This is an application for leave to appeal and, if leave is granted, an appeal against a decision of Stanton C in Fire Brigade Employees' Union of NSW (o/b Wayne Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1024.('the impugned decision') That was a decision in the context of an application brought by the appellant claiming relief from victimisation pursuant to s.213 of the Industrial Relations Act 1996 (NSW) ('the Act').
The appeal was originally listed before a Full Bench of the Commission constituted by Walton J, Newall C and Murphy C. On 9 December 2016 the Acting Chief Commissioner reconstituted the Full Bench to comprise Tabbaa C AM, Acting Chief Commissioner, Newall C and Murphy C.
The decision was handed down on 20 June 2016. The appeal proceedings were filed within the time prescribed by s 189 of the Act.
[2]
The decision at first instance
To appreciate the elements of the decision at first instance, it is necessary to set out the statutory provisions. Section 210 provides, relevantly, as follows:
210 Freedom from victimisation
1. An employer or industrial organisation must not victimise an employee or prospective employee because the person:
1. is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or
...
1. (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties),
…
1. In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.
Sub-section 201(1)(h) was the statutory provision called in aid by the appellant.
It will be seen that ss.210(1) prohibits certain conduct, specifically victimisation. Ss 210(2) creates a statutory presumption that if a 'detriment' is established on the evidence as having occurred to, relevantly, an employee, that detriment was effected for the reason alleged by the employee suffering the detriment. The 'detriment' here alleged was that Mr Challinor received a reprimand. It was not asserted that there was no detriment.
The statutory presumption created by ss.210(2) is a rebuttable presumption.
Stanton C held that the appellant had failed to make out a case to the required standard of proof, that is, the civil standard, that there had been victimisation of Mr Challinor. The Commissioner correctly held, drawing on Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, that in order to dispel the rebuttable presumption, it fell to the employer to establish that the political activity of the employee 'was not a substantial and operative cause of the detrimental action'.
Stanton C held that the evidence advanced by the employer satisfactorily rebutted the rebuttable proposition. Indeed, Stanton C found the evidence of Assistant Commissioner Smith, the decision maker, 'compelling' in that regard. That was a finding open to the Commissioner to make. It is to be noted that Assistant Commissioner Smith was not cross-examined or challenged in any way concerning the evidence he gave.
Having found that the rebuttable presumption was, on the evidence, rebutted, Stanton C was then obliged to consider whether the assertion of victimisation was made out on evidence advanced by the appellant. The Commissioner found that it was not, and determined the matter accordingly, by refusing the application. It is to be noted that Mr Challinor did not give evidence, although in making that observation we do not suggest that he was necessarily obliged to in order for the case at first instance to be advanced. What is evident, however, is that it was open to Stanton C to come to the finding to which he came.
[3]
Principles on Leave to Appeal
It is important to bear in mind that an appeal does not lie as of right against a first-instance decision of the Commission under the Act. Leave has to be sought and granted before any appeal is heard. Accordingly, we turn first to the question of leave to appeal.
The principles in relation to the grant of leave to appeal a decision of the Commission were recently canvassed in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16, in which the Full Bench observed at [10] and [11]:
[10] It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2)[2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal.
[11] The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263:
[5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52] - [55] and Knowles at 381 - 382) and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
(See also the recent decision in Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 which referred to the decision in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17).
Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State."
We add that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error.
[4]
Consideration of grant of leave
The appellant, both in his written Outline of Submissions and in oral submissions today, sought that leave to appeal be granted essentially "because the case deals with important protections designed to protect the political rights of employees. The circumstances of this case have not been the subject of any previous decision by the Commission".
Both propositions contained in that statement are of themselves correct. However, the fact that a first-instance decision may address a statutory provision on which the Commission has not before been required to rule is not in itself a basis for the grant of leave unless there is a proper basis for leave to be granted in accordance with the usual jurisprudence of the Commission, that is, for the correction of error. We readily accept that the statutory provisions in question provide important protections to employees. However, it would be entirely inappropriate to grant leave simply to engage in a discussion of the relevant provisions in the absence of a need to do so to correct error. The suggestion, again advanced in oral submissions today, that s.210 might be expected to be the subject of increased scrutiny in future does not, absent error, provide a basis for a grant of leave in this appeal.
The 'error' identified in the Appellant's written and oral submissions was said to be 'making an artificial distinction between the conduct, the political activity and the putative obligations' under the Regulation. In fact, Stanton C did not draw a 'false distinction' and did not fall into error. The political activity in endorsing, as a private citizen, an election candidate is protected. What is not protected is the additional step which Mr Challinor took of identifying himself as a member of the public sector in making that endorsement. The position is very much analogous to that in Construction, Forestry, Mining and Energy Union and BHP Coal Pty Ltd (2014) 253 CLR 243, where the industrial action taken by the employee was lawful and unexceptionable, but the additional step he took in conducting himself offensively and in breach of his employer's policies while taking that industrial action was not.
We observe in so saying that the freedom to conduct political activity without victimisation which the sub-section unquestionably grants to all employees, including Mr Challinor, does not provide carte blanche for any employee, including Mr Challinor, to make, for example, a public representation that his employer is a party to or endorses that activity. That is not a freedom that the sub-section grants, and it cannot be construed to suggest that disciplinary action for conduct of that kind is victimisation. So far as the appellant asserts that Stanton C erred by adopting an approach consistent with our observations, that assertion is in our view without substance.
The appeal as mounted fails to identify any error in the decision at first instance. The appeal could only, in those circumstances, be dismissed. There is, as we say above, no utility in granting leave simply to discuss a statutory provision if there is no correction of error warranted.
We have concluded that no appellate intervention is warranted as no error has been disclosed in the decision at first instance. That being so, there is no proper basis on which, in the public interest, leave should be granted, nor is there any other basis warranting the grant of leave. We are, therefore, not disposed to grant leave to appeal.
[5]
Disposition of the Appeal
The orders we make are as follows:
Leave to appeal is refused.
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Decision last updated: 22 December 2016
Parties
Applicant/Plaintiff:
Fire Brigade Employees' Union of NSW (o/b Challinor)