Oliver Reeve v PKF (Gold Coast) HR Services Pty Ltd
[2023] FWCFB 153
•5 SEPTEMBER 2023
| [2023] FWCFB 153 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Oliver Reeve
v
PKF (Gold Coast) HR Services Pty Ltd
(C2023/4167)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT EASTON COMMISSIONER MATHESON | MELBOURNE, 5 SEPTEMBER 2023 |
Appeal against decision [2023] FWC 1565 and order PR763704 of Commissioner Simpson at Brisbane on 29 June 2023 in matter number U2022/12234 – 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] and order[2] of Commissioner Simpson issued on 29 June 2023 for which permission to appeal is required. The decision concerned an application made by Mr Reeve against PKF (Gold Coast) HR Services Pty Ltd (PKF) pursuant to s.394 of the Act for an unfair dismissal remedy.
In the first instance proceedings, PKF had raised a jurisdictional objection that Mr Reeve was not dismissed. The Commissioner found that Mr Reeve’s resignation was voluntary, there was no dismissal within the meaning of s.386(1) of the Act and there was therefore no jurisdiction to deal with Mr Reeve’s application.[3] The Commissioner dismissed Mr Reeve’s application on that basis.
Mr Reeve’s application was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Background
PKF is a services entity for an accountancy and business advisory firm. It is not necessary in this decision to distinguish between PKF and the accountancy and business advisory firm so we will refer to both as PKF. Mr Reeve was employed by PKF between 14 March 2022 and November 2022 with his role titles including Director Audit and Assurance and Divisional Director. On 31 October 2022 Mr Reeve resigned via email, providing 4 weeks’ notice.
Mr Reeve lodged an application for unfair dismissal remedy on 23 December 2022. In making his application, Mr Reeve submitted that, as a result of the conduct of PKF, he had no other option but to resign from his position and was therefore “dismissed.”
The application was made more than 21 days after the date that Mr Reeve said he was dismissed. On 28 February 2023 the time for lodging the application was extended to the date the application was made.[4]
The matter was allocated to Commissioner Simpson to determine the outstanding jurisdictional objection that Mr Reeve was not dismissed and, if necessary, the merits of the application.
Mr Reeve’s contentions at first instance
Mr Reeve made a range of allegations against PKF and its employees that he said gave him no other option but to resign. This included allegations that:
In or about August 2022 he raised concerns that carrying out audit work for the Walter Doyle Group would give rise to a lack of independence otherwise required of an auditor and would be unethical[5] and in September 2022 was asked by Mr Butler to ‘rush through’ an audit for an entity associated with the Walter Doyle Group.[6] Mr Reeve later clarified in his evidence that he was asked to perform audits for two Walter Doyle Group entities, Energy Storage and Intergroup and these were the unethical audits he was referring to.[7]
From in or about October 2022 PKF hired a new employee who made repeated comments undermining Mr Reeve and causing him stress. When Mr Reeve raised a complaint with Mr Butler about this it was not addressed and Mr Butler started excluding him from the Audit and Assurance Division.[8]
Throughout August to October 2022 Mr Reeve raised concerns with PKF about his working conditions, no action was taken in relation to his complaints, PKF continued to exclude him from the Audit and Assurance Division and “otherwise purposefully adversely” affected the enjoyment by Mr Reeve of his work.[9]
Mr Reeve submitted that as a result of PKF’s continued requests for him to engage in unethical work practices, failure to address his concerns and complaints and its conduct as described above, he had no other option but to resign.[10]
Mr Reeve further elaborated on these allegations in later submissions alleging:
he was subjected to bullying and an “unreasonably stressful work environment” arising in connection with unethical and objectionable conduct which PKF was engaging in and directing him to engage in;[11]
Mr Butler was engaged in wrongdoing with a client, running a multinational ponzi scheme and the client’s fee is 50% of PKF’s annual revenue;[12]
during early July, Mr Reeve became aware of negative press and review articles, chat room discussions and other materials suggesting Walter Doyle has deceived investors. He emailed Mr Butler and Ms Ujdur about this, recommended to Mr Butler that PKF resign from its appointments with Mr Doyle as soon as possible and Mr Butler agreed.[13] Mr Reeve clarified in his oral evidence at first instance that he first became aware of the concerns about Walter Doyle in August or September, although he heard rumours in July.[14]
Mr Butler’s interactions with Mr Reeve became more abrupt and Mr Reeve “began noticing an unusual number of meetings being held between Mr Butler and Ms Ujdur”;[15]
Mr Butler hired a replacement employee, Mr Green, and “ran a campaign of discrimination, exclusion and bullying” with Mr Green’s help in order to push Mr Reeve out of the organisation and “to continue benefiting from the fraud scheme”;[16]
Mr Green’s work was pushed on to Mr Reeve when he was already “apportioned an unfair and unreasonably stressful amount of work”;[17]
during September, Mr Reeve and Mr Green approached Mr Butler asking that certain transactions be reported to ASIC, that Mr Butler was persistent that the audit work continue and when Mr Reeve said he would not be involved in any such activity Mr Green agreed to complete the work;[18]
Mr Butler continued to meet Ms Bobbett regularly and Ms Bobbott continued to force unethical work upon Mr Reeve;[19]
on or around 20 October 2022 Mr Reeve raised a concern with Mr Butler that Mr Green was behaving in a disrespectful manner and requested that Mr Butler address the issue and ensure his inclusion in “anything related to the audit department”;[20]
on 26 October 2022 Mr Reeve raised a further concern in relation to Mr Green’s behaviour and an issue in relation to WIP with Mr Butler;[21]
on 31 October 2022 Mr Reeve approached PKF to discuss previous complaints relating to the behaviour of Mr Green and Ms Bobbett, raising his concern that his complaints were being ignored and raising concern about what he says was a demotion from Director to Divisional Director. Mr Reeve concluded that he was no longer welcome in the company and that continuing would pose a serious risk to his mental health, career and accomplishments and he was forced to resign.[22]
Decision under appeal
After summarising the submissions and evidence the Commissioner turned to consider whether Mr Reeve had been dismissed. In relation to the allegations made by Mr Reeve, the Commissioner found:
the evidence did not support a conclusion that a ponzi scheme exists or that there was any involvement between Mr Butler and Mr Doyle in any ponzi scheme;[23]
if Mr Reeve had a concern about the conduct of a PKF client he could have reported it to the relevant authorities which he said during his evidence he had not done;[24]
Mr Reeve’s very serious allegations were never particularised in any detail;[25]
there was no evidence that PKF attempted to hide any audit finding;[26]
it would appear that Mr Reeve has taken a particular view about the conduct of Mr Butler and expounded serious allegations about Mr Butler without a reasonable basis for doing so;[27]
Mr Reeve’s allegation that he was forced or pressured to perform audits for Energy Storage and Intergroup changed during the hearing, the evidence showed it was Mr Reeve who pursued the work in relation to Energy Storage and there was no evidence that Mr Reeve was asked to undertake unethical audit work in relation to Intergroup;[28]
Mr Reeve was given discretion as to whether he wanted to be involved in audit readiness work and was himself the head of audit and had a duty to identify concerns himself and escalate them if identified;[29]
the evidence did not support a conclusion that Mr Reeve was asked to rush through an audit;[30]
the evidence did not support a conclusion that PKF is fee dependent on the Walter Doyle Group;[31]
there was no cogent evidence to support Mr Reeve’s claim that Mr Green undermined or bullied him;[32]
he was inclined to accept Mr Butler’s evidence that complaints about Mr Green were not raised by Mr Reeve until the morning of 31 October[33] and while discussions of a general nature about how Mr Reeve’s and Mr Green’s role related to each other took place on 27 October, the first time more specific grievances were raised was on 31 October;[34]
Mr Reeve was not demoted as he claimed and rather his title was changed as an outcome of organisational change that did not have any real impact on his conditions of employment or authority;[35] and
Mr Reeve had retreated from his earlier claim about an unfair workload during the hearing and the evidence did not support his claim that he was being excluded from the Audit and Assurance Division.[36]
Mr Reeve had also given evidence that he had emailed an article referred to throughout proceedings as the “Green Fraud” article to Mr Green on 22 September. Mr Reeve put to Mr Butler that he had a meeting with him on 23 September to discuss the allegations in that article, that they went through the allegations and Mr Green matched them to intercompany transactions from Energy Storage to prove them. Mr Butler refuted this. The Commissioner dealt with the competing versions of events regarding the Green Fraud article and found that the Green Fraud article was not raised with Mr Butler during the meeting of 23 September and that it is more likely that Mr Butler was not aware of the article until 20 October.[37] The Commissioner also found, on the balance of probabilities, that it was Mr Butler who raised independence concerns in relation to audit work concerning Energy Storage in the meeting of 23 September and not Mr Reeve.[38]
Having considered the evidence the Commissioner ultimately found that:
Mr Reeve had available to him at the time of his resignation a range of options he could have pursued as an alternative to resigning if his concerns were genuinely held;[39]
Mr Reeve failed to provide evidence to support the serious allegations he made, including allegations of fraud, and to the extent that there was evidence before the Commission, it indicated that the allegations against Mr Butler were without foundation;[40]
he was satisfied that Mr Reeve’s resignation was voluntary, there was no dismissal within the meaning of s.386(1) and that there was no jurisdiction to deal with the application.[41]
The Commissioner went on to say that PKF had pressed the Commission to make adverse credit findings against Mr Reeve in the context of a newspaper article that PKF said had made public the allegations raised by Mr Reeve.[42] The Commissioner said:
he was unable to reach a clear determination about why Mr Reeve made the allegations when he produced no proper evidentiary basis to support them;
Mr Reeve had made reference to having been diagnosed with mental health conditions and this was supported by medical evidence for the purposes of his extension of time application;
Mr Reeve gave evidence that the state of his mental health was compromised between 23 September and 31 October and beyond;
it appeared to him that Mr Reeve’s judgement may have been significantly impaired during this period and may provide some explanation for why he continues to hold views related to that period that appear detached from the reality of the situation.[43]
Grounds of appeal and public interest
In his Form F7 Notice of Appeal, Mr Reeve relies upon 10 grounds of appeal which, by way of summary, are as follows:
The Commissioner held a bias that was most likely caused by several false allegations made by PKF and Mr Butler. The allegations Mr Reeve said were false were that his lawyer had chosen not to support him and that Mr Reeve had changed his story.
Mr Reeve was impeded from working on his submissions due to the need to care for his brother.
PKF was “given an additional week to withhold evidence” severely reducing Mr Reeve’s preparation time. Mr Reeve says he asked for the hearing to be moved due to PKF’s lateness and was denied, putting him at a significant disadvantage.
The Commissioner’s first words in the hearing were to the effect of “I will not be making a judgement on the fraud” and from this Mr Reeve made a conscious decision not to focus on explaining the supporting evidence of the fraud, and this was misleading to someone who is not in the legal field.
Mr Reeve did not concede that he had no evidence and said that this submission was offered by Mr Butler and accepted by the Commissioner as a fact. Mr Reeve considers that there is irrefutable evidence included in his application and a clear explanation of the mechanics and key players of the fraud he alleges.
The Commissioner’s conclusion attempts to assign a mental health diagnosis, stating that the facts of Mr Reeve’s statement have no grounds in reality. Mr Reeve says this is a reckless and untrue statement.
There was unconscious bias against Mr Reeve, and the Commissioner overlooked his successful career as a financial auditor specialising in fraud discovery and restatement.
Mr Reeve has recently been made aware that another employee has been forced out of her position with PKF.
Mr Reeve has been through the decision and has provided an explanation and further information and support on each of the points that he disagrees with. In this regard Mr Reeve attached a document OR12 to his Form F7 Notice of Appeal.
10.An article “Green Fraud” was discovered by Mr Green on 22 September 2022 and contained specific accusations of wrongdoing by the Walter Group and this was shared with Mr Butler on 23 September 2022.
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission.
Section 400(1) of the Act provides that, despite s.604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s.400(1) is to Part 3-2 of the Act. This appeal is one to which s.400 of the Act applies. The test under s.400 is “a stringent one.”[44]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[45] The public interest is not satisfied simply by the identification of error,[46] or a preference for a different result.[47] 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...”[48]
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 appealable error.[49] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[50]
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.[51]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[52]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[53]
“"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
(citations omitted)
For there to be legal error, it would need to be shown that the Commissioner acted on a wrong principle, took into account irrelevant matters, mistook facts,[54] or that the outcome is unreasonable or plainly unjust.[55] It is not enough that a different member or an appellant body might have reached a different conclusion.
Consideration
We have considered the grounds advanced by Mr Reeve in support of his application. We are not satisfied that it would in the public interest to grant permission to appeal. We set out the basis for this conclusion in the analysis that follows, together with our brief observations regarding each ground of appeal.
Appeal grounds 1 and 7 - allegation of bias
Mr Reeve submits by appeal grounds 1 and 7 that the allegations PKF and Mr Butler made against him have resulted in the Commissioner holding a bias against him.[56] Mr Reeve did not make an application for the Commissioner to recuse himself despite being invited to do so after he raised concerns.
The legal test for apprehended bias is well established: a judge or decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the judge or decision maker might not bring an impartial mind to the resolution of the question they are required to decide.[57]
In his submissions Mr Reeve did not properly distinguish between the Commissioner forming a bias against him, and the Commissioner merely not deciding certain matters in Mr Reeve’s favour.
Mr Reeves relies on two matters to submit that the Commissioner was biased: firstly, that the Commissioner accepted as true PKF’s assertion that Mr Reeve’s lawyer chose not to support him, and secondly that the Commissioner also accepted as true PKF’s assertion that Mr Reeve changed his story.
Even if one or both of these assertions were properly founded, we do not consider that there is an arguable case of appealable error because neither ground relied on by Mr Reeve is likely to cause a fair-minded lay observer to reasonably apprehend that the Commissioner might not bring an open mind to the matters he was required to decide.
In any event we see nothing in the decision that suggests that the Commissioner accepted as fact that Mr Reeve’s lawyer chose not to support him. It is apparent that submissions that may have been made by PKF about this matter were not relied on by the Commissioner in arriving at his findings about whether Mr Reeve was dismissed.
Similarly, Mr Reeve’s second accusation relies upon the matters at annexure OR1 in support of his submission that this was “proven incorrect.”[58] In matters involving contested facts, it is an inherent component of a decision maker’s role that submissions and evidence are considered, evidence is weighed, and findings are made. Notwithstanding that the Commissioner preferred the evidence of PKF’s witnesses over that of Mr Reeve in some respects, there is no arguable contention arising from Mr Reeve’s submissions or on the face of the decision, that the Commissioner did not bring an impartial mind to his consideration of the evidence and submissions or in arriving at findings about the facts in dispute.
The submissions advanced by Mr Reeve in relation to appeal grounds 1 and 7 do not establish an arguable case of appealable error.
Appeal ground 7 – career experience overlooked
A further aspect of appeal ground 7 concerns Mr Reeve’s contention that the Commissioner overlooked his successful career as a financial auditor specialising in fraud discovery and restatement as well as his qualifications and professional memberships.[59] However, the Commissioner expressly identified in the decision that Mr Reeve held a senior role involving audit within PKF.[60] To the extent it is contended that the Commissioner should have given more weight to Mr Reeve’s evidence and submissions over that of other witnesses because of his career history and credentials, it is not apparent how this gives rise to an arguable error. There is no more than an implication that Mr Reeve disagrees with the Commissioner’s considerations as to weight, which is not a matter with which an appeal bench will typically interfere. We do not consider this ground discloses any arguable case of appealable error.
Appeal grounds 2 and 3 - procedural concerns
Appeal grounds 2 and 3 turn to matters of procedure. The essence of Mr Reeve’s submissions in this regard are that he was impeded from preparing his case due to his personal circumstances concerning his brother, because PKF was late in filing evidence and because the Commissioner did not grant his request to move the date of the hearing.[61] In this regard, it is useful to consider certain events surrounding the programming of the matter.
The Commissioner issued directions on 13 March 2023 requiring that:
· PKF file submissions and any witness statements in relation to jurisdiction by not later than 27 March 2023;
· Mr Reeve file submissions and any witness statements in relation to merits by 27 March 2023;
· Mr Reeve file submissions in reply to PKF’s jurisdictional material by 11 April 2023;
· PKF file its submissions in reply to Mr Reeve’s materials regarding merits by 11 April 2023.
The matter was set down for hearing on 17 and 18 April 2023.
On 27 March 2023, Mr Reeve emailed the Commission advising that he had been “left in a difficult position” by his previous solicitors and stating:
“I understand there is the need to submit documents relating to the second objection from the Respondent on if I was Dismissed.
Please could you let me know if there are any specific forms that are required to be submitted and how they are to be submitted please?”
On 27 March 2023 Mr Reeve filed submissions addressing merits and PKF filed submissions relating to jurisdiction in accordance with the directions. In his submissions Mr Reeve stated:
“The matter of whether the Dismissal occurred by way of forced resignation is the subject of a separate jurisdictional objection and, in accordance with the directions provided by the Commission on 13 March 2023, these submissions relate to merits only. On that basis, the issue of whether the dismissal was in fact a dismissal is not dealt with in these submissions and the submissions made herein are made on the assumption that the resignation of the Applicant does in fact constitute constructive dismissal.”
On 28 March 2023 PKF emailed the Commission and noted that while Mr Reeve appeared to have complied with the direction to file submissions in relation to “merits” by 27 March 2023, his submission did not address the issue of whether there had been a dismissal within the meaning of s.386 of the Act. PKF submitted that as a consequence it was not in a position to respond to the forced resignation argument until such time as Mr Reeve articulated the grounds on which his argument was advanced.
On 29 March 2023, the Commissioner wrote to the parties noting that the submission and witness statement filed by Mr Reeve did not particularise in any level of detail the facts and circumstances surrounding the claim that he was dismissed within the meaning of s.386 and issued revised directions requiring that:
Mr Reeve file evidence and submissions in reply to PKF’s jurisdictional material filed on 27 March 2023 by 6 April 2023, effectively bringing the filing deadline for Mr Reeve on the issue of jurisdiction forward by five days;
By 13 April 2023, PKF file evidence in reply to Mr Reeve’s material concerning the merits filed on 27 March 2023 and his reply on jurisdiction to be filed on 6 April 2023.
The directions did not contemplate the filing of reply materials by Mr Reeve in relation to PFK’s materials and the hearing dates remained as previously listed.
Mr Reeve did not object to this course of action and did not seek an extension of time at this point. On 29 March 2023 Mr Reeve responded indicating he would “add further detail” and make sure to cover the points raised in the Commission’s email.
On 31 March 2023, Mr Reeve emailed the Commission indicating that he did not believe the hearing would be fair if Mr Butler or PKF was “allowed to continue to be represented” and he requested that the Commission “consider removing the respondents (sic) representation” or allow him time to find another lawyer.
On 3 April 2023 the Commission wrote to the parties indicating that the Commissioner did not intend to amend the directions further at that stage or make a ruling concerning PKF’s permission to continue to be legally represented. Mr Reeve ultimately filed his submissions on 6 April 2023 as per the directions.
On 11 April 2023 PKF wrote to the Commission seeking an extension of time to file its reply submissions, pointing to the public holidays and indicating that having reviewed the materials there were a large number of contested facts that would most likely require multiple witness statements and that given the seriousness of the allegations made by Mr Reeve it was essential that PKF be given a reasonable opportunity to respond to them. An extension until 5pm on 26 April 2023 was granted and the hearing was relisted to 8 and 9 May 2023.
At 5.02pm on 26 April 2023 PKF filed its submissions in response and stated that it intended to file two witness statements that same evening and that it be given leave to file that material later that evening or the following day. At 6.34pm on 26 April 2023, Mr Reeve emailed the Commission stating, “allowing the respondent to set their own deadline for materials is yet another instance of the respondent receiving favour from the commission.” At 9.21pm on 26 April 2023 PKF filed two witness statements and stated that due to the size of the materials which form the attachments to the statements, it intended to file the attachments electronically the following day via a OneDrive link. The attachments were ultimately filed across 27 and 28 April 2023 and on 27 April 2023 PKF sought confidentiality orders in relation to attachments to the statement of Mr Butler. A confidentiality order on more confined terms was made on 3 May 2023.
At 5.26pm on 3 May 2023 Mr Reeve emailed the Commission asking when he could expect to see the documents the subject of the confidentiality order, as PKF was past its filing deadline and requesting that the hearing date be moved “to make up for the additional time the documents were withheld.” At 7.59pm on 3 May 2023 PKF wrote to the Commission confirming that the attachments to Mr Butler’s statement had been served on Mr Reeve that evening. On 4 May 2023 it was confirmed that the Commissioner had determined that the hearing would proceed as listed.
On 4 May 2023 Mr Reeve emailed the Commission alleging bias in favour of PKF and alleging that the Commissioner allowed PKF as much time as they needed to prepare and that he was held to unreasonable timeframes. That same morning the Commissioner’s Chambers wrote to the parties stating:
“The Commissioner notes the email from the Applicant below to chambers at 9.54am today raising an issue of bias. If the Applicant is intending to make an application that the Commissioner disqualify himself on the basis of actual bias or apprehended bias the matter will need to be determined before the Commissioner can proceed to hear the jurisdictional or substantive matters. In the circumstances the Commissioner has determined to list the matter for a directions/interlocutory hearing by telephone at 2:00pm (Qld time) tomorrow 5 May 2023 to deal with issues raised in the Applicant’s email.”
Mr Reeve indicated that he would not be attending the interlocutory hearing and the Commission responded noting that Mr Reeve had not provided a reason for being unavailable and directing him to do so. The Commission also directed Mr Reeve to file a written submission addressing the grounds for recusal by 5pm on 5 May 2023 and informed Mr Reeve he would have an opportunity to be heard on the matter if pressed at the commencement of the hearing on 8 May 2023. Mr Reeve later responded disclosing personal reasons for his inability to attend a hearing on 5 May 2023.
On 5 May 2023 Mr Reeve filed materials in reply to the materials filed by PKF on 3 May 2023 and sent a follow up email to the Commission seeking confirmation that they would be accepted. That same day the Commission wrote to Mr Reeve indicating that the Commissioner was content to treat the additional material filed as material filed in reply and that both parties would be given an opportunity to be heard about that material at the commencement of the hearing. Mr Reeve filed further material on 6 and 7 May 2023.
We understand that appeal grounds 2 and 3 raise concerns regarding procedural fairness. In Construction, Forestry, Mining and Energy Union v Ditchfield Mining Services Pty Limited (CFMEU v Ditchfield),[62] the Full Bench observed that the Commission must accord parties procedural fairness, and confirmed the position of the High Court that a breach of the requirements of procedural fairness will invalidate a decision where it results in the realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred.[63]
That which is required to accord procedural fairness will depend upon the circumstances in each case.[64]
With respect to the personal matters referred to in appeal ground 2, it is observed that (a) Mr Reeve did not raise with the Commissioner that his personal matters had impeded his capacity to prepare his submissions, and (b) there is no evidence before the Commission addressing the extent of Mr Reeve’s personal responsibilities and how they may bear upon Mr Reeve’s capacity to present his case. To the extent that Mr Reeve provided a high-level summary of certain personal matters by way of an email to the Commission on 4 May 2023 (see [49] above), this information was provided by Mr Reeve for the specific purpose of explaining his unavailability to attend a recusal hearing on 5 May 2023 and is not said to be relevant to any broader issue. In any event, Mr Reeve has not particularised how these personal matters impacted his opportunity to prepare and present his case. No arguable case of appealable error arises in relation to appeal ground 2.
We turn to consider the allegation at appeal ground 3 that PKF was provided with an additional week in which to file aspects of its evidence, being the evidence the subject of a confidentiality order. This material was originally required to be filed by 26 April 2023 and instead was first provided to Mr Reeve on 3 May 2023 (see [47] above). While it is the case that PKF served certain materials beyond the date directed by the Commission, the materials were available to Mr Reeve several days prior to the hearing date. Significantly, Mr Reeve filed further materials between 5 and 7 May 2023 which were said to be “in response to the materials filed by the Respondent on 3 May 2023.” As acknowledged in the decision,[65] Mr Reeve’s supplementary materials were accepted as reply materials with the Commission confirming this via email on 5 May 2023. There is a substantial amount of further information in Mr Reeve’s emails on 5 and 7 May 2023.
Appeal ground 3 proceeds on the basis that Mr Reeve was placed at a significant disadvantage as a consequence of the Respondent being given an opportunity to serve the confidential material beyond the date contained in the Commission’s directions. However, Mr Reeve has not identified how this contention affected the outcome of the decision in circumstances where Mr Reeve (a) filed supplementary responsive material, which was received into evidence by the Commission, (b) was given an opportunity at the hearing to present his case, and (c) has not identified any defect in his material which is alleged to have arisen as a result of the condensed timeline. No practical injustice is obvious on the face of the decision. Absent any allegation which draws a causal link between the alleged denial of procedural fairness and the outcome of the Commissioner’s decision, no arguable case of appealable error arises.
Relatedly, we have considered the alteration to Mr Reeve’s deadline for filing submissions on the jurisdictional question from 11 April to 6 April 2023. Mr Reeve was advised of the revised deadline on 29 March 2023, over a week before he was required to file his submissions on the issue of jurisdiction. PKF’s submissions filed on 27 March 2023 included a helpful summary of the relevant legal principles. When preparing his material Mr Reeve had the benefit of understanding PKF’s argument against those legal principles. Further, Mr Reeve’s allegation that he was forced to resign came as early as 23 December 2023 when he made his application. This was almost 15 weeks prior to the deadline for filing submissions on whether he was dismissed, and almost 20 weeks before the hearing. It is not the case that Mr Reeve was only on notice of the requirement to establish that he was dismissed from the date of the revised directions.
While the adjustment to the directions may have been somewhat confusing, we are not persuaded that (a) granting more time to Mr Reeve would have had any bearing on the outcome, and (b) there was any failure to accord natural justice or to provide a proper opportunity for Mr Reeve to be heard in relation the relevant issues requiring determination. No arguable case of appealable error arises in this respect.
Appeal ground 4 – “misleading” statement
Mr Reeve submitted that the Commissioner’s first words in the hearing were to the effect of, “I will not be making a judgement on the fraud” and from this Mr Reeve reasonably made a conscious decision not to focus on explaining the supporting evidence concerning the fraud. Mr Reeve submits that the Commissioner’s statement was very misleading to someone who is not in the legal field.[66]
It is apparent that Mr Reeve did make submissions about the alleged fraud and the Commissioner gave consideration to those submissions.[67] Further, Mr Reeve’s witness statements of 27 March 2023 and 6 April 2023 were admitted into evidence. In those statements Mr Reeve states that he began hearing rumours about wrongdoing by Walter Doyle, that he discovered news articles accusing Mr Doyle and Mr Butler of wrongdoing and that he “confirmed the allegations.”[68] There are various attachments to Mr Reeve’s statement of 6 April 2023 including screenshots from chat room conversations and company reviews.
As stated at [13] above, the Commissioner’s found, inter alia, that Mr Reeve failed to provide evidence to support the serious allegations he made, including allegations of fraud, and to the extent that there was evidence before the Commission, it indicated that the allegations against Mr Butler were without foundation.[69]
Mr Reeve’s evidence was tendered in the proceedings and he has not identified any specific submissions that he held back or would have made in relation to that material but for the Commissioner’s statement. Further, Mr Reeve has not identified any materials that were likely to have changed the Commissioner’s view about the evidence of alleged fraud. In any event, we are not persuaded that there is any arguable basis for finding that further oral submissions from Mr Reeve on the alleged fraud would have changed the Commissioner’s finding on the key issue concerning whether Mr Reeve was dismissed. Nor are we satisfied that Mr Reeve has raised any matter which reveals a legal error of the kind set out at [23] above.
No arguable case of appealable error is disclosed in relation to appeal ground 4.
Appeal ground 5 – no concession made and “irrefutable evidence”
In relation to appeal ground 5, Mr Reeve submitted on appeal that he did not make any concessions before the Commissioner to the effect that he had no evidence. Mr Reeve believes this was offered by Mr Butler and accepted by the Commissioner as fact. Mr Reeve said that there is irrefutable evidence included in his application and a clear explanation of the mechanics and key players of the fraud.[70] As noted at [59] above, the evidence comprised chat room conversations and company reviews that Mr Reeve relied on to support his assertions.
Mr Reeve does not point to any part of the decision in which the Commissioner suggests that Mr Reeve has conceded to “having no evidence.” While the Commissioner’s summary of the evidence at paragraph [63] of the decision states that it “was put to Mr Reeve that the totality of evidence before the Commission about the alleged significant fraud operation referred to by Mr Reeve was a bunch of chat forum posts” and that Mr Reeve responded “that was the evidence he had ‘at the moment’, and Mr Butler was monitoring his computer,” this reflects Mr Reeve’s oral evidence and not the evidentiary considerations or factual findings of the Commissioner.
In advancing appeal ground 5, Mr Reeve submits he has “ensured there is irrefutable evidence” included in his application, “and a clear explanation of the mechanics and key players of the fraud.”[71] In support of this submission, Mr Reeve relies upon documents marked OR2, OR3, OR4, OR5, OR8, OR9 and OR11. Mr Reeve confirmed that the material in each of these documents, with the exception of OR11, was not before the Commission at first instance and therefore constitutes fresh evidence in his application for permission to appeal. The respondent has sought a confidentiality order in respect of the material at OR11.
We are satisfied that it is appropriate to make a confidentiality order having regard to the confidential nature of the evidence relied upon by Mr Reeve and marked OR11.1, OR11.2, OR11.3, OR11.4, OR11.5 and OR11.6 in the Appeal Book. An order in relation to this material is issued together with this decision in PR765771.
With respect to the material that was not before the Commission during the first instance proceedings:
Document OR2 Mr Reeve alleges that PKF and a business associate Dr Nigel Purves “performed the set up of the NQ Minerals scheme in 2015.”
Document OR3 identifies Dr Purves as an auditor to NQ Minerals PLC.
Document OR4 appears to relate to findings about Dr Purves made by a professional conduct tribunal in April 2016.
Document OR5 appears to be an article published by the Sydney Morning Herald in 2010 about findings made by the Supreme Court in relation to Dr Purves and others.
Document OR8 is titled “Green Fraud” article, which Mr Reeve submits was referred to in the proceedings at first instance but was not available to him at that time. This document forms the basis for appeal ground 10.
Document OR9 appears to relate to Mr Reeve’s submission that Walter Doyle and companies related to him are facing court action in California and this document appears appear to indicate complaints filed against Walter Doyle and those companies in 2021 and 2022 and which foreshadow a trial date in 2024.
The principles dealing with the discretion to admit new evidence are set out in Akins v National Australia Bank (Akins).[72] There are three conditions that need to be met. These are that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance, that it must be evidence of such a high degree of probative value that there is a probability that there would have been a different result at first instance and that the evidence must be credible.[73]
Mr Reeve’s application to rely upon these documents as fresh evidence in the appeal is declined. Having considered the documents, we are not persuaded that the material constitutes evidence of such a high degree of probative value that there is a probability that there would have been a different result at first instance in relation to the confined issues requiring determination by the Commission.
Appeal ground 5 does not disclose an arguable case of appealable error.
Appeal ground 6 – assignment of “mental health diagnosis”
Mr Reeve submitted that in the Commissioner’s conclusory paragraph he attempted to assign to Mr Reeve a mental health diagnosis, stating that the facts of Mr Reeve’s statement appear to have “no grounds in reality.” Mr Reeve says this is a reckless and untrue statement.[74]
Mr Reeve produced evidence during the first instance proceedings addressing his history of mental health conditions. This was also a matter relied upon by Mr Reeve as a reason for the delay in filing his application within the 21-day statutory timeframe. The Commissioner’s observation about Mr Reeve’s state of health during the proceedings were postscript observations, made subsequent to the Commissioner’s conclusion on the evidentiary case before him. Mr Reeve has not drawn any connection between these observations and the Commissioner’s reasoning in the decision. Absent such a connection, we do not consider that an arguable case of appealable error arises.
Appeal ground 8 – another employee being “forced out”
Appeal ground 8 concerns Mr Reeve’s submission that another PKF employee has been “forced out” of her position for speaking out against Mr Butler. In our view, no “respectable argument” could be made that another employee’s personal grievances with PKF, which post-date the first instance proceedings, materially bears upon the Commissioner’s reasoning or the outcome of the decision.[75] We decline to admit the fresh evidence referred to at pages 6-15 of the Appeal Book, which was not before the Commissioner. We are not satisfied that the requirements of Akins are met or that it is appropriate to admit the material or take it into account.
Appeal ground 9 – explanation and further information
By appeal ground 9, read together with document OR12[76] attached to Mr Reeve’s Form F7 Notice of Appeal, Mr Reeve appears to challenge various paragraphs in the decision.
Among these paragraphs are:
paragraphs [15], [25]-[28], [171] and [205]-[208] which are not findings made by the Commissioner but rather summarise PKF’s submissions;
paragraphs [36], [37], [77], [83], [84], [140], [160], [161], [165], [172]-[186], [191], [193] and [194] which are not findings made by the Commissioner but rather summarise the evidence of Mr Butler;
paragraphs [56]-[60], [70]-[72], [115], [116] and [154]-[155] which are not findings made by the Commissioner but rather summarise parts of the evidence;
paragraphs [53], [65], [102], [103], [105], [187]-[190] and [196] which are not findings made by the Commissioner but rather summarise Mr Reeve’s own evidence, including Mr Reeve’s response to certain propositions that were put to him.
We observe that Mr Reeve’s rebuttals and responsive statements may be characterised as dissatisfaction and disagreement with PKF’s submissions, and the evidence of PKF’s witness, but are not directed to any aspect of the Commissioner’s reasoning.[77] No arguable case of appealable error arises from the Commissioner’s summaries of the material before him.
Appeal ground 10 – the “Green Fraud” article
Appeal ground 10 concerns document OR8[78] being the “Green Fraud” article which we declined to admit as fresh evidence at [67] above. The Commissioner found, on the basis of the evidence before him, that the “Green Fraud” article was not raised with Mr Butler during the meeting of 23 September and that it is more likely that Mr Butler was not aware of the article until 20 October.[79]
Document OR8 does not bear upon the Commissioner’s finding in relation to the date the article was provided to Mr Butler. Nor are we satisfied that Mr Reeve’s submissions[80] disclose an arguable case of appealable error in relation to this finding.
Conclusion and disposition
We are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that a reasonably arguable case has been advanced that the decision was attended by appealable error.
We have considered whether the appeal attracts the public interest and we are not satisfied, for the purposes of s.400 of the Act, that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required;
(b) the appeal raises issues of importance and/or general application;
(c) the decision manifests an injustice, or the result is counter intuitive, or
(d) the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
It follows that we must refuse permission to appeal.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
O. Reeve, on his own behalf
K. Scott, Australian Business Lawyers & Advisors, for the respondent
Hearing details:
2023.
Sydney (via Microsoft Teams):
August 8.
[1] [2023] FWC 1565.
[2] PR763704.
[3] [2023] FWC 1565 at [233].
[4] [2023] FWC 488.
[5] Annexure A to the Applicant’s Form F2 – Unfair dismissal application, filed 23 December 2022 at [4].
[6] Annexure A to the Applicant’s Form F2 – Unfair dismissal application, filed 23 December 2022 at [5], Applicant’s further submissions filed 6 April 2023 at [13].
[7] See [2023] FWC 1565 at [41] – [44].
[8] Annexure A to the Applicant’s Form F2 – Unfair dismissal application, filed 23 December 2022 at [6].
[9] Annexure A to the Applicant’s Form F2 – Unfair dismissal application, filed 23 December 2022 at [7].
[10] Annexure A to the Applicant’s Form F2 – Unfair dismissal application, filed 23 December 2022 at [8].
[11] Applicant’s further submissions filed 6 April 2023 at [2].
[12] Applicant’s submissions filed 6 April 2023 at [6].
[13] Applicant’s submissions filed 6 April 2023 at [7].
[14] [2023] FWC 1565 at [54].
[15] Applicant’s further submissions filed 6 April 2023 at [8].
[16] Applicant’s submissions filed 6 April 2023 at [9].
[17] Applicant’s submissions filed 6 April 2023 at [12].
[18] Applicant’s submissions filed 6 April 2023 at [14]-[15].
[19] Applicant’s submissions filed 6 April 2023 at [16].
[20] Applicant’s submissions filed 6 April 2023 at [20].
[21] Applicant’s submissions filed 6 April 2023 at [21].
[22] Applicant’s further submissions filed 6 April 2023 at [22].
[23] [2023] FWC 1565 at [216].
[24] [2023] FWC 1565 at [217].
[25] [2023] FWC 1565 at [218].
[26] [2023] FWC 1565 at [218].
[27] [2023] FWC 1565 at [218].
[28] [2023] FWC 1565 at [219].
[29] [2023] FWC 1565 at [219].
[30] [2023] FWC 1565 at [220].
[31] [2023] FWC 1565 at [221].
[32] [2023] FWC 1565 at [225].
[33] [2023] FWC 1565 at [225].
[34] [2023] FWC 1565 at [226].
[35] [2023] FWC 1565 at [226].
[36] [2023] FWC 1565 at [230].
[37] [2023] FWC 1565 at [223].
[38] [2023] FWC 1565 at [224].
[39] [2023] FWC 1565 at [232].
[40] [2023] FWC 1565 at [232].
[41] [2023] FWC 1565 at [233].
[42] [2023] FWC 1565 at [234].
[43] [2023] FWC 1565 at [235].
[44] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43].
[45] 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].
[46] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27].
[47] 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].
[48] [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[49] Wan v AIRC (2001) 116 FCR 481 at [30].
[50] 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].
[51] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[52] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29].
[53] [2000] HCA 47; 203 CLR 194 at [19].
[54] And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a “significant error of fact”: s 400(2) of the Act.
[55] House v The King (1936) 55 CLR 499 at 505.
[56] Appeal Book 1-3
[57] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [6].
[58] Appeal Book 24-29.
[59] Appeal Book 5.
[60] [2023] FWC 1565 at [11].
[61] Appeal Book 4.
[62] [2019] FWCFB 4022.
[63] Ibid at [34]-[35] citing Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [35]; see also, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [84] (Gordon and Steward JJ), [164] (Edelman J); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [38], [45]-[50] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29]–[31] (Kiefel CJ, Gageler and Keane JJ), [66]–[72] (Edelman J), [81]–[95] (Nettle and Gordon JJ).
[64] Construction, Forestry, Mining and Energy Union v Ditchfield Mining Services Pty Limited[2019] FWCFB 4022 at [36].
[65] [2023] FWC 1565 at [7].
[66] Appeal Book 4
[67] [2023] FWC 1565 at [20] – [21], [23] and [44].
[68] Appellant’s witness statements dated 27 March 2023 and 6 April 2023 at [16].
[69] [2023] FWC 1565 at [232].
[70] Appeal Book 4-5.
[71] Appeal Book 4-5.
[72] Akins v National Australia Bank [1994] 34 NSWLR 155.
[73] Ibid at 160.
[74] Appeal Book 5.
[75] Gregory v Qantas Airways Ltd [2016] FCAFC 7 at [77].
[76] Appeal Book 61-72.
[77] Appeal Book 16-23.
[78] Appeal Book 42-53.
[79] [2023] FWC 1565 at [222]-[223].
[80] Appeal Book 16.
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