Ross Kennedy v Qantas Ground Services Pty Ltd
[2020] FWCFB 394
•24 JANUARY 2020
| [2020] FWCFB 394 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2019/7049 and C2019/7443)
VICE PRESIDENT HATCHER | SYDNEY, 24 JANUARY 2020 |
Appeals against decisions [2019] FWC 7387 and [2019] FWC 7886 of Deputy President Kovacic.
Introduction and background
[1] Ross Kennedy has lodged two notices of appeals against interlocutory decisions issued by Deputy President Kovacic in connection with Mr Kennedy’s application for an unfair dismissal remedy against Qantas Ground Services Pty Ltd (QGS). The first decision, issued on 29 October 2019 1 (first decision), concerned an application by Mr Kennedy for the Deputy President to recuse himself from further dealing with his application. The Deputy President rejected this application. The second decision, issued on 19 November 20192 (second decision), concerned objections advanced by QGS as to the admission into evidence of certain documents contained in the evidentiary material filed by Mr Kennedy in accordance with the Deputy President’s earlier directions. The Deputy President had dealt with objections concerning a range of documents, as well as other matters, in an earlier decision issued on 10 July 20193 (July decision) but had inadvertently failed to deal with QGS’s objections to these documents in that earlier decision. Except for one category of documents, the Deputy President upheld the objections on the grounds that the documents were either speculative or not relevant.
[2] In an earlier Full Bench decision issued on 4 April 2019 4 in which Mr Kennedy was refused permission to appeal against an interlocutory decision made by the Deputy President on 13 January 2019 in connection with his unfair dismissal remedy application5, the background facts which engendered Mr Kennedy’s application were summarised as follows:
“[3] … Mr Kennedy commenced employment with QGS as a ground crew member at Canberra Airport on 13 March 2013. On 31 May 2016 Mr Kennedy went off work because of mental health issues after complaints had been made about his performance and he had complained of bullying and harassment by supervisors. On 2 June 2016 Mr Kennedy made an application to this Commission for an order to stop bullying at work pursuant to s 789FC of the FW Act. He made a claim for workers’ compensation and appears to have received workers’ compensation payments until approximately 15 December 2016, at which time liability was denied. QGS arranged for an external provider to conduct an investigation into Mr Kennedy’s claims of workplace bullying, but there is a dispute about the independence of the investigation and its outcome.
[4] On 16 December 2016 QGS wrote to Mr Kennedy to advise that it required him to attend a medical examination with Dr Kipling Walker, a Forensic Psychiatrist. It is apparent that QGS provided Dr Walker with considerable background information and documents concerning Mr Kennedy’s personal and medical history for the purpose of the examination. Mr Kennedy attended for the examination with Dr Walker on 1 February 2017.
[5] Dr Walker prepared a “Fitness for Work Assessment and Report” (Report) concerning Mr Kennedy dated 27 March 2017. The Report concluded that Mr Kennedy was unfit now and in the future for work for QGS. The Report summarised a number of matters concerning Mr Kennedy’s personal, employment and litigation history as well as his “History of Presenting Complaints”. It is not necessary for present purposes to set out Dr Walker’s diagnosis of Mr Kennedy’s condition except to note that the Report included the following conclusion:
‘Mr Kennedy is permanently unfit for any role with Qantas. Given his history of perceived mistreatment at different workplaces, and his assessment of a ‘high risk’ of being bullied at Qantas, he is likely to feel bullied and/or harassed in any role at Qantas. As has occurred previously, perceived bullying and/or harassment will precipitate another episode of depression.’
[6] Arising from the Report, on 27 September 2017 QGS issued Mr Kennedy with a “show cause” letter concerning the continuation of his employment. On 2 November 2017 QGS dismissed Mr Kennedy on the ground that he had “no capacity, and will not have capacity in the foreseeable future, to safely perform the inherent requirements of any role with the Company”. Mr Kennedy filed his unfair dismissal remedy application the following day.”
[3] We adopt this summary for the purpose of this decision.
First decision
[4] The recusal application which was the subject of the first decision was brought on the basis of a reasonable apprehension of bias, although many of the grounds upon which Mr Kennedy brought this application verge upon contentions of actual bias. As summarised in the first decision, Mr Kennedy advanced 71 grounds in support of his recusal application, which the Deputy President grouped into the following categories:
• 53 grounds relating to various interlocutory rulings made by the Deputy President, with an overwhelming majority pertaining to the July decision;
• 12 grounds relating to the Deputy President’s case management and conduct of the matter; and
• 6 grounds relating to various complaints made by Mr Kennedy to the President of the Commission about the Deputy President. 6
[5] The first decision records that, in his written and oral submissions, Mr Kennedy raised a range of additional matters including that the Deputy President:
• on several occasions demonstrated pre-judgment;
• flagrantly and deliberately ignored strong and key evidence such as the four grounds on which Mr Hardy of QGS based his decision to terminate Mr Kennedy’s employment;
• refused to contemplate his contention that Dr Walker’s report should not be admitted as a reliable basis for his termination given the incomplete, false and misleading information provided to him by QGS;
• consistently refused some of his applications without adequate reasoning or justification;
• did not have legal qualifications;
• had unreasonably refused Mr Kennedy’s application of 26 September 2017 for a conference or hearing to be convened in respect of his application for an order to stop bullying;
• was a member of Qantas’ Frequent Flyer Program and Chairman’s Lounge, and had accumulated frequent flyer points and privileges as a “quid-pro-quo” for membership;
• did not admit material related to his alleged bullying, in circumstances where the Commission needed to determine whether or not he was bullied at work whilst employed by QGS in dealing with his unfair dismissal remedy application; and
• had demonstrated bias in referring to his 1 October 2018 outline of submissions in the July decision, when at no stage had Mr Kennedy relied on that outline of submissions in other interlocutory decisions regarding his unfair dismissal application.
[6] The Deputy President dealt with the various contentions advanced by Mr Kennedy comprehensively, and separately considered each of the three categories of grounds for the recusal application identified earlier. In relation to the first category of grounds, the Deputy President analysed in detail the interlocutory decisions the subject of complaint by Mr Kennedy – in particular, the July decision – and concluded that a fair-minded lay observer would not apprehend that he would not consider Mr Kennedy’s unfair dismissal application impartially. His analysis identified that there were numerous errors of fact in Mr Kennedy’s submissions concerning the course of the proceedings and the matters that had been decided, that a number of interlocutory issues had in fact been decided in Mr Kennedy’s favour, that it was open for Mr Kennedy to make further applications for the production of documents or the attendance of witnesses at an appropriate time, and that while the question of whether Mr Kennedy was bullied at work prior to his dismissal was not relevant to his unfair dismissal remedy application, the question of whether his complaints of bullying were a factor in his dismissal was an issue of potential relevance.
[7] In relation to the second category, the Deputy President likewise identified numerous factual errors in Mr Kennedy’s account of the matters he contended gave rise to a reasonable apprehension of bias and demonstrated the way in which he had taken into account Mr Kennedy’s submissions and in some cases acceded to matters raised by him and had accorded him procedural fairness. In respect of the third category, the Deputy President noted that it was not clear to him the basis upon which Mr Kennedy relied upon the complaints made to the President, or whether Mr Kennedy relied upon the fact that the complaints had been made or the substance of those complaints to demonstrate a reasonable apprehension of bias. Concerning the substance of the complaints, the Deputy President analysed each matter raised in detail and concluded that they could not give rise to a reasonable apprehension of bias.
[8] As to the submissions concerning the Deputy President’s membership of the Qantas Frequent Flyer Program and Chairman’s Lounge, the Deputy President said:
“[40] Mr Kennedy has not articulated how my membership of the Qantas’ Frequent Flyer Program and Chairman’s Lounge might cause me to determine his unfair dismissal application on other than an impartial basis. There is no “quid-pro-quo” as asserted by Mr Kennedy as the benefits attached to my memberships are the same as any other equivalent member enjoys, e.g. access to a lounge when travelling. I therefore do not accept Mr Kennedy’s contention that a fair-minded lay observer might reasonably accept that I might not bring an impartial mind to the determination of his unfair dismissal application as a result of these memberships.”
[9] The Deputy President also referred to the fact that this issue had been considered and rejected in the Full Bench decision issued on 6 September 2019 7 (September Full Bench decision) in which Mr Kennedy was refused permission to appeal the July decision.
Second decision
[10] In relation to the second decision, it is sufficient to say that the Deputy President considered each document or category of documents the subject of QGS’s objections, assessed them by reference to the issues to be determined in the case, and concluded that they were either speculative or not of relevance.
Appeal grounds and submissions
[11] Mr Kennedy’s notice of appeal against the first decision identified three broad grounds of appeal, namely that the Deputy President used the wrong test, was “inconsistent”, and failed to take into consideration relevant matters. His written appeal submissions raised additional or more likely substitute grounds, namely that the Deputy President in the first decision failed to address, or addressed inadequately, grounds 1, 2, 4-8, 10 and 12-15, and failed to respond to his email of 20 August 2019. The submissions do not elaborate upon these bare propositions but merely re-state relevant grounds for recusal.
[12] Mr Kennedy contended that the grant of permission to appeal the first decision would be in the public interest because, in summary:
(1) there is no case law in Australia concerning a recusal application brought against a judicial officer holding a “membership” with the respondent;
(2) given the Deputy President possessed no qualifications in law or private sector employment experience, the appeal would bring a focus on the appropriateness and method of selection of Commission members for employment with the Commission;
(3) the level of understanding and comprehension of current Commission members such as Deputy President Kovacic as to the principles and rules that apply in recusal applications will be examined and, if found to be deficient, further training may be required;
(4) the appropriateness of Commission members holding affiliations with a respondent will be examined, as will the expectations of the community that these be disclosed at the earliest opportunity;
(5) the nature of membership that Commission members may hold without giving rise to a reasonable apprehension of bias will be examined, including payment for such benefits and the use to which they are put;
(6) the appeal will determine whether or not holding a Frequent Flyer or Chairman’s Lounge membership constitutes an interest under the Commission’s Member Code of Conduct;
(7) the appeal will demonstrate that the Deputy President’s argument that the benefits attached to his membership are the same as any other equivalent members enjoy is absurd, counter-intuitive and misconceived;
(8) the appeal will determine that Mr Kennedy had not, contrary to what the Deputy President said in the first decision, claimed that his memberships increased the likelihood that his decision contained bias;
(9) the appeal will determine whether the number of players in the domestic airline market in Australia should be a factor in the consideration by members of the Commission if they should notify parties of memberships of airlines and if they should recuse themselves;
(10) the appeal will raise concerns in respect to the requirement for Commission members to provide adequate and clear reasons for decisions;
(11) the appeal will determine if the Deputy President’s statement made to Mr Kennedy that he would do anything in his power to prevent Mr Kennedy using his unfair dismissal remedy application to ventilate his bullying complaints amounted to apprehended bias; and
(12) the appeal will determine whether Commission members have failed to adequately address claims of apprehended bias in recusal applications before them.
[13] Mr Kennedy’s notice of appeal with respect to the second decision was, as to the grounds of appeal and the grounds upon which it was said that the grant of permission to appeal would be in the public interest, repetitive of his notice of appeal in relation to the first decision and, as such, was not directed to the matters decided in the second decision. In his written submissions concerning his application for permission to appeal the second appeal, Mr Kennedy’s primary submission was that the Deputy President had erred in deciding the matter on the basis of the wrong documents. However, at the hearing, Mr Kennedy, as we understand it, accepted that the Deputy President had in fact considered the correct documents but had given them the wrong document numbers in the second decision. In that circumstance, he sought a period of three further working days to file a further submission concerning the Deputy President’s rulings not to admit those documents.
[14] Mr Kennedy also submitted, in respect of one of the documents, namely an email from him to Ms Debra Denne, a Qantas case manager, dated 22 March 2017 that it was critically relevant to his attack on the validity of Dr Walker’s report and should have been admitted into evidence.
Consideration
General principles
[15] An appeal under s 604 of the Fair Work Act 2009 (FW 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.8 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[16] This appeal is one to which s 400 of the FW Act applies (subject to the discussion below). 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.
[17] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others 9at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.10 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,11 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.”
[18] The decisions the subject of the applications for permission to appeal here concern an application for a remedy made pursuant to the provisions of Pt 3-2 of the FW Act. However, the first and second decisions were rulings as to procedural matters involving the exercise of power under ss 589 and 590 of the FW Act - provisions which lie outside Pt 3-2. A question might therefore arise as to whether s 400(1) applies to Mr Kennedy’s applications for permission to appeal against these rulings. In an earlier decision 12 concerning an application for permission to appeal against an interlocutory decision made in Mr Kennedy’s matter, a differently constituted Full Bench said:
“[10] The Deputy President’s decision was made under s 590, which allows the Commission to inform itself in relation to any matter before it in such manner as it considers appropriate, including by requiring a person to provide copies of documents or records (s 590(2)(c)). Section 590 is in Part 5-1 of the Act and on this basis it might be contended that s 400 does not apply to decisions made under that provision. However, the Decision was made in relation to an application brought under Part 3-2 of the Act, namely Mr Kennedy’s unfair dismissal application. In Australian Postal Corporation v Gorman ([2011] FCA 975, 196 FCR 126 at [37]), Besanko J concluded that an appeal from a decision to dismiss an unfair dismissal proceeding under s.587 of the Act was a decision to which s 400 applied. Section 587, like s 590, is found in Part 5-1 of the Act. Further, in Asciano Services Pty Ltd v Hadfield ([2015] FWCFB 2618), a Full Bench of the Commission decided that s 400 applied to an appeal from a decision not to grant permission for representation under s 596 of the Act in respect of an unfair dismissal application.
[11] The apparent purpose of s 400 is to confine the circumstances in which unfair dismissal applications can be appealed so as to promote the finality of litigation with respect to such claims. It would be contrary to this purpose if the limitation applied to substantive decisions made under Part 3-2, but not to procedural or interlocutory decisions concerning those same matters. In our view, the present appeal is one from a decision made under Part 3-2 of the Act. The Decision dealt with applications for the production of documents in an unfair dismissal proceeding brought before the Commission under that part of the Act. Accordingly, we consider that s 400(1) of the Act applies to the matter before us.”
[19] We agree with and will adopt this approach, noting that Mr Kennedy did not submit that any different approach should be taken. However for an abundance of caution we will alternatively state the conclusion we would reach in respect of the applications for permission to appeal if s 400(1) was not applicable.
[20] 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.13 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.14
[21] 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. 15 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
First decision
[22] We are not persuaded that the grant of permission to appeal the first decision would be in the public interest, or if it were available to us to do so, that permission to appeal should be granted on discretionary grounds.
[23] The appeal grounds identified in Mr Kennedy’s submissions (which we presume are to be taken as substituting for those contained in the notice of appeal) are almost wholly concerned with contentions that the Deputy President had not in the second decision dealt with certain grounds advanced by Mr Kennedy in support of his recusal application adequately or at all. However, particularly in circumstances where Mr Kennedy advanced 71 express grounds in support of his recusal application, and advanced further grounds in his submissions, we do not consider that it was incumbent upon the Deputy President to specifically address every ground and submission advanced. There is no requirement for a decision-maker to refer to every piece of evidence and every submission in a decision, provided that the decision-maker deals with those matters which are centrally relevant and sets out the reasoning which leads to the outcome which is determined. 16 Many of the grounds advanced by Mr Kennedy in support of his recusal application were repetitive or raised matters which were trivial or of dubious relevance. The Deputy President, as earlier explained, referred to the grounds in a categorised way and determined them on that basis. We consider that the decision, which is comprehensive and detailed, dealt with all the centrally relevant matters raised by Mr Kennedy and disclose the basis upon which the Deputy President determined that he should not recuse himself. Accordingly, we do not consider that the grounds of appeal are reasonably arguable. We note for completeness that the final ground alleges that the Deputy President failed to respond to Mr Kennedy’s email of 20 August 2019, which asked the Deputy President to advise why he had not disclosed his Qantas “memberships” and why his failure to do so did not breach the Commission’s Member Code of Conduct. However, there is no basis to conclude that the Deputy President was required to include in his decision concerning Mr Kennedy’s recusal application an answer to Mr Kennedy’s somewhat impertinent email.
[24] Mr Kennedy’s grounds for the grant of permission to appeal almost entirely relate to the issue of the Deputy President’s “memberships” of the Qantas Frequent Flyer Program and Chairman’s Lounge, and contend that the grant of membership would result in this issue being dealt with at the Full Bench level. However, with the possible exception of the final ground, none of the appeal grounds to which we just referred are concerned with this issue, but rather concern an alleged lack of reasons in respect of certain grounds for the recusal application which themselves do not relate to this issue. Accordingly the grant of permission would not lead to Full Bench consideration of this matter.
[25] In any event, the contention that the Deputy President’s “memberships” of the Qantas Frequent Flyer Program and Chairman’s Lounge gives rise to a reasonable apprehension of bias has previously been raised by Mr Kennedy in his appeal against the July decision and rejected as being without merit in the September Full Bench decision. In that decision 17 the Full Bench said:
“[32] The basis upon which the Decision is said to have been “infected with apprehended bias” has not been specified other than by reference to the alleged “conflicts” concerning the Deputy President’s disclosure of his membership of the Qantas frequent flyer program and Chairman’s Lounge. There appears to be an assumption on Mr Kennedy’s part that these are matters which would automatically disqualify the Deputy President from hearing his case and necessitate the conclusion that any decision the Deputy President has made in the matter has been affected by an apprehension of bias. The proposition that any particular interest on the part of a court or tribunal member will be automatically disqualifying was rejected by the High Court majority in Ebner v Official Trustee in Bankruptcy ([2000] HCA 63, 205 CLR 337 at [54] per Gleeson CJ, McHugh, Gummow and Hayne JJ at [54], with whom Callinan J agreed at [182]). The appeal grounds do not articulate any contention as to the basis upon which the reasonable observer might consider that the Deputy President’s membership of the Qantas frequent flyer program and Chairman’s Lounge (or any prior non-disclosure of such) might possibly divert him from deciding Mr Kennedy’s case on its merits (ibid at [30]). The facts are that Commission members are frequently required to travel throughout Australia, and Qantas is the dominant player in a very restricted domestic aviation market. This makes some form of association with Qantas difficult to avoid. Knowledge of these matters may reasonably be attributed to the ordinary fair-minded layperson. Without more, there cannot be an arguable case that the Decision was vitiated by an apprehension of bias.”
[26] Mr Kennedy did not before the Deputy President or before us articulate this issue in any different way beyond asserting that there was some form of “quid pro quo” associated with the Deputy President’s “memberships”. We do not think that there is any arguable basis to contend that the Deputy President’s analysis of this assertion in paragraph [40] of the first decision was in error. We do not consider that a fair-minded layperson might reasonably apprehend that being a Qantas frequent flyer or having access to the Qantas Chairman’s Lounge might cause a Commission member not to decide a matter involving a Qantas entity other than impartially. There would be no purpose or public interest in granting permission to appeal merely to give the same answer to the issue as was given in the September Full Bench decision.
[27] Mr Kennedy raised a separate issue concerning the Deputy President’s lack of legal qualifications. It is sufficient to say that s 627(2) of the FW Act does not require legal qualification as a pre-requisite to the appointment of Deputy Presidents, that the Deputy President self-evidently satisfied the criterion for appointment in s 627(2)(b)(iii), and that this matter in any event has no logical connection to a question of apprehended bias.
[28] Insofar as Mr Kennedy’s recusal application alleged an apprehension of bias based on past procedural rulings made against him, it is well-established that this will not by itself give rise to an apprehension that the decision-maker will approach the final determination of the matter other than with an impartial and unprejudiced mind. 18 We have examined the record of proceedings before the Deputy President. First, we note that the Deputy President has made a number of procedural rulings in Mr Kennedy’s favour and, second, we consider that the Deputy President has notwithstanding trying behaviour on Mr Kennedy’s part treated him fairly and with courtesy and respect. The first decision applied the correct principles and comprehensively and appropriately dealt with the matters central to Mr Kennedy’s recusal application. There is no reasonably arguable basis for the contention that the second decision was attended by appealable error.
Second decision
[29] We are likewise not satisfied that it is in the public interest to grant permission to appeal against the second decision, and if it were available to us to do so we would not grant permission on a discretionary basis. We adopt in this decision what was said in the September Full Bench decision in connection with the Deputy President’s refusal to issue certain orders for the attendance of witness which had been sought by Mr Kennedy:
“[29] ... the Deputy President’s decision not to issue orders requiring Mr Brown, Mr Carney, Ms Denne and Ms Millen to attend the hearing to give evidence was an interlocutory procedural one. It would not usually be the case that the grant of permission to appeal from a decision of this nature would be in the public interest, not least because this would be likely to disrupt the efficient and expeditious disposition of the matter in question and such decision may later be altered in any event. The ruling was made in the course of the Deputy President’s case management of Mr Kennedy’s unfair dismissal remedy application, and an appellate body would rarely intervene in case management issues.” 19
[30] Mr Kennedy’s submission that the rulings made by the Deputy President on admissibility concerned the wrong documents is simply incorrect. The document bundle filed by him contained an index, prepared by him, which assigned each document a sequential number in the left-hand column (which was headed “No.”). QGS’s schedule of objections used Mr Kennedy’s numbering system to identify the documents the subject of objection, as well as describing the documents. The Deputy President also correctly identified the documents the subject of objection by reference to the number assigned to them in Mr Kennedy’s index and also by a description of their content.
[31] As earlier stated, Mr Kennedy at the hearing eventually conceded that the Deputy President had ruled on the correct documents, but insisted that the wrong numbering had been used and as a result he had not understood what documents had been referred to. We cannot accept this. As stated, both QGS and the Deputy President referred to the sequential document numbering in Mr Kennedy’s own document bundle index, as well as describing the documents in detail. There was no room in those circumstances for any genuine misunderstanding. Mr Kennedy contended that the correct numbering for each document was to be found in the far right-hand column of his index, but we regard this to be disingenuous. The column is headed “Annexure No.”, and many of the documents either have no number or are assigned multiple numbering. Mr Kennedy could not seriously have thought that this was the numbering being referred to by QGS or the Deputy President.
[32] Apart from this, Mr Kennedy’s submissions only address one ruling made by the Deputy President concerning an email sent by Mr Kennedy sent to a Qantas case manager on 22 March 2017 expressing concern about the content of the medical report of Dr Walker which was to be issued sometime in the future (and was in fact issued on 27 March 2017). It was the assessment in Dr Walker’s report as to Mr Kennedy’s present and future fitness for work which ultimately caused his dismissal. It does not appear to us to be reasonably arguable that it was not open to the Deputy President to consider this document to be speculative in nature. For ourselves, we cannot see how the document could conceivably be relevant to the central question of whether Dr Walker’s assessment of Mr Kennedy’s fitness for work was sound and could form a proper basis for his dismissal. Mr Kennedy submitted that the document was relevant and important because it referred to a conversation said to have taken place between Dr Walker and his own general practitioner, Dr Kushada. However, the letter could have no probative value in establishing the occurrence of the alleged conversation.
[33] We have reviewed the other documents the subject of the Deputy President’s rulings. We are wholly satisfied that they bear no substantive relevance to Mr Kennedy’s unfair dismissal remedy application, nor do they have any probative value.
[34] In these circumstances, we do not propose to grant Mr Kennedy’s application for leave to file further submissions in relation to the second decision. We do not consider that there was in fact any genuine misunderstanding on Mr Kennedy’s part concerning the documents the subject of that decision, nor in any event do we consider that there is any issue of merit which would justify a further round of submissions.
Conclusion
[35] Permission to appeal is refused in respect of both appeals.
VICE PRESIDENT
Appearances:
Mr R Kennedy on his own behalf.
Mr J Forbes of Counsel and Ms D Carlon on behalf of Qantas Ground Services Pty Ltd.
Hearing details:
2019.
Sydney via video link to Canberra:
24 January.
Printed by authority of the Commonwealth Government Printer
<PR716170>
1 [2019] FWC 7387
2 [2019] FWC 7886
3 [2019] FWC 4819
4 [2019] FWCFB 2151
5 [2019] FWC 837
6 At [8]
7 [2019] FWCFB 6094
8 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
9 (2011) 192 FCR 78
10 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
11 [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
12 [2018] FWCFB 4552
13 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
14 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]
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
16 Soliman v University of Technology, Sydney [2012] FCAFC 146, 207 FCR 277 at [41]-[45]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, (2013) 240 IR 178 at [47]
17 [2019] FWCFB 6094
18 Re J.R.L.; Ex parte C.J.L. [1986] HCA 39, 161 CLR 342 at 352
19 [2019] FWCFB 6094
0
19
0