Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2022] FWC 669 of Commissioner Williams at Perth on 28 March 2022 in matter number U2022/255

[1] Mr Jeffrey Lyndon Piefke has applied, pursuant to s 604 of the Fair Work Act 2009 (FW Act), for permission to appeal a decision made by Commissioner Williams on 28 March 2022[1] to dismiss Mr Piefke's application for an unfair dismissal remedy against "Rio Tinto". The Commissioner dismissed the application pursuant to s 587 of the FW Act.

[2] Directions were made for the filing of written submissions by Mr Piefke in relation to his application for permission to appeal. However, Mr Piefke failed to file any submissions in accordance with the directions, despite being prompted to do so on a number of occasions. Mr Piefke did, however, send a significant number of emails to the Commission which did not shed any light on the grounds of appeal. Prior to the hearing, Mr Piefke sought an adjournment on the basis of alleged work commitments. The request for adjournment was denied. On the day of the hearing, Mr Piefke appeared and further pressed for an adjournment of the proceedings on the grounds that, allegedly, he shortly had to go to sea to run a tug.[2] Mr Piefke did however make some submissions in relation to his appeal during the hearing.

[3] The decision of the Commissioner is brief. A summary of the decision of the Commissioner as is relevant to this appeal is as follows:

• The employer named in Mr Piefke's application is Rio Tinto.[3]

• Mr Piefke states that he began working for the employer in March 2005 and was notified of his dismissal on 22 December 2021 and his dismissal took effect that day.[4]

• Rio Tinto Aluminium Limited (Rio Tinto Aluminium) lodged an objection to the application asserting that Mr Piefke began working for it in June 2005 and that he resigned effective 31 January 2019 in accordance with the terms of a Deed of Settlement and Release between him and Rio Tinto Aluminium.[5]

• In light of the objection by the named employer, directions were issued to Mr Piefke to file a witness statement and supporting documentary evidence "which proves as your application states that you were employed by Rio Tinto immediately before 22 December 2021 and that you were dismissed by Rio Tinto on that date."[6]

• Mr Piefke replied to the directions by sending a significant number of emails which the Commissioner characterised as "historical emails between Mr Piefke and a number of other persons or organisations which he has forwarded to the Commission without meaningful explanation."[7]

• The emails themselves do not demonstrate at all that Mr Piefke was employed by Rio Tinto immediately before 22 December 2021 and/or that he was dismissed by Rio Tinto on that date.[8]

• No explanation of those emails or a witness statement was provided.

[4] The consideration and the decision of the Commissioner was as follows:

"Obviously if Mr Piefke cannot demonstrate to the Commission that he was employed by Rio Tinto at the time he says he was and that he was then dismissed, it is not possible for him to succeed with this unfair dismissal remedy application.

Mr Piefke has not been prevented from submitting his case for determination. The Commission's direction provided him with the opportunity to submit evidence in support of an essential element of his case.

Mr Piefke has not provided a witness statement as directed. What material he has provided to the Commission does not demonstrate that he was employed by Rio Tinto immediately before 22 December 2021 and/or that he was then dismissed, nor indeed does it demonstrate that he was employed by Rio Tinto at any time in 2021.

My decision consequently is that Mr Piefke has no reasonable prospect of succeeding in this application. Consequently, pursuant to section 587 this application will be dismissed. An order [PR739699] to that effect will be issued."[9]

[5] As earlier stated, Mr Piefke did not file submissions in support of his appeal as required. The grounds of appeal set out in the notice of appeal are largely incomprehensible and include references to various matters including the fairy god mother, an admission that he shot the sheriff (but accompanied by a denial in respect of his deputy), his family's telemetry, jurisdiction orders and "section 12 law under orders at sea".

[6] At the appeal hearing, Mr Piefke confirmed that Rio Tinto was not his employer on 22 December 2021, and that his employer at that time was "Pacific Aluminium".[10] Further, Mr Piefke conceded that the Commissioner was correct when he said that there was no evidence that he was employed by Rio Tinto in December 2021 or dismissed by them.[11]

[7] An appeal against a decision to dismiss an unfair dismissal remedy application under s 587 of the FW Act is one to which s 400(1) of the FW Act applies.[12] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[14] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[16] 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.[17]

[8] We do not consider it is in the public interest to grant permission to appeal, nor do we consider that the adjournment sought should be granted in order to allow Mr Piefke to make further submissions in relation to his application for permission to appeal.

[9] The appeal is plainly without merit. Mr Piefke lodged an unfair dismissal application claiming he was dismissed on 22 December 2021 by Rio Tinto. When this was put in issue by the alleged employer, Mr Piefke advanced no evidence that he was employed or dismissed by the alleged employer at the relevant time, despite being directed to do so by the Commissioner. In those circumstances, the Commissioner was correct to conclude that Mr Piefke's application had no reasonable prospects of success and to dismiss the application pursuant to s 587(1)(c) of the FW Act.

[10] In respect of his application for permission to appeal, Mr Piefke has declined to advance any submissions demonstrative of any error in the Commissioner's decision. To the contrary, Mr Piefke confirmed at the hearing that Rio Tinto was not his employer on 22 December 2021. If Mr Piefke was not employed by Rio Tinto then he could not have been dismissed by them. This confirms that Mr Piefke's application had no reasonable prospects of success and that the Commissioner's decision to dismiss it on that basis was correct.

[11] Furthermore, during the hearing the following query was put to Mr Piefke:

"Mr Piefke, if we granted you an adjournment, I gather that you will not be contending in any future hearing that you were dismissed by Rio Tinto in December 2021?"[18]

"Well, I can't be because I was working for Pacific Aluminium."[19]

[13] As Mr Piefke is not going to contend anything different to that which he submitted during the hearing, there is no utility in granting an adjournment.

[14] It is apparent that Mr Piefke wishes to use this proceeding as a vehicle to pursue various historic grievances he has against Rio Tinto. The public interest would not be served by granting permission to allow Mr Piefke to continue to agitate these matters in an appeal in circumstances where they do not relate to the decision under appeal.

[15] For the above reasons, we do not consider that it would be in the public interest to grant permission to appeal. Accordingly, permission to appeal must be refused as required by s 400(1) of the FW Act.

Mr P Zielinski (of counsel) on behalf of the Respondent.

[1] [2022] FWC 669.

[3] [2022] FWC 669 at [1].

[10] Transcript, 6 June 2022, PN42-PN47.

[12] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]

[13] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)

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

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

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

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

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