Thiruvasan Nagan and Loi Toma v Workforce Recruitment and Labour Services Pty Ltd
[2023] FWC 686
•23 MARCH 2023
| [2023] FWC 686 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.602 - Application to correct obvious error(s) etc.
Thiruvasan Nagan and Loi Toma
v
Workforce Recruitment and Labour Services Pty Ltd
(ADM2022/6)
| DEPUTY PRESIDENT DEAN | CANBERRA, 23 MARCH 2023 |
Section 602 applications to amend ‘obvious error’ – applications dismissed.
Mr Thiruvasan Nagan has made an application under s.602 of the Fair Work Act 2009 to correct what he contends are ‘obvious errors’ in two decisions of the Commission (the Nagan Application). The first is a decision of Senior Deputy President Hamberger on 11 March 2019[1] dismissing an application for an unfair dismissal remedy made by Mr Loi Toma (the March 2019 Decision) in relation to his employment with Workforce Recruitment and Labour Services Pty Ltd (Workforce). The second is a decision of a Full Bench of the Commission[2] refusing permission to appeal the March 2019 Decision (the June 2019 Decision).
Mr Loma subsequently made his own application under s.602 of the Act (the Toma Application), followed by an amended application that sought to have his application joined with the Nagan Application.
The applications were heard together on 17 March 2023. Given the applications seek a similar outcome and relate to the same two decisions, I decided it would be more efficient to jointly hear and determine them.
At the hearing, Mr Nagan and Mr Toma (the Applicants) were self-represented, and Workforce was represented by Mr Slater.
While the applications were joined, this decision references the Nagan Application and the Toma Application separately at times as they commenced as separate applications, and their arguments and what they seek to have corrected are similar but not identical.
For the reasons set out below, I find there are no ‘obvious errors’ that require correction and accordingly the applications are dismissed.
Brief background
Mr Toma has extensively litigated the cessation of his employment with Workforce International since early 2018, resulting in the following decisions of this Commission and the Federal Court of Australia:
· Loi Toma v Workforce Variable Pty Ltd T/A Workforce International[2018] FWC 2963
· Loi Toma v Workforce Variable Pty Ltd T/A Workforce International[2018] FWCFB 5811
· Loi Toma v Workforce Recruitment and Labour Services Pty Ltd[2019] FWC 1564 (the March 2019 Decision)
· Loi Toma v Workforce Recruitment and Labour Services Pty Ltd[2019] FWCFB 4240 (the June 2019 Decision)
· Loi Toma v Workforce Recruitment and Labour Services Pty Ltd[2019] FWC 5373
· Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102
· Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1278
· Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100
· Toma v Fair Work Commission [2022] FCA 1261
· Loi Toma v Workforce Recruitment and Labour Services Pty Ltd T/A Workforce International Group 2023 FWCFB 63 (the March 2023 Decision)
These decisions are self-explanatory and are not repeated here, other than to note the following:
a. Mr Toma’s application for an unfair dismissal remedy was dismissed in the March 2019 Decision on the basis that he had resigned from his employment, and his resignation had not been forced by any action taken by his employer;
b. Also in the March 2019 Decision, the Commission confirmed an earlier correction to the name of the respondent, made pursuant to s.586 of the Act during a directions hearing, from Workforce Variable Pty Ltd to Workforce Recruitment and Labour Services Pty Ltd[3]; and
c. Neither the finding as to resignation or the correction to the respondent’s name was disturbed by any subsequent decision of the Commission or the Federal Court of Australia.
Mr Nagan’s standing to bring his application
Workforce objected to the Nagan Application in part on the basis that Mr Nagan was not a party to the proceedings in which the March 2019 and June 2019 Decisions arose.
Mr Nagan conceded he was not a party to these proceedings but claimed to have standing to bring his application because he was ‘an affected person’ by virtue of being listed as a witness for Mr Toma in the proceedings.
Section 602 of the Act, which is set out below, provides that the Commission may correct an obvious error either on its own initiative or on application. There are no conditions placed in s.602 on who can make such an application. This can be contrasted with s.603, which provides the Commission may vary or revoke a decision either on its own initiative or on application “by a person who is affected by the decision; or if the kind of decision is prescribed by the regulations – a person prescribed by the regulations in relation to that kind of decision”.
Accordingly, I am satisfied Mr Nagan can bring an application under s.602.
To the extent it is necessary to do so, I am also satisfied for the same reason that Mr Toma can bring an application under s.602.
The Nagan Application
The ‘obvious error’ Mr Nagan seeks to correct is the decision of the Commission to correct the name of the respondent to Workforce Recruitment and Labour Services Pty Ltd. He set out in detail in his application the reasons why he considered this to be an obvious error requiring correction, including that the error caused him psychological trauma and financial loss.
In support of his application, Mr Nagan filed a lengthy affidavit and written submissions. It is not necessary to summarize either document given the findings made below.
The Toma Application
Mr Toma contended that in addition to correcting the error made by the Commission to amend the name of the respondent, the Commission was required to:
a. “hold a hearing to deal with compelling evidence submitted by Thiruvasan Nagan that the Respondent made false and misleading submissions”;
b. “hold a hearing to deal with the compelling evidence submitted by Thiruvasan Nagan that the witness for the Respondent, Lisa Jacalyn Vanzwan, knowing (sic) made false and misleading submissions in her 3 statements as well as under oath”; and
c. “must overturn a Decision made in March 2019 which relied on the evidence of Lisa Jacalyn Vanzwan”.
Mr Toma set out the following grounds for the order or relief he sought:
“1.Sections 676 and 678 of the Fair Work Act 2009, make it a criminal offence if any party makes false or misleading submissions or gives false or misleading oral evidence. It is also a criminal offence if any party threatens, harasses or intimidates any witness.
2. The Respondent is guilty of contravening Sections 676 and 676. I did lodge a complaint with the AFP but they deemed it a low priority and did not investigate. The FWC is obligated to investigate these contraventions.
3. All parties have agreed on the definition of a constructive dismissal. There is a quote from Gostencnik. The affidavit and evidence submitted by Nagan conclusively proves that I was constructively dismissed. Nagan uses documents produced by the Respondent to prove this.
4. The FWC needs to make an award in my favour and also grant me costs. If not for the dishonesty of the Respondent, this matter would have been decided in my favour in May 2018.
5. It is in the public interest for the FWC to correct this obvious error. It is the duty of the President of the FWC to maintain public confidence in the FWC. Correcting an obvious error, based on evidence, will enhance the FWC's reputation.
6. This case has dragged on for 5 years and cost all parties over $250.000.00. This is an example of what the Fair Work Act 2009 was designed to prevent. The Respondent had other motives for spending about $100.000.00 and rejected the offer of mediation in April 2018.”
Mr Toma also filed submissions in support of his application, which are not summarized here.
Relevant Principles
Section 602 of the Act provides:
“602 Correcting obvious errors etc. in relation to the FWC’s decisions
602(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this subsection (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
602(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.”
The Explanatory Memorandum to the Fair Work Bill 2008 outlined the intention of s.602 of the Act, at paragraph 2316:
“Clause 602 - Correcting obvious errors etc. in relation to FWA’s decisions
2316. In order to avoid unnecessary technicality, clause 602 allows FWA, on its own initiative or on application by a person, to correct or amend any obvious error, defect or irregularity in relation to a decision of FWA (including an instrument made by FWA). This clause is intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders (see Re Timber and Allied Industries Award 1999[2003] AIRC 1137 at [29]-[30]). This clause does not apply, however, to a modern award or a national minimum wage order. (Clauses 160 and 296 deal with corrections to modern awards and national minimum wage orders.)”
In Re Timber and Allied Industries Award 1999,[4] Justice Munro of the Australian Industrial Relations Commission dealt with the equivalent provision to s.602 in the Workplace Relations Act 1996 and stated:
“[29] This matter effectively turns upon the application of the colloquially known, “slip and error rule”. The “slip and error rule” enables a Court to make amendments where unintentional errors have occurred. Neither the applicant or respondent parties directed my attention to this rule, although with paragraph 111(1)(q) it is the foundation of the Commission’s power to issue a Correction Order. The merits of the matter may properly be confined to application or non-application of the rule to the exercise of determinative power called for in this Commission proceeding.
[30] As stated by Einstein J. in a recent judgement:
“A Court possesses an inherent power to correct mistakes in its orders arising from inadvertence: Milson v Carter [1893] AC 638 at 640 per Lord Hobhouse, approved in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594. A power to a like effect is to be found in Part 20, Rule 10(1) of the Supreme Court Rules, which reads -
Where there is a clerical mistake or an error arising from an accidental slip or omission in a minute of a judgment or order or in a certificate, the Court on the application or any party or of its own motion, may, at any time, correct the mistake or omission.”[5]
Paragraph 111(1)(q) of the Act may be taken to be the counterpart of that power in the Commission.”[6]
In RotoMetrics Australia,[7] a Full Bench of the Commission said:
“[29] Section 602 is intended to be a statutory analogue of the “slip rule” used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the “slip rule” is permissible:
· “where there has been an unintentional omission in an Order or judgement of the Court;
· where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;
· where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and
· where the error is manifestly clear; where an ‘officious bystander would reply when asked if the amended was appropriate: “Of course”.”
[30] The need for caution in the use of s.602 of the Act is reinforced by s.603, which excludes from the substantive power of Fair Work Australia to vary or revoke a decision made by it under this Act “a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements)”, which includes, in Division 4 of Part 2-4, a decision to approve an enterprise agreement and the matters a decision must note (including the coverage of an employee organisation in s.201(2).”
[endnotes omitted]
In Inna Grabovsky v United Protestant Association of NSW T/A UPA,[8] a Full Bench of the Commission said:
“[15] The scope of the power to correct or amend a decision under s.602 is limited; it does not empower the Commission to reopen or reconsider the correctness of a decision made or to vary a decision in light of subsequent circumstances. It is intended to avoid injustice by permitting the correction of inadvertent mistakes. The limited nature of the power in s.602 may be contrasted with the broader power to vary or revoke a decision pursuant to s.603.”
Are the matters raised in the application capable of being addressed under s.602?
As is evident from the principles set out above, s.602 is intended to deal with unintentional errors, mistakes arising from inadvertence, clerical mistakes or errors arising from accidental slips or omissions. It is not intended to be a substitute for an appeal, nor can it be used to change the substance of findings that have been made in a decision.
It is abundantly clear from the applications and submissions filed by the Applicants that the purpose of the applications is to challenge the correctness of the March and June 2019 Decisions and various findings made therein. All the matters they now seek to alter in their applications are matters that have been extensively litigated and determined in both the Commission and/or the Federal Court. It is also abundantly clear that the changes they seek are well beyond the scope of s.602 in that they seek to alter the substance of findings that have been made rather than correct any unintentional error or inadvertent mistake.
Accordingly, I decline to grant the applications sought by the Applicants.
Post hearing recusal application
On 17 March 2023, after the conclusion of this hearing, and after I had reserved my decision in this matter, Mr Nagan sent an email to my Chambers. It is convenient to set out the full text of his email:
“Dear DP Dean
It has come to my attention that you were part of the Full Bench that decided that Mr Toma's claim of racial discrimination could not be dealt with as there was no public interest.
You should have mentioned this and removed yourself from this Application.
You cannot deal with an Application where you are accused of wrongdoing.
I will wait for your Decision and lodge an Appeal.
You should not have dealt with this matter.
Regards
Thiruvasan Nagan”
To the extent that this email constitutes an application for my recusal on the grounds of apprehended bias, the application was not made until after the proceedings had concluded and the decision reserved. The substance of the matters raised by Mr Nagan fall into the category of apprehended, rather than actual bias. I reject the application and my reasons for this may be shortly stated.
The Full Bench proceeding to which Mr Nagan refers is that which resulted in the June 2019 Decision. It is a matter of public record that I was a member of that proceeding, including because the decision is published on the Commission’s website. Mr Toma was a party to the proceeding and it is evident from the March 2023 Decision, which dealt with an appeal of my decision to dismiss a costs application, that Mr Toma knew I was a member of the Full Bench that made the June 2019 Decision.
Further, Mr Nagan’s submissions in the hearing on 17 March 2023 disclosed that he had assisted Mr Toma in his previous hearings in both the Commission and the Federal Court. As a result, it can be taken that Mr Nagan and Mr Toma were aware or should have been aware, prior to 17 March 2023, that I was a member of the Full Bench in question. Each had the opportunity to raise the issue of apprehended bias before the conclusion of proceedings on 17 March 2023 but failed to do so. In the circumstances, it was not necessary that my involvement in the earlier proceedings be disclosed. Secondly, to the extent that Mr Nagan relies on accusations of racial discrimination involving my conduct of proceedings, these were considered and rejected by a separate Full Bench in the March 2023 Decision.
The hearing of the appeal that gave rise to the March 2023 Decision took place on 10 February 2023, well before the hearing of this application which proceeded in the absence of any objection from the Applicants.
Finally, a bare accusation of ‘wrongdoing’ is not sufficient for a Member of the Commissions to decline to hear a matter.
There is no reasonably ascertainable logical connection between these matters and the possibility that I might decide the s.602 application other than on its merits. There is, for example, no evidence of any interest that I have, or may have, in the matters to be decided. To the extent that there is a connection in each case, it is that I have presided over matters that have been decided against the Applicants, including in some where the Applicants have made accusations of racial discrimination in relation to my involvement. These accusations have since been considered and rejected by other Members of the Commission.
In the circumstances, there is no proper basis for a finding that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide in relation to the s.602 application.
Conclusion
None of the matters asserted to be obvious errors in the March 2019 Decision or the June 2019 Decision were unintended or accidental inclusions or omissions.
These applications are dismissed.
DEPUTY PRESIDENT
Appearances:
T Nagan and L Toma on their own behalf.
D Slater for Workforce Recruitment and Labour Services Pty Ltd.
Hearing details:
2023.
By video:
March 17.
[1] [2019] FWC 1564.
[2] [2019] FWCFB 4240.
[3] Paragraph 6 of decision
[4] [2003] AIRC 1137.
[5] Currabubula & Paola v State Bank NSW. Currabubula v State Bank NSW [2000] NSWSC 232 (31 March 2000) at paragraph 38.
[6] [2003] AIRC 1137 at [29]-[30].
[7] [2011] FWAFB 7214.
[8] [2018] FWCFB 5891.
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