Thiruvasan Nagan v Workforce Recruitment and Labour Services Pty Ltd T/A Workforce International Group
[2023] FWCFB 92
•17 MAY 2023
| [2023] FWCFB 92 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Thiruvasan Nagan
v
Workforce Recruitment and Labour Services Pty Ltd T/A Workforce International Group
(C2023/1932)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 17 MAY 2023 |
Appeal against decision [2023] FWC 686 of Deputy President Dean at Canberra on 23 March 2023 in matter number ADM2022/6
Introduction
Mr Thiruvasan Nagan (the Appellant or Mr Nagan) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a decision of Deputy President Dean issued on 23 March 2023 (the Decision).[1] The Decision concerned the Appellant’s application to correct obvious errors in two decisions[2] of the Commission under s 602 of the Act.
The first decision for correction was that of Senior Deputy President Hamberger on 11 March 2019. The Senior Deputy President dismissed an unfair dismissal application made by Mr Loi Toma in relation to his employment with the Respondent, Workforce Recruitment and Labour Services Pty Ltd (the March 2019 Decision).[3] The second was a decision of the Full Bench of the Commission refusing permission to appeal the March 2019 Decision (the June 2019 Decision).[4]
It is uncontroversial that Mr Nagan was not party to proceedings giving rise to the March 2019 Decision or for that matter the June 2019 Decision. However, for reasons that will be later detailed, he was considered to have standing to make the s 602 application. Regarding the application before Deputy President Dean, the “obvious error” that Mr Nagan sought to correct, was the Commission’s decision to permit a correction to the name of the Respondent from Workforce Variable Pty Ltd T/A Workforce International (Workforce Variable) to Workforce Recruitment and Labour Services Pty Ltd. In a directions hearing on 31 October 2018 before Commissioner Simpson, the correction to the name of the Respondent was permitted. The decision to correct the Respondent’s name was left undisturbed by the March 2019 Decision and the June 2019 Decision. Mr Nagan, however, was clearly dissatisfied with that aspect of those decisions and considered them erroneous.
In her Decision, Deputy President Dean concluded that the changes sought by Mr Nagan to the March and June 2019 Decisions went well beyond the scope of s 602 in that they sought to alter the substance of the decision that had been made rather than correct an unintentional error or inadvertent mistake.
After the conclusion of the hearing but before publication of her Decision, Mr Nagan emailed the Chambers of the Deputy President suggesting that the Deputy President should have recused herself from hearing his application because she had been a member of the Full Bench in the June 2019 Decision. In her Decision, the Deputy President expressed that to the extent Mr Nagan’s email constituted an application to recuse herself, there was no proper basis for finding that a fair-minded lay observer might reasonably apprehend she might not bring an impartial mind to the resolution of the questions to be determined in relation to the application under s 602.
Essentially, Mr Nagan now appeals the Decision on two grounds. The first is the failure of the Deputy President to recuse herself. The second is the conclusion reached in respect of the operation of s 602 of the Act.
We have heard from the parties to the appeal on the question of permission only. Briefly stated, we have decided not to grant permission to appeal for two reasons. Firstly, Mr Nagan’s appeal does not advance any reasonably arguable challenge to what we consider to be the critical conclusion reached by the Deputy President, namely that the operation of s 602 does not extend to correcting the perceived errors that Mr Nagan complains of. Secondly, we find no error of law or error in the application of legal principle in respect of the Deputy President declining to recuse herself. Because Mr Nagan’s appeal raises no reasonably arguable contention of appealable error, we have concluded that it would not be in the public interest to grant permission to appeal. Our detailed reasons follow.
Background
The circumstances giving rise to this appeal have spanned near on five years. For the most part, the litigation has played out between Mr Toma and the Respondent – Mr Toma’s unfair dismissal application seemingly the impetus for all that subsequently unfolded. However, as is apparent, Mr Nagan decided to make an application under s 602 of the Act in respect to the March 2019 Decision and the June 2019 Decision.
Having not been party to the March 2019 Decision nor the June 2019 Decision, it appears that Mr Nagan’s involvement in Mr Toma’s unfair dismissal application and the subsequent appeal, may have started when Mr Toma’s unfair dismissal application was first before Commissioner Cambridge. It was contended in prior proceedings that Mr Nagan had assisted Mr Toma in the preparation of his unfair dismissal application.[5] However, the point is moot given it bears no relevance insofar as these appeal proceedings are concerned.
Commissioner Cambridge dealt with Mr Toma’s unfair dismissal application on 24 May 2018, summarily dismissing it under s 587 of the Act on the basis it had no reasonable prospects of success (May 2018 Decision).[6] Mr Toma appealed that decision, and on 27 September 2018, a Full Bench upheld the appeal and quashed the May 2018 Decision.[7] The matter was thereafter referred to Commissioner Simpson for rehearing.
Commissioner Simpson held a directions hearing on 31 October 2018 and having heard from both parties, he allowed a correction to the name of the Respondent from Workforce Variable to Workforce Recruitment and Labour Services Pty Ltd, in accordance with the Commission’s discretionary powers under s 586 of the Act.
The matter was listed for hearing on 11 December 2018 and subsequently adjourned at Mr Toma’s request. Mr Toma’s request for the adjournment was premised on the unavailability of his witness, Mr Nagan, who was said to be unavailable in December 2018. A new hearing date of 26 February 2019 was set.
Commissioner Simpson did not hear the matter. It was referred to Senior Deputy President Hamberger who heard it on 26 February 2019. Whilst having first indicated that Mr Nagan would be called to give evidence, it appears that Mr Toma proceeded to hearing with only himself as a witness. Of the issues in contention, of primacy was the Respondent’s jurisdictional objection that Mr Toma had not been dismissed, rather (it was said) he had voluntarily resigned. On 11 March 2019, the Senior Deputy President found that Mr Toma’s resignation was not forced by any action of the Respondent and therefore he was not dismissed within the meaning of s 386 of the Act. Accordingly, the unfair dismissal application was dismissed.[8]
Mr Toma appealed the March 2019 Decision to a Full Bench of the Commission. The Full Bench comprised Vice President Catanzariti, Deputy President Dean and Commissioner Hunt. Mr Toma advanced several grounds of appeal, including that the March 2019 Decision was unenforceable because the name of the Respondent was incorrect. Mr Toma pressed that he had described his employer as Workforce Variable. In the June 2019 Decision, the Full Bench observed that during a directions hearing, Commissioner Simpson had, after hearing from the parties, corrected the name “Workforce Variable” to “Workforce Recruitment and Labour Services Pty Ltd” under s 586 of the Act.[9] The Full Bench further observed that the Commissioner took this action after he had identified that it was “clear from evidence tendered during the proceedings (including [Mr Toma’s] pay slips) that his employer was actually Workforce Recruitment and Labour Services Pty Ltd, a related entity of Workforce International Group”.[10] The Full Bench concluded that there was no error made regarding the correction of the name of the Respondent and the ground of appeal was rejected.[11]
Mr Toma then applied to the Federal Court for judicial review of the March 2019 Decision and the June 2019 Decision on the bases that the Commission had denied him procedural fairness by providing an “incompetent” interpreter who did not accurately interpret the proceedings, and that the name of the Respondent was incorrect. On 3 August 2020, that application was dismissed, the primary judge finding that any error arising from either deficient interpretation or the change in the first Respondent’s name was immaterial and had no bearing on either the March 2019 Decision or the June 2019 Decision. The primary judge, Wigney J, stated:
“It may perhaps be accepted that the circumstances in which the respondent’s name was amended or changed from Workforce Variable to Workforce Recruitment were in some respects irregular or unusual and in some respects unsatisfactory. It was perhaps appropriate for Workforce Variable’s paid agent to have alerted Mr Toma to the fact that, at least as far as it was concerned, one of Workforce Variable’s related companies, not it, was Mr Toma’s employer. Having been so alerted, however, it was entirely a matter for Mr Toma to consider and determine whether he wished to amend his application to change the name of the respondent. If he chose not to amend and ended up losing the case because he sued the wrong respondent, that would be his problem, and having been altered to that fact, he would have no cause for complaint. It was not, in all the circumstances, a matter for Workforce Variable to apply to amend or change Mr Toma’s application. Nor should the Commission have necessarily granted that application, particularly if that course was opposed by Mr Toma.
…
Despite the irregular and somewhat unsatisfactory circumstances in which the name of the respondent to Mr Toma’s application was changed, it cannot be concluded that either the Senior Deputy President or the Full Bench made any jurisdictional error in deciding Mr Toma’s case as they did…”[12]
Having listed several reasons why no jurisdictional error had been made, Wigney J continued at paragraphs [88] – [89]:
“It should also perhaps be noted in this context that, while one of Mr Toma’s grounds of appeal concerned the change of the respondent’s name, or the correctness of the respondent’s name, this was not an issue which he squarely raised before the Senior Deputy President. As was discussed earlier, at the very commencement of the hearing, the Senior Deputy President raised the issue concerning the name of Mr Toma’s employer. Mr Toma indicated that he was not applying to change the name of the respondent and that he was content to proceed on the basis that the respondent was Workforce International. Workforce International was not the named respondent, but was apparently the parent company. When Workforce Recruitment’s counsel indicated that the name of the respondent to the application had already been amended, Mr Toma did not raise any objection. He did not, at that point, contend that the Commissioner had erred in changing the name of the respondent, or that Workforce Recruitment was not the correct name of his employer and not the correct respondent to his application. It is difficult to see how it could be said, in those circumstances, that the Senior Deputy President erred jurisdictionally, even if it could be said that the respondent’s name had been incorrectly changed.
Second, and more fundamentally, as has already been adverted to, the precise identity of Mr Toma’s employer was ultimately entirely immaterial to the Senior Deputy President’s decision to dismiss Mr Toma’s unfair dismissal application and the Full Bench’s decision to refuse permission to appeal. The problem for Mr Toma is that the Senior Deputy President found that he resigned and had not been dismissed. That finding was fatal to his unfair dismissal application and had nothing whatsoever to do with the precise identity of the employer. It would, of course, have been entirely different if Mr Toma’s application had been dismissed because he had proceeded against the wrong party. That, however, was clearly not the case.”
Mr Toma then appealed the decision of the primary judge on three grounds.[13] The first, which is relevant to the appeal currently on foot, was that the primary judge made a significant error in applying an incorrect principle of law and therefore denied him an opportunity to run his case. The Full Court of the Federal Court of Australia stated that whilst the precise nature of the error was not identified, the complaint seemed to be directed at the primary judge’s refusal to permit Mr Nagan, who was perhaps in the position of a “McKenzie friend”, to act for Mr Toma. The Full Court noted that Mr Toma had submitted that, ‘[h]ad [the primary judge] allowed Nagan to speak for me, he would have made a different Decision’. Mr Toma continued:
“Nagan would have told him why the correct name was important, the importance of the RTW plan in proving my constructive dismissal and how [the Commissioner] failed to give me a fair hearing...”[14]
The Full Court observed from Mr Toma’s submission that the matters he had wished Mr Nagan to raise before the primary judge were the same as those canvassed with the Full Court of the Federal Court in relation to an application for leave he had made to issue a subpoena.[15] The Full Court concluded at paragraph [29]:
“As will be readily apparent, those matters were challenges to findings of fact made by a tribunal and upheld by an appellate tribunal. Findings of fact are a matter for the FWC and it is not for the Court to substitute its own conclusions on findings of fact made within jurisdiction. As the primary judge identified, correctly with respect, the application before him was “in no sense, or in no respect, an appeal from the decision of either the Senior Deputy President or the Full Bench of the Commission” (Reasons at [65]). It was, again as correctly described by his Honour, an application for relief under s 39B of the Judiciary Act 1903 (Cth) pursuant to which it was necessary for Mr Toma to establish jurisdictional error on the part of the FWC – not merely an error of fact or law within jurisdiction.”
To the extent that Mr Toma’s submissions touched on matters that might give rise to jurisdictional error, the Full Court identified that his complaint seemed to be directed to two issues. Whilst the second issue is not relevant for present purposes, the first was the inadequate translation by the interpreter at the directions hearing on 31 October 2018 relating to the true identity of Mr Toma’s employer, which, was discerned, might have denied him procedural fairness. The Full Court stated:
“As to the first complaint, the primary judge accepted Mr Toma’s contention that there were deficiencies in the interpretation at the directions hearing but found that it could not be concluded that Mr Toma was denied procedural fairness. Further, even if there had been some denial of procedural fairness at the directions hearing, it could not have been material and therefore capable of giving rise to jurisdictional error in the making of the FWC’s second decision or the Full Bench’s second decision (Reasons at [80]). This was because:
(1) Mr Toma was unable to point to any exchange between the Commissioner and the first respondent’s agent which, had it been interpreted to him, would or could have made any difference to the outcome of the directions hearing, let alone to the FWC’s second decision or the Full Bench’s second decision (Reasons at [75]);
(2) Despite the incorrect interpretation of some of the Commissioner’s questions concerning the identity of Mr Toma’s employer, the transcript revealed that Mr Toma ultimately agreed he was employed by Workforce Recruitment, not Workforce Variable (Reasons at [76]);
(3) Mr Toma did not squarely raise the alleged deficiencies with the interpretation at the directions hearing, either before the Senior Deputy President or the Full Bench. It cannot be contended that either the Senior Deputy President or the Full Bench could be found to have made a jurisdictional error in respect of an argument that was not raised before them, or in respect of alleged interpretation errors that were not before them (Reasons at [77]).
As has already been observed, Mr Toma was unsuccessful in his claim for unfair dismissal because the FWC found that he had not been dismissed. The precise identity of his employer was irrelevant to that decision. Mr Toma has not established any denial of procedural fairness arising from the inadequate interpretation which could be considered material to the FWC’s second decision.”[16]
On 3 August 2020, Mr Toma’s application for judicial review of the March 2019 Decision and the June 2019 Decision was dismissed by the Federal Court.
Whilst one might have anticipated that the Full Court judgment brought an end to Mr Toma’s proceedings, that was not the case.
On 17 March 2022, Mr Toma commenced separate proceedings in the Federal Court alleging that he had been subjected to racial discrimination by the Commission by reason of the
manner in which the Commission dealt with his unfair dismissal application and thereafter by the Full Bench of the Commission when hearing Mr Toma’s appeal (i.e. the June 2019 Decision). On 25 October 2022, Mr Toma’s application for leave to pursue a racial discrimination claim was refused by the Federal Court.
After the March 2019 Decision and the June 2019 Decision, the Respondent lodged two applications for costs against Mr Toma. The first costs application was made following the issuance of the March 2019 Decision and was allocated to Deputy President Dean. The second costs application was made by the Respondent following the issuance of the June 2019 Decision and this was remitted to Deputy President Dean for determination.[17]
On 15 July 2019, Mr Toma made a costs application pursuant to s 401 of the Act against the paid agent who represented the Respondent in the Commission proceedings concerning the March 2019 Decision and the June 2019 Decision (the July 2019 costs application).
On 9 August 2019, Deputy President Dean issued a decision in respect of the Respondent’s first costs application, and Mr Toma’s July 2019 costs application. The Respondent’s second costs application was dealt with in a separate decision.
The Deputy President concluded, in respect of Mr Toma’s July 2019 costs application,
as follows:
“The Toma Costs Application was made outside the 14 day time limit prescribed in s.402 of the Act. Workforce sought that the Commission dismiss the Toma Costs Application, given the Act makes no provision for the time limit to be extended. The parties were given an opportunity to be heard in relation to issue. After hearing from the parties, I decided that I would dismiss the Toma Costs Application as it was not made in accordance with the Act.”[18]
The Deputy President adjourned the Respondent’s first and second costs applications given the aforementioned Federal Court proceedings.
Following the outcome of the Federal Court proceedings, Deputy President Dean advised the parties that she wished to finalise the outstanding costs applications given they were stood over pending the proceedings in the Federal Court. The Deputy President, having explained reasons why, proposed to dismiss all costs applications currently before her with the consent of both parties. Whilst the Respondent consented to the same, Mr Toma did not.
On 14 November 2022, Mr Toma sent an email to the Deputy President’s Chambers and the Respondent. He advised that he intended to file a costs application pursuant to ss 400A and 611 of the Act and sought that a hearing be convened by the Commission. Mr Toma’s Form F6 costs application was filed by way of an email dated 15 November 2022, in which Mr Toma stated that, “[i]f not for the actions and omissions of the Respondent, I would not have incurred these costs”. Mr Toma repeated his request for a hearing.
The costs application attached to Mr Toma’s 15 November 2022 email was specified to be made in relation to the May 2018 Decision and the March 2019 Decision. It differed to Mr Toma’s 15 July 2019 costs application on the basis that it was made in respect of the May 2018 Decision in addition to the March 2019 Decision and sought costs against the Respondent rather than the Respondent’s representative.[19]
On 17 November 2022, Deputy President Dean dismissed Mr Toma’s costs application filed on the basis that it was not made within the 14-day statutory timeframe prescribed by s 402 of the Act. It is uncontroversial that the decision was issued by email dated 17 November 2022 (17 November Costs Decision). Mr Toma subsequently applied to the Commission under s 604 of the Act to appeal the 17 November Costs Decision.
Mr Toma relied upon several grounds of appeal in respect of the 17 November Costs Decision. Whilst most focused on the operation of s 377 of the Act, Mr Toma contended that Deputy President Dean had racially discriminated against him.[20] In respect of Mr Toma’s claim of racial discrimination, the Full Bench stated:
“[43] It is submitted by appeal ground five that the Deputy President has racially discriminated against Mr Toma. We have considered Mr Toma’s notice of appeal and submissions in respect of this matter and set out below the contentions advanced in support of this appeal ground:
(a) “Deputy President Dean has continued her racial discrimination against me. This started when she was a member of the Full Bench that, in June 2019, decided that it was not “in the public interest” to discuss my claims of racial discrimination.”
(b) “Deputy President Dean, like she did in 2019, is covering up for the wrong doing of other FWC members who racially discriminated against me and lied. She has done it again in her Decision on 17 November 2022.”
(c) “My grounds for Appeal is that Dean read my F6 costs application and realised that and realised that [sic] I had successfully proven racism and lies by her colleagues and exposed her behaviour in 2019. She should have removed herself rather than trying to sweep this under the carpet.”
[44] The high-water mark of Mr Toma’s contention of racial discrimination is that the Deputy President (a) formed part of the Full Bench which issued the June 2019 decision dismissing Mr Toma’s application for permission to appeal the March 2019 decision (see [7] above), and (b) engaged in the same conduct in the decision under appeal before us.
[45] In order to address Mr Toma’s contention, we have considered the June 2019 decision. The Full Bench, of which the Deputy President formed part, considered Mr Toma’s third ground of appeal which dealt with an apparent refusal by the first instance Member to recuse themselves from determining Mr Toma’s unfair dismissal application. The Full Bench concluded that there was no basis for the Member to recuse themselves, there being no reasonable grounds advanced by Mr Toma for him to do so. Against this background, the Full Bench rejected Mr Toma’s contention that he was discriminated against in either the May 2018 decision or the March 2019 decision and found that these matters did not support the grant of permission to appeal.
[46] Mr Toma has advanced no reasons capable of supporting a conclusion that the June 2019 decision of the Full Bench, summarised above, discriminated against him. We note that the Federal Court declined Mr Toma’s application for leave to pursue a racial discrimination claim against the Commission in respect of the June 2019 decision (as well as the May 2018 decision) on 25 October 2022 (see [15] above).
[47] There being no established act of discrimination by the Full Bench, it follows that it cannot be said that the Deputy President “continued” her racial discrimination against Mr Toma when she issued the decision under appeal. Further and in any event, Mr Toma has not explained how the decision discriminates against him or “is covering up” for other Members of the Commission when it was predicated upon compliance with s.402 of the Act.
[48] Having regard to the above matters, we are satisfied that Mr Toma’s allegations of racial discrimination against the Deputy President are without foundation. The contention advanced by appeal ground five that Mr Toma has the been the subject of racial discrimination is not reasonably arguable.” (citations omitted)
In respect to the remaining grounds of appeal, the Full Bench considered that they could not be sustained and accordingly refused permission to appeal.
The decision under appeal
It is against that backdrop that Mr Nagan now brings this appeal against the Decision of Deputy President Dean. It should be said that Mr Toma made his own application under s 602 of the Act, followed by an amended application that sought to have his application joined with Mr Nagan’s application under s 602. Whilst Deputy President Dean heard the applications together, the focus of this appeal is on the Decision insofar as it addresses Mr Nagan’s application under s 602 and his contention that the Deputy President was obliged to inform him of her involvement in past proceedings concerning Mr Toma and thereafter recuse herself.
Having acknowledged that Mr Toma had extensively litigated the cessation of his employment with Workforce International since early 2018, and having listed the relevant decisions of this Commission and judgments of the Federal Court of Australia, the Deputy President noted at paragraph [8] of the Decision:
“(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; and
(c) neither the finding as to resignation nor the correction to the respondent’s name was disturbed by any subsequent decision of the Commission or the Federal Court of Australia.”
The Deputy President then addressed the Appellant’s standing to bring his application under s 602 of the Act. At paragraphs [9] and [10] of the Decision, the Deputy President referred to the Respondent’s objection to the application based on standing. Mr Nagan was not a party to the proceedings in the March 2019 and June 2019 Decisions, and his assertion that he had standing because he was an “affected person” was by virtue of being listed as a witness for Mr Toma in the proceedings (presumedly the proceedings of the March 2019 Decision).
The Deputy President concluded that Mr Nagan had standing to bring the application under s 602 of the Act, stating at paragraphs [11] and [12]:
“[11] 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”.
[12] Accordingly, I am satisfied Mr Nagan can bring an application under s.602.”
Regarding the “obvious error” that the Appellant sought to correct, the Deputy President outlined at paragraph [14] of the Decision that the error was the Commission’s decision to permit the correction of the name of the Respondent to Workforce Recruitment and Labour Services Pty Ltd.
Having set out s 602 of the Act and the apposite part of the Explanatory Memorandum to the Fair Work Bill 2008 at paragraph [2316], the Deputy President referred to several authorities that had considered the operation of s 602. Included, were the decisions of Munro J in Re Timber and Allied Industries Award 1999,[21] and those of the Full Bench in RotoMetrics Australia Pty Ltd v Australian Manufacturing Workers’ Union (RotoMetrics)[22] and Grabovsky v United Protestant Association of NSW (Grabovsky).[23] The Deputy President elucidated the legal principles relevant to the operation of s 602 by reference to the authorities, and thereafter declined to grant the application, stating at paragraphs [24] and [25]:
“[24] 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.
[25] 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.”
The Deputy President then addressed Mr Nagan’s contention that she should have recused herself from hearing the matter. At paragraph [28] of the Decision, the Deputy President noted that in circumstances where the contention (set out in an email) constituted an application for her recusal on the grounds of apprehended bias, the application was not made until after the proceedings had concluded and the decision reserved.
The Deputy President further addressed Mr Nagan’s recusal email at paragraphs [28] to [34] of the Decision, ultimately finding that there was no proper basis for finding that a fair-minded lay observer might reasonably apprehend she might not bring an impartial mind to the resolution of the questions to be determined in relation to the application under s 602:
“[29] 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.
[30] 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.
[31] 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.
[32] Finally, a bare accusation of ‘wrongdoing’ is not sufficient for a Member of the Commissions to decline to hear a matter.
[33] 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.”
Appeal grounds and submissions
The precise nature of the errors is not identified. However, the appeal appears to be directed at the Deputy President having not recused herself from hearing the s 602 application and her conclusion about the operation of s 602. The following issues have been distilled from the Notice of Appeal:
Ground one – an error of law regarding the operation of s 602
a) Senior Deputy President Hamberger made an error when he allowed the Respondent to submit an amended statement on 12 February 2019 – with the transcript, audio recording and emails from Commissioner Simpson proving this beyond doubt, and had he listened to the audio of Commissioner Simpson’s directions he would have known the directions made.
Ground two – the recusal ground
b) The Deputy President had a conflict of interest in hearing the application under s 602 of the Act, because she was a member of the Full Bench which presided over the June 2019 Decision. As such the Deputy President contravened the spirit of s 640 of the Act when she did not recuse herself. Furthermore:
i.the Appellant mentioned this to the Deputy President during the hearing;
ii.it was not known to the Appellant that the Deputy President was a member of the Full Bench as he was not involved in the proceedings leading up to the June 2019 Decision;
iii.this ground raises issues of importance and s 3 of the Act applies in respect of “protection against unfair treatment and discrimination” such that it is unfair that a member of the Commission can be a referee and player simultaneously;
iv.the Deputy President’s impartiality was affected as the Deputy President had made an obvious error in the June 2019 Decision;
v.in the Full Bench decision, the Deputy President had quoted from a transcript that the Full Bench was informed was defective; and
vi.the Deputy President was a member of the Full Bench which failed to deal with Mr Toma’s complaint against Senior Deputy President Hamberger.
Whilst Mr Nagan’s grounds of appeal do not expressly traverse assertions against the Commission of racial discrimination, it is evident from his submission that the factors relied upon with respect to his public interest argument predominately address such contentions.
Consideration
An appeal under s 604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[24] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted on discretionary grounds.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[25] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[26] 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...”[27]
Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[28]
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.[29] However, as earlier stated, the fact that the Member at first instance made an error is not necessarily a sufficient basis for granting permission to appeal.
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.[30]
Before dealing with the specific grounds of appeal in order to determine whether to grant permission to appeal, we observe that we have taken into account all of the materials filed by the Appellant to the extent relevant. This includes certain transcripts of earlier proceedings and certain audio extracts of earlier proceedings to which Mr Nagan referred in his submissions.
Ground one
We deal first with whether there was an error in the Deputy President’s conclusion regarding the operation of s 602.
Section 602 provides:
“602 Correcting obvious errors etc. in relation to the FWC’s decisions
(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 section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.”
In RotoMetrics,[31] a Full Bench of Fair Work Australia 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 amendment was appropriate: “Of course”‘.”(footnotes omitted)
In Grabovsky, the Full Bench expressed that 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.[32] It is intended to avoid injustice by permitting the correction of inadvertent mistakes.[33]
Mr Nagan has characterised the issues raised with respect to the 2019 March Decision and the 2019 June Decision as errors that lend themselves to correction under s 602 of the Act. The Deputy President, correctly in our view, identified the relevant principles of law concerning the purpose of s 602 and correctly interpreted its scope. Having examined the error that Mr Nagan sought to have corrected, the Deputy President concluded that it was abundantly clear that the changes sought by Mr Nagan went well beyond the scope of s 602. The Deputy President explained that Mr Nagan, by making his application, sought to alter the substance of findings that had been made rather than correct any unintentional error or inadvertent mistake.
We have considered the submission and are of the firm view that the Deputy President’s conclusion was correct. Section 602 is limited in its operation as expressed by previous decisions of this Commission in Grabovsky and RotoMetrics. In our view, Mr Nagan effectively seeks to reopen issues advanced by Mr Toma in respect of his unfair dismissal application and on appeal in the Commission, and on judicial review to the Federal Court of Australia. Shortly stated, the conclusion reached by the Deputy President was the only one available to her in light of the terms of s 602 of the Act.
This ground of appeal has no apparent merit and we reject it.
Ground two
The second appeal ground proceeds on the footing that it was incumbent on the Deputy President to alert Mr Nagan of her involvement in previous matters concerning Mr Toma – particularly the June 2019 Decision, and thereafter her failure to recuse herself.
In Woodside Energy Ltd v The Australian Workers’ Union (Woodside),[34] the Full Bench said that the applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy (Ebner).[35] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide.[36] That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[37] The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[38] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.
The Full Bench in Woodside noted additional propositions that are apposite to the case at hand:
(a) disqualification on the ground of apprehended bias must be ‘firmly established’,[39] and a finding of apprehended bias is not to be reached lightly;[40]
(b) an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially;[41]
(c) where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision maker, consideration of whether the ‘logical connection’ required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined;[42] and
(d) finally, where an apprehension of bias is said to arise by reason of prejudgment, the principles stated by the Full Court of the Federal Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission[43] apply.
We are satisfied that the Deputy President dealt with the recusal application appropriately. It is incumbent on a member of the Commission, on receiving an application such as the one distilled from Mr Nagan’s email, to hear the application and consider whether there are grounds to recuse oneself from dealing with the matter.
However, Mr Nagan contends that the Deputy President contravened the ‘spirit’ of s 640 of the Act.[44] We are unconvinced that Mr Nagan has made out his case that the Deputy President had, or acquired, any interest that could, or did, conflict with the proper performance of her duties. Whilst the Deputy President sat on the Full Bench in respect of the June 2019 Decision, it does not follow that such step imbued her with an ‘interest’ of the type referred to in s 640 of the Act. Insofar as there being an obligation upon the Deputy President to have disclosed to Mr Nagan her involvement in proceedings to which he was not a party, in the circumstances of this case, we are unconvinced that there was. Insofar as it is relevant, the Deputy President’s involvement in the proceedings giving rise to the June 2019 Decision was a matter on the public record in any event.
In respect of the basis upon which the Deputy President reached her Decision, it discloses an orthodox approach to the determination of Mr Nagan’s ‘application’ for her recusal. The correct legal principles were applied, and no significant error has been disclosed. The Deputy President identified that the factor Mr Nagan relied upon for the basis of his recusal claim was that she had formed part of the Full Bench in respect of the June 2019 Decision, proceedings that addressed an appeal by Mr Toma. As to that complaint, the Deputy President correctly identified that it fell within the category of apprehended, rather than actual bias.
Having identified the factor which Mr Nagan purported might lead her to decide the case other than on its factual and legal merits, the Deputy President then addressed whether there was a logical connection between the “offending” factor and the apprehended bias. The Deputy President found that there was not. We find no fault in that conclusion.
The application before the Deputy President was made by Mr Nagan under s 602 of the Act to correct or amend an obvious error, in relation to the March 2019 Decision and the June 2019 Decision. The inherent limitations of s 602 have been sufficiently canvassed, its purpose akin to the “slip rule”. Whilst the Deputy President formed part of the Full Bench appeal from the June 2019 Decision, the application under s 602 was of a materially different nature to the appeal as it did not require the Deputy President to consider whether the Full Bench had fallen into error in respect of the law or had made factual errors. For these reasons, we reject the premise of the alleged apprehension of bias with respect to the issues identified by Mr Nagan.
It is apparent from the materials filed that Mr Nagan has clearly misconceived the operation of s 602 of the Act, such that he relies upon it to essentially reopen matters that, as the Deputy President identified, have been extensively litigated and determined in both the Commission and/or the Federal Court. With respect to those matters, which we have traversed in some detail, Mr Nagan was party to none of them. The Respondent, in its oral submissions sought to draw upon that point, submitting that it took issue with the Deputy President’s decision on standing. However, the Respondent made no application to appeal the Decision in this respect. Insofar as it is necessary to address the Respondent’s submission further, we simply observe that whilst the Deputy President considered the terms of s 602 in determining Mr Nagan’s standing, other factors bear consideration. These include whether Mr Nagan had an interest which ought to have been considered in the making of the Decision. That is, an interest which was either sufficient or relevant, and, in the circumstances, was not remote, indirect, or fanciful. As this aspect of the Decision is not subject to appeal, we express no opinion on that issue in considering whether to grant permission.
This ground of appeal has no apparent merit and we reject it.
Conclusion
In determining permission to appeal, we note that the public interest argument advanced by Mr Nagan concerns varied assertions of racial discrimination, an abuse of discretionary powers, and manifest injustice. There is, however, no evidence to support the contentions advanced. We have considered the public interest matters raised by Mr Nagan and we are not satisfied that (a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind; (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 Deputy President were disharmonious when compared with other decisions dealing with similar matters.
It follows that we are not satisfied that the grant of permission to appeal the Deputy President’s Decision would be in the public interest or is justified on any other grounds. Permission to appeal is therefore refused.
DEPUTY PRESIDENT
Appearances:
Mr T Nagan, Appellant
Mr D Slater for the Respondent
Hearing details:
2023
Adelaide, Perth, Sydney (by video)
8 May
[1] Nagan vWorkforce Recruitment and Labour Services Pty Ltd[2023] FWC 686
[2] Toma v Workforce Recruitment and Labour Services Pty Ltd[2019] FWC 1564 (March 2019 Decision); Toma v Workforce Recruitment and Labour Services Pty Ltd[2019] FWCFB 4240 (June 2019 Decision)
[3] March 2019 Decision (n 2)
[4] June 2019 Decision (n 2)
[5] Workforce Recruitment and Labour Services Pty Ltd, ‘Respondent’s Outline of Submissions’, Submission in Toma vWorkforce Recruitment and Labour Services Pty Ltd, U2018/2283 and C2019/1868, 7 May 2018, [9]
[6] Toma v Workforce Variable Pty Ltd[2018] FWC 2963
[7] Toma v Workforce Variable Pty Ltd[2018] FWCFB 5811
[8] March 2019 Decision (n 2), [57]–[ 58]
[9] June 2019 Decision (n 2), [16]
[10] Ibid, [17]
[11] Ibid, [18]
[12] Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102, [82], [84]
[13] Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100, [7]
[14] Ibid, [28]
[15] Ibid
[16] Ibid, [32]–[33]
[17] Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWCFB 4625, [2]
[18] Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 5374, [6]
[19] Toma v Workforce Recruitment and Labour Services Pty Ltd [2023] FWCFB 63, [20]
[20] Ibid, [24]
[21] [2003] AIRC 1137
[22] RotoMetrics Australia Pty Ltd v Australian Manufacturing Workers’ Union (2011) 212 IR 373 (RotoMetrics)
[23] Grabovsky v United Protestant Association of NSW[2018] FWCFB 5891 (Grabovsky)
[24] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204 [17] (Gleeson CJ, Gaudron and Hayne JJ)
[25] O’Sullivan v Farrer (1989) 168 CLR 210, 216–17 (Mason CJ, Brennan, Dawson and Gaudron JJ), applied in Hogan v Hinch (2011) 243 CLR 506, 548 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, 90 [44]–[46] (Buchanan J, Marshall J agreeing at 79 [1], Cowdroy J agreeing at 80 [2])
[26] GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, 273–4 [26]–[27] (Makin); Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388, 396 [28], affd (2011) 192 FCR 78; NSW Bar Association v McAuliffe (2014) 241 IR 177, 188 [28]
[27] Makin (n 26) 273–4, [24]–[27]
[28] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200, 220; Wan v Australian Industrial Relations Commission (2001) 116 FCR 481, 488 [26], 489 [30] (Wan)
[29] Wan (n 28) 489 [30]
[30] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82]
[31] RotoMetrics (n 22)
[32] Grabovsky (n 23) [15]
[33] Ibid
[34] [2022] FWCFB 192 (Woodside)
[35] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner)
[36] Woodside (n 34) [38]
[37] Ebner (n 35) 344–5 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); ibid
[38] Woodside (n 34) [38]
[39] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J), 360 (Wilson J)
[40] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 98 [56] (Nettle and Gordon JJ)
[41] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J)
[42] British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109, [97]
[43] Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111, [25]
[44] Form F7 Notice of Appeal [2.1(1)]
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