Yan (Rocky) Kong v Citic Pacific Mining Management Pty Limited t/a Citic Pacific Mining
[2016] FWCFB 5507
•2 SEPTEMBER 2016
| [2016] FWCFB 5507 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Citic Pacific Mining Management Pty Limited t/a Citic Pacific Mining
(C2016/4620)
VICE PRESIDENT HATCHER | SYDNEY, 2 SEPTEMBER 2016 |
Permission to appeal against decision [2016] FWC 4290 of Senior Deputy President O'Callaghan at Adelaide on 4 July 2016 in matter number U2015/16933.
Introduction
[1] Mr Yan (Rocky) Kong has applied for permission to appeal a decision of Senior Deputy President O’Callaghan issued on 4 July 20161 (Decision).The effect of the Decision was the Senior Deputy President dismissed an unfair dismissal remedy application lodged by Mr Kong pursuant to s.394 of the Fair Work Act 2009 (FW Act) on the basis that Mr Kong had unreasonably failed to discontinue his application, after a settlement agreement had been concluded with the respondent, Citic Pacific Mining (Citic).
[2] At the hearing before us, Mr Kong was assisted by an interpreter. Permission was granted for Citic to be legally represented. We granted Citic leave to provide additional documentation for inclusion in the appeal book on 12 August 2016. This documentation included the witness statement of Mr Lilburne, together with annexures. We have had regard to this additional information.
[3] Mr Kong lodged his unfair dismissal remedy application on 21 December 2015. A telephone directions conference was held on 15 April 2016 at which Mr Kong did not participate but was represented by a lawyer, Mr Jacobson. Citic was represented by a lawyer, Mr Lilburne.
[4] Subsequent to the issuing of directions and a hearing date on a jurisdictional objection, Citic, on 1 June 2016, made an application to dismiss Mr Kong’s unfair dismissal remedy application pursuant to ss.399A or 587 of the FW Act, as Citic contended the application had been resolved. Mr Kong disputed the application had been settled. Citic’s dismissal application was the subject of a hearing in Perth on 21 June 2016 before the Senior Deputy President.
[5] During May 2016 Mr Kong corresponded multiple times with the Senior Deputy President’s Chambers, advising he was no longer proposing to be legally represented at the hearing.
[6] In determining whether Mr Kong’s unfair dismissal remedy application should be dismissed pursuant to s.399A or s.587, the Senior Deputy President found:
“[43] Having considered all of the circumstances of this matter, I am satisfied that, for the purposes of s.399A(1)(c), a binding settlement agreement was reached on either 11 or 12 May 2016. I have then considered whether Mr Kong’s decision not to regard his application as settled, and to seek to pursue the matter, represents an unreasonable act.
[44] In this regard Mr Kong effectively relied on the three issues I have already noted, as the basis for his decision to pursue the matter and not regard it as settled. Firstly, he concedes that a circumstance which has changed since 11 or 12 May 2016 goes to his receipt of the account from his lawyer. Such an event must have been obviously foreseeable. To the extent that it explains Mr Kong’s current refusal to agree to a five week settlement on terms, consistent with those set out in Mr Jacobson’s email to Mr Lilburne of 10 May 2016 but drafted by the Commission and utilising a standard approach to terms of settlement, the receipt of that account cannot represent a reasonable basis for Mr Kong’s failure to discontinue his application.
[45] Secondly, Mr Kong now considers that he may have an entitlement to some form of parental leave payment associated with his employment, following the birth of a child some time before May 2016. To the extent that he relies upon this claim to support his position that he was entitled to reject the agreement reached on 11 or 12 May 2016, his failure to discontinue the application was unreasonable. Simply put, if Mr Kong wanted to pursue his claim for some form of payment in recognition of his parental status, that should have been put in the settlement proposal of 10 May 2016. It was not so included and Mr Kong has not demonstrated to me that this correspondence was inconsistent with the instructions he had provided to Mr Jacobson. [footnote omitted]
[46] Finally, Mr Kong asserts that he understood that whilst he was proposing a settlement amount of five weeks, other matters could be addressed through the negotiation of the settlement deed. I have already referred to the substantial correspondence between Mr Jacobson and Mr Lilburne which confirms the nature of the settlement being negotiated. The position Mr Kong now seeks to put would require that the five week settlement offer be increased. Because that was such a fundamental component of the settlement arrangement, I have concluded that Mr Kong has simply sought to use the finalisation of that deed as a mechanism to achieve a higher payment. In this respect Mr Kong has adopted an opportunistic approach which I consider to be unreasonable given the clear settlement arrangement reached on 11 or 12 May 2016.”
[7] The Senior Deputy President concluded as to Citic’s application to have Mr Kong’s unfair dismissal remedy application dismissed:
“[47] I am satisfied that Mr Kong acted unreasonably in failing to discontinue his application after a settlement agreement had been concluded. Accordingly, I consider it appropriate to dismiss that application pursuant to s.399A(2). …I note the clear undertaking provided by Citic to the effect that it will honour the agreement reached on 11 or 12 May 2016.”
[8] In the Decision, the Senior Deputy President sets out the extensive witness and documentary evidence relating to the settlement negotiations between Mr Kong and Citic’s legal representatives and the interaction between Mr Kong and his lawyer Mr Jacobson. We do not propose to duplicate the Senior Deputy President’s findings here, suffice to say they can be found at paragraphs [10] through [28] of the Decision.
[9] Mr Kong’s notice of appeal identified 23 errors of fact or findings, or failures on the part of the Senior Deputy President. These included:
● The Senior Deputy President made a significant error of fact when he found that a file note written by Mr Jacobson must not support Mr Kong’s position, as Mr Kong had elected not to provide the file note, when in fact Mr Kong did provide it at attachment “N” to his statement
● The Senior Deputy President did not test contradictory evidence from Mr Lilburne and the documentary evidence
● A failure of the Senior Deputy President to make findings that Mr Lilburne acted outside his law firm’s guidelines
● Error when concluding Mr Lilburne’s evidence was to be preferred
● Failure to make findings as to what occurred during settlement discussions
● Failure to make findings that supported Mr Kong’s arguments
● Error in not applying appropriate weight to the documentary evidence and changes in wording made by Citic’s legal representatives and a failure to consider Mr Kong’s outline of submissions
● The Senior Deputy President failed to give Mr Kong an opportunity to “talk” to the deed prepared by Citic’s legal representatives and failed to take into account his evidence
● The Senior Deputy President made an error in allowing Citic to have legal representation as the matter was not complex and he failed to take into account Mr Kong’s objections
● Failure to provide Mr Kong with the Amended Directions issued on 19 May 2016
[10] In addition, there were 10 matters identified in the notice of appeal relating to the public interest for the Commission to grant permission to appeal. These matters included a repeat of many of the appeal grounds; that the Decision manifested an injustice as significant relevant facts were not taken into consideration; was counter intuitive; appeared disharmonious when compared with other decisions dealing with similar matters; and may disadvantage people who do not speak English as a first language, with a resultant imbalance of power between parties.
[11] At the hearing of Mr Kong’s application for permission to appeal, his submissions focused on the Senior Deputy President’s failure to acknowledge the evidence of his lawyer’s file note (attachment “N” to Mr Kong’s statement) and resultant finding that this did not support Mr Kong’s case, and his interpretation of the wording used in the correspondence between Mr Lilburne and Mr Jacobson during settlement negotiations.
[12] Mr Kong confirmed to us that the receipt of an account from Mr Jacobson had been a factor in his decision not to proceed with the amount of five weeks’ wages in settlement of his unfair dismissal remedy application. He also stated that the form of the deed was objectionable as it precluded him from making a discrimination claim against Citic.
Consideration
[13] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[14] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error4, or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 6
[15] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be 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. 7 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.8 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.9
[16] It is well established that Commission members are required to act “judicially” and accord all parties procedural fairness. This duty must be applied in the context of the particular circumstances including the nature of representation and the nature of the matter before the Commission.10 The role of the Commission member when an applicant appears in person also needs to be taken into account. The duty is to provide for a fair hearing but not to provide a positive advantage to a self-represented litigant.11 Noting the assertions of Mr Kong as to the hearing process and the matters canvassed by the Senior Deputy President in the Decision we are satisfied that all parties were afforded procedural fairness and an opportunity to put all matters before the Senior Deputy President. We are not satisfied that the appellant has established that he was denied procedural fairness. We also detect no error in the Senior Deputy President’s grant of leave for the respondent to be legally represented.
[17] At paragraph [36] of the Decision the Senior Deputy President held:
“[36] As I have indicated, Mr Kong did not provide to me a copy of Mr Jacobson’s file note of 12 May 2016. I have concluded from this that the file note does not support the position now contended by Mr Kong.”
[18] It is clear that, on the evidence before the Senior Deputy President at first instance, he incorrectly found that the file note was not before him. The file note was attached to Mr Kong’s statement and marked “Attachment N”. Whilst the Senior Deputy President concluded that the file note would not have supported Mr Kong’s position, we do not consider this to be a significant error of fact in the sense that it could have affected the outcome. The file note concerns a discussion between Mr Kong’s lawyer, Mr Jacobson, and Citic’s lawyer, Mr Lilburne, which occurred on 12 May 2016. Its contents are completely consistent with Mr Jacobson’s description of that conversation in an email he sent to Mr Kong which is reproduced in paragraph [25] of the Decision. Its contents do not contradict any finding of fact made by the Senior Deputy President in the Decision.
[19] The matters asserted by Mr Kong as being errors or failings of the Senior Deputy President, with the exception of the file note discussed above, were all matters that were appropriately considered by the Senior Deputy President in the Decision. At paragraphs [41] to [43] of the Decision, the Senior Deputy President had regard for the evidence, the nature of the settlement agreement, appropriate and relevant authorities12 and reached conclusions as to the negotiated settlement. These conclusions do not display error, significant or otherwise.
[20] We are not satisfied that Mr Kong has demonstrated an arguable case of error on the part of the Senior Deputy President in determining that his unfair dismissal remedy application be dismissed pursuant to s.399A.
[21] There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest. Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
R. Kong on his own behalf.
R. Wade solicitor for Citic Pacific Mining Management Pty Ltd.
Hearing details:
2016.
Sydney:
10 August.
1 [2016] FWC 4290
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
10 Coal and Allied Services v Lawler (2011) 192 FCR 78 at [25]
11 Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 at [28]
12 Masters v Cameron (1954) 91 CLR 353; Gorman v Australia Post see [2010] FWA 7423; [2010] FWAFB 9413; [2011] 196 FCR 126; Curtis v Darwin City Council [2012] FWAFB 8021
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