Oliver Reeve v PKF (Gold Coast) HR Services Pty Ltd
[2024] FWCFB 434
•19 NOVEMBER 2024
| [2024] FWCFB 434 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Oliver Reeve
v
PKF (Gold Coast) HR Services Pty Ltd
(C2024/7068)
| DEPUTY PRESIDENT BELL | MELBOURNE, 19 NOVEMBER 2024 |
Appeal against decision [[2024] FWC 2776] of Deputy President Beaumont at Perth on 4 October 2024 in matter number C2024/5286 - permission to appeal refused.
Mr Oliver Reeve has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] (the Decision) of Deputy President Beaumont issued on 4 October 2024, for which permission to appeal is required. The Deputy President dismissed an application, brought by Mr Reeve under s 365 of the Act. The Deputy President was required to determine whether “exceptional circumstances” were present for the purposes of s 366(2) of the Act, such that Mr Reeve could have been granted a further period to make a ‘general protections’ application outside of the 21-day period provided by s 366(1)(a). The Deputy President concluded that exceptional circumstances were not present, consequently refused to grant a further period, and dismissed Mr Reeve’s application.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
As summarised in the Decision, there was a procedural history concerning Mr Reeve’s claim preceding his application for a general protections claim.
On 23 December 2022, Mr Reeve made an application for an unfair dismissal remedy. That application was made outside of the 21-day period required by s 394(2) of the Act. The matter was allocated to Deputy President Anderson for determination as to whether an extension of time should be granted. Deputy President Anderson concluded there were exceptional circumstances warranting an extension of time to make the unfair dismissal claim by 7 days (being the period of time it was late) and issued a decision to that effect.[2]
Mr Reeve’s substantive unfair dismissal claim was allocated to Commissioner Simpson. While it is unnecessary to address the minutiae of the Commissioner’s findings, it was an undisputed fact that Mr Reeve gave four weeks’ notice of resignation by email on 31 October 2022. A central feature of the dispute before Commissioner Simpson was whether (as the employer contended) Mr Reeve’s resignation email meant he was not “dismissed” by the employer or (as Mr Reeve contended) his resignation was forced and therefore a dismissal for the purposes of s 386 of the Act. Commissioner Simpson concluded that Mr Reeve was not dismissed within the meaning of s 386 of the Act. As a consequence, Mr Reeve’s unfair dismissal application was dismissed.
Mr Reeve sought to appeal the decision of Commissioner Simpson. Permission to appeal was required and the application for leave was heard and determined by a differently constituted Full Bench. It is again unnecessary to address the detail of that decision, but there did not appear to be any challenge to Commissioner Simpson’s finding that Mr Reeve was not dismissed, other than through tangential challenges on other issues. As is recorded in the decision of the first Full Bench,[3] the appeal grounds the first Full Bench addressed were: alleged bias, whether Mr Reeve’s career experience was overlooked, alleged procedural concerns, an alleged misleading statement in the Commissioner’s findings, alleged errors with evidential findings, complaints about the Commissioner’s characterisation of some of Mr Reeve’s submissions, two grounds seeking to adduce fresh evidence (which were refused), and a general catchall complaint about various paragraphs of the Commissioner’s decision. The first Full Bench found no arguable error in any of Mr Reeve’s grounds of appeal, and also found that allowing the appeal would not be in the public interest.
The first Full Bench refused permission to appeal by a decision issued on 5 September 2023. For completeness, we note that Mr Reeve made an application to the first Full Bench for extensive orders for the production of documents and orders for attendance of witnesses, each of which were refused. Substantially similar applications for document production and witness attendance orders were made in the matter before Deputy President Beaumont and before us. We return to these below.
Following the first Full Bench decision, Mr Reeve then proceeded to make or pursue a number of other applications or requests broadly associated with his grievances. As is recorded in the Decision, they included:
· On 4 December 2023, a complaint to the Commonwealth Ombudsman about the Commission.
· On 19 December 2023, an application for a review of a workers’ compensation claim he had previously made.
· On 13 March 2024, a complaint to the National Anti-Corruption Commission (NACC) requesting access to documents under the Freedom of Information Act 1982. Of the 137 documents identified by NACC, Mr Reeve was granted full access to 57 documents, partial access to 74 and refused access to 6.
· On 18 March 2024, Mr Reeve sought an application for an internal review of an FOI request to the Commission.
· On 22 May 2024, Mr Reeve filed an application with the Queensland Human Rights Commission, naming the Fair Work Commission and its President as respondents.
· On 17 June 2024, Mr Reeve made an application to the Office of the Australian Information Commissioner for a review of an FOI decision by the Fair Work Commission.
· On 11 July 2024, Mr Reeve emailed the Crime and Corruption Commission regarding the lodgement of a complaint.
On 2 August 2024, Mr Reeve made his application under s 365 of the Act. That application was allocated to Deputy President Beaumont and is the subject of the Decision under appeal.
An application under s 365 of the Act concerns an allegation that a person was “dismissed” in contravention of the ‘general protection’ provisions of the Act. For s 365, “dismissed” has the same meaning as it does for an unfair dismissal application. By s 366(1)(a) of the Act, an application under s 365 must also be made within 21 days after the dismissal took effect. In the case of Mr Reeve, it is uncontroversial that his application was approximately 596 days after his employment ended. Accordingly, Mr Reeve was required to satisfy the Deputy President that “exceptional circumstances” existed, taking into account the matters in s 366(2)(a)-(e) of the Act.
The salient parts of the decision concerning the Deputy President’s conclusions on whether Mr Reeve ought to have been granted an extension of time addressed each of the statutory criteria in s 366(2)(a)-(e) of the Act. As we do not perceive that Mr Reeve alleges particular error with any of those findings, we briefly record that the Deputy President found there was no satisfactory explanation for the extensive delay. The Deputy President’s reasons were detailed but, saliently, she did not accept that Mr Reeve’s unfair dismissal application meant there was no delay, she rejected Mr Reeve’s medical and family issues as a reason, and the Deputy President rejected the alleged fraud and corruption of the Commission as a basis. The Deputy President noted Mr Reeve’s active pursuit of recourse for the perceived wrongs against him, summarised above, as demonstrating delay due to other reasons. The Deputy President considered the factor under s 366(2)(b) – action taken to dispute the dismissal - to be a neutral factor. The Deputy President found that there would be prejudice to the employer if the extension of time was granted for the factor in s 366(2)(c), which was a matter pointing against an extension of time. The Deputy President was not satisfied that there was any matter of fairness between the applicant and other persons in a like position that would support a finding of exceptional circumstances for the factor in s 366(2)(e).
Finally, in relation to the factor in s 366(2)(d) – the merits of the claim – the Deputy President found this factor weighed against a finding of exceptional circumstances, noting in particular the findings of Commissioner Simpson that Mr Reeve had not been “dismissed”, with permission to appeal that decision being refused.
Grounds of appeal
No clear ground or grounds of appeal have been articulated. Mr Reeve’s Form F7 Notice of Appeal states, under the heading “Grounds for Appeal”, what he asserts are the following “significant errors of fact”:
“1. You have factually ignored all evidence yet again to cover for the Butler Family.
2. You are the direct cause for the delay as clearly documented.
3. The Respondent has been caught falsifying evidence yet again and you have supported them.
4. You have received falsified evidence from the respondent that has been hidden from the applicant by Mr Hatcher and Mr Simpson.
5. Ms Beaumont appears to be more interested in my language than a very serious fraud being protected by Attorney General Mark Deryfus (scil, ‘Dreyfus’).
6. I have attached the very clear and supported reasons Ms Beaumont’s comments are completely fictitious.
7. You have stated there is no evidence of extenuating circumstances in a matter that is linked to a corrupt ex chief-magistrate, supported by corrupt lawyers and corrupt members of the CAANZ. There is plenty of evidence that you have clearly ignored.
8. You have stated that the Respondent was not, ‘put on notice’ of the whistleblowing claim, that is a pervasive lie as supported by the document, OReeve v PKF 6.5.23.”
Mr Reeve’s written submissions and associated documentation in support were voluminous, with the two ‘evidence schedules’ in support running to over 700 pages. His primary submissions were 9 pages in length and were cross-referenced to numerous documents said to be in support. There was significant duplication.
It is simply not practicable to attempt to summarise Mr Reeve’s submissions on appeal, although the eight grounds set out above from his Notice of Appeal are reasonably reflective of them. A recurring theme of Mr Reeve’s oral submissions was substantively directed at what might be described as a ground of appeal loosely framed on a breach of natural justice and, in particular, a hearing free of bias. In his oral submissions, Mr Reeve was repeatedly pressed to identify any actual errors with Deputy President Beaumont’s decision. Mr Reeve did not do so but instead directed his allegations more broadly, including revisiting wide-ranging allegations of criminality or wrong-doing, including by the Commission.
Other procedural matters
By various emails sent by Mr Reeve after lodging his Notice of Appeal, Mr Reeve made a number of procedural requests, as well as a generalised request for recusal. The two procedural requests of note included an application for adjourning the hearing, which was premised on the receipt by Mr Reeve of “the evidence the FWC is currently hiding from me” and/or receiving “the falsified evidence Mr Hatcher is hiding from me that week”. That application was refused.
Mr Reeve also filed applications for extensive orders for the production of documents and attendances of various witnesses. As noted above, there was significant overlap between those applications and equivalent applications made in earlier hearings. The purpose of some of the documents was said to be:
“As there is a large amount of disputed facts in the application I feel that the commission cannot reach a fair decision without the following information that has been controlled and suppressed throughout the application.
Given that I was very unwell when I uncovered the fraud and unaware that I would be expected to perform a forensic audit on behalf of the commission this information must be presented before the 8 August 2023 [i.e. the hearing date of the first Full Bench matter] in order for me to successfully defend my application.
I have had untrue and defamatory comments published by the Commission due to the suppression of this key evidence, the facts must be presented for the commission to provide a fair hearing.
This is also very much in the public interest as I, an experienced financial statement auditor, have a very strong reason to believe the Respondent has defrauded Australian families out of potentially Billions of Dollars.”
Aside from the extreme breadth of the applications, they appeared to have no forensic relevance to any arguable error of the Deputy President’s decision beyond, we infer, generalised allegations of widespread suppression of evidence, bias and breaches of the fair hearing rule. Those applications were refused.
While it was not entirely clear if Mr Reeve was asking the present Full Bench to recuse itself, the Full Bench considered whether there was any basis or circumstance in which they should recuse themselves and confirmed to Mr Reeve there was none. The application for the Full Bench to recuse itself was refused: see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15.
Principles for permission to appeal
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.[4] There is no right to appeal, and an appeal may only be made with permission.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[5] This is so because an appeal cannot succeed in the absence of appealable 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] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. In Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46 (Waters), the Full Court stated at [10] that “An indiscriminate “scatter-gun” approach on the part of an Applicant seeking leave upon each of the proposed Grounds of Appeal may well only divert attention away from the one (or a limited number of grounds) which really expose the reason why a primary judge’s decision is truly open to “sufficient doubt” to warrant leave being granted” (original emphasis).
Where an appeal concerns a discretionary decision, the principles in House v The King (1936) 55 CLR 499 apply. An appeal against such a decision must establish the decision maker acted upon a wrong principle, gave weight to irrelevant matters, failed to give weight or sufficient weight to relevant matters, made a mistake as to facts, or where the decision is so unreasonable or plainly unjust demonstrating a failure to properly exercise the discretion.
By s 604(2), and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] The public interest is not satisfied simply by the identification of error,[10] or a preference for a different result.[11] 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...”[12]
Consideration
None of the written or oral grounds of appeal identify any arguable error of law or fact. The voluminous nature of Mr Reeve’s submissions, together with further evidence, clearly indicate that he was seeking to reargue his case again and, in fact, the case before Commissioner Simpson again. This is not the function of an appeal and his material significantly contravened the “scatter gun” vice cautioned against in Waters.
Far from demonstrating any arguable error on behalf of the Deputy President, our review of the Decision demonstrates the Deputy President’s assessment was plainly correct.
Mr Reeve’s arguments were substantively directed at wide-ranging complaints of corruption, collusion, coverups, extant freedom of information requests and various collateral issues that had no bearing on the Decision or the conduct of the proceeding before the Deputy President. No arguable error or arguable miscarriage has been demonstrated at all.
As we are not satisfied that the grounds of appeal advance any sufficiently arguable error in fact or law, or any other material miscarriage such as denial of procedural fairness, permission for leave to appeal is refused on that basis. Having regard to the factors in GlaxoSmithKline Australia Pty Ltd v Makin, we are also not satisfied that the decision raises any of the public interest considerations identified in that decision and nor was any other matter raised that would mandate the grant of permission to appeal under s 604(2) of the Act.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
O. Reeve on his own behalf.
K. Scott of Australian Business Lawyers & Advisors for the Respondent.
Hearing details:
2024.
Melbourne (by video using Microsoft Teams):
November 6.
[1] [2024] FWC 2776 (Beaumont DP), including a correction issued on 8 October 2024.
[2] Oliver Reeve v PKF (Gold Coast) HR Services Pty Ltd[2023] FWC 488 (Anderson DP).
[3] Oliver Reeve v PKF (Gold Coast) HR Services Pty Ltd[2023] FWCFB 153.
[4] This is so because on appeal FWC has the 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.
[5] Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 275.
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[9] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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].
[10] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[12] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
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