appeal”
[5] A brief description of the course of the proceedings in matter U2018/3939 is necessary. On 13 April 2018, Mr Buksh filed an application for an unfair dismissal remedy against Ramsay, his former employer. The application identified the date of effect of his dismissal by Ramsay as 8 March 2018. The application was accordingly filed beyond the 21-day time limit prescribed by s 394(2)(a). On 21 May 2018, Mr Buksh and Ramsay participated in a conciliation conference conducted by a staff conciliator employed by the Commission. The parties reached a conditional settlement agreement at the conference. The same day, the Commission sent correspondence to Mr Buksh and Ramsay confirming that a settlement agreement had been reached and attaching terms of settlement which sought to give effect to that agreement. The correspondence noted that the settlement was the subject of a three-day cooling-off period. Ramsay executed the terms of settlement within that period, but Mr Buksh did not. The matter was then referred to Commissioner Bissett for determination as to whether Mr Buksh should be granted an extension of time to file his application pursuant to s 394(3) of the FW Act. On 27 July 2018 Commission Bissett issued a decision 1 and order granting2 Mr Buksh an extension of time.
[6] On 17 September 2018, after Mr Buksh’s application was listed for hearing on 24 and 25 September 2018, a further conciliation conference was conducted by Commissioner Harper-Greenwell. A settlement agreement was reached, and terms of settlement reflecting the agreement reached were sent to the parties by the Commission later on the same day. On 18 September 2018 the Commissioner vacated the hearing dates, and the Commissioner’s chambers sent an email to Mr Buksh stating (omitting formal parts):
“I refer to the below correspondence and note that the Commission is yet to receive your signed Terms of Settlement, which you had advised would be provided by 10am today.
Please provide a signed copy of the Terms to chambers and to the Respondent, or written reasons as to why the agreement reached at conciliation has not been complied with, by no later than 1pm today, Tuesday 18 September 2018.
Please contact chambers should there be any queries in relation to this matter.”
[7] The Commissioner’s chambers subsequently sent an email to the parties later the same day which noted that Mr Buksh had made contact and stated that he would sign the terms of settlement after he completed work at 3.00pm that day. However, Mr Buksh did not provide signed terms of settlement by this time. The following day, after further reminders, Mr Buksh sent the Commission an executed copy of the terms of settlement but with requested changes to the terms handwritten by Mr Buksh at the end of the document. Mr Buksh’s covering email stated (among other things): “Upon considering the agreement I would ask that a fair adjustment or amendment be allowed as to not provide unfair treatment in any future applications for employment. With your consideration first.” On 20 September 2018, the Commissioner’s chambers sent an email to Mr Buksh which stated:
“I refer to the below correspondence which has been provided to Commissioner Harper-Greenwell for consideration.
The Commissioner notes that the parties reached a concluded agreement at the Member-Assisted Conciliation on Monday 17 September 2018 and as such it is not open to yourself to unilaterally vary the terms of the Agreement. Accordingly, the Commissioner does not accept your amendment and declines to alter the Terms of Settlement. Please forward a signed clean copy of the agreed Terms of Settlement to chambers and the Respondent by no later than 10am tomorrow, Friday 21 September 2018.
In relation to your request for an amended Statement of Service and copies of certificates, the Respondent is in receipt of your request and will advise whether they will accommodate it in due course. However please note that as these items were not discussed at the conciliation and were not agreed between the parties the Respondent is under no obligation to provide this documentation.
The two statements of evidence that you have requested the Respondent retain on your file (attached) have been forwarded to the Respondent and it is at their discretion as to whether or not they will be placed on your file.”
[8] On 21 September 2018, Mr Buksh sent a further executed version of the terms of settlement to the Commissioner’s chambers. This did not contain, in terms, any requested amendments to the terms, but contained a handwritten “Note” at the end of the document concerning various matters. On 24 September 2018 the Commissioner’s chambers sent Mr Buksh an email stating (omitting formal parts):
“Thank you for providing the signed Terms of Settlement to chambers. A copy has been forwarded to the Respondent.
Please see attached a blank Form F50 – Notice of Discontinuance. As per clause 9 of the Terms, please lodge in the Commission and provide the Respondent with a copy of this completed form by no later than Thursday 27 September 2018.
[9] Following this, there was some exchange of correspondence concerning certain documents which Ramsay was to provide to Mr Buksh. On 3 October 2018, not having received any notice of discontinuance from Mr Buksh, the Commissioner’s chambers sent a further email to him as follows (omitting formal parts):
“I refer to the below correspondence and note that the Commission is yet to receive a Form F50 as anticipated. A further blank copy of the Form is attached for your convenience.
Please lodge in the Commission and provide the Respondent with a copy of this completed form as soon as possible but by no later than midday tomorrow, Thursday 4 October 2018.”
[10] Mr Buksh did not provide the notice of discontinuance by the specified deadline, but instead sent an email complaining about Ramsay’s alleged failure to provide him with certain documents. On 5 October 2018, the Commissioner’s chambers sent the following email to Mr Buksh (omitting formal parts):
“I refer to the below correspondence. The Commissioner notes your comments regarding documents you are seeking from the Respondent however considers that this is not a matter for the Commission.
In accordance with clause 9 of the Terms of Settlement, signed by yourself on 20 September 2018, you were to lodge in the Commission and provide the Respondent with a copy of the Notice of Discontinuance (Form F50) within seven days of the signing of the Terms. You did not do so and, despite further requests from the Commission, have still yet to file the Form as agreed.
In the event that you have not provided a signed copy of the Form F50 by 5pm today, Friday 5 October 2018, the Commissioner intends to dismiss your application under s.587 of the Fair Work Act.”
[11] In response and on the same day, Mr Buksh sent two emails to the Commissioner’s chambers. In the first, Mr Buksh said:
“I did ask the FWC how this settlement document would be held accountable.
I would request that if the hospital does not wish to provided the accurate and true information, this could be deemed as a continued form of bullying and harassment by my former workplace.
Article 8 of the settlement document did state his would not occur.
If my former workplace is allowed to provided me false documents. I will be requesting permission to take this matter to the federal circuit court.” [sic]
[12] In the second email, Mr Buksh stated:
“I would like to ask for an extension of time to provide the F50 form, I have not had any response from my former work place and I am now considering what to do in regards to the false information provided by my former workplace.
I do not believe the settlement agreement has been acknowledged or the consideration I would be provided with my education certificates. This is again another breach of my workplace rights. If the commissioner has no power to enforce this I would request permission to take this to the federal circuit courts.”
[13] At 5.38pm on 5 October 2018, the Commissioner’s chambers sent the following email to Mr Buksh:
“Commissioner Harper-Greenwell has considered your below submission and has advised that she is not inclined to grant you an extension of time to provide the Form F50. As the Form F50 has not been provided, the Commissioner will proceed to issue a decision dismissing your application under s.587 of the Act.
The Commissioner notes that you do not require the permission of the Commission to proceed to the Courts should you believe that the Respondent is in breach of the Terms of Settlement. We encourage you to seek independent legal advice in this regard however as, by failing to file a Form F50 in accordance with clause 9 of the Terms, you may also be considered to be in breach.”
[14] At 6.33pm, Mr Buksh sent to the Commission an executed notice of discontinuance. Mr Buksh continued thereafter to correspond with the Commission about his matter, primarily about the provision of documents by Ramsay. On 18 October 2018 the Commissioner’s chambers sent the following correspondence to Mr Buksh (omitting formal parts):
“I refer to the below correspondence which has been provided to Commissioner Harper-Greenwell for consideration.
The Commissioner reiterates our previous correspondence that the parties reached a concluded agreement at the Member-Assisted Conciliation on Monday 17 September 2018 which did not involve any request from yourself or obligation to the Respondent to provide you with the documentation you now appear to be requesting. Accordingly, any discussions regarding these materials is a matter between the parties and the Commission cannot intervene.
The Commission’s role in this matter is at an end and our file has been closed. If you have concerns regarding compliance with the Terms of Settlement you may wish to seek independent legal advice regarding enforcement of the Terms.”
[15] On 24 July 2019, Mr Buksh sent an email to the chambers of Deputy President Clancy stating (omitting formal parts):
“I would like to ask if an Appeal process can be done into matter number U2018/3939. This matter came to a conciliation agreement in 2018 but there has been ongoing issues with this workplace. Furthermore I can provided clear evidence of misconduct or fraudulent statements provided from this workplace to both myself and the fair work commission.
May I request for an appeal review be conducted under the full panel of the commission.”
[16] The next day, the chambers of Deputy President Clancy sent the following email in response (omitting formal parts):
“I refer to your email below.
On 5 October 2018, you filed a Form F50 – Notice of Discontinuance. As a result of this, your unfair dismissal application has been brought to an end.
There was no Decision made by the Commission in relation to your unfair dismissal application. This being the case, there is nothing from which you can appeal.
If you would like to have your Notice of Discontinuance set aside, this cannot be done by the Commission. Only a Court can set aside your Notice of Discontinuance.
Likewise, if it is your position that Peninsula Private Hospital has not complied with the Terms of Settlement, only a Court can determine whether there has been a breach and enforce those terms.
I have cc’d the Respondent and its representatives into this email, as a matter of courtesy.”
Consideration – is there an appealable decision?
[17] There is plainly a question requiring determination at the outset as to whether Mr Buksh’s notice of appeal relates to any decision made by any member of the Commission within the meaning of s 598 of the FW Act. Section 598 does not in terms define what a “decision” is, but two interpretative conclusions of relevance may be drawn from the provision:
(1) The first sentence of s 598, and the note which follows the subsection, indicates that “decision” was intended to have a broad meaning and include both substantive and procedural decisions.
(2) The second sentence of s 598(1) makes it clear that outcomes pertaining from dispute resolution processes conducted pursuant to s 595(2) (that is, mediation, conciliation, the making of a recommendation or the expression of an opinion, but not arbitration) are not appealable.
[18] Relevant to the first conclusion, in the High Court decision in Australian Broadcasting Tribunal v Bond, 3 Mason CJ (with whom Brennan and Dean JJ agreed) said as to the meaning of the word “decision”:
“The word has a variety of potential meanings. As Deane J. noted in Director-General of Social Services v. Chaney (1980) 47 FLR 80, at p 100; 31 ALR 571, at p 590, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney.”
[19] Even taking the broadest meaning of “decision” adverted to by Mason CJ, it is clear that Mr Buksh’s “appeal” does not relate to any decision made by any member of the Commission. As earlier stated, his notice of appeal identified the settlement agreement entered into as a result of the conciliation conference conducted by Commissioner Harper-Greenwell on 17 September 2018, and the notice of discontinuance which he filed on 5 October 2018, as the decision(s) under appeal. In our view, neither constitutes a decision by the Commission. The settlement agreement was entered into by the parties, and did not involve the exercise of any determinative power by the Commission. Although we infer that, consistent with usual practice, Commissioner Harper-Greenwell assisted the parties in the drafting of the terms of settlement to give effect to what they had agreed at the conference before her, that does not render the settlement agreement a decision of the Commission. The execution and filing of the notice of discontinuance was an act undertaken by Mr Buksh. Once filed, a notice of discontinuance is self-executing and brings the application to which it relates to an end. No decision of the Commission is necessary to bring about the termination of the proceedings. 4
[20] At the hearing of this matter, we raised with Mr Buksh the difficulty concerning the apparent lack of any decision to which his notice of appeal related. Mr Buksh in response adverted to various matters, including statements alleged to have been made by Commissioner Harper-Greenwell at the conciliation conference conducted on 17 September 2018 and the correspondence from the Commissioner’s chambers concerning the provision of the signed terms of settlement and the notice of discontinuance which we have earlier set out. We understood Mr Buksh to be suggesting that the Commissioner had engaged in conduct which “forced” him to enter into the terms of settlement and to file the notice of discontinuance, and for that reason this constituted a “decision” on her part. This cannot be accepted. There is no basis for it to be concluded that anything the Commissioner said at the conciliation conference, or what was done to follow up on the settlement agreement that was reached at the conference, constituted the exercise of determinative power by the Commissioner. We note that in her emails of 5 October 2018, the Commissioner indicated that in the absence of the provision by Mr Buksh of a notice of discontinuance in accordance with the terms of settlement, she would proceed to dismiss his application under s 587 of the FW Act. If the Commissioner had proceeded to dismiss his application, that would have certainly constituted a decision appealable under s 604. However, this did not occur.
[21] To the extent that Mr Buksh contends that he entered into the settlement agreement, and discontinued his application, under duress and at a time when (as he now states) that he suffered from incapacitating mental health difficulties, then the proper course for him is to make an application to a court to have the agreement and discontinuance set aside. However that is not a matter capable of being dealt with in proceedings brought under s 604 of the FW Act.
Conclusion
[22] Mr Buksh’s notice of appeal does not concern or relate to any decision made by the Commission, and accordingly there is no competent appeal capable of consideration under s 604. For this reason, the notice of appeal is dismissed and this proceeding is terminated.
VICE PRESIDENT
Appearances:
Mr B Buksh on his own behalf.
Ms H Lesirge on behalf of the respondent.
Hearing details:
2020.
Sydney (video-link).
7 August.
Final written submissions:
Printed by authority of the Commonwealth Government Printer
<PR721925>
1 [2018] FWC 4097
2 PR609419
3 [1990] HCA 33, 170 CLR 321 at [27]
4 See Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [6]
2
4
0