Fair Work Act 2009

s.604 - Appeal of decision

Electricity Networks Corporation T/A Western Power

Appeal against decision [2022] FWC 1611 of Commissioner Schneider at Perth on 27 June 2022 in matter number U2022/1299 - permission to appeal refused.

[1] This decision concerns an application for permission to appeal by Mr Dinith Jayasundera (the Appellant) against a decision of Commissioner Schneider issued on 27 June 2022 (the Decision).[1] The Decision addressed the Appellant's stay application in the context of him applying to temporarily halt his unfair dismissal application until a judgment was delivered in proceedings before the Supreme Court of Western Australia (Supreme Court).

[2] In his Decision, the Commissioner found that he was not satisfied that he should exercise his discretion to grant a stay and dismissed the Appellant's stay application.

[3] The matter on appeal was listed for permission to appeal only. On 29 July 2022, directions and a notice of listing were issued from the chambers of Vice President Catanzariti, setting the matter down for a hearing on 10 August 2022. Prior to the hearing, the parties provided consent for the matter to be determined on the papers. Based on the materials before the Commission, it appears to us that the appeal can be adequately determined on the papers pursuant to s.607(1).

[4] For the reasons that follow, permission to appeal is refused.

[5] Briefly stated, the Appellant is one of sixteen individuals who have applied to the Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for unfair dismissal remedies (the Unfair Dismissal Applications).[2] The applicants and Electricity Networks Corporation T/A Western Power (the Respondent) have agreed that the Appellant's unfair dismissal application[3] and that of another applicant[4] will be heard and determined as test cases in the Commission.[5]

[6] It is apparent that the reason for the Appellant's dismissal was his purported non-compliance with the Critical Infrastructure Worker (Restrictions on Access) Directions (Critical Infrastructure Directions), which were issued by the Western Australian Chief Health Officer (CHO) on 22 December 2021.[6] The Critical Infrastructure Directions required all critical infrastructure workers (unless they were exempt persons) to be vaccinated against COVID-19 to enter or remain at a critical infrastructure site. It is uncontroversial that the Critical Infrastructure Directions applied to the Respondent and that the Respondent required the Appellant to provide evidence of his vaccination status. The Appellant's letter of termination reveals that having not complied with the Critical Infrastructure Directions, the Appellant was unable to enter or remain at the Respondent's worksite which was essential for him to perform the requirements of his contract of employment.

[7] Whilst pursuing his application for unfair dismissal, the Appellant initiated proceedings in the Supreme Court challenging the validity of those same Critical Infrastructure Directions.

[8] On 5 May 2022, the Appellant's representative filed a Form F48, an application for directions on procedure (the Procedure Application), which requested:

1. a stay of the Applications pending determination of the Supreme Court civil matter 1194/2022 - Jayasundera v Andrew Robertson (Chief Health Officer) (Jayasundera Proceedings), or further order of the Commission; and

2. there be liberty to apply on 48 hours' notice.

[9] The Appellant's case before Commissioner Schneider was that the adjournment of the unfair dismissal hearing was necessary in order to afford the Commission the benefit of the Supreme Court's decision on both the legality of the Critical Infrastructure Directions and the ambit and reach of select provisions of the Public Health Act 2016 (WA) (PH Act) in determining whether or not the Respondent had a valid reason to terminate the Appellant's employment.

[10] The Procedure Application proceeded to a hearing on 9 June 2022, and on 27 June 2022 the Commissioner decided it was not appropriate to stay the matter pending the outcome of the Jayasundera Proceedings.

[11] Subsequent to issuing the Decision, Commissioner Schneider issued directions on 1 July 2022 (the Programming Directions) and a notice of listing that set down the merits hearing for the two test applications on 17 and 18 August 2022. The Programming Directions set out the timeframe for the filing of submissions, witnesses statements, supporting documents and a statement of agreed facts. The Appellant sought a stay of the Programming Directions pending the determination of the appeal, which was refused on 28 July 2022.[7]

The Supreme Court proceedings and the basis of the Unfair Dismissal Applications

[12] Before the Commissioner, the Appellant provided background to the Jayasundera Proceedings and those initiated by a Senior Constable Ben Falconer in the Supreme Court.

[13] Turning to the proceedings initiated by the Senior Constable first. The Appellant submitted that the Senior Constable had initiated two judicial review applications[8] challenging the validity and lawfulness of:

a) the WA Police Force Worker (Restrictions on Access) Directions issued by the CHO on 12 November 2021 (the Police Directions);[9] and

1. an employer direction issued by the Commissioner of the Western Australia Police Force (the Police Commissioner's Direction) (collectively the Falconer Proceedings).

[14] In light of the appeal grounds, it is the latter judicial review application, and its basis, that warrants further description.

[15] In respect of that latter judicial review application, the Senior Constable is said to have contended that the Police Commissioner's Direction was ultra vires because the Police Commissioner was not authorised to make the employer direction under the PH Act and/or the Police Act 1892 (WA) in that:

1. the Commissioner's Direction misconstrues the Public Health Act 2016 (WA) by proceeding on the basis that the WA Police Force Worker (Restrictions on Access) Directions is a valid direction under the Public Health Act 2016 (WA) when it is not for the reasons set out in the Application for Judicial Review in proceedings CIV 2286 of 2021;

2. the Commissioner's Direction misconstrues and goes beyond the terms of the CHO Direction; and/or

3. the Commissioner's Direction is not reasonably appropriate and adapted or proportionate to the implementation of the CHO Direction in its terms; and/or

4. the Commissioner's Direction is not within the scope of authority to give directions conferred on the Commissioner by the Police Act 1892 (WA) or any regulations made thereunder; and/or

5. ss.162 and 202 of the Public Health Act 2016 (WA) constrain section 5 of the Police Act 1982 (WA), such that section 5 of the Police Act 1982 (WA) does not authorise an order which would circumvent the protective provisions of the Public Health Act 2016 (WA).

[16] On 2 March 2022, the Appellant also commenced judicial review proceedings in the Supreme Court challenging the validity and lawfulness of the Critical Infrastructure Directions (which we have termed them Jayasundera Proceedings). The Appellant submits that by 14 March 2022, Allanson J made orders adjourning the Jayasundera Proceedings (together with five (5) other challenges to directions issued by the CHO in different industries), and deferred determination of the Jayasundera Proceedings until the Court had determined the Falconer Proceedings and other proceedings (referred to by the Appellant as the Finlay Proceedings).

[17] The Appellant observes that all of the directions issued by the CHO and under challenge in the Supreme Court, were issued under the PH Act and restricted access to certain workplaces unless individuals had received at least one dose of an approved COVID-19 vaccination by a certain date.

[18] Before the Commissioner, the Appellant submitted that if Allanson J determined that the Police Directions were invalid and unlawful, then it should follow that the same outcome would follow in respect of the Jayasundera Proceedings, and other similar judicial review proceedings.

[19] The Appellant therefore premised his unfair dismissal case, at least in part, on the proposition that if the Police Directions and other directions are declared unlawful, then the Appellant's dismissal was based on an unlawful direction from the CHO, and if such law is invalid, it is not invalid because a Court has declared it to be such but because a 'pretended law made in excess of power is not and never has been a law at all'.[10] In the Appellant's view, this meant that if the Critical Infrastructure Directions were invalid, the Respondent's direction was unreasonable and the dismissal was, therefore, unfair.

[20] The Appellant further contended before the Commissioner:

1. rather than not complying with the requirements of the Critical Infrastructure Directions, as alleged by the Respondent in its notice of termination dated 10 January 2022, the Appellant, in fact, observed and complied with the terms of the Critical Infrastructure Directions by relevantly not presenting to the workplace unvaccinated. Given the Appellant's compliance (and continued compliance) with the Critical Infrastructure Directions, the Appellant's compliance could not then be relied upon by the Respondent as a reason to terminate the Applicant's employment (or to incur any other civil or criminal liability) pursuant to ss.162(3)(b) and 202(3)(b) of the PH Act;

2. that he had sought an undertaking from the Respondent not to dismiss his employment at the time when there was a similar direction to the Critical Infrastructure Directions under direct challenge in the Supreme Court, and whilst the Respondent's Managing Counsel stated to the Appellant's solicitors that he would provide a response to their letter, he failed to do so prior to the Appellant's dismissal, therefore rendering the termination procedure unfair and as such unjust or unreasonable.

[21] In respect of the Procedure Application, the Appellant submitted before the Commissioner that there had not been a Commission decision that had considered an unfair dismissal application in light of the operation of ss.162 and 202 of the PH Act and that this was an issue in the Falconer Proceedings. The Appellant pressed that this reason alone warranted a stay being the preferable course because the Commission would have the benefit of Allanson J's findings on this point of law before determining the merits of the unfair dismissal application.

[22] The Appellant further submitted that the Commission should always attempt to avoid the real potential for inconsistent factual and legal findings where there are related proceedings before the Supreme Court.

[23] In respect of the timeframe of Allanson J delivering a judgment, the Appellant submitted that given the number of relevant judicial review proceedings before the Supreme Court and the public interest associated with them, it was likely that Allanson J would make a decision in the Falconer proceedings as soon as possible after the conclusion of the trial on 13 July 2022. In short, the Appellant also expressed that there would be little, if any, prejudice to the Respondent and that any evidence was limited in scope such that a delay would not cause difficulties.

[24] The Procedure Application was made under s.589(1) of the Act, a section of the Act which permits the Commission to issue procedural decisions as to how, when and where a matter is to be dealt with. The Commissioner identified that it was accepted that the power under s.589(1) extended to the grant of a stay.[11] Thereafter, the Commissioner traversed the statutory framework which spoke to the Commission's exercise of its powers,[12] the performance of its functions,[13] and the objects of Part 3-2.[14] In addition, the Commissioner addressed the authorities which have considered the factors to be taken into account when determining whether it is appropriate to grant an adjournment or stay.

[25] The authorities referred to by the Commissioner included the judgment in S_terling Pharmaceuticals Pty Limited v The Boots Co (Australia) Pty Ltd_ (Sterling Pharmaceuticals)[15] and decisions of the Commission in Bowker v DP World Melbourne Ltd (Bowker),[16] amongst others.

[26] In relation to whether a stay should be granted, the Commissioner observed that the core of the Appellant's argument was whether: (a) the Respondent's direction constituted a lawful and reasonable employment direction; and (b) the subsequent non-compliance with the direction constituted a valid reason for his dismissal. The Commissioner observed that on this basis there was some overlap in the consideration of the applications and a potential outcome in the Jayasundera Proceedings which concerned the legal validity of the Critical Infrastructure Directions.

[27] The Commissioner then concluded that, despite the overlap issue, he was not satisfied that a decision as to the validity or invalidity of the 'directions' in the Falconer Proceedings and the Critical Infrastructure Directions in the Jayasundera Proceedings, were likely to have a substantial effect on the progress of the application to the extent that an adjournment should be granted.

[28] In reaching this conclusion, the Commissioner considered that the issue before him was an unfair dismissal application in contrast to judicial review proceedings before the Supreme Court. The Commissioner observed that the proceedings before the Supreme Court concerned the validity of the 'directions' (in the Falconer Proceedings) and Critical Infrastructure Directions. The Commissioner observed that even if the Critical Infrastructure Directions were found to be valid, it remained that the parties were still required to address whether the dismissal was 'unfair' as understood under the Act, hence requiring the Commission to take into account the specific circumstances surrounding the dismissal, including among other matters the lawfulness and reasonableness of an employer's direction.

[29] The Commissioner further observed that the facts to be determined for the grant of an unfair dismissal remedy are not the same as what needs to be determined by the Supreme Court in judicial review proceedings. The Commissioner identified that the arguments to be advanced in both proceedings were considerably different, arising under two distinctly different pieces of legislation, and would give rise to entirely different potential outcomes.

[30] The Commissioner next considered the implications of delaying the matter, and took into account:

a) that there was no soundly quantifiable timeframe indicating when the Falconer Proceedings would be resolved, let alone the Jayasundera Proceedings;[17]

b) the ability of the parties to adduce evidence and that the granting of certain remedies would be increasingly more difficult over the course of an adjournment;[18]

c) that an adjournment would cause significant obstruction to efficient case management and cause the Respondent prejudice in preparing its defence;[19] and

d) that adjourning to await the outcome of the Jayasundera Proceedings would give rise to a considerable delay and would not align with the Commission exercising its duties in the manner prescribed by the Act.[20]

[31] The Appellant's notice of appeal identifies five grounds of appeal as follows:

1. The Commission erred in fact and law by refusing to order a stay in the proceedings until after a decision is handed down by the Supreme Court of Western Australia in the Jayasundera Proceedings and the Falconer Proceedings where the Commission failed to adequately consider the application of ss.162 and 202 of the Public Health Act 2016 (WA);

2. The Commission erred by not ordering a stay in these proceedings where to do so would mean that the Commission will have the benefit of Justice Allanson's findings on this point of law before making its decision. A failure to order a stay may lead an [sic] inconsistency in decision making between the Fair Work Commission and the Supreme Court of Western Australia.

3. The Commission erred when it followed the decision of Hall v Street Bartholomew's House Inc[21] in circumstances where the applicant, Mr Jayasundera, was in a different position to that of Ms Hall, where the applicant here is actually the applicant before the Supreme Court.

1. The Commission erred when issuing directions on 11 July without adequately considering the Applicant's representative capacity.
2. The Commission erred by placing too much weight on the prejudice to the Respondent when there was no evidence before the Commission to support such finding.

[32] The Appellant's contentions that permission to appeal should be granted can be summarised as follows:

1. The Commissioner did not consider the operation of ss.162 and 202 of the PH Act, focussing only on the arguments regarding the validity of the CHO's direction, therefore failing to take into account a material issue.

2. The Commissioner erred when he failed during his exercise of discretion, to adequately consider what impact ss.162 and 202 of the PH Act would have on the Appellant's unfair dismissal proceedings, particularly that:

   1. the decision in the Falconer and Finlay Proceedings will likely provide the first authoritative decision on the correct operation of ss.162 and 202 PH Act;
   2. the protective provisions in the PH Act are unique to Western Australia and, to date, the Appellant's solicitors have not been able to locate any decisions from the Fair Work Commission, the Western Australian state courts or the Western Australian Industrial Relations Commission that consider these sections; and
   3. ss.162 and 202 of the PH Act have a broad and important application to employers (and employees) in Western Australia. Any employer who has dismissed (or otherwise disciplined) an employee(s) in reliance on a direction issued by the CHO under the PH Act mandating that employees have a COVID-19 vaccination by a certain date, may have done so in the face of the protective provisions in the legislation.

3. the Commissioner incorrectly concluded that the facts to be determined for the grant of an unfair dismissal remedy are not the same as what needs to be determined by the Supreme Court in review proceedings; and

4. the Commissioner also erred when he placed reliance on not knowing (or not being aware of) the potential future programming of the review proceedings in the Supreme Court. The Commissioner knew that the Falconer and Finlay Proceedings had been listed for trial on 13 to 15 July 2022, and that the Jayasundera Proceedings were adjourned awaiting the outcome of the Falconer and Finlay Proceedings.

[33] The Appellant outlined the extreme prejudice he would be subject to if the Full Bench were not to uphold the appeal.

[34] Under s.604(1), an appeal lies to a Full Bench only with permission. In relation to such permission, s.604(2) provides that '[w]ithout 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'. The effect of this provision is that permission must be granted if it is in the public interest to do so but may otherwise be granted on discretionary grounds.

[35] Section 400(1) modifies s.604(2) in relation to a certain category of decisions. It provides:

• (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

[36] "This Part" refers to Part 3-2 of the Act, which is concerned with unfair dismissal. If s.400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.

[37] In this case, the decision and order the subject of the appeal were made in relation to an application made under Part 3-2 but involved the exercise of general powers in s.589(1) which lies outside of Part 3-2. Where the substantive matter concerns an unfair dismissal application under Part 3-2 of the Act, the Federal Court has held that decisions under s.587 ('Dismissing applications') in Part 5-1 attract, on an appeal, the higher threshold of s.400, as they are decisions 'under this Part' within s.400(1) and are decisions 'in relation to a matter arising under this Part' within s.400(2), despite the fact that s.587 is in Part 5-1 of the Act.[22]

[38] Subsequently, the Full Bench of the Commission in Kennedy v Qantas Ground Services Pty Ltd applied the test in s.400 to decisions under s.590 ('Powers of the Commission to inform itself') in relation to unfair dismissal matters.[23] Recently, the Full Bench in Capital Maintenance Solutions v Fraser[24] applied the test in s.400 to appeals involving unfair dismissal applications for interlocutory decisions made under s.589.[25] We have likewise taken that approach.

[39] This test in s.400(1) a stringent one.[26] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[27] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[28] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[29] 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.[30] Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s.400(2)).

[40] From the outset, we observe that the appeal lies against an interlocutory procedural decision of a discretionary nature and as such the Appellant bears the responsibility of showing error in the decision making process.

[41] It is generally accepted that appeal benches should rarely interfere with decisions on matters of practice and procedure such as refusals of adjournments. In Smith v Reward Interiors Pty Ltd,[31] the Full Bench expressed that appeals against interlocutory procedural decisions of a discretionary nature are to be deprecated and will rarely be the subject of the grant of permission to appeal.[32] Similarly, in Galloway v Molina,[33] it was held that decisions on adjournments and the re-opening of cases are within the discretion of the Commission member.[34] Members have some latitude as to the decision to be made and the correctness of the decision can only be challenged by showing error in the decision-making process.

[42] As the decision under appeal is discretionary in nature, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. We note that it is not open for us to substitute our view of the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the Commissioner's original Decision. As the High Court said in House v The King:

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.[35]

[43] Whether to exercise discretion to make a decision with the effect that an application before the Commission would not be dealt with until after judgment is delivered in another jurisdiction, was considered in Bowker.[36] The Deputy President in Bowker considered it appropriate to have regard to the considerations taken into account by courts in considering applications of this kind, a course which we endorse. Reference was made to the judgment in Sterling Pharmaceuticals, in which it was said:

In my opinion relevant consideration is to be taken into account in the present case includes the following:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.

• The law should strive against permitting multiplicity of proceedings in relation to similar issues.[37]

[44] Parties are of course entitled to have their matters arbitrated in the ordinary course of the procedure and business of the Commission. As correctly identified by the Commissioner in the Decision, that ordinary course is one where s.381 of the Act informs that the objects of Part 3-2 include the establishment of procedures that are quick, flexible and informal, and s.577 describes that the performance of the Commission's functions is to be quick, informal and avoid unnecessary technicalities.

[45] It is not an insignificant matter to interfere with the 'ordinary course' by a stay of proceedings. As such, a stay application requires justification on proper grounds and an adjournment should not be lightly entertained. For the following reasons we consider that the Commissioner acted upon correct principles, was not swayed by irrelevant matters and took into account material considerations.

[46] The essence of Ground 1 is that the Commissioner erred in fact and law by failing to adequately consider the application of ss 162 and 202 of the PH Act in determining whether to grant a stay. Evidently, the Appellant's argument is one which is open to be characterised as a failure to provide adequate reasons for the decision.

[47] In Soliman v University of Technology, Sydney,[38] the Full Court of the Federal Court considered a dispute under an agreement (s.709 of the Act) and the adequacy of reasons provided. Having regard to that court's decision the following propositions can be drawn from its judgment:

a) where findings of fact and reasons have been provided, and where those reasons fail to address a submission which has been advanced, a conclusion that that submission has not been considered or addressed may be founded.[39]

b) such a conclusion may be available where there is a statutory requirement to provide findings and reasons.[40]

c) a failure to mention a particular matter may support a conclusion that that matter was not in fact considered, or may allow an inference to be drawn that the matter was not taken into account.[41]

d) even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission was not taken into account.[42]

[48] In the proceedings before the Commissioner, the Appellant submitted that he had complied with the Critical Infrastructure Directions by not presenting to the workplace unvaccinated and given his compliance, that compliance could not be relied upon by the Respondent as a reason to terminate his employment pursuant to ss.162(3)(b) and 202(3)(b) of the PH Act. The Appellant added:

From a review of recent authorities, to date no Commission decision considering the dismissal of an employee who was not vaccinated, and, as such, was required to attend his or her workplace because of WA Government mandate, has considered the application of sections 162 and 202 of the PH Act. Importantly, this is a matter in issue in the Falconer Proceedings. For this reason alone a stay is the preferable course, so the Commission will have the benefit of Justice Allanson's findings on this point of law before deciding the merits of the unfair dismissal application.[43]

[49] In the Decision, the Commissioner, while not expressly referring to ss.162 and 202 of the PH Act, spoke to the differences between the unfair dismissal application and the justiciable issues in the Jayasundera Proceedings, stating:

In relation to allowing multiplicity of proceedings regarding similar issues, the Commission notes that the Jayasundera Proceedings and the Applications seek to determine considerably different disputes. The facts to be determined for the grant of an unfair dismissal remedy are not the same as what needs to be determined by the Supreme Court in review proceedings. The arguments to be advanced in both proceedings are considerably different, arise under two distinctly different pieces of legislation, and give rise to entirely different potential outcomes. As highlighted by the Respondent, it is not yet known the depth of individual issues that may be raised by each of the sixteen Applicants. The issues before the Supreme Court and the Commission, even in their current form, are not substantially the same.[44]

[50] Furthermore, the Commissioner specifically took into account that the Falconer Proceedings were not limited to one application but consisted of two applications made by Senior Constable Falconer.[45] Those two applications have been referred to at paragraph [13] of our reasons, where the latter judicial review application made by the Senior Constable was said to have contended that the Police Commissioner's Direction was ultra vires because the Police Commissioner was not authorised to make the Employer Direction under the PH Act in that:

ss.162 and 202 of the Public Health Act 2016 (WA) constrain section 5 of the Police Act 1982 (WA), such that section 5 of the Police Act 1982 (WA) does not authorise an order which would circumvent the protective provisions of the Public Health Act 2016 (WA).

[51] In our view, the express reference in the Decision to the Falconer Proceedings and those proceedings consisting of two judicial review applications, shows that the Commissioner took into account those judicial review proceedings in determining whether or not to grant a stay. In addition, it was clear that the Commissioner had turned his mind to the potential outcomes of the Falconer Proceedings (and thereafter the Jayasundera Proceedings), and the relevance of those potential outcomes in the determination of the unfair dismissal application.[46]

[52] Even if it were the case that the Commissioner had not had regard to the Appellant's contention regarding the operation of ss.162 and 202 of the PH Act and the potential for revelatory 'findings' to be made by Allanson J in the Falconer Proceedings, we consider that the Appellant's submission was not material to the stay application before the Commissioner.

[53] The Appellant's proposition to the Commissioner was that 'the preferable course' was to stay the proceedings pending Allanson J's findings on 'this point of law'. It is to be assumed that 'this point of law' referred to the Falconer Proceedings and concerned the operation of ss.162 and 202 of the PH Act. It would appear on the face of the materials filed that the focus of the judicial review proceedings[47] in respect of ss.162 and 202 of the PH Act, have no semblance of bearing on the factors that the Commissioner is to take into account under s.387 of the Act, including s.387(a).

[54] In our view, the legal and factual issues the Commissioner will contend with when determining the unfair dismissal application do not to any extent depend on what the Supreme Court may or may not determine in the context of the Falconer Proceedings.

[55] When determining if a dismissal is unfair, the Commission must take into account whether there was a valid reason for dismissal relating to the employee's capacity or conduct.[48] On this point it is not the Commission's function to stand in the shoes of the employer and determine whether the decision made by the employer was a decision that would be made by the Commission, instead, the Commission is to assess whether the employer had a valid reason connected with the employee's capacity or conduct.[49] In making that assessment, the Commission considers the facts and law that had bearing at that time, which were those known to the employee and employer, or could be taken to have been known. Of course, this does not in turn preclude an employer relying upon evidence that comes to light about an employee's conduct whilst employed, post dismissal.

[56] The questions before the Supreme Court of illegality and ultra vires are completely distinct from the question of whether a dismissal is unfair or fair, as the case may be. The considerations in an unfair dismissal application, such as those set out in s.387, are different enquiries unconnected with the matters under judicial review in the Falconer Proceedings. On this point we would go as far to say that the justiciable issue regarding ss.162 and 202 of the PH Act in the Falconer Proceedings is inutile to that before the Commissioner. Hence, if the Commissioner did fail to adequately consider the application of ss.162 and 202 of the PH Act by referring to such in his Decision, the inference is open that his inattention to those particular sections, and the judicial review proceedings, was because of their irrelevance.

[57] We intend to deal with the remaining grounds of appeal by making the following points.

[58] Ground 2 expresses the Appellant's dissatisfaction with the Commissioner's decision and discloses no error of law.

[59] Ground 3 is misconceived insofar as it suggests that the Commissioner followed the decision of Hall v Street Bartholomew's House Inc (Hall)[50] in circumstances where the Appellant was in a different position to that of Ms Hall.

[60] First, the Commissioner did not follow the decision in Hall but echoed an observation that the directions issued by the CHO under the PH Act had no bearing to the application before him.[51] Second, whilst citing the decision of Hall at paragraph [40] of his Decision, the Commissioner referred to general proposition regarding unfair dismissal applications being dealt with expeditiously and the reasons why - such observations are uncontentious and again reveal no error in law. Third, the Commissioner identified that the application for directions in Hall was not made on identical grounds as before the Commissioner. Evidently, the Commissioner was alive to the point that the circumstances of the applicant in Hall differed to those confronted by the Appellant.

[61] Ground 4 set out that the Commission erred when issuing the Programming Directions on 11 July 2022 by inadequately considering the Applicant's representative capacity. On this point, we would agree with the Deputy President's observations in Jayasundera v Electricity Networks Corporation (Jayasundera).[52]

[62] Jayasundera concerned the determination of a stay application with respect to the Programming Directions that the Commissioner had issued on 11 July 2022. Having traversed the statutory framework for the granting of a stay (see s.606(1)), the Deputy President observed that she was not persuaded that the Programming Directions constituted a 'decision' or for that matter an 'order' for the purpose of s.606(1) of the Act.

[63] The power to grant a stay pending the hearing and determination of an appeal lodged

under s.604 is contained in s.606(1), which relevantly provides:

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

[64] Section 604 of the Act, as referred to in s.606(1), sets out:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made under the Registered Organisations Act by:

(i) the General Manager (including a delegate of the General Manager); or

(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);

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).

(3) A person may appeal the decision by applying to the FWC.

[65] The Appellant filed a Form F7 Notice of Appeal and identified that the date of the decision was 27 June 2022, and that the decision was that of the Commissioner in matter number U2022/1299.

[66] In Jayasundera, the Deputy President observed at paragraphs [28], [29] and [55]:

Based on the submissions, I accept that the Commissioner's decision to decline the stay sought in respect of the Appellant's unfair dismissal application (the Decision) may constitute a procedural decision made under s 589(1) of the Act given it determined 'when' the matter was to be dealt with to the extent that the Commissioner determined that the balance of consideration did not weigh in favour of staying the unfair dismissal application.

The difficulty however is that I am not persuaded that Programming Directions constitute a 'decision' or for that matter an 'order' for the purpose of s 606(1) of the Act. Those Programming Directions are as the name suggests - 'directions'. Further, they were made subsequent to the Decision having been handed down as is evident in paragraph [45] of the Decision, which informed the parties:

The parties will be contacted by Chambers in due course regarding the future programming of the Applications.

In my view it follows that s 606(1) does not provide the Commission with power to grant a stay of the Programming Directions under s 606(1), a proposition that has similarly been canvassed in Collinsville[53] and Every Day[54].

[67] Evident in the Deputy President's reasons was that she did not consider that the Programming Directions constituted a 'decision' as that term is understood by reference to s.606(1) of the Act. There is an obvious interdependence between s.606(1) and s.604 of the Act, such that s.606(1) only operates where the Commission hears an appeal from, or conducts a review of, a 'decision', where the application has been made under ss.604 or 605.

[68] As to what constitutes a decision, subdivision D of Part 5-1 illuminates this somewhat. Section 598(1) of the Act provides that '[a] reference in this Part to a decision of the FWC includes any decision of the FWC however described...'. The 'Note' following s 598(1) lists examples of decisions that the Commission makes, including 'how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals'. However, it is to be appreciated that the 'Note' does not form part of the Act,[55] and the Programming Directions did not in and of themselves disclose how, when and where the matter was to be dealt with. The issue before us does not require a definitive answer on this point, but we consider the preferable view is that the Programming Directions were not a 'decision' for the purpose of s.604.

[69] The decision subject to the appeal was the Decision made by the Commissioner on 27 June 2022 (the Decision). Assuming that the Programming Directions constituted a 'decision', and we should again reiterate we are not persuaded that they were, it remains that those Programming Directions were not the decision under appeal, as is readily perceptible from the Form F7 Notice of Appeal. For this reason alone, the ground of appeal cannot be sustained.

[70] The Appellant's final ground of appeal was that the Commissioner erred by placing too much weight on the prejudice to the Respondent when there was no evidence before the Commission to support such finding. In his submissions, the Appellant referred to the Commissioner's conclusion that 'the ability of the parties to adduce evidence...will become increasingly more difficult over the course of an adjournment'.[56]

[71] At paragraph [43] of the Decision, the Commissioner observed that a further delay in the uncovering of issues specific to each of the applicants presented a significant detriment to the Respondent adducing relevant evidence in rebuttal. It is to be understood that the proceedings before the Commissioner involve two test cases, but in total there are 16 applicants. At the hearing before the Commissioner, the Respondent pressed that certain applicants were intending to assert special circumstances which had not been elucidated, and that the Appellant's suggestion that the Respondent take proofs of evidence, begged the question of 'what do we take of proof of evidence in respect of?'[57] The Respondent submitted to the effect that the parameters of each of the applicants' cases were unable to be ascertained, and questioned how taking a proof would remove any prejudice, noting a suggestion that had been made by the Appellant to ameliorate any prejudice. It was in this context that the Respondent spoke to the loss or degradation of evidence[58] and the wait which would ensue whilst the judicial review applications moved through the Supreme Court, which themselves could potentially be the subjects of further appeals.

[72] Understood in this context, the Commissioner's observations or findings were not misplaced in light of the oral and written submissions of the parties. Further, they did not demonstrate any appealable error. Briefly stated, there is no issue of general application arising from these findings, and no issue of public interest.

[73] The basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the stay application. The correct legal principles were applied and no significant error of fact has been disclosed.

[74] We do not believe that, individually or collectively, the grounds upon which permission to appeal is sought attract the public interest. We therefore decline to grant permission to appeal and dismiss the application for permission to appeal.

[1] Cappeau v Electricity Networks Corporation [2022] FWC 1611, [1] ('Decision').

[2] U2022/1288, U2022/1289, U2022/1290, U2022/1291, U2022/1292, U2022/1293, U2022/1294, U2022/1295, U2022/1296, U2022/1297, U2022/1298, U2022/1299, U2022/1300, U2022/1301, U2022/1302, and U2022/1365.

[6] Chief Health Officer (WA), Critical Infrastructure Worker (Restrictions on Access) Directions (22 December 2021).

[7] Jayasundera v Electricity Networks Corporation [2022] FWC 1953 ('Jayasundera').

[8] Falconer v Chief Health Officer (CIV 2286/2021); Falconer v Commissioner of Police (CIV 2308/2021).

[9] Chief Health Officer (WA), WA Police Force Worker (Restrictions on Access) Directions (12 November 2021).

[10] South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373, 408 (Latham CJ).

[11] Bowker v DP World Melbourne Limited [2014] FWC 7326, [4] ('Bowker').

[12] Fair Work Act 2009 (Cth) s.578.

[13] Ibid s.577.

[14] Ibid s.381.

[15] (1992) 34 FCR 287 ('Sterling Pharmaceuticals').

[21] [2022] FWC 591 ('Hall').

[22] Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126, 134 [37].

[23] [2018] FWCFB 4552.

[24] [2022] FWCFB 8.

[25] Bwalya v Newcrest Mining Ltd [2022] FWCFB 41, [16].

[26] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78, 90 [43] (Buchanan J, Marshall J agreeing at 79 [1], Cowdroy J agreeing at 80 [2]) ('Lawler').

[27] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216-17 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 548 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); ibid 90 [44] - [46] (Buchanan J, Marshall J agreeing at 79 [1], Cowdroy J agreeing at 80 [2]).

[28] GlaxoSmithKline Australia Pty Ltd v Makin (2011) 197 IR 266, 274 [27].

[29] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481, 489 [30].

[30] Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089; (2010) 202 IR 388, 396 [28], affd Lawler (n 26); NSW Bar Association v McAuliffe [2014] FWCFB 1663; (2014) 241 IR 177, 188 [28].

[31] [2021] FWCFB 6031.

[33] [2021] FWCFB 5419; (2021) 310 IR 151.

[35] (1936) 55 CLR 499. 504-5 (Dixon, Evatt and McTiernan JJ).

[37] Sterling Pharmaceuticals (n 15) 291.

[38] [2012] FCAFC 146; (2012) 207 FCR 277.

[43] Dinith Jayasundera, 'Applicant's Outline of Submissions in Support of his Application to Stay/Adjourn These and Other Proceedings Pending Determination in Supreme Court of Western Australia Proceedings', Submission in Jayasundera v Electricity Networks Corporation, U2022/1299, 20 May 2022, [15].

[47] Falconer v Commissioner of Police (CIV 2308/2021).

[48] Fair Work Act 2009 (Cth) s.387(a).

[49] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[53] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276, [11].

[54] Creative Every Day Pty Ltd v Leung [2019] FWC 4949.

[55] Acts Interpretation Act 1901 (Cth) s.13; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; (2017) 273 IR 44.

[56] Dinith Jayasundera, 'Applicant's Outline of Submissions for Appeal', Submission in Jayasundera v Electricity Networks Corporation, U2022/1299, 20 May 2022, [41]; Decision (n 1) [43].

[57] Transcript of Proceedings (Fair Work Commission, U2022/1299, Commissioner Schneider, 9 June 2022) [PN64].

Printed by authority of the Commonwealth Government Printer