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[2020] FWCFB 3166
procedural. Permission to appeal refused.
The Full Bench refused permission to appeal an arbitral decision which upheld Victoria University's suspension without pay and its compliance with disciplinary procedures. The Commissioner correctly found that a lawful suspension removed the employee's ordinary hours, so the employee could not claim paid personal leave under the Fair Work Act during that suspension. The Full Bench found no arguable appealable error, no public interest grounds, and no substantial injustice, and therefore refused permission to appeal.
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1,870 words · generated 18/06/2026
Ilya Kerig, a former Loans Support Officer at Victoria University, was investigated after the university's Information Technology Services (ITS) found that the iMac allocated to him had been restored to factory settings, customised to limit administrator access, had Boot Camp installed and a high volume of personal material including at least one admitted inappropriate file (see paras [3], [7], [22]). The university commenced a disciplinary process under clause 62 of the Victoria University Enterprise Agreement 2013, suspended Mr Kerig without pay pursuant to clause 62.4 during the investigation, and ultimately terminated his employment following internal decision-makers and an internal review (paras [4], [7]).
Mr Kerig pursued three questions by arbitration under the Agreement’s dispute resolution clause: whether clause 62 procedures were properly followed, whether the conditions to commence serious misconduct procedures and to stand him down without pay were satisfied, and whether he was entitled to access accrued personal (sick) leave while suspended without pay (paras [5], [6]). Commissioner Bissett answered each question in favour of the university (paras [7]-[12]). In particular, the Commissioner concluded that: the university's investigation met the threshold to commence disciplinary proceedings for serious misconduct (para [7]); the decision to suspend the Appellant without pay was properly exercised (paras [8]-[9]); and the Appellant was not entitled to paid personal leave while suspended without pay (paras [10], [11] citing [138]-[140]).
Mr Kerig sought permission to appeal the arbitral decision to the Full Bench under s 604 of the Fair Work Act 2009. The Full Bench (Deputy Presidents Gostencnik, Colman and Saunders) refused permission to appeal on 17 June 2020 (paras [13], [25], [33]). The Full Bench emphasised that the public interest test in s 604(2) was not met, there was no arguable appealable error, and no sufficient discretionary grounds to grant permission (paras [14]-[16], [25], [29], [33]).
Two separate but interrelated strands drove the Full Bench's decision.
Permission to appeal threshold: s 604(2) requires the Full Bench to grant permission if satisfied it is in the public interest. The Full Bench applied established guidance on what may enliven the public interest (cases such as GlaxoSmithKline v Makin are cited for the principles) and then evaluated whether those elements were present in this case (paras [14]-[16], [25]). The Bench concluded the decision turned on its specific facts, raised no issue of importance and general application, there was no diversity of first-instance decisions necessitating guidance, and no manifest injustice or disharmony with other authorities (paras [25]-[29]). That reasoning led directly to refusal of permission (paras [25], [33]).
Legal substance on paid personal leave: The Commissioner's reasoning was that suspension without pay removed the Appellant's ordinary hours and obligation to attend and perform work (para [138]). The Bench accepted that analysis and placed it alongside Justice Flick's judgment in CEPU v Qantas ([2020] FCA 656), where Flick J held that, in effect, if an employee is lawfully stood down such that there is no work to be performed, the statutory leave entitlements of ss 96/105 (corresponding to personal/carer’s leave provisions in that litigation) are not enlivened because the leave concept presupposes a requirement to be relieved from performing work that the employee would otherwise have to perform (paras [26]-[27], cited at [25]). The Full Bench considered the Commissioner's conclusion consistent with that federal court authority and found no arguable error in its conclusion that paid personal leave was not payable while Mr Kerig was lawfully suspended without pay (paras [26]-[29], [138]-[140]).
Other factors influenced the Bench: the Commissioner’s decision confined itself to the narrow arbitration questions (it did not determine whether the Appellant actually engaged in the alleged misconduct) (para [6]); the Commissioner considered the evidence including explicit material on the computer (para [29]); and the Full Bench found no substantive procedural fairness or conflict-of-interest concerns properly raised to justify an appeal (paras [29], [31]).
Before this decision, the law recognised that leave entitlements under the National Employment Standards (NES) are engaged when the employee is otherwise obliged to perform work and is unable to because of the statutory reasons for leave (sick leave, carer’s leave). What was contested was the interaction between a lawful suspension/stand-down and the availability of paid personal leave.
Justice Flick's decision in CEPU v Qantas ([2020] FCA 656), decided contemporaneously to this Full Bench decision and cited by it, held that where an employee is lawfully stood down and there is no work the employee can perform, personal/carer's leave entitlements are not enlivened because those entitlements are to relieve an employee from otherwise performing required work (para [26] quoting para [35] of Flick J's judgment). The Full Bench in Kerig applied that reasoning to an enterprise agreement suspension context and endorsed the Commissioner's reasoning that a suspension that removes ordinary hours means personal leave is not triggered (paras [27], [138]-[140]).
After this decision, practitioners can rely on the Full Bench's approach: where an enterprise agreement validly authorises suspension without pay, and suspension removes the employee's ordinary hours and obligation to work, paid personal leave is unlikely to be payable during that suspension. The Full Bench emphasised that its refusal of permission limits the decision's precedential breadth, it is treated as fact specific and consistent with CEPU v Qantas rather than establishing broad new law (para [25]).
Paragraph [138]:
Paragraph [140]:
Paragraph [26] (discussion of CEPU v Qantas):
Paragraph [25]:
The precedent is triggered where:
In those circumstances, this decision supports the conclusion that paid personal leave will not be payable because the entitlement presupposes the employee has ordinary hours or a requirement to be relieved from performing work.
Note limits: the decision is fact-specific; different agreement language, different statutory contexts, or different forms of stand-down/ suspension could produce different results (para [25]).
This Full Bench expressly treated and applied the reasoning in CEPU v Qantas ([2020] FCA 656) as supportive of its conclusion (paras [26]-[27]). The Full Bench described the CEPU v Qantas reasoning as consistent with the Commissioner’s decision and used it to confirm the legal principle that where there is no work available because of a lawful suspension/stand down, the leave entitlements are not enlivened (para [27]). The Full Bench otherwise declined to grant permission to appeal, so the decision itself was not subjected to appellate reconsideration in this matter (paras [25], [33]).
No subsequent appellate treatments of this Full Bench decision are contained in the decision text. Practitioners should check later authorities and any Federal Court decisions concerning the interaction of suspension/stand-down and NES leave since June 2020.
Different enterprise agreement wording:
Distinguishing stand-downs under s 524 of the Fair Work Act and suspensions under an enterprise agreement:
Interaction with genuine incapacity to work:
Practical utility when employee is dismissed:
Fragmentation of proceedings and concurrent litigation:
Practical takeaway: where employers validly suspend employees under agreement provisions and that suspension removes ordinary hours, reliance on paid personal leave during the suspension is likely to fail under the reasoning accepted by the Full Bench. However, the precise outcome will depend on the specific wording of the enterprise agreement, the factual circumstances of the suspension and illness, and any statutory nuances. Counsel should analyse the agreement text and contemporaneous decision-making documentation carefully and consider the potential for parallel court processes.
s.604 - Appeal of decision
Appeal against decision [2020] FWC 1461 of Commissioner Bissett at Melbourne on 1 April 2020 in matter number C2019/4743 - arbitration of dispute under dispute settlement procedure in an enterprise agreement - permission to appeal refused.
[1] Mr Ilya Kerig (Appellant), a former Loans Support Officer employed by the Victoria University (Respondent), has appealed against a decision of Commissioner Bissett on 1 April 2020[1] (Decision). The Decision was made in the exercise of arbitral powers conferred on the Commission by the dispute resolution procedure in clause 59 of the Victoria University Enterprise Agreement 2013 (Agreement), and determined an application made pursuant to s.739 of the Fair Work Act 2009 (Act) by the Appellant for the Commission to resolve a dispute pursuant to clause 59. The dispute concerned the Respondent's decision to investigate the Appellant's alleged conduct and suspend him from his job, without pay, during the investigation.
[2] The parties consented to the determination of this appeal on the basis of the submissions filed by them in the Commission.
[3] The Commissioner set out the relevant background to the dispute and then summarised the allegations against the Appellant as follows:
"1. He restored a University iMac computer (computer) to factory default settings and then personalised the computer to restrict the University from gaining administrator access to the computer and to avoid having his digital activity monitored by the University. Further he knowingly and wilfully installed Boot Camp Assistant (software) to download and run Windows 10 on the computer allocated to him against the advice of the University's Information Technology Services (ITS) Department. In doing so he breached a number of identified University policies;
2. He deliberately and wilfully stored and accessed inappropriate content regarded as objectionable and offensive, using the University's IT resources. In doing so he breached a number of identified policies;
3. The volume of personal material stored on the computer which was allocated to enable him to undertake work related duties was unreasonable and not in accordance with the University's IT policies and procedures. In doing so he breached a number of identified University policies;
4. He failed to abide by a lawful direction in that he sought to dishonestly gain access to the computer and potentially interfere with the investigation pertaining to his conduct. The University considered such behaviour to be unprofessional. In doing so he breached an identified University policy;
5. His actions amounted to serious misconduct in accordance with clause 62.1.13 of the Agreement." [2]
[4] The Appellant was given an opportunity to respond to these allegations. Professor Strathdee considered the Appellant's response and found that all the allegations of serious misconduct were made out in full. Professor Devlin, Deputy Vice Chancellor of the Respondent, then made a decision to terminate the Appellant's employment without notice. The Appellant sought a review of that decision by the Respondent's Review and Appeals Committee. That committee upheld the decision of Professor Devlin and the Appellant's employment was terminated in January 2020.[3]
[5] In resolution of the dispute, the Appellant sought that the following questions be determined by the Commission:
"1. Whether all actions/procedures under clause 62 [of the Agreement] have been followed and have been followed correctly;
2. Whether the University has properly enlivened the serious misconduct process under the Agreement. That is, whether the conditions necessary to commence serious misconduct procedures against Mr Kerig and to suspend Mr Kerig have been made out;
3. Whether the University has a right to refuse access to accrued personal leave during a period of suspension [without pay] under clause 62.4 [of the Agreement] when all medical evidence was provided." [4]
[6] These questions did not require the Commissioner to make findings about whether the Appellant engaged in the conduct alleged against him.
[7] The Commissioner first turned to consider question 2. In doing so, the Commissioner had regard to the background to the investigation and the steps taken by the Respondent to investigate the allegations.[5] The Commissioner was satisfied that the Respondent's Information Technology Services Department conducted an investigation and found what it considered to be unauthorised modification to the iMac computer owned by the Respondent and used by the Appellant in the course of his duties as an employee of the Respondent; on further investigation, inappropriate material and a high volume of personal material was found on the iMac computer. The Commissioner also found that allegations were put to the Appellant and Professor Strathdee formed the view that the allegations could, if found to be substantiated, amount to serious misconduct.[6] The Commissioner then concluded that the conditions necessary to commence formal disciplinary procedures for serious misconduct against the Appellant were met.[7]
[8] The Commissioner considered, as part of question 2, whether the conditions necessary to stand the Appellant down, without pay, during the investigation were met by the Respondent.[8] After having regard to the relevant provisions of the Agreement and the evidence given by Professor Devlin as to the matters she took into account in making her decision to suspend the Appellant without pay, the Commissioner concluded that Professor Devlin properly exercised the power available to her to determine that the Appellant be suspended, without pay, during the investigation.[9]
[9] The Commissioner then turned to question 1 and considered each of the arguments put by the Appellant as to why he contended that the Respondent had not met the requirements of clause 62 of the Agreement. Having considered the relevant provisions of clause 62 and the evidence relevant to the Appellant's contentions, the Commissioner concluded that she was satisfied the requirements of clause 62 had been complied with.
"[138] For the period in question Mr Kerig did not have any ordinary hours of work as he had been suspended without pay. He was not performing any duties for the University. Whilst, if he had not been suspended his ordinary hours would be 36.75 per week, his privilege of being at work, and hence having any ordinary hours, had been taken away from him by the suspension. The same may well be true of other leave entitlements except that the Agreement provides a specific right to access annual and long service leave with approval.
[139] There is a logic in the structure of the Agreement in this regard. If an employee is dismissed or otherwise leaves employment annual leave and long service leave must be paid out. Personal leave is not. Allowing an employee to access annual and long service leave whilst suspended without pay does not accrue any additional benefit to the employee. If ultimately not dismissed the employee is recredited with the leave, if dismissed any remaining annual and long service leave still owing will be paid out.
[140] The illness suffered by Mr Kerig while suspended without pay is not a condition that stopped him from attending the workplace - it is the suspension that imposed that barrier. It would be unusual if the suspension could be negated by some other condition dependent on the capacity to work (i.e. illness). Were Mr Kerig correct, the suspension without pay provision could become meaningless and could, as put by the University, result in a windfall gain to an employee terminated for serious misconduct."[11]
[13] The Agreement does not confer on the parties to a dispute an independent right to appeal an arbitrated decision made by the Commission. Accordingly, the question of what rights parties to a dispute may have to appeal an arbitrated decision of the Commission is to be determined by reference to the Act. Section 604 of the Act provides for an appeal by an aggrieved person to the Full Bench of the Commission, but only with the permission of the Full Bench. The Act does not confer on a party a right to appeal a decision of the Commission.[14] An appeal under the Act is conditional on permission to appeal being granted. It follows that the Appellant requires permission to appeal from the Decision, in accordance with s.604(1) of the Act.
[14] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so." The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[15] 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."[16]
[15] Other than granting permission to appeal on a public interest basis, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if refused.[17]
[16] Further, 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.[18] 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.[19]
Appellant's grounds of appeal and public interest contentions
[17] The Appellant's notice of appeal identifies the following grounds for the appeal:
"1. Decision was not based on all relevant considerations
3. Ms Michelle Bissett did not address apparent conflict of interest with Respondent's Review Appeals Committee Chair - Brian James Lacy. (Former Senior Deputy President of FWC) The application was to override his decision.
4. Ms Michelle Bissett claims there's little supporting evidence in Applicant's assertions, when in fact there's a lot."
[18] The following list of alleged significant errors of fact was attached to the notice of appeal:
"1. Fact omitted - Applicant had permission to create a custom setup for his computer from his senior colleague. (Email evidence)
Fact omitted/changed - IT Services supported Applicant's plan to create custom setup by proving [sic] information as to where to get Windows 10 licence. (Email evidence)
Fact omitted - alleged privacy breach by Victoria University in order to investigate the applicant. (VCAT decision pending.)
Fact omitted - relevant files appeared on the work computer as part of Applicant's personal phone backup. Fact not contested. There's evidence.
Fact omitted/changed - Professor Strathdee requested Professor Solomonidies to sign the letter of behalf of Professor Devlin. (email evidence)
Fact omitted - Professor Devlin trusted Professor Strathdee when making the decision. (audio evidence provided to Ms Bissett after the hearing)
Ms Bissett confuses the timeline of events and makes decisions based on that. P128.
Ms Bissett interprets the section 99 of the FW [Act] as if it explains the eligibility, which [sic] in fact it explains the amount of pay.
Fact omitted - VU's EA lists no exceptions in Personal leave clause that disallow an employee taking sick leave.
Ms Bissett makes an Error of Fact when she states that little or no evidence was provided to support Applicant's arguments. P144. Lots of evidence was available."
[19] In his notice of appeal, the Appellant contends that the following matters make it in the public interest for the Commission to grant permission for the appeal:
"1. To preserve public's trust in Fair Work Commission and VU.
2. To show public that they can expect procedural fairness from FWC.
3. To show that FWC considers all the evidence and Legislation when making the decision.
4. Exposing potential serious maladministration at Victoria University.
6. Exposing potential serious maladministration at FWC.
6. To show Employees of VU and public that even though Former Senior Deputy President of FWC is employed by Victoria University, FWC can still act impartially and with accordance with Natural Justice when making the decisions that affect Victoria University."
[20] The Appellant filed written submissions in chief dated 8 May 2020 and in reply dated 29 May 2020. We have had regard to those submissions in determining this appeal. In his reply submissions, the Appellant withdrew his "statement about serious maladministration".[20]
[21] In his written submissions in chief, the Appellant relies on the following public interest considerations in addition to those identified in his notice of appeal:
There are no relevant cases in relation to personal leave while suspended without pay.
Two proceedings commenced on 1 April 2020 by a number of unions against Qantas Airways Ltd consider the interaction between sick leave and stand down provisions. The Full Bench is in a position to settle this principle of law as a matter of public interest.
To show employees of the Respondent that they can use their entitlement under the Agreement to bring disputes before the Commission, and that the Commission will determine such disputes in a fair manner.
[22] The Appellant also expanded on his grounds of appeal in his written submissions in chief and in reply.
[23] The Respondent filed written submissions dated 22 May 2020 in relation to both the application for permission to appeal and the appeal grounds relied on by the Appellant.
[24] The Respondent submits that the Appellant has failed to articulate or demonstrate any conventional basis for enlivening the public interest. In particular, the Respondent contends that:
There is no diversity of decisions at first instance so that guidance from an appellate body is required of this kind.
The appeal did not raise any issues of importance and/or general application.
The decision at first instance manifests no injustice, nor is the result counter intuitive.
The legal principles applied by the Commissioner are not disharmonious when compared with other decisions dealing with similar matters.
The Appellant received natural justice from the Commissioner: he was continually asked to clarify his claim and how he wished to advance it.
The Commissioner did pay due regard to the evidence and legislation.
It is offensive for the Appellant to contend that the public interest is enlivened because his appeal will be "exposing potential serious maladministration at FWC". There is no evidence whatsoever of maladministration in this Commission. That assertion should not be made and should be withdrawn.
The public interest is not enlivened upon any orthodox basis. There was no error in the carrying out of the arbitral function.
The Appellant seeks to reargue his case without recourse to identification of appealable error.
• It has only now transpired that in November 2019, in the short period between the hearing of the Appellant's application for interim relief (September 2019) and the substantive hearing (11 February 2020), the Appellant filed an application in the Federal Circuit Court seeking a judicial determination/adjudication of his alleged right to receive pay for personal leave while he was suspended without pay.[21] The Appellant did not disclose the initiation of that court process to the Commission or the Respondent after filing the application in November 2019. Neither did the Appellant make mention of it during the hearing before the Commission in February 2020. The Respondent has never been served with any court process; it is listed for hearing in September 2020. The Appellant seeks adjudication by the Federal Circuit Court of the same question as was determined by the Commissioner, but in a different forum. The Appellant ought not be permitted, so the Respondent contends, to use the Commission appeal processes in anticipation of the judicial determination of his alleged right to receive pay for personal leave while he was suspended without pay. Further, the material non-disclosure as to the existence of a court proceeding is a relevant consideration of the question of public interest - the litigation of the same claim in a different forum. But the Respondent contends that the issue runs deeper: the non-disclosure to the Commission of the contemporaneous court proceeding lacks candour. The Commission was drawn into an analysis of the claim in ignorance of the 'live' claim before the Federal Circuit Court. That conduct deserves censure. The Respondent submits that the public interest is not served by rewarding conduct which lacks candour, involving non-disclosure of a material matter and the fragmentation of a claim by its pursuit in multiple fora.
[25] We do not consider that this is a case where permission to appeal is required to be granted under s.604(2) on the public interest ground or should otherwise be granted on discretionary grounds. We have reached that conclusion for a number of reasons. First, we do not consider that the Decision raises any issue of importance or general application that would enliven the public interest. It concerned the suspension, without pay, of one employee (the Appellant) while an investigation was conducted into allegedly inappropriate material stored on his work computer. The Appellant conceded that one of the files stored on his work computer was inappropriate.[22] Notwithstanding the fact that the Respondent is obviously a large employer and the disciplinary process set out in the Agreement may be applied to a whole range of employees in a variety of circumstances, we do not consider that the Decision has any precedential value. It turns on its own facts and circumstances. The Commissioner did not seek to establish any general standard as to when an employee will or will not be entitled to payment for personal leave while they are stood down, without pay, during an investigation into alleged misconduct. The determination of that issue turned on an interpretation of the particular provisions of the Agreement and the National Employment Standards. We deal with that issue further below in our consideration of the grounds of appeal.
[26] Secondly, there is not a diversity of decisions at first instance so that guidance from a Full Bench is required. In fact, since the Decision was handed down, Justice Flick published a judgment in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [23] (CEPU v Qantas) to which the Appellant refers in his written submissions[24] concerning Qantas's decision not to pay personal/carer's leave or compassionate leave to employees who had been stood down under the Act or an applicable enterprise agreement. Justice Flick held:
"In circumstances where an employee has been lawfully stood down, and thus in circumstances where there is no work which the employee can perform and thereby derive income, an employee is not entitled to access the leave entitlements conferred by ss 96 or 105. To enable the employee to do so would go against the very object and purpose of conferring those entitlements - namely an entitlement to be relieved from the work which the employee was otherwise required to perform. If there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost. Conversely, to expose the employer to a liability to pay leave entitlements after lawfully having invoked the power to stand down an employee would defeat one of the two principal purposes of standing the employee down - namely, to protect the employer against such claims."[25]
[27] The determination by the Commissioner that the Appellant did not have an entitlement to paid personal leave while he was suspended, without pay, pursuant to the relevant terms of the Agreement[26] is entirely consistent with the reasoning and conclusion reached by Justice Flick in CEPU v Qantas.
[28] Thirdly, we do not consider that the result of the arbitration by the Commissioner is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
[29] Fourthly, the grounds of appeal are not sufficiently arguable to justify the grant of permission to appeal. Although 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,[27] it is necessary to engage with the appeal grounds to consider whether they disclose an arguable case of error. We deal with the main grounds raised briefly as follows:
(a) The Appellant contends that the Commissioner acted upon a wrong principle because the Respondent's right under the Agreement to suspend employees cannot override an employee's personal leave entitlements under the Act. Clause 62.4 of the Agreement conferred on the Respondent the right to suspend an employee, with or without pay, until the conclusion of a disciplinary procedure if an allegation of serious misconduct had been made against an employee and the relevant senior officer of the Respondent considered that, on a prima facie basis, the allegations were serious enough to warrant the employee not being at work. The Respondent exercised that right in relation to the Appellant. The effect of it doing so was to direct the Appellant not to work and not to attend the workplace. Sections 97 and 99 of the Act confer on an employee an entitlement to paid personal leave where, inter alia, the employee is "not fit for work". However, where there is no requirement for an employee to perform any work, as was the case during the suspension of the Appellant, the right to take any paid personal leave pursuant to ss.97 and 99 of the Act was not enlivened. As Justice Flick observed in , paid personal leave is "an entitlement on the part of the employee to take leave from otherwise performing the work they are required to perform". It follows, in our view, that there is no arguable appealable error in relation to the Commissioner's determination that the Appellant did not have an entitlement to paid personal leave while he was suspended without pay.
[14] DP World Brisbane Pty Ltd v Maritime Union of Australia (2013) 237 IR 180; [2013] FWCFB 8557 at [42]
[15] 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) 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; (2011) 192 FCR 78 at [44] -[46] .
[16] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].
[17] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481.
[18] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]
[19] 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; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[20] Appellant's written submissions in reply dated 29 May 2020 at [18]
[21] Affidavit of Elizabeth Ann Cole affirmed on 22 May 2020 at [6]-[11]
[24] Appellant's written submissions in chief dated 8 May 2020 at [2]
[27] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[30] Appellant's written submissions in chief dated 8 May 2020 at [100]-[131]
[31] For example, Appellant's written submissions in reply dated 29 May 2020 at [3]-[9]
[32] WAEE v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]; Reece v Webber [2011] FCAFC 33 at [67]
[33] Reece v Webber [2011] FCAFC 33 at [68]
Printed by authority of the Commonwealth Government Printer
Ilya Kerig
Victoria University [2020] FWCFB 3166
(2011) 85 ALJR 398
(2001) 116 FCR 481
(2013) 237 IR 180
(1989) 168 CLR 210
(2011) 192 FCR 78
(1998) 89 FCR 200
Permission to appeal refused.
[10] Finally, the Commissioner considered whether the Appellant was entitled to be paid personal leave while he was suspended without pay (question 3). The central part of the Commissioner's reasoning in relation to this question was as follows:
(b) The Appellant's submissions take issue with the findings made by the Respondent in relation to allegations put to him during the course of the investigation.[30] However, in determining the three questions posed by the Appellant for arbitration, the Commissioner was not required to make findings about whether the Appellant engaged in the conduct the subject of the allegations. Further, the Appellant does not contend that the Commissioner made any appealable errors in relation to the allegations or findings, nor do we consider there to be an arguable case that the Decision is affected by any such errors. Similarly, a number of the Appellant's submissions in reply dated 29 May 2020 relate to factual matters and allegations put to the Appellant without identifying any alleged appealable errors.[31] An appeal is not an opportunity to re-argue a case without recourse to identification of appealable error.
(c) The Appellant contends that the Commissioner failed to disclose or address a potential conflict of interest arising out of the fact that Mr Brian Lacy, a former Senior Deputy President of the Commission, works for the Respondent and was the chair of the Respondent's Review and Appeals Committee. Mr Lacy ceased to be a member of the Commission in 2009. The Commissioner was appointed to the Commission in 2010. The fact that Mr Lacy works for the Respondent and was the chair of the committee that reviewed the decision to terminate his employment does not, of itself, give rise to a conflict, or potential conflict, of interest. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.
(d) The Appellant contends that the Decision contains a significant number of factual errors. Many of the alleged factual errors are described by the Appellant in his notice of appeal and written submissions as omitted facts. That is, facts disclosed in the evidence but to which no reference is made in the Decision. The starting point in relation to this contention is that it is not necessary for a decision maker to refer in their decision to every piece of evidence and every contention made by a party.[32] A decision maker, in considering all relevant material placed before them, must give proper, genuine and realistic consideration to the merits of the case.[33] In our view, it is evident from the reasons for Decision that the Commissioner gave detailed and careful consideration to the relevant provisions of the Agreement and the Act and the factual matrix of the dispute, including by viewing the explicit videos and images found on the Appellant's work computer.[34] Indeed, in paragraph [38] of the Decision, the Commissioner observed that it was "not possible ... to determine the dispute without consideration of all the material that was before the relevant people, including decision makers, at the University". We are not persuaded there is an arguable case that the Commissioner failed to give proper, genuine and realistic consideration to the merits of the case, or that she overlooked or failed to have regard to any material facts relevant to the three questions before her for determination. As to the balance of the factual errors contended for by the Appellant, we are not satisfied that there is an arguable case of error in the fact finding process undertaken by the Commissioner or that any such error had a material impact on the conclusions reached by the Commissioner in relation to the three questions before her for determination.
[30] Fifthly, we are not satisfied that any substantial injustice would ensue to the Appellant if permission to appeal is not granted. That is because no arguable case of appealable error is disclosed in the Decision and the Appellant ceased to be employed by the Respondent a number of months ago. The suspension and investigation about which he complains finished at the time his employment relationship with the Respondent came to an end. The appeal insofar as it concerns the process undertaken by the Respondent to investigate the allegations made against the Appellant does not have any practical utility. To the extent that the Appellant is aggrieved by the Respondent's decision to terminate his employment, the termination decision was not the subject of any question for determination in the arbitration before the Commissioner and he has commenced proceedings in the Federal Circuit Court wherein he alleges that the termination of his employment by the Respondent was unlawful adverse action in breach of the general protections provisions of the Act.
[31] Sixthly, we do not consider it to be seriously arguable that the Commissioner acted partially or contrary to natural justice, denied the Appellant procedural fairness, or failed to consider all relevant evidence and legislation. The Appellant was given every chance to present his case throughout the full-day arbitration before the Commissioner on 11 February 2020.
[32] In determining whether to grant permission to appeal, we have not placed any weight on the fact that the Appellant has commenced proceedings against the Respondent in the Federal Circuit Court and did not disclose those proceedings to the Commission or the Respondent. The Federal Circuit Court proceedings do involve, in part, a claim for payment of personal leave during the period that the Appellant was suspended. That issue was determined by the Commissioner in the arbitration and the determination is binding on the Appellant and Respondent in accordance with clause 59.6 of the Agreement. However, the Appellant is not legally represented and we do not infer that he acted in a deliberately underhanded or inappropriate way by commencing proceedings in the Federal Circuit Court to pursue his claim for paid personal leave. It will be a matter for the Federal Circuit Court to determine whether the Appellant should be permitted to prosecute his claim for paid personal leave.