Baker v Patrick Projects Pty Ltd

JUDGE: DOWSETT, TRACEY & KATZMANN JJ DATE: 10 NOVEMBER 2014 PLACE: PERTH

REASONS FOR JUDGMENT DOWSETT J: 1 I agree with Katzmann J's reasons. The order of the Court will be that the application be dismissed. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 4 December 2014 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 167 of 2014

JUDGE: DOWSETT, TRACEY & KATZMANN JJ DATE: 10 NOVEMBER 2014 PLACE: PERTH

REASONS FOR JUDGMENT TRACEY J: 2 I also agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate: Dated: 4 December 2014 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 167 of 2014

JUDGES: DOWSETT, TRACEY & KATZMANN JJ DATE: 10 NOVEMBER 2014 PLACE: PERTH

REASONS FOR JUDGMENT (Revised from transcript.) KATZMANN J: 3 On 7 March 2013 Jesse Baker lost his job. On that day his employer, Patrick Projects Pty Ltd ("Patrick"), sent him a letter terminating his employment effective four days later. Mr Baker considers that his dismissal was unfair and he applied to the Fair Work Commission (then known as Fair Work Australia) for a remedy but the Commissioner who heard his application dismissed it and the Full Bench refused him permission to appeal. In this proceeding, Mr Baker contends that the Full Bench fell into jurisdictional error and he seeks an order for certiorari to quash its decision. He asks this Court to determine the appeal for itself, to find that his employment was terminated in circumstances that were harsh, unjust and/or unreasonable, and that he be reinstated to his job or awarded compensation equivalent to six months' wages. In the alternative, he seeks an order in the nature of mandamus sending the matter back to the Commission to be heard by a different Commissioner. Background 4 On 17 September 2011 Mr Baker was injured at work. At that time he was employed by the Offshore Marine Services Alliance ("OMSA"). On 29 April 2012 Mr Baker's employment was transferred to Patrick. At the time he began his employment with Patrick, however, he was not working. It appears that he was unfit for work as a result of his injury until 4 May 2012 when he was certified fit for restricted duties under a return to work program. On 20 August 2012 and then again on 15 February 2013 the scope of his duties was widened. The return to work program provided that Mr Baker work up to 40 hours per week in accordance with Patrick's operational requirements. By 31 January 2013, however, he was certified fit for his pre-disability duties without restriction and the return to work program expired on 15 February 2013. 5 But Mr Baker did not keep the hours of work for which the return to work program provided. In July 2012 he was counselled about his attendance record and certain other matters. 6 On 6 December 2012 Duncan Anderson (Patrick's Operations Manager) requested a meeting with Mr Baker and Marion Storey (Patrick's Human Resources Advisor) regarding his poor attendance and communications. Mr Baker said that his poor attendance and communication were due to family issues. On 20 December 2012 Ms Storey contacted Mr Baker and he referred again to his family and personal issues. Ms Storey advised Mr Baker to make use of Patrick's Employee Assistance Program. Mr Baker agreed and said he would try harder to attend work, yet between 21 December 2012 and 28 February 2013 inclusive, Patrick's records show that he failed to attend work on 27 days. 7 On 14 February 2013 Patrick sent a letter to Mr Baker asking him to attend a meeting on 19 February 2013 to discuss his absenteeism. Patrick claimed that its records showed that Mr Baker had failed to report to work 15 times and had "booked off" (that is, he contacted his employer after being allocated a shift to indicate that he was not available) on seven occasions since 15 December 2012. The company promised Mr Baker, however, that it had formed no view on the matter and he would be given a full opportunity to discuss the reasons for his absences. 8 Mr Baker did not attend the meeting on 19 February 2013 or reply to the letter of 14 February 2013. 9 On 1 March 2013 Patrick wrote to Mr Baker requesting that he attend a show cause meeting on 6 March 2013 to discuss his poor attendance and breach of his terms and conditions of employment. Mr Baker did not attend this meeting either. Nor did he reply to the letter. 10 On 7 March 2013 Patrick wrote again to Mr Baker. Omitting formal parts the letter read: On March 1st 2013 we sent a letter to you, to request that you attend a Show Cause meeting on Wednesday 6 March 2013 at 10.30am to discuss the following: 1. Your recent absences & book offs, 2. Repeated failure to reports (FTR), 3. Inability to meet your employment conditions, and; 4. Your failure to contact management with regards to your absenteeism. You did not attend this meeting and you did not provide any written documentation as a response. You were also contacted multiple times via telephone with no response. Prior to that, we sent you a written request to attend a meeting on February 19 2013 at 3.30pm, to discuss your absenteeism, FTR's and book offs, but you failed to attend that meeting and did not make contact with us. Having considered your non attendance at both of these meetings, and your failure to make contact with Patrick management to discuss the matter, I have decided that your employment will be terminated effective Monday 11 March 2013; you will not be required to work a notice period. You will be paid any accrued but untaken entitlement in accordance with the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015, together with any lieu of notice where applicable. In addition where there is any money owed this will be deducted from your final payment. You are required to return your site passes and any Patrick equipment and materials. … 11 On 22 March 2013 Mr Baker requested a meeting with Patrick to discuss his termination of employment and Patrick obliged, but it was unmoved. 12 In his application to the Commission Mr Baker alleged that: at all relevant times he was either unfit for work and/or engaged in a return to work program under the Workers' Compensation and Injury Management Act 1981 (WA) ("Workers' Compensation Act"); Patrick's record of absences from work (including book offs and failures to report) was inaccurate; in any case he was treated unfairly because Patrick had a flexible policy about those matters in relation to other employees which was not applied to him; and because Patrick was aware at all times of where he was and what he was doing, the termination of his employment was unfair. 13 In his submissions to the Commission Mr Baker contended that his alleged absenteeism, failures to report and book offs were covered by his return to work program which was subject to ss 155-155E and 156B of the Workers' Compensation Act. On that account, he claimed that Patrick was not entitled to dismiss him. Rather, he contended, its only remedy was to apply under s 156B of the Workers' Compensation Act for an order of an arbitrator requiring him to comply with the return to work program. It was for this reason, he submitted, that the dismissal was harsh and unfair. 14 It is unnecessary to refer to the other submissions because they are irrelevant to the present application.

The decision of the Commissioner 15 The Commissioner rejected Mr Baker's submission that Patrick's only recourse was to make an application for an order under s 156B of the Workers' Compensation Act and that its failure to do so rendered the dismissal harsh and unfair. He considered that there was no obligation on an employer to apply for an order under s 156B. Furthermore, he described Mr Baker's argument as self-serving. He said (at [64]): The argument pre-supposes that because the Employer did not exercise a discretionary provision of the WC Act to seek an order to participate in a RTWP [return to work program], it is harsh and unfair. Such an argument ignores causation and the obligation of Mr Baker to attend work when required and in accordance with an agreed RTWP. 16 As for the allegation that the records were inaccurate, the Commissioner noted a concession made by Patrick that there were inaccuracies but the Commissioner apparently regarded them as either irrelevant or inconsequential. He said (at [67]): Mr Baker appears to be submitting to the Commission that if he is able to demonstrate some inaccuracies in the data, its entirety should cease to have any probative value. The burden of proof lies with the Applicant to persuade the Commission that he was unfairly dismissed. The overall reason for Mr Baker's dismissal was primarily his absence from work and his non attendance at meetings to discuss these absences. 17 The Commissioner then summarised Mr Baker's attendance record, based, it would appear, on the employer's records. At [69], however, he said: While there may have been some inaccuracies and nomenclature difficulties with Mr Baker's non attendance at work, I am satisfied that overall Mr Baker approached his attendance at work as discretionary. Any differences between what the Employer alleged and the inaccuracies revealed in cross examination, do not materially detract from the overall reason why Mr Baker was dismissed on 7 March 2013. 18 The Commissioner said there was no probative evidence to show that Mr Baker was treated unfairly in comparison with other employees in a similar classification and he found that the evidence contradicted Mr Baker's submission that Patrick knew at all times where he was and what he was doing when he was away from work. He described Mr Baker's evidence under cross-examination as "purposely vague and lacking credibility". He concluded that Patrick had "a sound, defensible and well founded reason to dismiss Mr Baker" and that the dismissal was not harsh, unjust or unreasonable. I should note that, in the course of his reasons, the Commissioner considered each of the matters the Commission was required to take into account in accordance with s 387 of the Fair Work Act 2009 (Cth) ("FW Act").

The appeal to the Full Bench 19 The criteria for considering whether a dismissal was harsh, unjust or unreasonable are set out in s 387 of the FW Act. It was never suggested that the Commissioner erred by failing to have regard to these matters. Rather, before the Full Bench Mr Baker submitted that the Commissioner misapplied the provisions of the Workers' Compensation Act and that the Commissioner erred in relying on unreliable attendance records. 20 Section 604(1) of the FW Act entitles a person who is aggrieved by a decision of a Commissioner to appeal the decision, with the permission of the Commission. Section 400(1) of the Act provides that, in appeals in unfair dismissal matters, the Commission must not grant permission to appeal unless it considers that it is in the public interest to do so. 21 Mr Baker contended that it was in the public interest to grant permission to appeal because of the interrelationship between the Workers' Compensation Act and the unfair dismissal laws and the doubt and injustice associated with the Commissioner's decision. 22 The Full Bench noted that in unfair dismissal matters permission to appeal can only be granted if the Commission considers that it is in the public interest to do so (citing s 400(1) of the FW Act). It referred to the kinds of circumstances that might attract the public interest (citing the decision in GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]). It then observed that the Commissioner's decision was discretionary and referred to the relevant legal principles for interfering with discretionary decisions (citing House v The King (1936) 55 CLR 499). Then at [13] it said: We have considered the grounds of appeal and the arguments advanced in relation to them. In our view, Mr Baker has not established that the discretion exercised by the Commissioner was exercised in an erroneous manner[.] Nor do we consider permission to appeal should be granted arising from the matters otherwise advanced in Mr Baker's case concerning the operation of non-excluded workers' compensation legislation. The Commissioner considered all the statutory criteria relevant to the determination of whether a dismissal is harsh, unjust or unreasonable. It has not been demonstrated that the Commissioner's consideration of the matter or any of his conclusions were erroneous in any way. In our view, the grounds of appeal do not disclose any error in the exercise of the Commissioner's discretion [o]r any other error otherwise. It is not our task to reconsider the questions that arose for determination before the Commissioner in the absence of appealable error. 23 The Full Bench considered that there was no substance in the grounds of appeal and that neither individually nor collectively did the grounds "attract the public interest".

The grounds of the application 24 Mr Baker's application to this Court was originally based on four grounds, only two of which are now pressed. Those two are that the Full Bench erred in law by: (1) failing to properly interpret and apply the provisions of the Workers' Compensation Act and/or those provisions as they applied to Mr Baker's contract of employment with Patrick at the relevant time; and (2) failing to properly apply the public interest test set out in s 400 of the FW Act. 25 The suggested error of law in the interpretation of the Workers' Compensation Act concerns the true construction of s 156B and, in particular, subs (1), which provides: The employer of a worker, or a worker, may apply for an order of an arbitrator requiring the worker to participate in a return to work program. 26 Mr Baker submitted that "may" in s 156B(1) did not confer a discretion on the employer. Rather, he claimed that, when read in its statutory context, the effect of s 156B(1) is that, when there is a dispute between an employer and a worker who is on a return to work program and all other means of resolving the dispute have failed, the employer may only apply for an order referring the matter to an arbitrator. It is not entitled to dismiss the worker. 27 Mr Baker conceded that the decision under appeal to the Full Bench was discretionary and that it could only be successfully challenged on appeal if he could prove that the discretion was not exercised correctly. He also accepted that it was not open to the Full Bench to substitute its own views on the questions the Commissioner was asked to determine absent appealable error. He submitted, however, that: 68. Here the assessment by the Full Bench of the exercise of the first Instance Commissioner's discretion as to the application of the, (non-excluded), Workers Compensation Act; and thereafter wether (sic) that in turn satisfied the threshold public interest test, was a "jurisdictional fact" and thus a condition precedent to the validity of the final decision of the Commission - which is of course not a Court. 69. … [I]f the Full Bench of the Fair Work Commission properly considered the import of the jurisdictional fact of the application of the non-excluded workers compensation legislation the Full Bench would not have misdirected itself and at the very least ought to have granted permission to appeal.

The scope of the Court's powers 28 The Court's jurisdiction to hear the application derives from s 39B(1) of the Judiciary Act 1903 (Cth), which relevantly provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth and s 39B(1A)(c), which provides that the original jurisdiction of the Court includes jurisdiction in any matter arising under any laws made by the Parliament (other than criminal matters). 29 Despite the omission in s 39B(1) of the writ of certiorari, s 23 of the Federal Court of Australia Act 1976 (Cth) gives the Court, in relation to matters in which it has jurisdiction, the power to issue or direct the issue of "writs of such kinds, as the Court thinks appropriate". Moreover, the Full Court has held that, at least in cases which have not been referred to it by the High Court, certiorari is available as a "stand alone" remedy, not merely when ancillary to the relief mentioned in the Judiciary Act: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260; EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8. Accordingly, contrary to the parties' common assumption, at least in the written submissions, provided that an error of law is apparent on the face of the record, certiorari will issue even if the error does not go to jurisdiction. In this case there appears to be no dispute that the record is constituted by the Full Bench decision which incorporates its orders and reasons. 30 Contrary to the assumption inherent in Mr Baker's application, however, the Court has no power to make a finding about whether his dismissal was harsh, unjust or unreasonable or to make orders for reinstatement or damages. If the application were well-founded and the Court were disposed to quash the decision, it could only order that the matter be remitted to the Commission for determination according to law. As it happens, however, the application is not well-founded and none of the orders sought can be made.

No jurisdictional error or error of law on the face of the record 31 The Full Bench was precluded from entertaining the appeal unless it granted permission to appeal and to do that it had to be satisfied that it was in the public interest to do so. Its satisfaction about the issue was therefore a statutory precondition to the grant of permission. But as the Full Court of the ACT Supreme Court recently observed, it is not always a simple matter to decide whether a statutory precondition is a jurisdictional fact: Director of Public Prosecutions for the Australian Capital Territory v Martin (2014) 286 FLR 120; [2014] ACTSC 104 at [255]. Be that as it may, neither the assessment by the Full Bench of the Commissioner's exercise of discretion nor its consideration of the application of the workers' compensation legislation was a jurisdictional fact. 32 In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 ("Plaintiff M70") at [57]-[58] French CJ observed: 57 The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be "a complex of elements". When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself ... 58 The question is one of statutory construction. (Footnotes omitted.) 33 As Buchanan J said in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] the decision as to whether it is in the public interest to grant permission to appeal plainly involves assessment and value judgments on the part of the Full Bench. In O'Sullivan v Farrer (1989) 168 CLR 210 at 216 Mason CJ, Brennan, Dawson and Gaudron JJ said that: the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the [statute] may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view". 34 That is the position here. The existence of the public interest in granting permission to appeal is not a jurisdictional fact to be determined to the satisfaction of this Court. So much was found by the Full Court in Australian Postal Corporation v D'Rozario (2014) 311 ALR 257; [2014] FCAFC 89 at [8] (Besanko J); [47] (Jessup J) and at [95]-[104] (Bromberg J). As Perram J noted in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [147], citing Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, where the task reposed in a decision-maker: … is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision-maker would have power to make its own determination of that matter. 35 His Honour also noted at [147] that: [T]he specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand. 36 Applying those principles in this case, it is highly unlikely that Parliament would have intended that a court engaged in judicial review should decide whether it is, in fact, in the public interest to grant permission for leave to appeal to the Commission. Neither is there any other basis upon which the Court can interfere. The FW Act does not prescribe the considerations that are to inform the satisfaction of the Full Bench. The discretion conferred by s 400(1) is extremely broad. Mr Baker does not suggest that the Full Bench failed to take into account a matter that by reason of the subject matter, scope and purpose of the FW Act it was required to consider or took into account any matter which it was bound to disregard (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39). Nor does he suggest that the decision was so unreasonable that no reasonable decision-maker could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) or that it was otherwise legally unreasonable (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]). Plainly, none of these conclusions is open. The decision of the Full Bench was not arbitrary or capricious or bereft of common sense (Li at [28] per French CJ) and it did not lack "an evident and intelligible justification" (Li at [76] per Hayne, Kiefel and Bell JJ). Nor did the Full Bench misunderstand the nature of its jurisdiction, misconceive its duty or fail to apply itself to the question which s 400(1) of the FW Act prescribes or misunderstand the nature of the opinion it had to form (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31]). The Full Bench understood that it was required to determine whether it was in the public interest to grant permission to appeal and, having heard the argument, decided that the decision of the Commissioner was not affected by appealable error. In those circumstances, its decision that it was not in the public interest to grant permission to appeal is unremarkable. 37 It may be accepted that "the metes and bounds of jurisdictional error" cannot be defined (see Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [71]), but the proposition that the decision in question was infected by jurisdictional error is without foundation. 38 Implicit in Mr Baker's submissions is the notion that in the circumstances of this case the Full Bench was bound to decide that it was in the public interest to grant permission to appeal. That is patently not so. Mr Baker concedes that, in order to succeed, he must show jurisdictional error, for he accepts that there is no non-jurisdictional error of law evident on the face of the record. In these circumstances, it is unnecessary to decide whether the Full Bench erred in its interpretation of s 156B of the Workers' Compensation Act. That is because, if it did err in this regard, that would be an error within jurisdiction. 39 For these reasons, the application must be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.