Fair Work Act 2009

s.604 - Appeal of decision

The Commonwealth of Australia (Department of Home Affairs)

Appeal against decision [2018] FWC 4150 of Commissioner Williams at Perth on 16 July 2018 in matter number U2016/13519; no arguable case of appellable error; public interest not enlivened; permission to appeal refused.

[1] Mr Gregory Gibbens seeks permission to appeal from a decision of Commissioner Williams (the Decision) in which the Commissioner found that Mr Gibbens's dismissal from his employment with the Commonwealth of Australia (Department of Home Affairs) (Commonwealth) was unjust.[1] The Commissioner ordered the Commonwealth to pay Mr Gibbens six weeks' compensation.

[2] Mr Gibbens was employed by the Commonwealth as a non-ongoing employee for duties that were irregular or intermittent at the Perth Airport.[2] Mr Gibbens's duties commonly involved processing aviation passengers both inwards and outwards, directing queue management of passengers, assisting E Gate departures and processing Tourist Refund Scheme claims.[3]

[3] The Commonwealth initially contended that Mr Gibbens had not been dismissed. However, the Commissioner noted in paragraph [3] of the Decision that the Commonwealth later filed an amended response conceding that it had dismissed Mr Gibbens on 28 October 2016.

[4] As a result of a number of interlocutory applications and an appeal by Mr Gibbens from one of those decisions, the merits of Mr Gibbens's unfair dismissal claim were not heard until 6 June 2018.[4] At the hearing Mr Gibbens gave evidence, as did Mr O'Donnell, Regional Commander WA Australian Border Force, and Ms Emma Newman, Superintendent at the Perth Airport.

[5] The Commissioner summarised the alleged incidents that led to Mr Gibbens's dismissal as follows:

"1. On 19 January 2015 Mr Gibbens was approached by a female passenger who moments before held her passport in her mouth. Mr Gibbens took the passport and wiped it on the sleeve of her shirt.

2. On 27 July 2015 a complaint was made to the Respondent that Mr Gibbens was on 19 July 2015 discourteous, unprofessional and rude to a passenger by speaking in a loud and abrupt voice, not looking at the passenger when speaking to her and rolling his eyes and sighing.

3. On 9 November 2015 a complaint was made that Mr Gibbens said to a passenger travelling to Denpasar, words to the effect of "you're brave flying with Air Asia" and that Air Asia "don't know the difference between a normal cloud and an ash cloud, the plane hits the ash cloud and it gets into the engines and down it goes, diving into the sea" while making a nose dive expression with his hands. The passenger then advised Mr Gibbens she needed a valium and he said words to the effect of "take the whole bottle." The passenger reported to the Respondent she was distressed and anxious about his remarks.

4. On 3 August 2016 a complaint was made to the Respondent that while processing a passenger's refund claim Mr Gibbens made a comment to the effect that the passenger "had probably done this many times". The passenger felt that this assumption was made on the basis of her Chinese race and nationality."[5]

[6] The Commissioner found, on the balance of probabilities, "with regard to each incident that the complainant had good reason for their complaint and Mr Gibbens's behaviour towards the individual passengers was, on each occasion, disrespectful and inappropriate."[6] As a result, the Commissioner concluded that there was a valid reason for Mr Gibbens's dismissal.[7]

[7] After considering the criteria in section 387(a) to (h) of the Fair Work Act 2009 (Cth) (the Act), the Commissioner reached the following conclusion in relation to whether Mr Gibbens's dismissal was harsh, unjust and/or unreasonable:

"In the circumstances Mr Gibbens should have been expressly warned at some point that further instances of disrespectful and inappropriate behaviour towards passengers would be likely to result in the Respondent terminating his employment. I am satisfied that the absence of such a warning coupled with his relatively lengthy service means the dismissal of Mr Gibbens was unjust. For these reasons Mr Gibbens was unfairly dismissed."[8]

[8] The Commissioner found that reinstatement was inappropriate in light of the following circumstances:

"Mr Gibbens has not demonstrated any remorse for his at times disrespectful and inappropriate behaviour towards passengers. Indeed in his responses to the Respondent in some cases he has aggressively criticised those passengers who have complained about him. Separately Mr Gibbens, since the time of his dismissal, has deliberately refused requests to return to the Respondent some of its property."[9]

[9] The Commissioner then considered the question of compensation and ordered the Commonwealth to pay Mr Gibbens compensation in the sum of $4,574.04 gross, together with superannuation of $704.40.

[10] In his Notice of Appeal, Mr Gibbens describes the decision and/or order he is appealing against as follows:

"Decision to determine dismissal occurred and consisted of a letter that directly stated the opposite.

Decision to regard evidence of persons not attending and whom an order to attend for examination was denied.

Decision to not include evidence of the Applicant beyond the submission of 10 month previous."

[11] Mr Gibbens relies on the following grounds of appeal:

"1. Commissioner Williams had declared in hearing on 25th January 2018 that he did not have jurisdiction to determine if termination had occurred. He suggested I refer the question to the Federal Circuit Court.

2. The question was referred to the Federal Circuit Court and Commissioner Williams was so advised on 02nd February 2018.

3. The affidavit evidence of the application to the FCCA was supplied to Commissioner Williams on 19th February 2018 for it to be included in evidence in his matter.

4. In spite of this question not being judicially determined, Commissioner Williams went ahead and scheduled the hearing on this matter.

5. Despite declaring he did not have jurisdiction to determine termination, Commissioner Williams did determine termination had occurred, outside of his jurisdiction and whilst the FCCA matter was pending.

6. He determined that Mr O'Donnell's statement in his letter of 28th October 2016 that he was not terminating employment was made erroneously, and that he was in fact terminating the employment contract.

7. This was in spite of Mr O'Donnell's evidence given under oath, where he stated 3 times it was not his intention to terminate the employment.

8. Commissioner William's [sic] determination was also contrary to Mr O'Donnell's oral evidence, under oath, that he could not be certain he had authority to terminate employment.

9. Commissioner Williams disregarded the evidence that the Respondent had failed to follow legislation, the PS Commissioner's Directions and its own procedures in taking adverse action and make a decision consistent with the Full Bench decision of Wilson v ATO.

10. Commissioner Williams decided to disregard the primary remedy of reinstatement based solely on conduct that did not occur but existed only in his imagination in hypothetical circumstances.

11. Commissioner Williams took as evidence accounts from persons who were not present to be examined. Nor did he permit an order requiring those persons to attend

12. Commissioner Williams also elected to not order the attendance of persons who could support the Applicant's case.

13. Further Commissioner Williams elected not to order the production of evidence in the Respondent's possession that would support the Applicant's case.

14. Commissioner Williams elected in hearing to exclude documentary evidence submitted by the applicant beyond his submissions of 10 months previous.

15. Commissioner Williams did not make it possible for the Applicant to have a fair and balanced hearing and consideration of matters. These issues will be expanded in the Appeal Book."

[12] In his Notice of Appeal, Mr Gibbens contends that the following matters make it in the public interest for the Commission to grant permission to appeal:

"1. Federal Public Service employment is legislated by the Public Service Act 1999 and Public Service Regulation 1999. Where that Legislation does not detail procedures it authorizes the Public Service Commissioner's Directions. Those Directions dictate the production of approved written procedures by agencies.

2. Commissioner William's [sic] decision sets a precedent where persons without authority can act outside Procedures, PS Commissioner's Directions and Legislation to effect a termination.

3. His precedent gives authority for bullying in the form of legal and administrative abuse of employees, particularly public service employees, removing from them the checks and balances provided by Parliament.

4. His precedent removes the responsibility for managers taking action to account for the observation of Natural Justice.

5. The Federal Public Sector employees account for over 250,000 members of the workforce according to the 2013-14 budget.

6. Should Commissioner William's [sic] decision be taken as precedent, any of those individuals who bring a matter to the Fair Work Commission not be able to require their employers to have observed Procedures that are part of or subservient to legislation.

7. Commissioner Williams, despite being referred to and supplied a copy of the Full Bench Decision in Wilson v ATO in earlier written submissions and referred to final submissions, failed to make a decision consistent with that binding precedent."

[13] In addition to our consideration of Mr Gibbens's Notice of Appeal, in deciding this matter we have had regard to the materials included in the Appeal Book, the written submissions filed by the parties, and the oral submissions made on 5 September 2018.

[14] 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.[10] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[15] This appeal is one to which s.400 of the Act applies. Section 400 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.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[16] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and Others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one".[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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..."[13]

[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error.[14] 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.[15]

[18] 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.[16]

[19] We are not persuaded that any of the grounds of appeal on which Mr Gibbens relies raise any issue of importance or general application, nor do any of those grounds disclose an arguable case of error or attract the public interest. Our reasons for this conclusion follow below.

[20] Turning to the grounds of appeal, Grounds 1 to 8 relate to the question of whether Mr Gibbens was dismissed by the Commonwealth. The Commissioner determined that issue in favour of Mr Gibbens.[17] Indeed, had Mr Gibbens not been dismissed, the Commissioner would not have had any jurisdiction to determine whether the dismissal was harsh, unjust and/or unreasonable, or to order the payment of compensation to Mr Gibbens in respect of his unfair dismissal.

[21] The opening paragraph of the letter from Mr O'Donnell to Mr Gibbens dated 28 October 2016 stated:

"I am writing to inform you that you will not be offered further work by the Australian Border Force. This letter explains why I have made this decision."

[22] Although the penultimate paragraph of the 28 October 2016 letter stated that the Commonwealth was not terminating Mr Gibbens's employment because, as an irregular and intermittent employee, he did not have a continuing employment relationship, the Commonwealth later conceded that it had dismissed Mr Gibbens on 28 October 2016.[18] Further, there is no doubt that, at a factual level, the employment relationship between Mr Gibbens and the Commonwealth clearly came to an end on about 28 October 2016. In all the circumstances, we are not persuaded that there is an arguable case of error in relation to Grounds 1 to 8.

[23] As to Ground 9, Mr Gibbens has raised a range of issues concerning the Public Service Act 1999 (and related legislation), including his contention that his dismissal was not effective because he did not receive notice in writing from an "Agency Head" to terminate his employment, as required by s 29(1) of the Public Service Act 1999 (Public Service Act). Whether an employee has been dismissed is a question of fact. The question of whether a dismissal was effected in accordance with the terms of a relevant contract or legislation is a different matter.[19]

[24] Mr Gibbens contends that the Commonwealth failed to comply with a document entitled "Managing Underperformance - non-ongoing and probationary employees" (Managing Underperformance), which was written pursuant to the Public Service Commissioner's Directions. Mr Gibbens was dismissed as a result of his conduct in relation to the four incidents, not because he was underperforming in his role. In any event, the focus of the Managing Underperformance document is on ensuring employees understand the standard of performance expected of them and the implications of not achieving the standard, and employees are provided with appropriate support and time to improve their performance.[20] The Commissioner took these principles into account in concluding that Mr Gibbens was unfairly dismissed because he should have been, but was not, expressly warned that further instances of disrespectful and inappropriate conduct towards passengers would be likely to result in the termination of his employment.[21]

[25] Mr Gibbens also contends that the Commissioner ignored "a binding precedent in the Wilson v ATO case".[22] Wilson v Australian Taxation Office[23] (Wilson) is a decision of a Full Bench of the Australian Industrial Relations Commission in which the Full Bench decided to reinstate Ms Wilson to her former position, having found in an earlier decision that Ms Wilson's dismissal was unfair because the ATO had not complied with the unsatisfactory performance provisions of the certified agreement applying to her or the requirements of the Public Service Act. However, the decision of the Full Bench to reinstate Ms Wilson is distinguishable from the present case because the reasons the Commissioner relied on to determine that reinstatement was not an appropriate remedy for Mr Gibbens[24] were not present in Wilson. It follows that the Commissioner did not err in not reaching the same conclusion as to remedy in Mr Gibbens's case.

[26] By Ground 10, Mr Gibbens in effect challenges the factual findings made by the Commissioner that he engaged in the conduct alleged against him in relation to the four incidents. Recently, in Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited,[25]a Full Bench of the Commission outlined the general approach to challenging findings of fact on appeal:

"[45] In the joint reasons in Fox v Percy, in a passage which has been applied since, Gleeson CJ, Gummow and Kirby JJ said:

'[An appellate court] must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court reading the transcript, cannot always fully share.' (citations omitted)

[46] More recently, in Short v Ambulance Victoria, the Full Court of the Federal Court summarised the principles to be applied by an appellate court or tribunal when considering challenges on appeal to findings of fact made at trial in circumstances whose those findings rested on assessments of credibility:

'It was central to Mr Short's case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission the majority per Brennan, Gaudron and McHugh JJ observed:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

In Fox v Percy at [26]-[31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.' (citations omitted).

[47] These principles have been consistently applied by Full Benches of the Commission for many years. In the context of appeals, Full Benches have consistently held that findings of fact made by a Member at first instance should stand unless it can be shown that the Member 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." (citations omitted)

[27] To a significant extent, particularly in relation to the first and second incidents, the Commissioner's findings were based on his assessment of Mr Gibbens's credibility and the credibility of Ms Newman and Mr O'Donnell.[26] In particular, the Commissioner found that Ms Newman and Mr O'Donnell were credible witnesses, but found that Mr Gibbens was "at times evasive and appeared to be resisting giving full and truthful answers to some questions" and in other instances "his answers to some questions damaged his credibility as a witness".[27] As a consequence, the Commissioner preferred the evidence of Ms Newman and Mr O'Donnell when it was at odds with the evidence of Mr Gibbens.[28]

[28] Nothing in Mr Gibbens's submissions persuade us that there is an arguable case of appellable error in relation to the factual findings made by the Commissioner. We consider the findings the Commissioner made were open to him and we are not satisfied that it has been shown that the Commissioner "has failed to use or has palpably misused [his] advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

[29] Grounds 11, 12 and 13 relate to decisions made by the Commissioner not to make orders sought by Mr Gibbens that 32 persons attend the Commission to give evidence and various documents be produced by the Commonwealth. Mr Gibbens applied for such orders on 18 April 2018.[29] By a short decision communicated to the parties in correspondence from the Commission dated 1 May 2018, the Commissioner determined to make orders requiring Mr O'Donnell and Ms Newman to attend the hearing to give evidence, but not to make the other orders sought by Mr Gibbens.

[30] Mr Gibbens did not, at any time prior to the hearing on 6 June 2018, appeal against the Commissioner's 1 May 2018 decision not to make orders for various witnesses to attend and give evidence and for documents to be produced by the Commonwealth. Instead, Mr Gibbens waited until the hearing and determination of the merits of his unfair dismissal application before filing a Notice of Appeal dated 6 August 2018, in which he appealed, inter alia, against both the decision of the Commissioner to give weight to written accounts of events from persons who were not called to give evidence at the hearing, and the anterior decision of the Commissioner not to make orders for various witnesses to attend and give evidence and for documents to be produced by the Commonwealth. Having regard to the many authorities which discourage appeals against interlocutory decisions,[30] we do not criticise the decision made by Mr Gibbens not to file a separate (and earlier) appeal against the interlocutory decision by the Commissioner on 1 May 2018 not to make orders for various witnesses to attend and give evidence, and for documents to be produced by the Commonwealth.

[31] As to the documents Mr Gibbens sought from the Commonwealth (Ground 13), Mr Gibbens contends that those documents "would have assisted in the presentation of [his] case and probably shortened the hearing".[31] We are not satisfied the documents sought by Mr Gibbens from the Commonwealth,[32] including CCTV footage of Mr Gibbens dealing with a range of passengers other than the complainants the subject of the four incidents which led to his dismissal, would have assisted in the presentation of Mr Gibbens's case. The documents sought by Mr Gibbens did not have any apparent relevance to the central question of whether Mr Gibbens engaged in the conduct alleged against him in connection with the four incidents. In our view, the Commissioner did not err in exercising his discretion not to make orders for the production of such documents.

[32] The gravamen of the complaint made by Mr Gibbens in Grounds 11 and 12 is that he was not afforded natural justice because he was denied the opportunity to question and appropriately challenge two of the persons who made complaints about his conduct. Of the four incidents which led to Mr Gibbens's dismissal, there was direct evidence of the first incident by way of CCTV footage; the complainant in the second incident was Ms Newman, who gave oral evidence at the hearing and was questioned by Mr Gibbens; and the complainants in relation to the third and fourth incidents were not called by the Commonwealth to give evidence and the Commissioner decided not to make an order requiring their attendance at the hearing. As a result, the evidence in relation to the third and fourth incidents was limited to the evidence given by Mr Gibbens and various documentary records, including records of the complaint allegedly made by the complainant in relation to the third incident and the complaint allegedly made by the husband of the subject of the fourth incident.[33]

[33] The Commission is not bound by the rules of evidence and procedure in relation to a matter before it.[34] However, the Commission tends to follow the rules of evidence as a general guide to good procedure.[35]

[34] In Pochi v Minister for Immigration and Ethnic Affairs,[36] Justice Brennan, then President of the Administrative Appeals Tribunal of Australia, made the following observations (at 491-92):

"How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that: "the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate." Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence.

The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force", as Hughes C.J. said in Consolidated Edison Co. v. National Labour Relations Board (15). To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott: "Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'". That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (17) said: "These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.""

[35] Secretary, Department of Human Services v Sanding[37] concerned an application for judicial review of a decision of the Children's Court, a tribunal that is not bound by the rules of evidence. In that case, Bell J made the following observations (at [133]):

"The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issues and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered. Evidence which is not the best evidence may be admitted, but if it is challenged and the issue is important it is the best evidence which may be required. The court or tribunal may act on written submissions containing assertions of fact, and statements made from the bar table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more." (citations omitted)

[36] In the Enterprise Flexibility Agreements Test Case,[38] a Full Bench[39] of the Australian Industrial Relations Commission made the following observations in relation to the principles of natural justice in the context of non-disclosure of the names of union members:

"It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Limited [1989] HCA 41; (1989) 167 CLR 513; 29 IR 148).

The term natural justice in the context of administrative decision-making has been essentially equated to an obligation to act fairly or to accord procedural fairness (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585 per Mason J).

The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required in one case may be quite different from what is required in another. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 Tucker LJ said:

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth."

Further in Mobil Oil Australia Pty Ltd v Commission of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 504 Kitto J said:

"What the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."

The task of determining whether there has been adequate compliance in a particular case may often present difficulty.

In these proceedings Mr I Douglas QC has argued that it is a denial of natural justice to have evidence adduced against a person without that person knowing what the evidence is and being given an opportunity to test the evidence. Two authorities are relied on in this regard: City of Brighton v Selpam [1987] VicRp 5; [1987] VR 54 at 59; Hurt v Rossall [1982] FCA 188; (1982) 64 FLR 102 at 110. It is argued that the application of this proposition to the issue before the Commission requires that the names of those employees said to be union members must be disclosed when eligible union status is contested.

Generally, parties must be provided with an adequate opportunity to challenge or contradict material advanced against them (Board of Education v Rice [1911] AC 179 at 182 per Lord Loreburn LC). However, it does not necessarily follow that the only method of challenge or contradiction which would be regarded as acceptable is the capacity to cross-examine the author of such material (T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228)."[40]

[37] The written records of the complaints made against Mr Gibbens in relation to each of the third incident and the fourth incident include the date of the incident and details of what was allegedly said by Mr Gibbens.[41] The level of detail contained in the written records, together with the fact that the complaints were made to the Commonwealth, tends logically to weigh in favour of the existence of facts relevant to the issues to be determined. Because such records had some probative weight in relation to incidents three and four, the weight to be attached to the records was a matter for the Commissioner.

[38] On a fair reading of the Decision, it is plain that the Commissioner placed weight on the documentary evidence of the complaints made in relation to incidents three and four, but also considered and weighed up the various responses made by Mr Gibbens to those incidents, including his lack of recollection in relation to aspects of the third incident.[42] On a similar note, at the hearing of the appeal Mr Gibbens acknowledged, in relation to the fourth incident, that he could not recall whether he said to the person the subject of the complaint words to the effect that "she had probably done this many times before".[43]

[39] Having weighed up the evidence in relation to incidents three and four, the Commissioner concluded, on the balance of probabilities, that Mr Gibbens engaged in the conduct alleged against him and such conduct was disrespectful and inappropriate.[44] It was a matter for the Commissioner to decide how much weight to give each piece of probative evidence in the fact finding exercise in which the Commissioner was engaged when considering incidents three and four. In all the circumstances, we are satisfied that the Commissioner administered substantial justice and we are not persuaded there is an arguable case of error in relation to Grounds 11, 12 or 13.

[40] Further, even if incidents three and four were disregarded from the analysis, there remained two other complaints concerning serious matters. It is significant that the Commissioner found against Mr Gibbens in relation to the first and second incidents, on the basis of CCTV footage and direct evidence from Ms Newman. There is no arguable case of error in relation to those factual findings.

[41] If consideration is limited to just the first and second incidents and the Commissioner's findings in relation thereto, it is clear that:

• they were sufficient to ground the finding of a valid reason for the dismissal;

• taking incidents three and four out of the equation would not have had any material impact on the Commissioner's ultimate conclusion that Mr Gibbens had been unfairly dismissed, for that was based on the failure to warn, coupled with a relatively lengthy period of service;[45] and

• taking incidents three and four out of the equation would not have had any material impact on the Commissioner's finding that reinstatement was inappropriate, for that was based on Mr Gibbens's failure to demonstrate remorse, his responses to the Commonwealth in some cases being aggressively critical of the passengers who complained about him, and his deliberate refusal to return the Commonwealth's property.[46]

[42] Having regard to these matters, coupled with the fact that Mr Gibbens has not appealed against the quantum of compensation ordered in his favour by the Commissioner, it is apparent that even if only the first and second incidents had been substantiated, the outcome in the proceedings would not have been materially different. This supports our view that the Commissioner's conclusion was reasonable, was not manifested by any injustice, and was not counter-intuitive.

[43] Ground 14 appears to relate to a decision by the Commissioner not to admit into evidence affidavit material filed by Mr Gibbens in separate proceedings in the Federal Circuit Court, in circumstances where that material was provided to the Commission after the deadline for filing material by Mr Gibbens and it contained a significant overlap with material previously filed by Mr Gibbens in the Commission.[47] We are not persuaded by any submission made by Mr Gibbens that there is an arguable case of error in connection with the decision by the Commissioner not to admit further material into evidence in the unfair dismissal proceedings.

[44] As to Ground 15, Mr Gibbens made a number of submissions about aspects of the hearing before the Commissioner which he contends were unfair and/or unbalanced, including the Commissioner's decision not to permit Mr Gibbens to ask particular questions of witnesses and not to recuse himself on the grounds of bias and/or apprehended bias. Having reviewed the transcript of the hearing before the Commissioner, we are satisfied that Mr Gibbens was given an appropriate opportunity to challenge the allegations made against him and was afforded a fair hearing. We are also satisfied that there was no proper basis for the Commissioner to recuse himself on the grounds of bias and/or apprehended bias.

[45] On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner's Decision. We also do not consider that an arguable case has been made out that the Commissioner's conclusion was unreasonable, manifested by any injustice or was counter-intuitive. Nor are we persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise. In accordance with s.400(1) of the Act, permission to appeal is refused.

P. Barker of the Australian Government Solicitor for the Commonwealth of Australia (Department of Home Affairs)

[1] [2018] FWC 4150 (Decision).

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

[11] [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

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

[13] [2010] FWAFB 5343, 197 IR 266 at [27].

[14] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[15] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

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

[19] Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]- [34].

[22] Mr Gibbens's Outline of Submissions on appeal at [142].

[23] (2002) 112 IR 24.

[25] [2018] FWCFB 3989.

[26] Decision at [10]-[12], [23]-[25], [33]-[38] & [62].

[30] See, for example, Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3] and the authorities referred to therein.

[31] Mr Gibbens's Outline of Submissions on appeal at [51].

[35] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62].

[36] [1979] AATA 64; (1979) 36 FLR 482.

[37] [2011] VSC 42.

[38] (1995) 59 IR 430.

[40] (1995) 59 IR 430 at 444-45.

[41] Appeal Book, pp. 515-516 & 519-520.

[42] Decision at [16] & [39] to [62].

[43] Transcript, 5 September 2018, at PN 166-167.

[47] Appeal Book, pp 106-107 (PN 931-944).

Printed by authority of the Commonwealth Government