Mr David Rayner v Little Moreton Pty Ltd T/A H-R Products
[2017] FWCFB 4558
•20 september 2017
| [2017] FWCFB 4558 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr David Rayner
v
Little Moreton Pty Ltd T/A H-R Products
(C2017/4405)
| DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT CLANCY COMMISSIONER SAUNDERS |
|
Appeal against decision [2017] FWC 1652 of Deputy President Binet at Perth on 21 July 2017 in matter number U2016/10836; procedural fairness; public interest enlivened; permission to appeal granted.
Introduction
On 9 August 2017 Mr David Rayner (Appellant) lodged a Notice of Appeal, for which permission is necessary, against a decision[1] (Decision) of Deputy President Binet dismissing his application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (Act). Prior to his dismissal on 30 August 2016, the Appellant had been employed by Little Moreton Pty Ltd T/A H-R Products (Respondent) as a Storeperson and Order Packer. The Appellant commenced employment with the Respondent on 13 March 2013. He was dismissed following a physical altercation with another Storeperson, Mr Darko Yanev.
Consideration
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] In GlaxoSmithKline Australia Pty Ltd v Makin 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.”[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error.[6] 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.[7]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[8]
We consider that an arguable case of error has been established and the public interest is enlivened by the appeal. Our reasons for this conclusion follow below.
The transcript of the proceedings before the Deputy President discloses that the Appellant sought to rely upon a report prepared by his treating psychologist for use in the unfair dismissal remedy application. The Appellant explained the relevance of the report to his case early in the proceedings before the Deputy President as follows:
“THE DEPUTY PRESIDENT: In relation to the medical matters that you raise, do they relate to anything other than the suggestion that the matter be heard on the papers?
MR RAYNER: It relates specifically to conduct, reaction and behaviour in the workplace, and that's why I think it is essential that you have those papers.
THE DEPUTY PRESIDENT: In the events which are contested.
MR RAYNER: From the period - sorry, February 25 onwards, the PTSD/OCD was manifesting and it was getting progressively worse. That is revealed in some of the file notes filed by the respondent. I think it is pivotal to when considering extenuating circumstances in what would otherwise be a serious misconduct matter. I guess in simple terms, from my perspective I had no control over what I was doing.
THE DEPUTY PRESIDENT: Are you proposing to bring some evidence - medical evidence to support that assertion?
MR RAYNER: Yes, that's supposed to the full psychologist report.
THE DEPUTY PRESIDENT: But I don't have that.
MR RAYNER: Not at the moment but the secretary of the psychological clinic is trying to get that to you. I phoned them just before we started the hearing.
THE DEPUTY PRESIDENT: You're aware that there were filing dates for the evidence?
MR RAYNER: When the filing date was given, which was 15 December for myself, I'd only just started the counselling process and the psychologist had not prepared a report at that time. So whether it can be - you can grant leave for those documents to be added on.
THE DEPUTY PRESIDENT: The reason why have filing dates is so parties aren't taken by surprise at hearing, so that they can properly prepare and respond. So normally we wouldn't let the respondent produce materials at short notice because that would be unfair, particularly in your circumstance as a self-represented applicant to try and respond to something when you're on your feet at the Bar table having never read it. I suspect that Mr Greig may - and I don't want to put words in his mouth but may object to the introduction of that material at such a late date. I'll leave that until - if and when that material appears I'll invite Mr Greig to make some submissions about whether he says that should be admitted or not, on the basis that it's very difficult for him to now respond to that in a fair way if it's presented to him when he's on his feet at the Bar table.
MR RAYNER. Well, I understand what you're saying but I would also say that the psychologist's report belong to the respondent because it's a Workers Compensation matter.
THE DEPUTY PRESIDENT: They're not relying on the report so they don't need to produce it. Do you understand the difference if you - - -
MR RAYNER: No, but they're not documents that are catching them by surprise. They're documents aren't they like the medical reports and the doctor's reports throughout the whole of 2016.
THE DEPUTY PRESIDENT: But they're not seeking to rely on those documents, you're seeking to rely on the documents - - -
MR RAYNER: I'm seeking to rely on upon them.
THE DEPUTY PRESIDENT: If you seek to rely on something - - -
MR RAYNER: If it's objected to, then it's objected to.
THE DEPUTY PRESIDENT: Right.
MR RAYNER: But I will just, as I say, make my case that the report wasn't ready at the close of the filing date.
THE DEPUTY PRESIDENT: You understand I can only make my decision based on evidence which is admitted in documents or oral evidence which is admitted into evidence, yes?
MR RAYNER: Yes.” [9]
Later in the proceedings, the Appellant sought again to alert the Deputy President to the fact that he wished to rely upon the psychologist’s report and that he had been advised that the report had been sent by the psychologist to the Deputy President’s chambers email address. The transcript records the following exchange:
“MR RAYNER: That's fair enough. Yes.
THE DEPUTY PRESIDENT: Okay. Any other documents?
MR RAYNER: Only the psychologist's report.
THE DEPUTY PRESIDENT: Which I don't have.
MR RAYNER: I've spoken to them twice now and they say it's on its way. But they had a mistake with your email address, the Chamber's email address.
THE DEPUTY PRESIDENT: Okay. I can't admit a document which has not been tendered during the hearing, and I can't give weight to something which the respondent hasn't had an opportunity to cross-examine on. Do you appreciate the – you've known for some time the hearing date. If you intended to rely on that medical witness evidence you would have had to call somebody to attest to the accuracy of that report, even if the report wasn't provided, or it was provided in time. So to have some weight the respondent had to have some opportunity to cross-examine on the accuracy of that data. I have neither the report nor a witness to support it. I can't admit something I don't physically even have. Do you understand that?
MR RAYNER: Yes. I spoke to them at 1 o'clock and they corrected the email address; they had made a mistake, and it was coming through to you straight away.
THE DEPUTY PRESIDENT: Okay. I haven't got it. You haven't given it to me. The obligation is to give it to me and the other side so they have an opportunity to respond.”[10]
During the course of the permission to appeal application heard before us, it became clear that the psychologist’s report at issue in the above exchanges, was sent to the Deputy President’s chambers email address but did not arrive until after close of business on the day that the hearing had concluded. The relevant transcript passages from the permission to appeal application hearing is set out below:
“DEPUTY PRESIDENT GOSTENCNIK: Mr Greig, when did you receive that report?
MR GREIG: It was after the hearing had concluded. Look, my email - I don't have a record of what time the email arrived. But it was after the hearing.
DEPUTY PRESIDENT GOSTENCNIK: To whom was the report addressed?
MR GREIG: I just received a copy addressed to my business email.
DEPUTY PRESIDENT GOSTENCNIK: That was from the employer, was it, you received that?
MR GREIG: No, that was the from the psychologist.
DEPUTY PRESIDENT GOSTENCNIK: I see - but the actual report presumably was addressed to somebody?
MR GREIG: To Mr Rayner.
DEPUTY PRESIDENT GOSTENCNIK: I see.
MR GREIG: Sorry, I do actually have a copy of it with me. It's not actually addressed to anyone. It's titled, "A confidential report: client David Rayner, date of birth, date of report, 3 March 2017."
DEPUTY PRESIDENT GOSTENCNIK: You received it by email some time that day?
MR GREIG: Some time that day?
DEPUTY PRESIDENT GOSTENCNIK: Have you got a copy of the email there?
MR GREIG: I don't have a copy of it with me. We could take an adjournment and I could identify that.
DEPUTY PRESIDENT GOSTENCNIK: Well, I'd be interested to see whether the email was also copied into the chambers of the Deputy President.
MR GREIG: Yes, if it's mindful we can take an adjournment and I can find that or we can finish this and have a short adjournment and come back to address that issue or I can correspond directly through the chambers.
DEPUTY PRESIDENT GOSTENCNIK: Well, I'd rather deal with it today so perhaps we might adjourn for 10 minutes and allow you to try and chase up that email if possible.
MR GREIG: Yes.
DEPUTY PRESIDENT GOSTENCNIK: I don't want you acting as my associate in WA but I noted that the parties for the 12 o'clock matter had popped their heads in. if you see them outside would you mind - we'll also take steps to do so but would you mind telling them they won't be required until at least not before 12.30 or 10.30 your time?
MR GREIG: Thank you.
DEPUTY PRESIDENT GOSTENCNIK: All right, thank you very much. We'll adjourn for 10 minutes.
SHORT ADJOURNMENT [11.58 AM]
RESUMED [12.08 PM]
DEPUTY PRESIDENT GOSTENCNIK: Mr Greig, during the adjournment I had my associate check the case management system of the Commission to see whether the report had been received by Binet DP's chambers. I can advise the parties that by email of 3 March 2017 at 7.37 pm Deputy President's chambers did receive an email and attached confidential report comprising three pages dated 3 March 2017. From what Mr Rayner had indicated earlier, he hasn't ever received a copy of this report.
The report seems to have been received by the respondent and by chambers of the Deputy President and the report receipt does not seem to have been communicated to Mr Rayner, notwithstanding the earlier discussion on the transcript that day. Now, at least one of you, MR Rayner, was at the very least denied an opportunity to ask for his case to be re-opened in order to enable him to make submissions as to the receipt of the report.
MR GREIG: Sorry, Deputy President, can you - - -
DEPUTY PRESIDENT GOSTENCNIK: On one view of the facts, given the report was received by Binet DP's chambers and Binet DP doesn't appear to have forwarded the email on to Mr Rayner - there is no record on our CMS system to that effect, Mr Rayner says he never received the report - given that it was an issue that he was seeking to agitate earlier in the day during the course of the proceedings as a minimum it appears that Mr Rayner was denied an opportunity before the Deputy President had made her decision to make an application that his case be re-opened so that he could rely upon the report that he foreshadowed.
MR GREIG: Yes, Deputy President, that is one view. The comment I would make is that we would say that to do so, it would be critical that the treating psychologist be called as a witness.
DEPUTY PRESIDENT GOSTENCNIK: That's - I accept that the Deputy President might have had a number of options open to her should such an application be made.
MR GREIG: Yes.
DEPUTY PRESIDENT GOSTENCNIK: One is that, well, it's too late and I'm not going to allow you to re-open. The other would be, well, I will allow the report provided that the psychologist is available for cross-examination and I will allow the employer to or I give permission to the employer to adduce further evidence to contradict this material and then whatever might be made of it can be the subject of submissions - that is what relevance it has. Presumably it has some relevance by way of explanation for Mr Rayner's behaviour and then submissions about weight, all of that.
My point is simply this, that none of that occurred because no step was taken to alert Mr Rayner to the existence or the receipt of the report. Indeed, my earlier questions to him were premised on the basis that the report had never been received and I was wrong. I apologise for that, Mr Rayner.
MR RAYNER: Thank you, sir.
MR GREIG: Deputy President, we would agree. We would say that in all that there were clearly then questions of probative value and the need to cross-examine that witness in relation - Mr Rayner in his own admission says he didn't see that psychologist until November or December, several months after the dismissal had occurred.
DEPUTY PRESIDENT GOSTENCNIK: Sure, but the report on any view is - one can't say it's of no relevance.
MR GREIG: Yes, your Honour.
DEPUTY PRESIDENT GOSTENCNIK: I don't want to put you on the spot, Mr Greig, but is there sufficient foundation for us to grant permission in the circumstances - sorry, I'm not being critical of you. There was no obligation on counsel's part to draw the report to Mr Rayner's attention after the close of the case but I think it falls into a different category when the Commission itself receives a document.
MR GREIG: Yes, and in effect all of the submissions that we would make relate to the probative value of both that evidence and the report.
DEPUTY PRESIDENT GOSTENCNIK: I understand that and it may well be that, you know, a decision maker might decide not to admit the report at all but more cautiously, one would imagine that one would admit the report only if the psychologist made herself available for cross-examination and with leave to the respondent employer to seek an alternative medical report about the precise impact on behaviour, for example, of the types of diagnoses that appear to have been made in the report.
MR GREIG: Correct.”[11]
It seems clear from the above that although the hearing of the Appellant’s unfair dismissal remedy application had concluded, the psychologist’s report that was the subject of some agitation during the hearing, was received in the inbox of Deputy President’s chambers email address shortly after (but on the same day as) the hearing had concluded. It is also clear that counsel for the Respondent had received a copy of the report on that day. It is apparent from the above exchange that the Appellant was the only person who did not receive the report. Moreover, a copy of the report was not furnished to him by either of Deputy President’s chambers or by his treating psychologist, nor did counsel for the Respondent send the report to the Appellant. It may well have been assumed that the Appellant had been given a copy of the report prepared by his psychologist, although there is nothing in the email to the chambers of the Deputy President which would indicate that this was so.
We consider that it is, at the very least, arguable that the Deputy President should have caused a copy of the psychologist’s report to be sent to the Appellant and should at least have given him an opportunity to make some submissions as to what, if anything, ought be done with the report. It seems to us arguable that the Appellant was denied an opportunity to make an application to reopen his case so that the report could be tendered as evidence. We have reviewed the psychologist’s report and it seems to us on its face, the report contains material that is probative of the issues that the Deputy President needed to determine in deciding whether the Appellant’s dismissal was harsh, unjust or unreasonable. As is apparent from the transcript above, so much was conceded, in our view properly, by counsel for the Respondent. In these circumstances there seems to be an arguable case that the Appellant was denied procedural fairness.
We are therefore persuaded that there is an arguable case the decision at first instance manifests an injustice. Affording parties procedural fairness in the conduct of matters before the Commission is central to the exercise of the Commission’s power and functions under the Act. There appears arguably to have been a failure in this regard in the instant case. For these reasons, we consider that the public interest is enlivened and as an arguable case of appellable error has been shown, permission to appeal should be granted.
Conclusion
For the reasons given, permission to appeal is granted. The parties will be separately advised as to the further conduct of the appeal
DEPUTY PRESIDENT
Appearances:
Mr D Rayner, appearing on his own behalf.
Mr R Greig, Solicitor for Little Moreton Pty Ltd T/A H-R Products
Hearing details:
2017.
Melbourne via Video Link to Perth.
7 September.
[1] [2017] FWC 1652
[2] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[3] (2011) 192 FCR 78 at [43]
[4] 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]
[5] [2010] FWAFB 5343, 197 IR 266 at [27]
[6] Wan v AIRC (2001) 116 FCR 481 at [30]
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 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]
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[9] Appeal Book at Tab 4, pages 42 – 44; Transcript (3 March 2017) PN48 – PN69
[10]Appeal Book at Tab 4, page 141; Transcript (3 March 2017) PN1181 – PN1188
[11] Transcript (Permission to Appeal Hearing, 7 September 2017) PN233 – PN270
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