Fair Work Act 2009

s.604 - Appeal of decision

University of New South Wales (UNSW); Lucian Hiss; Phil Allen; Karen Scott

Appeal against decision [2019] FWC 5278 of Deputy President Sams at Sydney on 26 July 2019 in matter number AB2018/637.

[1] By a notice of appeal dated 21 August 2019, Dr Krcho applies pursuant to s.604(1) of the Fair Work Act 2009 (Act) for permission to appeal and, if granted, appeals a decision of Deputy President Sams delivered ex tempore on 26 July 2019 (Decision). The Decision dealt with an application for interim relief, seeking inter alia, to prevent University of New South Wales (University) dismissing Dr Krcho from his employment. The Deputy President's reasons are recorded in the transcript of proceedings.[1] While delivering the Decision, the Deputy President indicated that he would later publish a written decision to which editorial and stylistic changes might be made.[2]

[2] The Deputy President dismissed the application for interim relief. The substantive application to which the application for interim relief related was an application for stop bullying orders under s.789FC of the Act. Edited reasons for the Decision were published by the Deputy President on 31 July 2019[3] (Reasons for Decision).

[3] A notice of appeal must be lodged within 21 days after the date of the decision being appealed against, or within such further time allowed by the Commission on application by the Appellant.[4] The decision being appealed was made, as already noted, on 26 July 2019 and Dr Krcho lodged his notice of appeal on 21 August 2019. The notice of appeal was therefore lodged outside of the time prescribed by Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules).

Application for appeal to be determined on the papers

[4] In his notice of appeal and written submissions, Dr Krcho sought that the matter be determined on the papers. The Respondents did not object to this course.

[5] On 11 October 2019, we determined that given the consent of the parties and that the appeal appeared to us able to be adequately determined without oral submissions for consideration in the appeal, the appeal would be determined on the papers without a hearing. The issues concerning whether a further period within which the appeal could be lodged should be allowed and whether permission to appeal should be granted would consequently also be determined on the papers and the parties' consent earlier noted contemplated this course. Pursuant to earlier directions, the parties filed detailed written submissions. We also allowed Dr Krcho to file and serve reply submissions given that the aforementioned directions had contemplated a hearing at which Dr Krcho's reply would have been received orally.

[6] The Respondents sought permission to be represented by a lawyer. Dr Krcho opposed permission being granted, however, as the appeal was to be determined on the papers, permission to be legally represented is not required. Pursuant to Rule 12(1)(b) of the FWC Rules, if a person is not participating in a conference or hearing, that person may be represented by a lawyer or paid agent in the matter without the permission of the Commission.[5]

[7] For the reasons that follow, we decline to allow Dr Krcho a further period within which his notice of appeal may be lodged.

[8] Dr Krcho has been employed by the University for 33 years.[6] On 11 October 2018, Dr Krcho applied to the Commission for stop bullying orders under s.789FC of the Act.[7] Dr Krcho also sought an interim order to prevent the University from dismissing him before his bullying application was determined.[8] The application for interim relief was heard before Commissioner Hampton on 29 October 2018. The Respondents deny any bullying of Dr Krcho as alleged in his application and contended that there was no basis for the making of the interim order. In any event, the University provided a written undertaking to the Commission in which it gave a commitment to the effect that if Dr Krcho's employment with the University is at threat, the University would give Dr Krcho at least five days' notice of the change to enable him to pursue an interim order.[9]

[9] The Commissioner determined that the University's undertaking satisfactorily dealt with the immediate concerns raised by Dr Krcho. The interim order sought by Dr Krcho was not granted.[10]

[10] The stop bullying application was subsequently allocated to the Deputy President. Following an unsuccessful conciliation conference, the Deputy President adjourned the proceedings indefinitely on 24 December 2018 at Dr Krcho's request. The adjournment was specified to be until such time as Dr Krcho was certified fit to prepare for and conduct the substantive application.

[11] In June 2019, the Respondents wrote to the Commission requesting the matter be re-listed.[11] This correspondence was sent to Dr Krcho by post, as this is his preferred method of communication. The matter was listed for conference on 24 June 2019, but Dr Krcho did not attend. Dr Krcho contends that he was not aware of nor did he receive any notice of the conference.[12] On 24 June 2019, Dr Krcho filed with the Commission and served upon the University a written submission stating that he remained unable to pursue his substantive application.[13]

[12] On 27 June 2019, the University wrote to Dr Krcho about his ongoing absence from work.[14]

[13] On 22 July 2019, Dr Krcho applied for an "Interim Order to Prevent Dismissal."[15] By that application Dr Krcho sought the following:

• (1) an interim order to prevent dismissal as imminent dismissal had been notified by the employer to occur at 4:00pm on Friday 26 July 2019;

• (2) confirmation of validity of the advice from the Commission dated 24 December 2018 that the substantive bullying application will remain adjourned until Dr Krcho is certified fit, and until he advises Chambers that he is medically fit to prepare for, and conduct his case: AB2018/637;

• (3) a confidentiality order pursuant to s.594 of the Act, limiting and restricting publication of Dr Krcho's personal information, including information about his health;

• (4) an interim order "to cancel any and all" of the University's "performance management actions/trainings" being "forced onto" Dr Krcho; and

• (5) an interim stop-bullying order "to be made while Dr Krcho is on sick leave and unable, and also prevented from progressing his case by the employer."

[14] The application was heard before the Deputy President on 26 July 2019 who, as noted earlier, decided ex tempore that the application be dismissed.

[15] In the Reasons for Decision, the Deputy President set out the orders sought by Dr Krcho. As to the relief sought at item (2) of the application set out above, the Deputy President determined there was no requirement to confirm a decision of 24 December 2018 to adjourn the substantive application for stop bullying orders.[16]

[16] As to items (3), (4) and (5) of the application set out above, the Deputy President concluded that these matters related to Dr Krcho's substantive stop bullying application, they were not urgent, and ought to be dealt with in an "orderly and procedurally fair fashion" with more than one or two days' notice to the Respondents.[17] In light of the adjournment of the substantive application, the Deputy President said the orders sought in items (3), (4) and (5) of the application were "stood over generally."[18]

[17] The Deputy President next sets out his consideration of Dr Krcho's application for an interim order preventing his dismissal. The basis of Dr Krcho's concern that he might be dismissed was explained by the Deputy President at [8] of the Reasons for Decision as follows:

"The applicant claims that a letter dated 27 June 2019, directing him to obtain an updated medical status from his own doctor by 4pm 19 July 2019, is a 'new threat of termination'."[19]

[18] The full text of the University's letter to Dr Krcho of 27 June 2019, is thereafter set out and which relevantly stated:

With your 24 June 2019 response, you provided a further letter from your treating General Practitioner, Dr Graham Brierley. In that letter Dr Brierley stated he considered you fit to return to work with emotional support (preferably your wife, Ms Andrea Krcho) during an unspecified 'adjustment period', and that a support person would need to be present for any meetings with management. Dr Brierley also stated that UNSW's refusal to allow you to return to work further exacerbated your anxiety to the point that you felt you were unable to prepare for, or participate in, legal proceedings.

Dr Brierley's view that you are unable to prepare for, or participate in, legal proceedings, appears to contradict his advice that you are fit to return to work, albeit with emotional support. If you were to return to work, you would be required to directly report to, and work with, individuals you had named in your application as 'mob bullies'. You would also have to be able to engage with UNSW support departments, including Human Resources, who you have also labelled as bullies. Further, you would not be permitted to bring your wife to work with you to provide support on a day to day basis.

A further difficulty, from UNSW's perspective, is that Dr Deepinder Miller, a specialist psychiatrist, has provided medical advice which states that you are suffering from Delusional Disorder, and this diagnosis causes UNSW considerable concern for your health and safety, and the health and safety of others, in the workplace.

Direction to obtain medical information from Dr Graham Brierley

We have enclosed a letter addressed to Dr Brierley seeking clarification about your current medical status. In the letter, UNSW asks Dr Brierley to answer further questions regarding your health and fitness to work. UNSW will bear the reasonable costs of Dr Brierley's time in preparing his response.

You are directed to take this letter (and its attachments) to Dr Brierley and ask that he review the letter and provide a response to UNSW by no later than 4.00 pm Friday 19 July 2019.

If you do not comply with UNSW's direction, or Dr Brierley's response does not answer the identified questions to UNSW's reasonable satisfaction, UNSW may direct you to attend a further Independent Medical Examination with an independent, specialist psychiatrist. Any such independent assessment would be at UNSW's expense.

You should also understand that a failure to follow a reasonable and lawful direction of your employer may result in disciplinary action up to and including the termination of your employment..."[20]

[19] By letter from the University dated 5 July 2019, the date by which a response from Dr Krcho's treating medical practitioner was required, was altered to 26 July 2019.[21]

[20] Dr Krcho contended before the Deputy President that the effect of the University's correspondence was to automatically dismiss him from his employment at 4:00pm on 26 July 2019.[22]

[21] The Deputy President next sets out the principles which he intended to apply in determining whether to grant the interim relief sought. After setting out the source of power to make an interim decision in s.589 of the Act, the Deputy President said:

"As s 589(2) does not limit the Commission's powers to make an interim decision to particular species of applications or exclude others, it may be safely assumed that the making of interim orders in a stop bullying application is a power available to the Commission. Put another way, there is no express or inferred statutory provision which would exclude the Commission from exercising such a power in s 789FC applications...

The Commission is frequently called upon, in all of its areas of jurisdiction under the Act, to make interim decisions and/or orders.: The principles to be applied in such circumstances are well established and are often referred to as the tests of whether prima facie firstly, there is a serious question to be tried, and secondly, whether the balance of convenience favours the order for interim relief. In Quinn v Overland [2010] FCA 799, Bromberg J set out at [45] and [46] the two main considerations as follows:

'[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a "prima facie case" does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase "serious question" to convey the strength of the probability_: Australian Broadcasting Corp v O'Neill_ per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].'"[23]

[22] The Deputy President ultimately was not satisfied that the "applicant has a serious issue to be tried" and that the balance of convenience did not favour the grant of the interim relief sought.[24]

[23] The Deputy President reasoned, inter alia, that:

(1) "...an employer is able to direct an employee to attend a medical examination to establish whether the employee is fit to continue, or resume their duties, and perform the inherent requirements of their role...This is particularly so where there is conflicting medical opinions..."[25]

(2) "The fact the applicant has a large pool of accumulated leave entitlements which he has accessed, with the University's approval, during this period (55 days' annual leave, 34 days' sick leave and 194 days' long service leave as at 30 June 2019, total 283 days' leave), is not the point; the University is entitled to take disciplinary action where the applicant refuses to attend a medical examination including an independent medical examination ('IME'), which is a lawful and reasonable direction of the employer."[26]

(3) "This is not the first occasion the applicant has sought interim orders to prevent disciplinary action, where he has perceived his dismissal was likely; see: D.K. [2018] FWC 6691, and my email to parties on 18 December 2018 where I refused such interim orders). Neither of those applications succeeded, primarily because the University gave an earlier undertaking that the applicant would not be dismissed while these substantive proceedings remained on foot, without due notice; see: D.K. [2018] FWC 6691 at [15]. This was likely given in the mistaken belief these substantive proceedings would be heard and determined within a reasonable timeframe. The applicant can no longer be 'cloaked' by the protection of that undertaking and accordingly, to the extent necessary, I determine that the University is released from the undertaking."[27]

(4) "...The applicant is mistaken if he believes an interim order to prevent justified disciplinary action will be made where, on his own case, he has not, and will not comply with a direction of the University."[28]

(5) "In any event, even if the applicant's substantive stop bullying application is dismissed, he will have other rights to challenge that decision in the Commission and/or the Courts. In the event he is successful in challenging his dismissal, it may result in orders of reinstatement. Moreover, even if the applicant is dismissed, it does not automatically follow that his stop bullying application must be dismissed, as there is no longer a risk of him being bullied at work, which is a jurisdictional prerequisite for any stop bullying application to succeed: s 789FF(1)(b)(ii)..."[29]

[24] The Deputy President concluded at [30]-[33] of the Reasons for Decision as follows:

"I do not accept that the direction to the applicant and the letter to the applicant's doctor on 27 June 2019 requiring certain assurances as to the applicant's fitness, is an unreasonable or unlawful direction. It most certainly is not unlawful, and given the circumstances, the request for a medical report from the applicant's own doctor with over four weeks' notice, it is hardly onerous, oppressive or unreasonable.

The fact the applicant has attended previous medical examinations (notwithstanding his views of Dr Miller) tells against the balance of convenience favouring him. If he believes the legal obligation on him to do so has been negated, or otherwise altered by Lee v Superior Wood, as I said earlier, he is mistaken. More importantly, there is no threat to the applicant's employment. The University has a comprehensive disciplinary process, including the ordinary procedure of issuing a 'show cause' letter. That step has not been taken. On any objective view, the letter of 27 June 2019 is not a threat of dismissal; it is stating the correct legal and industrial position.

Given my knowledge of the history of this matter, I am not satisfied that the applicant has a serious issue to be tried, which would be lost if the interim order was not granted. Further, the employer's right to direct an employee to attend a medical examination, and the applicant's subsequent refusal to do so, must weigh against the balance of convenience telling in favour of the applicant. The application for an interim order is dismissed.

Although I have already decided that the three remaining orders are not urgent, I do not intend to further program any hearing of them, consistent with my email to the parties of 24 December 2018. They are stood over generally."[30]

[25] The notice of appeal contains 73 paragraphs in which Dr Krcho advanced his grounds of appeal.[31] In addition, Dr Krcho filed written submissions on 16 September 2019 and 22 October 2019 pursuant to the directions made by the Presiding Member. The appeal grounds are set out in submission form but may conveniently be grouped into five key themes by which Dr Krcho contends the Deputy President erred by:

(1) variously displaying bias towards the Respondents and by denying procedural fairness to Dr Krcho;[32]

(2) making significant errors of fact through inter alia his failure to deal with "crucial events, facts and dates" said to show the University's unreasonable and vexatious conduct which in the result produced a decision contrary to the overwhelming weight of the evidence;[33]

(3) making significant errors of law through inter alia his failure to exercise power to compel the University to explain why it sought to compel Dr Krcho to produce medical material or attend an examination under threat of dismissal;[34]

(4) inappropriately refusing (or otherwise adjourning) each of the orders sought by Dr Krcho;[35] and

(5) allowing the Respondents permission to be legally represented at the hearing.[36]

[26] As to the grant of permission to appeal, Dr Krcho's submissions contend (in summary) that:

• (1) the Decision manifests an injustice; and

• (2) it is in the public interest to preserve public confidence in the administration of justice.

[27] Dr Krcho has also sought leave to amend his notice of appeal to add a further appeal ground,[37] which relates to an application that Dr Krcho says he made on 19 August 2019 seeking that the Deputy President recuse himself on the ground of apprehended bias.[38]

[28] Leave to amend is refused. Apart from the fact that the proposed ground does not engage with the Decision the subject of this appeal, it is evident that the Deputy President has not made any decision on the recusal application.

[29] Dr Krcho's written submissions canvass a range of additional matters which engage with issues beyond the Decision and the appeal against it. These matters concern conduct by the University said to constitute further victimisation and bullying, such as:

• (1) delaying and seeking to frustrate the substantive proceedings;

• (2) hinting at an informal workplace restructure, which may involve downgrading Dr Krcho's position;

• (3) continuing to block Dr Krcho's access to his employment records and documents since 14 February 2019;

• (4) making a series of false accusations concerning Dr Krcho's workplace conduct, Dr Krcho's responsibility for delays in the matter and suggesting that he no longer wishes to be bound by his contract; and

• (5) spreading false rumours about Dr Krcho.

[30] These matters do not relate to the Decision the subject of the notice of appeal. They are in essence further allegations of bullying conduct and Dr Krcho should seek leave from the Deputy President to amend his substantive bullying application to include these allegations if they are to be pressed.

[31] Dr Krcho also seeks orders prohibiting the University requiring him to participate in a medical examination.[39] The application for such an order does not engage with the Decision the subject of the notice of appeal or the application the subject of the Decision to which this appeal relates. It is in essence a new claim for relief not sought in the application determined by the Decision.

[32] This appeal is also not the occasion for a "merit review" of Dr Krcho's substantive stop bullying order application dated 10 October 2018[40] or a "full and comprehensive" review into the University's conduct.[41] That application will be determined in due course.

[33] The Respondents contend that permission to appeal ought to be refused because the appeal concerns an interlocutory decision. They contend that such appeals should be discouraged. In any case, the Respondents submit that the Decision is not attended by sufficient doubt, it does not raise any matter of public importance or general application, it does not result in an injustice to Dr Krcho and there is not otherwise an appealable error such as to warrant permission to appeal.

[34] The Respondents also contend that as the notice of appeal was not lodged within the time prescribed by the FWC Rules we should not allow a further period within which it may be lodged as there is no merit in the appeal and it is, in any event, futile.

[35] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[42] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[36] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so.

[37] Except in unfair dismissal related appeals, the Commission is not confined to granting permission to appeal only if it is in the public interest to do so.

[38] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[43] The public interest is not satisfied simply by the identification of error,[44] or a preference for a different result.[45] A Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[46]

[39] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended by sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[47] 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.[48]

[40] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[49] However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[41] The Decision is an interlocutory decision. The characterisation of the decision is relevant in deciding whether permission to appeal should be granted. Courts and tribunals have generally discouraged interlocutory appeals on the basis that they may prolong the proceedings and increase costs.[50] The utility of any appeal is also a factor that is relevant in assessing whether permission to appeal should be granted. There is rarely any public interest in allowing an appeal from a decision to proceed which has no utility to the parties affected or more broadly.

[42] However, before considering the question whether permission to appeal is to be granted it is first necessary to determine whether to allow further time within which the notice of appeal may be lodged.

[43] As already noted, Dr Krcho filed his notice of appeal outside of the prescribed time for lodging an appeal as set out in the FWC Rules. His appeal cannot proceed unless we allow a further period within which the notice of appeal may be lodged.

[44] As is frequently noted and most recently by a Full Bench of the Commission in Snyder v Helena College Council, Inc. t/as Helena College,[51] time limits of the kind in Rule 56 of the FWC Rules should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.

[45] The following matters are relevant in considering whether to exercise the Commission's discretion to allow a further period under Rule 56(2)(c):[52]

• (1) whether there is a satisfactory reason for the delay;

• (2) the length of the delay;

• (3) the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and

• (4) any prejudice to the Respondents if time were extended.

[46] Taking these matters into account, the exercise of the discretion will be guided by a consideration whether, in all the circumstances, the interests of justice favour Dr Krcho being granted an extension of the time within which to lodge his notice of appeal.[53]

[47] Dr Krcho's notice of appeal was lodged five days out of time. Dr Krcho contends that he could not be expected to remember what was said by the Deputy President when the Decision was delivered ex tempore. He therefore relied upon the Reasons for Decision in order to formulate his notice of appeal, which although published on 31 July 2019, he says he did not receive by post (being Dr Krcho's preferred method of communication) until 6 August 2019. The appeal was lodged 21 days from the date of publication of the Reasons for Decision. Dr Krcho also contends that the University is to blame for the delay because it has prevented him access to his University email account while he is absent from work.[54] Without making any findings as to Dr Krcho's inability to access his University email, we are prepared to accept that in the circumstances outlined, Dr Krcho has advanced a satisfactory explanation for the delay in instituting these proceedings. This weighs in favour of allowing a further period.

[48] The length of the period of delay is short which also weighs in favour of a further period being allowed.

[49] The Respondents did not contend that they would suffer prejudice if a further period were allowed. The absence of prejudice in the circumstances also weighs in favour of allowing a further period with which Dr Krcho's notice of appeal may be lodged.

[50] The real issue in contest relates to the merits of the appeal to which we now turn. In assessing whether to allow Dr Krcho a further period within which to lodge the appeal, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended. This will in this case necessarily include an assessment as to the utility of the appeal. Without a grant of permission to appeal, the appeal grounds cannot succeed. Permission to appeal is not likely to be granted if there is no utility in the appeal. We are in a position in this application for an extension of time to give consideration to these matters having the benefit of substantive written argument about the merits of the appeal grounds and thus, to make an assessment as to the utility of the appeal.

[51] For reasons that follow we do not consider there to be any utility in Dr Krcho's appeal.

[52] Dr Krcho sought, inter alia, an interim order to prevent a dismissal which he was concerned would occur on 26 July 2019. That date has passed without the resulting dismissal of Dr Krcho. There has been no "show cause" letter issued to him by the University in respect of the University's letter of 27 June 2019 or any failure to comply with the request contained therein. Moreover, the conduct said to constitute the threat of dismissal was the University's requirement that he provide from his doctor an update of his medical condition. Dr Krcho has since obtained the medical information sought by the University,[55] thereby rending moot the contention that the requirement to provide the update was, and more relevantly continues to be, a termination threat in any case. On the facts before the Deputy President and this Full Bench, there was (and is) no threat to Dr Krcho's employment. The correspondence from the University of 27 June 2019 was not a threat of dismissal (or a show cause letter).

[53] Apart from the letter and his subjective concern, there was no other probative evidence upon which Dr Krcho relied before the Deputy President to support his argument that there was an imminent threat of dismissal. Absent any probative and compelling evidence of an actual imminent threat of dismissal, or from which such a threat might reasonably be inferred, there was no proper basis to issue an interim order of the kind sought and the Deputy President's conclusion to this effect was correct. It is neither unusual nor unjust for an application for an interim order to be refused in such circumstances. No arguable case of appealable error in this respect has been established. As there is no continuing threat of dismissal, there is no utility in considering an appeal against a decision to refuse to make an interim order preventing Dr Krcho's dismissal. The appeal grounds related to the refusal to make an interim order preventing Dr Krcho's dismissal are not likely to be upheld and so permission to appeal in respect of those grounds is not likely to be granted.

[54] Secondly, Dr Krcho's application sought "confirmation of validity" of an earlier decision of the Deputy President that the substantive bullying application was adjourned. There was no requirement for the Deputy President to confirm an earlier decision made by him, which stood unchanged. There is no arguable case of appealable error in the Deputy President's conclusion to this effect. The grounds of appeal directed to this aspect of the Decision are therefore not likely to be upheld and so permission to appeal is likely to be refused.

[55] Thirdly, there is no arguable case of appealable error in the Deputy President's determination that items (4) and (5) of the application (earlier set out) were relevant to the substantive stop bullying application. We agree with the Deputy President's conclusion that these were not matters in respect of which urgent relief was required, given the indefinite adjournment of the stop bullying application at Dr Krcho's request. The grounds of appeal directed to this aspect of the Decision are therefore not likely to be upheld and so permission to appeal is likely to be refused.

[56] Dr Krcho challenges the Deputy President's refusal to issue a confidentiality order, as sought by item (3) of the application (also earlier set out). The Respondents did not oppose the request (noting that such an order was made in the proceeding before Commissioner Hampton in October 2018).[56] While the Deputy President was not obliged or required to adopt the confidentiality arrangement proposed, we accept Dr Krcho's contention that subsequent correspondence from the Chambers of the Deputy President to the parties on 31 July 2019 inaccurately states that "...No party has raised the issue of anonymisation of any persons in the proceedings..."[57]

[57] A review of Dr Krcho's submissions in support of the application[58] reveals that the request for a confidentiality order was confined to a circumstance where the Commission "decides to exercise its authority to run its own independent investigation and/or research to inform itself and/or to resolve the matter." It is apparent that the interim application before the Deputy President did not warrant an independent investigation into the issues giving rise to the substantive stop bullying application. It was therefore not incorrect for the Deputy President to form the view that the confidentiality issue was more appropriately stood over until such time as the substantive application was heard. In the circumstances therefore, we are not persuaded that the failure to make a confidentiality order in respect of the Decision gives rise to an arguable case of appealable error. The grounds of appeal directed to this aspect of the Decision are therefore not likely to be upheld and so permission to appeal is likely to be refused.

[58] In his reply submissions, Dr Krcho has made an application to this Full Bench for "retrospective anonymisation" of his personal and health information in the Decision.[59] Given our conclusion that no arguable case of appealable error is disclosed in respect of this issue, there is no public interest in granting permission to appeal simply for us to deal with Dr Krcho's retrospective confidentiality request. In the circumstances, the appropriate course is that Dr Krcho's request for a variation of the Decision (and the Reasons for Decision) be made to the Chambers of the Deputy President (with or without the support of the University).

[59] Having regard to the above matters, we do not consider that Dr Krcho has established an arguable case that the Deputy President erred in his consideration of the application in the manner contended. In our view, none of the appeal grounds are likely to be upheld; some of the grounds are futile for the reasons we have identified; and the balance of the orders sought by the application the subject of the Decision are moot for the reasons earlier described. Dr Krcho is not prevented from making a further application for interim relief should there be a change in his circumstances.

[60] Our assessment of the nature of the grounds of appeal, the likelihood that one or more of those grounds would not be upheld if time was extended and the utility of the appeal in this case weigh against allowing a further period within which the notice of appeal may be lodged. In this case, for the reasons stated these considerations weigh heavily against allowing a further period. While the other considerations weigh the other way, they are not so weighty in the circumstances of this case to outweigh the merits considerations we have identified.

[61] Consequently, in all the circumstances, the interests of justice do not favour Dr Krcho being granted an extension of the time within which to lodge his notice of appeal.

[62] Even if we were minded to allow a further period for the lodgement of the notice of appeal, for the reasons stated in our assessment of the merits and utility of the appeal above, we would not grant permission to appeal.

[63] We do not allow a further period within which the notice of appeal may be lodged. As the notice of appeal was not lodged within the time prescribed by Rule 56 of the FWC Rules, the application for permission to appeal is dismissed.

[64] Since finalising the draft of this decision but before its publication, Dr Krcho applied (by correspondence dated 23 November 2019 but received on 25 November 2019) to the Full Bench seeking an order to prevent his dismissal arising from correspondence sent to him by the University dated 19 November 2019. The letter concerns events which post-date the Deputy President's decision the subject of this appeal.

[65]

The Presiding Member conducted a mention on 9 December 2019 at which Dr Krcho was advised that the Full Bench would not deal with the application as it does not raise any matter relevant to establishing whether the Deputy President erred in the Decision. Dr Krcho's application will be allocated to the Deputy President for hearing and determination. The University has undertaken not to take any further step in relation to the matter canvassed in its correspondence of 19 November 2019 until the hearing and determination of Dr Krcho's application mentioned at [64].

[1] Appeal Book, pp.353-357 at PN560-PN589

[3] [2019] FWC 5278

[4] Fair Work Commission Rules 2013, r.56(2)

[6] Appellant's written submissions dated 16 September 2019 at p.15

[10] D.K [2018] FWC 6691; Ibid at pp.293-301

[16] [2019] FWC 5278 at [3]

[22] [2019] FWC 5278 at [12]; Appeal Book at p.438 at [24]

[23] [2019] FWC 5278 at [18]- [19]

[32] Notice of appeal at question 2.1 at [1]-[12] and [33]; Appellant's written submissions dated 16 September 2019 at p.25, pp.28-31 and p.40

[33] Notice of appeal at question 2.1 at [13]-[53]; Appellant's written submissions dated 16 September 2019 at pp.14-15, p.20 and pp.31-47

[34] Notice of appeal at question 2.1 at [54]-[61]; Appellant's written submissions dated 16 September 2019 at pp.25-26, p.36 and pp.47-53

[35] Notice of appeal at question 1.2 at (4); Appellant's written submissions dated 16 September 2019 at p.25 at [3] and pp.46-47 at [51]

[36] Notice of appeal at question 2.1 at [58]; Appellant's written submissions dated 16 September 2019 at p.5 at [1.2] and p.53 at [58]

[37] Appellant's written submissions dated 16 September 2019 at p.27 at [1.5] and pp.43-44 at [35]

[39] Appellant's reply submissions dated 22 October 2019 at p.33 at [65]

[42] This is so because on appeal, the Commission has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[43] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[44] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

[45] Ibid at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review_; Coal & Allied Mining Services Pty Ltd v Lawler_ (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[46] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

[47] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[48] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[49] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[50] See In re the will of F.B. Gilbert 91946) [1946] NSWStRp 24; 46 SR (NSW) 318 at 323; Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Ltd Print PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2012] FWAFB 6907; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Spectrum Community Focus v Valenzuela [2017] FWCFB 4524

[51] [2019] FWCFB 815; See also Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 at [3]

[52] See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000_; Dundovich v P&O Ports,_ Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis [2018] FWCFB 3815

[53] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

[54] Appellant's written submissions dated 16 September 2019 at pp.2-5 at [1.1]

[59] Appellant's reply submissions dated 22 October 2019 at p.33 at [63]

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