Mwango v Fair Work Commission

Case [2019] FCA 1274

FEDERAL COURT OF AUSTRALIA

Mwango v Fair Work Commission [2019] FCA 1274

Review of: Application for judicial review of the decisions of a Commissioner of the Fair Work Commission in Bernard Mwango v WesTrac Pty Ltd [2018] FWC 3135 and the Full Bench of the Fair Work Commission in Bernard Mwango v WesTrac Pty Ltd [2018] FWCFB 5967.
File number(s): NSD 2357 of 2018
Judge(s): THAWLEY J
Date of judgment: 15 August 2019
Catchwords: INDUSTRIAL LAW – application for judicial review of decision of Commissioner of the Fair Work Commission regarding unfair dismissal – application for judicial review of decision of Full Bench of the Fair Work Commission regarding application for permission to appeal decision of Commissioner – whether review of first instance decision of Commissioner available – whether Commissioner was biased – whether Commissioner’s decision was affected by jurisdictional error – whether the Full Bench undertook its task under s 400(1) of the Fair Work Act 2009 (Cth) – whether the Full Bench gave due consideration to the case before it – whether jurisdictional error on the part of the Full Bench
Legislation:

Anti-Discrimination Act 1997 (NSW)

Fair Work Act 2009 (Cth) Ch 3, Pt 3-2, ss 385, 387, 400(1), Ch 5, Pt 5-1, Div 2, s 562, Div 3, s 604, Div 4, s 613(1)

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305

Baker v Patrick Projects Pty Ltd and Another (2014) 226 FCR 302

Barkhazen v Conair Australia Pty Ltd [2017] FCA 1585

Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194

Gregory v Qantas Airways Ltd and Another (2016) 241 FCR 72

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537

Trustee for The MTGI Trust v Johnston [2016] FCAFC 140

Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681

Date of hearing: 22 July 2019
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 65
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: The First Respondent filed a submitting notice save as to costs
Counsel for the Second Respondent: Ms M O’Brien
Solicitor for the Second Respondent: Ai Group Workplace Lawyers

ORDERS

NSD 2357 of 2018
BETWEEN:

BERNARD MWANGO

Applicant
AND:

FAIR WORK COMMISSION

First Respondent

WESTRAC PTY LTD ABN 63009 342 572

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

15 AUGUST 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.Any party wishing to make an application for costs notify the Associate to Thawley J within…

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Details
AGLC
Mwango v Fair Work Commission [2019] FCA 1274
Case
[2019] FCA 1274
Decision Date

CaseChat Overview and Summary

In this case, Mwango sought judicial review of the decisions of the Fair Work Commission (FWC) regarding his unfair dismissal from employment. The dispute involved whether the FWC had committed jurisdictional error in dismissing his unfair dismissal claim and subsequently denying his application for permission to appeal. The legal issues before the court included whether the FWC had misconceived its role or failed to apply itself to the question prescribed by the Fair Work Act 2009 (Cth). The applicant argued that the FWC had committed jurisdictional error by not adequately considering his case and by being biased. The court considered whether the FWC had properly exercised its jurisdiction and whether the Full Bench gave due consideration to the case before it. The court determined that the FWC had not committed jurisdictional error and dismissed the application for judicial review. The reasoning involved a detailed examination of the statutory scheme, the role of the FWC, and the principles of judicial review. The outcome was that the application was dismissed, and no party was granted costs without a specific submission supported by the relevant authority.

Orders

Orders of the court

1. The application be dismissed.

2. Any party wishing to make an application for costs notify the Associate to Thawley J within 7 days of this order, supported by a submission of no longer than two pages as to why an order for costs is appropriate.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The determination of whether it is in the public interest to grant permission involves a broad evaluative judgment: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] (Buchanan J; Marshall and Cowdroy JJ agreeing); see also Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [78]. BACKGROUND The applicant was employed by WesTrac as a laboratory technician from about 26 November 2012 until 7 September 2017. He was dismissed from his employment on misconduct grounds after an incident that took place on 17 August 2017. This incident involved another laboratory technician employed by WesTrac, Mr Matthew Crotty. The applicant’s supervisor, Mr David Lai, witnessed part of the incident. The incident is described below in referring to the Commissioner’s decision and the decision of the Full Bench.The Commissioner’s Decision The Commissioner stated at D[20] to [27] (footnotes omitted):[20]On 17 August 2017, Mr Mwango and Mr Crotty were both rostered to work the afternoon shift in the SOS Laboratory at the Tomogo WesTrac site (Laboratory). Mr Crotty commenced work at 12:00pm.[21]At approximately 2:00pm, Mr Mwango walked into the Laboratory. Mr Crotty said to Mr Mwango that he was about to start working on coolant samples, to which Mr Mwango responded with words to the effect “I’m sorry mate, I wasn’t supposed to be here today.” Mr Mwango then sat down on a black swivel chair facing the Ion Chromatography (IC) computer and began to complete a ‘Take 5’, which is a safety related procedure at WesTrac.[22]Mr Mwango had been attending training for two days prior to 17 August 2017 and had not worked in the Laboratory during that time.[23]At approximately 2:30pm, Mr Crotty walked over to Mr Mwango who was still seated facing the Ion Chromatography (IC) computer. Mr Crotty stood to the right of Mr Mwango. Mr Crotty began to update Mr Mwango on what had occurred in the Laboratory during Mr Mwango’s absence. Mr Crotty told Mr Mwango that the Laboratory had received a nitrate standard, against which some initial results were tested, and a recalibration was performed to produce more acceptable results. In telling Mr Mwango this, there is no dispute that Mr Crotty said the word “shit”.[24]According to Mr Crotty, he “specifically and purposefully” referred to the initial results as being “shit” as opposed to Mr Mwango personally or Mr Mwango’s work.[25]Mr Crotty gave evidence that after he said the word “shit”, Mr Mwango became extremely angry and aggressive. Mr Crotty gave evidence that Mr Mwango was shaking, his eyes were bulging and wide, and his voice changed dramatically. Mr Crotty gave evidence that the conversation continued in words to the following effect:Mr Mwango: “You are saying that everything I do here is shit.”Mr Crotty: “I was referring to the nitrate result. This is not a personal attack on you.”[26]Mr Crotty gave evidence that Mr Mwango then said “you better be Caref” in a raised and aggressive voice whilst shaking, bulging his eyes and pointing directly at him. Mr Crotty alleges that he then asked Mr Mwango what he meant and Mr Mwango responded by repeating the words “you better be Caref”. Mr Crotty gave evidence that when [Mr] Mwango said “you better be Caref” he understood the words to mean “you better be careful” and that he felt physically threatened because of Mr Mwango’s raised voice and body language.[27]Mr Crotty gave evidence that Mr Mwango then shouted words to the effect of “you can expect payback 150 percent” whilst shaking and gesturing towards him with an outstretched hand. Mr Crotty gave evidence that at that point he formed the view that Mr Mwango was going to punch him, so he walked five or six metres away from Mr Mwango but remained in the Laboratory.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A Commissioner dismissed this application on 1 June 2018 (the original decision or the Commissioner’s decision): Bernard Mwango v WesTrac Pty Ltd [2018] FWC 3135. The Commissioner concluded that the applicant “engaged in serious conduct” involving “threatening and aggressive” behaviour towards a co-worker. This gave WesTrac a valid reason for dismissal. The Commissioner determined that the applicant’s dismissal was not harsh, unjust or unreasonable. On 22 June 2018, the applicant lodged an appeal against the original decision. As is explained next, the statutory scheme was such that the applicant required “permission” to appeal. The Full Bench of the Fair Work Commission refused permission to appeal on the basis that it was not satisfied, for the purpose of s 400(1) of the FW Act, that it would be in the public interest to grant such permission: Bernard Mwango v WesTrac Pty Ltd [2018] FWCFB 5967. These proceedings were commenced by an originating application and statement of claim filed on 18 December 2018. Relief was claimed under s 39B of the Judiciary Act 1903 (Cth) in respect of the Full Bench’s decision. By way of an amended statement of claim, ultimately filed on 22 July 2019, the applicant sought judicial review of both the original decision and the decision of the Full Bench. Before explaining the background to the dispute and the reasons why the application must be dismissed, it is useful to set out certain aspects of the statutory scheme.LEGISLATIVE SCHEMEProvisions relevant to the Commissioner’s Decision Chapter 3 of the FW Act is entitled “Rights and Responsibilities of Employees, Employers, Organisations etc”. Part 3-2, comprising ss 379 to 405, is entitled “Unfair Dismissal”. The role of the FWC, in respect of the applicant’s unfair dismissal application, was to determine whether his dismissal was “harsh, unjust or unreasonable” within the meaning of s 385 of the FW Act. Section 385 provides:385 What is an unfair dismissalA person has been unfairly dismissed if the FWC is satisfied that:(a) the person has been dismissed; and(b) the dismissal was harsh, unjust or unreasonable; and(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and(d) the dismissal was not a case of genuine redundancy. Section 387 of the FW Act provides:387 Criteria for considering harshness etc.In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and(b)whether the person was notified of that reason; and(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and(e)if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and(h)any other matters that the FWC considers relevant.

Ratio Decidendi

Legal Principle Established

Justice Bromwich’s decision concerned an application for judicial review being brought to this Court without exhausting the appeal process contemplated by the statute. This matter is different in that the applicant has exhausted the appeal rights available to him under the FW Act. There will also often be compelling reasons for this Court not to entertain an application for judicial review of a decision of a Commissioner in addition to an application for judicial review of the Full Bench’s decision relating to the Commissioner’s decision. However, I have now considered whether there was any jurisdictional error in the Commissioner’s decision and determined that there was not for the reasons identified below, and would dismiss the application for judicial review from the Commissioner’s decision on that basis.CONSIDERATIONThe relevant principles Section 562 of the FW Act confers jurisdiction on this Court in relation to any matter arising under the FW Act. Section 39B(1A)(c) of the Judiciary Act provides:The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:…(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Section 23 of the Federal Court of Australia Act 1976 (Cth) provides:The Court has the power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. Whilst it is not as clear as it should be, the applicant seeks:(1)a writ in the nature of certiorari to quash the decisions of the Commissioner and the Full Bench; and (2)a writ of mandamus to compel the FWC to reconsider the unfair dismissal claim or the appeal to the Full Bench according to law. The applicant did not raise any question of non-jurisdictional error on the face of the record – see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [94]. Accordingly, the relief which the applicant claims may only be granted if jurisdictional error is established. The applicant bears the onus in this respect. In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, in describing the circumstances in which the Full Bench would fall into jurisdictional error, Gleeson CJ, Gaudron and Hayne JJ stated at [31] (footnotes omitted):There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it “misunder[stood] the nature of [its] jurisdiction … or ‘misconceive[d] its duty’ or ‘failed to apply itself to the question which [s 45 of the Act] prescribes’ … or ‘[misunderstood] the nature of the opinion which it [was] to form’”.