Cook v Australian Postal Corporation

THE ERRORS RELIED UPON 54 In seeking to challenge the decision of both the Commissioner and the decision of the Full Bench, reliance was placed by Counsel for Mr Cook upon the provisions of the Fair Work Act in Pt 3-2 and Pt 6-4 and the reasons provided by both the Commissioner and the Full Bench. 55 Leaving aside for present purposes any argument as to the Constitutional validity of Pt 3-2 of the Fair Work Act, the errors otherwise relied upon by Mr Cook before this Court in seeking to impugn the decisions of both the Commissioner and the Full Bench were helpfully summarised during the course of oral submissions as being: a failure to consider the prohibition imposed by s 772(1)(d) and/or (e) of the Fair Work Act when making a decision as to whether the termination of Mr Cook's employment was "unfair" within the meaning of and for the purposes of s 385 and when making an order under s 390; a denial of procedural fairness by reason of the acceptance of the argument advanced on behalf of Australia Post and the failure to consider Mr Cook's submissions as to the necessity to consider s 772; the failure to consider, when determining the unfair dismissal application, a "mandatory relevant consideration" - namely the prohibition imposed by s 772(1)(d) and/or (e); and an erroneous construction of s 390(1) when declining to order reinstatement - the erroneous construction being said to be a failure to consider the "primacy" of ordering "reinstatement" and an approach whereby reinstatement was seen by the Commissioner to be but an alternative to compensation. A further error relied upon by Counsel for Mr Cook, albeit not an error identified as such at the outset of his oral submissions, was an error committed by the Commissioner in respect to: the order that Mr Cook not be reinstated. 56 In summarising these arguments, there was (with respect) a disturbing fluctuation in the manner in which reliance was sought to be placed upon s 772. That fluctuation varied from a submission that the reasons for termination of Mr Cook's employment fell foul of s 772 to a submission that Mr Cook's conduct was "nothing more than what is accepted by the Parliament as legitimate at s 772(1)(d) and (e)". The latter variation, of course, does considerable damage to the text of s 772 - that section being a prohibition upon an employer terminating an employee's employment for any one or other of the reasons there identified; the section does not set any standard as to what may be "accepted" conduct on the part of an employee. But such fluctuations in the way in which Counsel for the Applicant advanced his argument may be left to one side. The substance of his argument was understood to be that ss 772 and 773 were of assistance in some way to resolving a claim of unfair dismissal. 57 It is concluded that none of these errors relied upon have been made out. It thus matters not whether any of the errors relied upon be characterised as errors of law on the face of the record or jurisdictional error. 58 Neither the Commissioner nor the Full Bench were required to give consideration to s 772 or, more widely expressed, give consideration to whether Mr Cook's employment had been terminated because he was acting as "a representative of employees" (s 772(1)(d)) or had "fil[ed] … a complaint … against an employer" (s 772(1)(e)). 59 This conclusion has been reached primarily because: there was nothing in the reasons for dismissal as set forth in the letter dated 17 December 2015 which called for any consideration to be given to any question as to whether there had been a contravention of s 772(1)(d) and/or (e); and the Unfair Dismissal Application filed with the Commission on 18 December 2015 was an application confined to seeking relief in respect to unfair dismissal and could neither be construed as an application seeking relief in respect of an unlawful termination FWC application in contravention of s 772 nor capable of being entertained by the Commission as such an application contemporaneously with the unfair dismissal application. 60 More broadly expressed, this conclusion has been reached because: when considering an application for unfair dismissal, the "criteria" to be applied are those set forth in s 387 and the existence of any "reason" for termination which may render the termination in contravention of s 772 is not a consideration which the Commission is "bound" to take into account; or, as a matter of fact: the reasons for decision of the Commissioner expose consideration being given to Mr Cook's acting as "a representative of employees" (s 772(1)(d)) and the conclusion reached that that was not what made his conduct "serious and wilful misconduct". There is, finally, no error exposed in the decision of the Commissioner in respect to: the exercise of the discretion not to order reinstatement. There is, in the challenge made to the decision of the Full Bench, a further difficulty, namely that the function entrusted to the Full Bench pursuant to s 400 was the exercise of a statutory discretion and no error of the kind described in House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ has been made out.

The reasons for dismissal & the application made 61 The reasons for dismissal dated 17 December 2015 set forth the seven Allegations made by Australia Post against Mr Cook and the conclusion that his "conduct in relation to the seven matters identified … constitutes serious and wilful misconduct". 62 There is nothing in that letter or the Allegations made that suggests that Mr Cook's employment was terminated for either of the reasons identified in s 772(1)(d) or (e). In particular, when making reference in the fifth Allegation to the fact that Mr Cook had "[r]epresented an employee", the substance of the complaint was thereafter identified as being a "fail[ure] to discharge [his] responsibilities". And, when making reference in Allegation 7 to Mr Cook having acted as an "employee representative", the substance of that Allegation was that he had been paid for doing so and that he had again therefore "failed to discharge [his] responsibilities". 63 The Allegations made against Mr Cook, and which formed the basis upon which he was dismissed, ultimately centred in substance upon his failure to discharge his responsibilities as an employee and the position of conflict in which he placed himself by receiving payment for the services he performed on behalf of other employees rather than the fact that he had acted as an "employee representative". 64 It was in respect to this decision taken on 17 December 2015 that Mr Cook filed the Unfair Dismissal Application on 18 December 2015. 65 And there is nothing in the form of that application which suggested that Mr Cook was then contending anything other than that his dismissal was unfair. There is nothing in the form of that application which called for any consideration to be given to any question as to whether his employment had been terminated in contravention of s 772. Notwithstanding the reliance sought to be placed by Counsel on behalf of Mr Cook upon the hand-written reasons in Pt 3.2 of the application form, there is nothing in those hand-written reasons to call for any consideration to be given to whether there was any "reason" for termination which could potentially fall within s 772. Mr Cook did not assert either in his form of application or in his submissions to the Commissioner any contravention of s 772(1)(d) or (e). Neither the undated submissions nor the "Closing Submissions" can be construed as raising any question as to whether there had been a contravention of s 772. The highest that those submissions can be construed is that Mr Cook was asserting an entitlement to represent employees.

An inability to entertain an application under s 773 66 Even if these conclusions be incorrect, and it be concluded that an application was in fact being made by Mr Cook for the Commission to resolve a complaint that his employment had been terminated in contravention of s 772, the Commissioner could not entertain that application as part of the unfair dismissal application. 67 The inability to do so arises from the fact that: section 725 and the "[g]eneral rule" against "[m]ultiple actions" applied because Mr Cook had in fact made an unfair dismissal application and could not also make an "unlawful termination FWC application"; and there had in any event been: a failure to make any such application within the 21 days permitted (s 774), an absence of payment of the requisite application fee (s 775) and an absence of any certificate having been issued (s 776).

The relevance of prohibited reasons to unfair dismissal determinations 68 Separate from any consideration as to whether Ch 6 and (in particular) whether ss 772 and 773 provide a remedy for an employee whose employment has come to an end as an alternative to the remedy provided by Pt 3-2, it is further concluded that any consideration as to any reason for the termination of employment that may otherwise fall within s 772 is not a relevant consideration that must be taken into account when making a determination as to whether there has been an unfair dismissal. 69 This conclusion is founded upon an interpretation of s 387 informed as it is by reference to the object of the Fair Work Act as set forth in s 3 and, more particularly, the object to Pt 3-2 as set forth in s 381 and the terms of s 387 itself. 70 It was common ground that an identification of the considerations which a decision-maker is "bound" to take into account are to be determined by reference to the following observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 41: The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. … Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. … (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. … (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". (Citations omitted.) Although these observations were made in the context of reviewing a decision made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), they are of general application and have been applied (accordingly) in many diverse statutory contexts including the Fair Work Act: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126 at [38], (2015) 233 FCR 301 at 312 per Jessup, Tracey and Reeves JJ; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169 at [68], (2016) 247 FCR 138 at 152 per Barker, Rangiah and Wigney JJ. 71 The "relevant consideration" which Mr Cook submitted the Commissioner was "bound" to take into account was not expressed with any degree of clarity. It was understood to be either the "general principles as to what are not valid reasons for dismissal" or the "protections advanced by the Applicant as applicable thereto by s 772(1)(d) and (e)". It could, potentially at least, have been framed more broadly and in terms of the entitlement - or, at least, an ability - of a person to (for example) act as a "representative of employees" or to make a "complaint … against an employer". A potential variant of the submission, but one not expressly advanced in the present proceeding, was that the pursuit of a reason proscribed by s 772(1) may render a dismissal "unreasonable" for the purposes of s 387. 72 However expressed, the argument is rejected. 73 Confronted with an application made "in accordance with Part 3-2" of the Fair Work Act seeking a remedy for unfair dismissal, the task of the Commission was to resolve that application in accordance with the criteria set forth in s 387. It was no part of the task entrusted to the Commission when resolving such an application to take into account when determining whether a dismissal had been unfair any unexpressed question as to whether a "reason" may have existed which would have prohibited the termination of employment in contravention of s 772. For the purposes of resolving the Pt 3-2 application, the Commission was to apply the terms of s 387 and not the terms of s 772. 74 In circumstances where facts may clearly emerge that an employee is also seeking to advance a claim for unlawful termination, it may nevertheless be appropriate for the Commission to give consideration to whether it should adjourn the Pt 3-2 application in order for an application to be made pursuant to s 773. But that is not this case and is a separate question. 75 Section 387(h), namely the licence for the Commission to consider "any other matters that the [Commission] considers relevant", is a licence to consider "any other matter" that may render the dismissal unfair as opposed to the termination of employment for a proscribed "reason". 76 The statutory scheme whereby an employee is faced with an election to either seek a remedy for unfair dismissal pursuant to Pt 3-2 or a remedy to resolve a dispute pursuant to Pt 6-4 (and the inability to pursue both remedies concurrently in contravention of s 725) supports a conclusion that the regime provided for in Pt 3-2 stands separate and apart from that provided for in Pt 6-4. It would considerably undermine the legislative insistence upon an employee making an election if an employee were to be permitted to merge the considerations of relevance to the pursuit of one remedy with the considerations of relevance to the other. 77 Even more broadly expressed, there is no statutory requirement which compels the Commissioner when considering a Pt 3-2 application to give consideration to the circumstances in which an employee may act as "a representative of employees". 78 There is nothing in the terms of s 387 which requires matters of relevance to the pursuit of an application under s 773 to be necessarily taken into account. To employ the language of Mason J in Peko-Wallsend, the Commission when considering an unfair dismissal application is not "bound" to take into account matters of relevance to an application under s 773. Any consideration of matters of relevance to a s 773 application, moreover, may also render more complex, and undermine the informality of, an unfair dismissal application and run contrary to the objects of Pt 3-2 as set forth in s 381.

The consideration in fact given to Mr Cook as an employee representative 79 Even if it be assumed, contrary to the conclusions in fact reached, that the Commissioner could consider - and was required to consider - any entitlement on the part of Mr Cook to act as "a representative of employees", the Commissioner did in fact take such matters into account. 80 So much appears from (inter alia) paras [56] and [57] and the Commissioner's: acceptance of the fact that the "role of a workplace representative is often difficult as it frequently involves direct challenge to the representative's own employer"; and acceptance that "the employer had, quite correctly, recognised the workplace representative role of the applicant, and generally afforded him the appropriate accommodations and protections". 81 Contrary to the submissions advanced on behalf of Mr Cook, the Commissioner did in fact have regard to the representative role being undertaken. The Commissioner's reasons for decision, with respect, make it manifestly apparent that the conduct which justified the dismissal of Mr Cook was not his representative activities but rather the fact (inter alia) that: Mr Cook was being paid for providing such services such that it "represent[ed] a conflict of interest of such a serious nature that it jeopardised the applicant's employment" (at para [55]); and "the applicant had obtained secondary employment, the purpose of which was directly inimical to the interests of the employer" (at para [58]). 82 Falling outside the errors identified at the outset of the hearing, but nevertheless an argument apparently pressed in the written submissions, was an argument advanced on behalf of Mr Cook that the Commissioner further erred in concluding (at para [72]) that the receipt of payment for the representative services offered by Mr Cook was "of itself" sufficient to justify his dismissal. The Commissioner had earlier characterised Mr Cook's involvement as "secondary employment" (at para [58]). In challenging these conclusions, the argument was (in part) that the conclusions "erroneously implie[d] he was employed by ELISA which is inconsistent with the Applicant's status as its director". It was further argued that the conclusions were inconsistent with "the evidence [that] he did not receive a wage or a fee but rather without any assertion by Australia Post or proof of a contract of employment between Mr Cook and ELISA was reimbursed for expenses like a shop steward or union official". This further argument, with respect, cavils more with the manner in which the Commissioner expressed his reasons than with the substance of the findings made. The concern of the Commissioner, as was repeatedly stated, was that Mr Cook had placed himself in a position of conflict. This argument is also thus rejected.

The exercise of the discretion to order reinstatement 83 The final error relied upon by Counsel for Mr Cook as a reason for setting aside the decision of the Commissioner is said to emerge from paras [75] to [77] of the reasons for decision. 84 The reasoning of the Commissioner, so it was submitted, failed to recognise what was characterised as the "primacy" of making an order for reinstatement as opposed to ordering compensation. The error, so the submission ran, was that the Commission adopted an "either/or approach" - namely, that Mr Cook was entitled to either reinstatement or compensation. To so reason, it was submitted, failed to recognise that s 390(3) provided that compensation was not to be ordered unless the Commission was satisfied that "reinstatement … is inappropriate". 85 That submission is rejected. The submission misconstrues the reasoning in fact pursued by the Commissioner. The Commissioner did in fact give consideration to whether an order for reinstatement was "appropriate" and concluded otherwise. The employer, so it was concluded, had a "proper basis upon which [it] would have legitimately lost trust and confidence" in Mr Cook: at para [75].

The decisions of the Commissioner & the Full Bench 86 The errors advanced for resolution in this Court were relied upon as vitiating both the decision of the Commissioner and the refusal by the Full Bench of permission to appeal. 87 When the challenge was more directly targeted upon the Full Bench, the challenge was made to para [18] of its reasons for decision. The Full Bench concluded that "the Commissioner did not directly deal with the submissions the parties made" in relation to ss 772(1)(d) and (e) but also the Full Bench "did not consider it was necessary for him to do so". Counsel on behalf of Mr Cook submitted to the contrary. That submission, as with the like submission directed to the decision of the Commissioner, is rejected. 88 Given the application that was before the Commissioner, namely an application for unfair dismissal, the Full Bench was correct in concluding that it was not "necessary" for the Commissioner to deal with the submissions. 89 Given both the reasons for decision of the Commissioner and Mr Cook's Outline of Submissions to the Full Bench and the submissions made (in particular) in respect to what were there described as "Public Interest Consideration", it was open to the Full Bench to be "not satisfied that it would be in the public interest to grant permission to appeal" (at para [21]). 90 In so concluding, the Full Bench was exercising a discretion. In order to challenge that exercise of discretion, it was necessary to establish an error of the kind described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 to 505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Counsel for Mr Cook failed to identify any error of the kind described by their Honours.

THE CONSTITUTIONAL VALIDITY OF PART 3-2 91 The two principal arguments advanced on behalf of Mr Cook were that: as a matter of statutory construction, the prohibition imposed by s 772 was a matter that necessarily had to be considered when determining whether a dismissal had been "unfair"; and Part 3-2, upon the approach pursued by Australia Post, was beyond the legislative competence of the Commonwealth legislature. The former argument - albeit developed in a number of different ways - has been rejected. It is the latter argument which now needs to be resolved. 92 The argument as to the invalidity of Pt 3-2 of the Fair Work Act as expressed on behalf of Mr Cook (without alteration) was that Pt 3-2 "is invalid to the extent that its terms operation or effect restricts the constitutionally protected freedom of which it forms as aspect or part". In further written submissions handed up during the course of the hearing, the submission was expressed as follows: As such the Respondent's submission fails to have regard to the principle of legality relevant to the construction of a statute protecting fundamental rights with respect to dismissal from employment being freedom of association and that freedom as a corollary of the constitutionally protected freedom of political communication, because nothing in the terms of Pt 3-2 or Pt 6-4 with that necessary clarity that admits of no doubt excludes the operation of the substantive rights conferred by s 772(1): Electrolux Home Products Pty Ltd v AWU [2004] HCA 40; 221 CLR 309 at [19]-[21] per Gleeson CJ; Some considerable difficulty has been experienced in understanding this submission 93 Reliance is placed upon (inter alia) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 94 An apparent irony confronting Mr Cook in respect to this part of his argument is that he seeks to strike down as unconstitutional the very statutory provisions which he expressly sought to invoke when making his claim for unfair dismissal pursuant to Pt 3-2. 95 Notwithstanding the irony confronting Mr Cook, he nevertheless pressed a submission that if Pt 3-2 does not involve any consideration being given to the prohibitions upon dismissal when making a decision as to whether a dismissal has been "unfair", or any consideration of those factors which may make a termination wrongful, then Pt 3-2 is beyond the legislative competence of the Commonwealth Legislature. In such circumstances, it is said that Pt 3-2 should be read as subject to "an exception for freedom of association as a corollary of the freedom of communication". 96 The argument is rejected for either of two reasons. 97 First, there is no Constitutionally protected "free-standing" right of association: Tajjour v State of New South Wales [2014] HCA 35, (2014) 254 CLR 508 at 566. Hayne J there summarised the authorities as follows: [95] This court has held, more than once, that no "free-standing" right of association is to be implied from the Constitution. That is, "[a]ny freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply". The authorities to which his Honour there referred in the footnotes were Mulholland v Australian Electoral Commission [2004] HCA 41, (2004) 220 CLR 181 and Wainohu v State of New South Wales [2011] HCA 24, (2011) 243 CLR 181. In also referring to Mulholland and Wainohu, Keane J endorsed the view previously expressed in Wainohu [2011] HCA 24 at [112], (2011) 243 CLR at 230 per Heydon J that: Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication. See: [2014] HCA 35 at [243] to [244], (2014) 254 CLR at 605 to 606. 98 Second, Pt 3-2 in any event has no impact upon any freedom of association. Mr Cook remains free, as the Commissioner recognised, to act as "a representative of employees". That which characterised his conduct as "serious misconduct" was his placing himself in a position of conflict. 99 In so concluding, it must be recognised that it is no more the practice of this Court than that of the High Court to "decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties": Lambert v Weichelt (1954) 28 ALJ 282 at 283 per Dixon CJ. See also: Knight v The State of Victoria [2017] HCA 29 at [32], (2017) 345 ALR 560 per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. 100 The latter of the two reasons relied upon is sufficient to dispose of Mr Cook's challenge to the constitutionality of Pt 3-2. No further consideration of the argument is appropriate. The argument, with respect, is specious.

CONCLUSIONS 101 The proceeding is dismissed. 102 No error has been exposed in the reasoning of the Commissioner, be the error characterised as either an error of law or a jurisdictional error. 103 Nor has any error been exposed in the reasoning of the Full Bench or, in particular, the exercise of the discretion conferred by s 400 to refuse to grant permission to appeal. 104 Senior Counsel for Australia Post at the conclusion of the hearing sought an opportunity to make submissions as to the appropriate order to be made (if any) in respect to costs. The deferral of the question as to costs is appropriate, especially given the fact that a hearing otherwise set down on 20 July 2017 was adjourned as a consequence of the failure of the Applicant to comply with orders relating to the preparation of the proceeding for hearing. 105 The matter is, accordingly, stood over to 9.30am on 6 March 2018 for the hearing of submissions as to costs. Subject only to the order to be made as to costs (if any) the proceeding should otherwise be dismissed.

The orders of the court are:

1. Subject to Order 2, the proceeding is dismissed.
2. The proceeding is stood over for hearing of submissions as to costs on 6 March 2018 at 9.30am. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.