Mr Bruce Watson v Mrs Nanette Tunnicliffe, U3A Geelong Incorporated
[2025] FWCFB 37
•21 FEBRUARY 2025
| [2025] FWCFB 37 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Bruce Watson
v
Mrs Nanette Tunnicliffe, U3A Geelong Incorporated
(C2024/8314)
| DEPUTY PRESIDENT BINET DEPUTY PRESIDENT O’KEEFFE COMMISSIONER LIM | PERTH, 21 FEBRUARY 2025 |
Appeal against decision FWC 3170 of Commissioner McKinnon at Sydney on 18 November 2024 in matter number AB2024/722– permission to appeal refused
Mr Bruce Watson (Mr Watson) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required (Appeal). The Appeal is brought with respect to a decision (Decision) and order of Commissioner McKinnon (Commissioner) issued on 18 November 2024 to dismiss Mr Watson’s application for an order to stop bullying at work (Application).[1]
Mr Watson had made the Application pursuant to s.789FA of the FW Act alleging that he was bullied by U3A Geelong Inc (U3A) and a member of the U3A Committee of Management (Named Person) while he was engaged to perform work as an Honorary Tutor on a volunteer basis. In the Decision the Commissioner found that she could not be satisfied that there was a risk that Mr Watson would continue to be bullied at work within the meaning of s789FF(1)(b)(ii) of the FW Act because Mr Watson was no longer at work in the business. Section 789FF(1) of the FW Act requires the Fair Work Commission (FWC) to be satisfied that a risk that the bullying at work will continue exists, before making an order to stop bullying at work. The Commissioner therefore concluded that the Application had no reasonable prospects of success and dismissed the Application.
This matter was listed for permission to appeal and directions were set for the filing of materials by the parties (Directions).
Representation
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[2]
Both parties sought permission to be represented at the hearing. Having considered the submissions of the parties, leave was granted to both parties to be represented at the hearing of the Appeal, pursuant to s.596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the hearing, Mr Watson was represented by Mr Mark Caldwell of Counsel and U3A was represented by Mr Daniel Fawcett of Counsel.
For the reasons that follow, permission to appeal is refused and the appeal is dismissed.
Decision under appeal
At the time he made the Application Mr Watson was a member of U3A and was working as an Honorary Tutor on a volunteer basis. On 11 July 2024, Mr Watson resigned from his membership of the U3A and his tutorship role in the business, giving notice that his resignation would take effect on 21 September 2024.[3] On 21 August 2024, Mr Watson purported to withdraw his resignation from the role of Honorary Tutor. But for his resignation Mr Watson’s appointment as an Honorary Tutor was otherwise due to come to an end on 31 December 2024.[4]
The Commissioner found there was no evidence that the purported withdrawal had been agreed to, or accepted by, U3A.[5] To the contrary, the evidence was that U3A’s Management Committee had passed a motion to reject any application for future membership, tutorship or any other voluntary position for Mr Watson within U3A.[6]
The Commissioner held that there is no unilateral right to withdraw a resignation once given.[7]
The Commissioner concluded that as Mr Watson was no longer at work in the business of U3A and was no longer interacting with the individual named in the application in the context of any work relationship that the application had no reasonable prospects of success because there was no future risk of bullying at work such that any order would have no work to do.[8]
Grounds of appeal and submissions
Mr Watson’s grounds of appeal as set out in the Notice of Appeal can be summarised as follows:[9]
a. The Commissioner made an error of fact in paragraph [2] of the Decision when she found that on 11 July 2024 Mr Watson resigned as a financial member for U3A. (Appeal Ground 1).
b. The Commissioner made an error of fact when she found that Mr Watson was no longer interacting with the U3A and the Named Person in the context of a work relationship given that U3A continued to engage with Mr Watson with respect to his allegations that he was bullied by inviting him to participate in formal meditation on 18 October 2024. (Appeal Ground 2).
c. The Commissioner in relying on the authorities of CFC Employment Trust trading as the CFC Employment Trust T/A Centurion Transport [2016] FWC 9176, citing Birrell v Australian National Airlines Commission [1984] FCA 378 to find that no risk of future bullying existed erred because as a volunteer Mr Watson was engaged in a different capacity than that of the applicants in those matters who were employees (Appeal Ground 3).
In the submissions in support of the Appeal the following grounds of appeal were also raised:
a. The Commissioner erred at law in finding that Mr Watson had no unilateral right to withdraw his resignation because she failed to take into account the case law in relation to ‘heat of the moment’ resignations (Appeal Ground 4).
b. In finding that no future risk of bulling existed because U3A had passed a motion to reject any application for future membership, tutorship or any other voluntary position the Commissioner erred because the motion was a consequence of the bullying and would be remedied by the orders sought in the Application (Appeal Ground 5).
c. In finding that no future risk of bullying existed because Mr Watson was no longer at work in the business of 3GA and no longer interacting with the Named Person while he is at work the Commissioner erred because these events were a consequence of the bullying and would be remedied by the orders sought in the Application (Ground 6).
Mr Watson submits that the Appeal is in the public interest because: [10]
a. The legal rights of volunteers need to be protected.
b. Incorporated associations and their office bearers need to be held accountable for bullying, victimisation, oppression and discrimination and the health and safety of their volunteers.
c. The Appeal raises matters of importance.
d. The Decision at first instance is wrong at law and should not be allowed to remain.
e. The Decision appears to be disharmonious when compared with other decisions dealing with similar matters.
Principles on appeal
Section 604(1) of the FW Act permits a person who is aggrieved by a decision of the FWC to appeal the decision. However, there is no right to appeal. An appeal may only be brought with the permission of the FWC. Section 604(2) requires the FWC to grant permission to appeal if it is satisfied that it is in the public interest to do so. In addition, the FWC has a general discretion as to whether to grant permission to appeal even if it is not satisfied that the public interest requirement has been met.
As is well-known, the task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[11] The public interest might be attracted, for example, where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, where the decision at first instance manifests an injustice or the result is counter intuitive, or because the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[12]
Aside from the special circumstance in s 604(2) in which permission to appeal must be granted, grounds which have been traditionally considered in granting leave include whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[13] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[14]
Consideration
We are not persuaded that it is appropriate to grant permission to appeal in this matter. The appeal grounds advanced by Mr Watson do not, in our opinion, disclose any arguable basis on which it can be said that there was an appealable error in the decision of the Commissioner.
Appeal Ground One
Mr Watson asserts that the Commissioner made an error of fact in paragraph [2] of the Decision when she found that on 11 July 2024 Mr Watson resigned as a financial member of U3A. Mr Watson says that he was not a financial member of U3A as at 11 July 2024.
The evidence before the Commissioner was that in his email of 11 July 2024 Mr Watson resigned from membership of U3A effective 21 September 2024:[15]
“Therefore I am resigning my membership and tutorship at U3A Geelong, effective 21 September 2024.”
Her finding at paragraph [2] of the Decision is therefore unsurprising.
At the appeal hearing Mr Watson confirmed that he is not currently a financial member of U3A.
Even if Mr Watson was a financial member of U3A at the time of the Decision he has not demonstrated how financial membership of an incorporated association might make him a ‘worker’ for the purposes of s.789FC of the FW Act.
Appeal Ground Two
Mr Watson alleges that the Commissioner made an error of fact when she found that Mr Watson was no longer interacting with the U3A and the Named Person in the context of a work relationship given that U3A continued to engage with Mr Watson with respect to his allegations that he was bullied by inviting him to participate in formal meditation on 18 October 2024.
The mediation was conducted by the Dispute Settlement Centre of Victoria. Mr Watson’s evidence before the Commissioner was that his bullying grievance was not discussed at the mediation proceedings because it was the subject of an application to the Commission and that the mediation dealt with the other ten grievances he had raised with U3A.[16] The mediation occurred after Mr Watson’s resignation took effect. It appears from the correspondence Mr Watson filed with the Commission that the mediation was only ever contemplated to be a one off mediation session and would not therefore result in ongoing interaction between Mr Watson and U3A or the Named Person.[17] Consistent with this Mr Watson confirmed at the appeal hearing that since the mediation occurred on 18 October 2024 no further efforts at mediation have taken place. Mr Watson made no submissions nor tendered any evidence to suggest that the Dispute Centre had any power to order his reappointment to his role as a Voluntary Tutor. Nor did he tender any evidence to suggest that mediation could or would result in his return to his role as a Voluntary Tutor.
Appeal Ground Three
Mr Watson alleges that the Commissioner in relying on the authorities of CFC Employment Trust trading as the CFC Employment Trust T/A Centurion Transport [2016] FWC 9176, citing Birrell v Australian National Airlines Commission [1984] FCA 378 to find that no risk of future bullying occurred erred because as a volunteer Mr Watson was engaged in a different capacity than that of the applicants in those matters who were employees.
In Birrell v Australian National Airlines Commission [1984] FCA 378 Gray J observed that:[18]
“These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties”
Mr Watson argues that the rationale expressed by Gray J for the law not permitting the unilateral withdrawal of a resignation does not apply to his circumstances. He says that because he was delivering a unique service in a voluntary role his circumstances can be differentiated from those of an employee who must be replaced exposing their employer to the possibility of an employer being bound by contracts with two employees in the event that a resignation is revoked. We disagree. Notwithstanding that U3A was not exposed to the risk of payment of two wages it is equally as disruptive to its operations to take steps to address to address the consequences of the resignation of one of its volunteers only to have to change those arrangements when the resignation is revoked.
In any event even if Mr Watson’s resignation could at law have been revoked the evidence is that U3A Geelong’s Management Committee had passed a motion to reject any application for future membership, tutorship or any other voluntary position within U3A therefore the relationship would have come to an end at the initiative of U3A. In any event Mr Watson’s term of appointment end on 31 December 2024 and Mr Watson did not produce any evidence to suggest that he has been or might be reengaged as an Honorary Tutor.
Appeal Ground Four
Mr Watson asserts that the Commissioner erred at law in finding that he had no unilateral right to withdraw his resignation because she failed to take into account the case law in relation to ‘heat of the moment’ resignations. Mr Watson submits that the Commissioner erred by failing to take into the ‘special circumstances’ that made it unreasonable for U3A to assume he actually intended to resign.
Mr Watson tendered his resignation on 11 July 2024 effective 21 September 2024. He did not endeavour to withdraw his resignation until 21 August 2024. There is no evidence that he tendered the notice in ‘the heat of the moment’ for example during a heated exchange and without a genuine intention to permanently end the relationship.
Rather the evidence is that Mr Watson gave considered thought to his decision to resign. His notice of resignation contemplated a lengthy notice period. He did not endeavour to retract his resignation in the hours or days following him tendering his notice of resignation. In fact his own evidence is that he did not decide to attempt to retract his resignation until he became dissatisfied with the handling of his various grievances in late August.[19]
Even if Mr Watson’s resignation could be characterised as a ‘’heat of the moment resignation or even a ‘constructive dismissal’ and the termination of his engagement found to be at the initiative of U3A there would no risk his engagement as an Honorary Tutor would have continued because U3A had determined not to continue to engage his services as an Honorary Tutor. In any event Mr Watson’s term of appointment as an Honorary tutor came to an end on 31 December 2024 and Mr Watson did not produce any evidence to suggest that he has been or might be reengaged as an Honorary Tutor.
It is irrelevant whether the relationship came to an end at Mr Watson’s initiative or U3A’s initiative. That the relationship has ended is the only relevant consideration because the Commission’s power can only be exercised to prevent future bullying at work.
Appeal Grounds Five and Six
By way of Appeal Ground Five and Six, Mr Watson submits that the events which led to a finding that no future risk of bulling existed were as a consequence of the bullying and would be remedied by the orders sought in the Application.
These grounds of appeal are without merit. The power to make such orders is dependent on a finding that a risk of future bullying existed. Without such a finding no power to make the orders sought exists.
Conclusion
The Full Bench is not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Commissioner was attended by appealable error.
We are not satisfied that the matter raises issues of importance and general application where there is a diversity of decisions at first instance or that the decision at first instance manifests an injustice or is disharmonious when compared with other recent decisions dealing with similar matters.[20]
We are not satisfied it is in the public interest that permission to appeal be granted for the purposes of s 604(2) of the FW Act or that there is any other basis upon which permission to appeal should be granted.
The Full Bench orders that permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2024] FWC 3170.
[2] Warrell v Walton (2013) 233 IR 335, 341 [22].
[3] In paragraph [6] of the Decision the Commissioner found that on 11 July 2024 Mr Waston also resigned from his membership of U3A.
[4] Notice of Appeal filed by Mr Watson on 24 November 2024 at question 2.1.
[5] [2024] FWC 3170 at [2].
[6] Ibid.
[7] Ibid.
[8] Ibid at [3]-[4].
[9] Notice of Appeal filed by Mr Watson on 24 November 2024 at question 2.1.
[10] Notice of Appeal, question 3.
[11] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2010) 197 IR 266 at [27]
[13] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481at [30]; Ferrymen Pty Ltd v
Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [11]-[12]
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, at [26]-[27]; (2010) 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed
on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78); NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
[15] See page 50 of the Response filed by Mr Watson on 24 October 2024.
[16] At page 52-53 of Mr Watson’s Response filed with the Commission on 24 October 2024.
[17] See email from Mr Watson dated 11 September 2024 at page 54 of the Response filed by Mr Watson on 24 October 2024.
[18] Birrell v Australian National Airlines Commission [1984] FCA 378.
[19] See pages 66-67 of the Response of Mr Watson filed on 24 October 2024.
[20] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2010) 197 IR 266 at [27]
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