Visscher v Australian Industrial Relations Commission - [2005] FCAFC 252

FEDERAL COURT OF AUSTRALIA
Visscher v Australian Industrial Relations Commission [2005] FCAFC 252
WORKPLACE RELATIONS – Employment – Claim of harsh, unjust or unreasonable termination of employment – Application for prerogative relief in relation to decisions of Australian Industrial Relations Commission – Issue about applicant’s medical fitness for work as a ‘seafarer’ – Whether a certificate of medical fitness issued pursuant to Part 9 of Marine Orders under Navigation Act should have been regarded as conclusive of this question – Whether there was jurisdictional error in respect of rejection of evidence.
Workplace Relations Act 1996 (Cth) ss 45(6), 170CE(1)
Navigation Act 1912 (Cth) ss 123, 124, 425(1AA)
Marine Orders Part 9
TIMOTHY VISSCHER v THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and BHP PETROLEUM PTY LTD
NSD 1727 of 2004
WILCOX, SPENDER and GRAHAM JJ
2 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1727 of 2004

BETWEEN:

TIMOTHY VISSCHER
APPLICANT

AND:

THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTS

BHP PETROLEUM PTY LTD
SECOND RESPONDENT

JUDGES:

WILCOX, SPENDER and GRAHAM JJ

DATE OF ORDER:

2 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        An order nisi be granted.
2.        The application for prerogative orders be refused.
3.        The proceeding be dismissed.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1727 of 2004

BETWEEN:

TIMOTHY VISSCHER
APPLICANT

AND:

THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTS

BHP PETROLEUM PTY LTD
SECOND RESPONDENT

JUDGES:

WILCOX, SPENDER and GRAHAM JJ

DATE:

2 DECEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:

This is an application for prerogative relief (certiorari and mandamus) in relation to decisions of Commissioner Raffaelli of the Australian Industrial Relations Commission (‘the Commission’) and three members of a Full Bench of the Commission (Justice Munro, Senior Deputy President Duncan and Commissioner Roberts) who heard an appeal against the decision of Commissioner Raffaelli.
The application was filed in the High Court of Australia on 1 December 2003. On 14 September 2004, Gummow J remitted it to this Court, pursuant to s 44 of the Judiciary Act 1903 (Cth), without first having made an order nisi. Since remittal, the matter has proceeded on the basis, usual in this Court, that the Court would consider the possible making of an order nisi in the context of full argument about the merits of the application.
The applicant is Timothy Visscher, a former employee of BHP Petroleum Pty Limited (‘BHP-P’), the second respondent. The first respondents are the Commission members who have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCAFC 252
Decision Date: 2 DECEMBER 2005

CaseChat Overview and Summary

The applicant, Timothy Visscher, brought proceedings against the Australian Industrial Relations Commission and BHP Petroleum Pty Limited in the Federal Court, challenging the Commission’s decision that his dismissal was not harsh, unjust, or unreasonable. Visscher was employed as a Second Mate on a vessel and made allegations about safety issues on the vessel, which led to friction with his colleagues. After a series of events, including an injury and further safety concerns, Visscher’s employment was terminated on the grounds of medical unfitness and conduct undermining mutual trust and confidence. Visscher appealed the Commission’s decision, arguing that the Full Bench should have considered additional evidence and that the rejection of some of his evidence constituted a jurisdictional error.

The court examined whether the Full Bench’s refusal to consider additional evidence or direct a report constituted a jurisdictional error. The court noted that the Full Bench had jurisdiction to admit further evidence or direct a member of the Commission to provide a report but was never asked to do so. Furthermore, the Full Bench considered and rejected Visscher’s allegation of bias without addressing the rejection of evidence as a failure to take into account a relevant consideration. The court also noted that rejection of evidence typically does not constitute a jurisdictional error unless it results in a failure to consider a relevant matter, which was not argued in this case.

The court found that any error in the rejection of evidence by the Commissioner was an error within jurisdiction, an incorrect ruling of law, rather than a failure to consider a particular subject. Consequently, the application for prerogative orders was refused, and the proceeding was dismissed. The court granted an order nisi and dismissed the application, finding that the Full Bench did not err in its consideration of the evidence or in its decision-making process.

Orders

Orders of the court

1. An order nisi be granted.

2. The application for prerogative orders be refused.

3. The proceeding be dismissed.

Background

Background to the litigation

The applicant is Timothy Visscher, a former employee of BHP Petroleum Pty Limited (‘BHP-P’), the second respondent. The first respondents are the Commission members who have been concerned with the case. In accordance with usual practice, they filed a submitting appearance and took no part in the argument before us.Background facts Mr Visscher is a merchant naval officer, possessing a certificate of competency as Master Class 1. Commissioner Raffaelli found that:‘He was at all material times employed on vessels as (in layperson’s language) a mate on a ship. That is, he was one of the senior ship’s officers but not the captain.’ Mr Visscher commenced employment with BHP-P on 1 March 1993. In December 1993, he was transferred to the Griffin Venture, a floating production storage and offloading facility (‘FPSO’). The vessel was under the command of a Master (or Captain) and had one First Mate and three Second Mates, one of whom was the applicant. On 29 May 1994, there was an incident on the Griffin Venture after which Mr Visscher made allegations, both within BHP-P and to relevant outside authorities, about safety issues. His allegations reflected on the conduct of the vessel’s Master and led to the applicant being subjected to the displeasure of many of his colleagues. In July 1994, Mr Visscher was transferred to another of BHP-P’s FPSOs. However, in November 1994, the applicant injured his leg. Thereafter, Mr Visscher did not again perform sea duties for BHP-P. It appears he performed some shore-based duties for BHP-P during much of the time until his termination of employment, but he also spent time in meetings and correspondence about the Griffin Venture incident and his general safety concerns. On 20 October 1998, Michael Herrett, Vice-President, Human Resources for BHP-P, terminated Mr Visscher’s employment. In a letter of that date to Mr Visscher, Mr Herrett gave two reasons: ‘that you are medically unfit to work on an offshore facility and that you have engaged in conduct which has undermined the relationship of mutual trust and confidence between BHP Petroleum and yourself.’ Promptly after his termination, on 10 November 1998, Mr Visscher lodged with the Commission an application under s 170CE(1) of the Workplace Relations Act 1996 (Cth) (‘the Act’) alleging that his termination was harsh, unjust or unreasonable. After a number of delays, the case came before Commissioner Raffaelli. Mr Visscher appeared in person throughout a lengthy hearing. BHP-P was represented by counsel. During the course of that hearing, Commissioner Raffaelli excluded from evidence portions of the written statement tendered by Mr Visscher. Ultimately, on 20 May 2003, the Commissioner handed down a decision in which he rejected Mr Visscher’s claim that his termination was harsh, unjust or unreasonable. The Commissioner concluded that, under all the circumstances, ‘Mr Herrett had a basis for taking the view that Mr Visscher was medically unfit to work on an off-shore facility’. The Commissioner said: ‘BHP-P’s termination of Mr Visscher was for the valid reason of medical unfitness’. Commissioner Raffaelli rejected the second ground of termination that had been stated by Mr Herrett.The issues

Evidence

Evidence Before The Court

We agree. Commissioner Raffaelli did not err in considering, for himself, the issue of Mr Visscher’s medical fitness. The Full Bench did not err in rejecting the submission that the certificate was conclusive.Rejection of evidence There are several difficulties about Mr Visscher’s reliance on Commissioner Raffaelli’s rejection of evidence as a basis for the granting of prerogative relief. In the first place, it would be inappropriate for this Court to base any order for prerogative relief directly upon any incorrect evidentiary ruling by Commissioner Raffaelli. Commissioner Raffaelli’s decision went on appeal to the Full Bench which had jurisdiction to admit further evidence or to direct a member of the Commission to provide a report in relation to a specified matter: see s 45(6) of the Act. So any claim of jurisdictional error really has to be made about the Full Bench’s failure to take either of those steps. This leads to the second difficulty: it is clear the Full Bench was never asked to take either of the courses mentioned in s 45(6). Mr Visscher, who represented himself before the Full Bench, complained about Commissioner Raffaelli’s rejection of some of his evidence, but he did so in the context of an allegation of bias. That allegation was considered in detail by the Full Bench but rejected. Mr Visscher did not argue the rejection of the evidence constituted a failure to take into account a relevant consideration. Thirdly, and perhaps more importantly, rejection of evidence will not usually constitute a jurisdictional error within the meaning of authorities such as Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Counsel for BHP-P referred in submissions to what was said by Wilcox and Madgwick JJ in Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union (1999) 164 ALR 73 at [69]:‘… what are the circumstances in which an error of law leading to an erroneous finding or mistaken conclusion will open the way to prerogative relief? Mere error is not enough. Lord Reid gave examples of what he meant: bad faith, lack of power, failure to accord natural justice, mistake as to the nature of the tribunal’s jurisdiction, failure to take into account a relevant matter, reliance on an extraneous consideration. These are all defects in the inquiry process, as distinct from erroneous conclusions.’ In order to constitute a jurisdictional error grounding the grant of prerogative relief, the rejection of evidence would have to be so significant as to constitute a failure to take into account a particular subject which the decision-maker was bound to take into account, not merely an incorrect ruling as to the relevance to that subject of particular evidentiary material. It was not argued, in the present case, that Commissioner Raffaelli failed to take into account the case put before him by Mr Visscher: that Mr Herrett terminated Mr Visscher’s employment on the ground of medical unfitness when his true reason was to get rid of a whistle-blower, a perceived trouble-maker. That being so, it seems to us that any error by Commissioner Raffaelli in rejecting particular evidence was an error within jurisdiction, an incorrect ruling of law, rather than a failure to consider a particular subject.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1727 of 2004

BETWEEN:	TIMOTHY VISSCHER APPLICANT
AND:	THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENTS BHP PETROLEUM PTY LTD SECOND RESPONDENT
JUDGES:	WILCOX, SPENDER and GRAHAM JJ
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	SYDNEY

JUDGES:	WILCOX, SPENDER and GRAHAM JJ
DATE:	2 DECEMBER 2005
PLACE:	SYDNEY