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[2022] FWCFB 140
General information, not legal advice.
Fair Work Commission (Full Bench)
2022-07-28
Lucev J
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [2022] FWC 1138 of Commissioner McKinnon at Sydney on 12 May 2022 in matter number SO2022/155 - permission to appeal refused.
[1] Mr Jeffrey Piefke (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a decision of Commissioner McKinnon issued on 12 May 2022 in matter number SO2022/155 (the Decision)[1]. The Decision dealt with an application made by Mr Piefke on 29 March 2022 under s.789FC for orders to stop bullying or sexual harassment against various employees of his former employer Rio Tinto Aluminium Limited (Rio Tinto).
[2] The matter was listed for permission to appeal only. Directions were issued on 16 June 2022 for the filing of submissions and material and the matter was listed for hearing on 5 July 2022. While failing to file submissions in accordance with the directions, the Appellant did however forward a large volume of emails and accompanying material to the Commission in advance of the hearing which was supplemented by oral submissions by the Appellant at the hearing.
[3] The background to the appeal may be briefly stated as follows. Mr Piefke commenced employment with Rio Tinto in 2005 and, at the time of his cessation of employment with Rio Tinto on 31 January 2019, was engaged as a Tug Engineer. At the time of his cessation of employment, Rio Tinto made a decision that the Appellant would not be permitted to perform work on any Rio Tinto site in the future due to safety related conduct the Appellant was alleged to have engaged in prior to the cessation of his employment with Rio Tinto. We understand that this is in dispute.
[4] Following his cessation of employment with Rio Tinto, the Appellant has unsuccessfully attempted to return to work on Rio Tinto operational sites within Australia through employment with contractors to Rio Tinto. Aggrieved at his treatment and being prevented from returning to work on Rio Tinto sites, the Appellant has made several unsuccessful applications to the Commission and to the Federal Court as follows;
On 29 June 2020, the Appellant filed an unfair dismissal application against Workpac Pty Ltd (UD2020/8869).
• On 26 October 2022, Commissioner Williams issued a decision[2] in which he dismissed the unfair dismissal application (U2020/8869) pursuant to ss.399A and 587 of the Act.
• On 31 May 2021, Lucev J of the Federal Circuit Court issued a decision[3] in which he dismissed the Appellants unlawful termination application for want of jurisdiction.
• On 14 June 2022, a Full Bench of the Commission issued a decision[5] in which it dismissed the appeal of Commissioner Williams' decision of 28 March 2022.
[5] Turning now to the Decision under appeal, the Commissioner identified the following matters of relevance to the application before her;
• The Appellant's s.789FC application related to his historic employment with Rio Tinto and his more recent efforts to obtain work with contractors engaged on Rio Tinto sites following his cessation of employment with Rio Tinto[6].
• The Appellant last worked on a Rio Tinto site in 2021 and prior to his s.789FC application having been made, his site access with respect to another contractor engaged by Rio Tinto was withdrawn, the consequence of which being he was told by that contractor he was unable to be employed by them[7].
• While making no findings, the Commissioner observed that the Appellant appeared, on the material before her, to have been exposed to conduct of a sexual nature while at work for Rio Tinto in an incident captured on CCTV footage on 11 July 2017. The Commissioner further stated that "to the extent it had not done so already" Rio Tinto should "take appropriate action in line with its obligations under work health and safety obligations"[8].
• The Commissioner then briefly dealt with the material filed by the Appellant and stated that the material confirmed that the Appellant was no longer a "worker" nor at "work" in the business of Rio Tinto and that there was no reasonable prospect of the Appellant undertaking any further work in, or for, the business of Rio Tinto[10].
[6] The Commissioner then concluded as follows;
"[5] As Mr Piefke is not a worker nor at work in the business of Rio Tinto, there is no foreseeable risk that he will continue to be bullied or sexually harassed while at work in that business. The application has no reasonable prospects of success.
[6] The application is dismissed under section 587(1) of the Act."[11]
[7] It is not possible to fairly summarise the written material filed by the Appellant due to its volume. The material filed fails to identify error in the Decision but rather, traverses a range of matters relating to the Appellant's employment with Rio Tinto including historical safety complaints, his pursuit of various safety matters with the Australian Maritime Safety Authority (AMSA), the investigation by Rio Tinto into alleged misconduct by the Appellant in 2018, alleged sexual harassment suffered by the Appellant on 11 July 2017, that incident's subsequent investigation and the Appellant's cessation of employment with Rio Tinto by way of resignation on 31 January 2019.
[8] Notwithstanding the scope and volume of material filed, we discern from the Appellant's Form F7 notice of appeal, the material filed and the Appellant's oral submissions that the following grounds of appeal are advanced. That the Commissioner erred in the Decision;
(1) by failing to have regard to critical vessel related safety matters raised by the Appellant during his employment with Rio Tinto;
(2) by failing to take into account the sexual harassment the Appellant was subjected to at work on 11 July 2017; and
(3) by failing to have regard to Rio Tinto's conduct in continuing to prevent him from obtaining work on a Rio Tinto site.
[9] 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.[12] There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted on discretionary grounds.
[10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[14] 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..."[15]
[11] Other than the special case in s.604(2), 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 leave is refused.[16]
[12] 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.[17] However, as earlier stated, the fact that the Member at first instance made an error is not necessarily a sufficient basis for granting permission to appeal.
[13] As earlier set out, the Appellant's application under s.789FC for orders to stop bullying or sexual harassment was dismissed by the Commissioner pursuant to s.587(1) of the Act. Section 587(1)(c) of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. We refer to and concur with the observations of Deputy President Gostencnik about the use of s.587(1) in Shaw v Australian and New Zealand Banking Group Limited T/A ANZ Bank[18] when he said as follows in the context of considering the dismissal of a s.789FC application;
"[8] ...Without traversing in any great detail the authorities that have considered the proper application and meaning of the phrase, "no reasonable prospect of success," it is sufficient for me for present purposes to make the following observations. A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. But these examples do not provide an exhaustive description of when a particular application has no reasonable prospect of success."
[14] The power to dismiss under s.587 of the Act is exercisable in relation to 'an application'. It was uncontroversial in the matter before the Commissioner that the Appellant had made 'an application' for orders to stop bulling or sexual harassment. In then assessing whether 'the application' for an order under s 789FF of the Act 'has no reasonable prospects of success', it is necessary to consider whether each of the preconditions for the making of an order under that section might be able to be made out. If other jurisdictional prerequisites have been met, the discretion to make an order is only exercisable if, relevantly, the Commission is satisfied that:
• the worker has been bullied or sexually harassed at work by an individual or a group of individuals[19]; and
• there is a risk that the worker will continue to be bullied or sexually harassed at work by the individual or group.[20]
[15] As s 789FF(1)(b)(i) of the Act makes clear, the Commissioner was required as part of her consideration to be satisfied that there was a risk that the Appellant would continue to be bullied or sexually harassed at work by the relevant individual or group of individuals.[21] Without satisfaction of the existence of a risk of continued bullying or sexual harassment, no power to make an order to stop bullying or sexual harassment exists. The Appellant is no longer employed by the Respondent, a point not contested by him. He further conceded during oral submissions[22] on appeal that it was unlikely he would work with the individuals named in his application in the future.
[16] Where it was established that there was no risk of further bullying or sexual harassment, it was unnecessary for the Commissioner to determine whether the Appellant was being bullied or sexually harassed at work. That is because both pre-requisites for the making of an order under s.789FF(1)(b) must be established. Absent the establishment of a risk of further bullying or sexual harassment, the Commissioner did not have the power under s.789FF(1) to make an order to stop bullying or sexual harassment.
[17] In circumstances where the Appellant was no longer employed by Rio Tinto, nor at work on a Rio Tinto site with no reasonable prospect of that occurring, and noting the Appellant's own admission that he was unlikely to work with the named individuals in the future, the Commissioner was entirely correct to find that there was no risk of further relevant bullying or sexual harassment of the Appellant. As such, one essential pre-requisite for the making of an order to stop bullying or sexual harassment was not present. Having reached that conclusion the Commissioner was also correct to determine that the application for an order had no reasonable prospect of success. No error is disclosed in the Commissioner's reasoning or conclusion.
[18] Returning to what we discern to be the grounds of appeal advanced by the Appellant, the following may be said. Firstly, the Appellant's complaint that the Commissioner failed to consider the historical vessel safety matters raised by him with Rio Tinto is without merit. We accept that the Appellant is passionate about the importance of safety in the workplace. That is evident from the voluminous material filed in the proceedings before the Commissioner and in these appeal proceedings. That material does not however address the jurisdictional matters that the Commissioner dealt with in the Decision and which are subject to appeal. This appeal is not an appropriate forum for the Appellant to agitate his historical grievances against Rio Tinto over vessel safety matters. No error is disclosed by the Commissioner not taking those matters into account.
[19] Secondly, the submission that the Commissioner failed to have regard to the sexual harassment the Appellant claims to have been subject to is also without merit. As earlier stated, establishment of the jurisdictional pre-requisites for the making of an order to stop bullying or sexual harassment includes the establishment of whether two critical pre-conditions are met, whether the alleged bullying or sexual harassment had occurred and whether there was a risk of that conduct continuing. Absent either of those pre-conditions being established, no order could be made. Even were the Commissioner to have taken the Appellant's case at its highest, that being he had been subject to bullying or sexual harassment, the Commissioner would still have been unable to make an order. That is so because she found, correctly in our view, that the second pre-condition, that of the risk of the conduct continuing, could not be met. It was therefore unnecessary for the Commissioner to determine whether bullying or sexual harassment had occurred given that the second precondition could not be established. No error is disclosed by the Commissioner not having determined whether the alleged conduct had occurred. We also note that the Commissioner did not condone the alleged conduct and made some direct observations to Rio Tinto about that issue, which we consider to be entirely appropriate given the circumstances.
[20] Finally, the Appellant's sense of grievance at his being prevented from returning to work on a Rio Tinto site, whether engaged directly or by a contractor, was also said by the Appellant to be a matter that the Commissioner failed to have regard to in the Decision. To the contrary, the Commissioner acknowledged the Appellant's site access withdrawal and clearly had regard to that when she concluded that there was "no reasonable prospect of Mr Piefke undertaking any further work in, or for, the business"[23]. Without commenting on the merit or otherwise of Rio Tinto's decision to prevent the Appellant working on a Rio Tinto site, the reasons for that decision of Rio Tinto was not a matter that the Commissioner was able or required to determine in the application before her. Nor is it a matter that bears upon this appeal. No error is disclosed in the Decision by the Commissioner having not dealt with the Appellant's grievance over what is effectively a ban on his working on any Rio Tinto site.
[21] The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an appeal should be granted. We are satisfied that the Commissioner has not erred in the application of the principles to the matter before her. The discretion that arose[24] was exercised and this was clearly open to the Commissioner.
[22] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
there is a diversity of decisions at first instance so that guidance from an appellate body is required;
the appeal raises issues of importance and/or general application;
the Decision at first instance manifests an injustice, or the result is counter intuitive; or
the legal principles applied by the Commission were disharmonious when compared with other decisions dealing with similar matters.
[23] Permission to appeal is refused.
[9] Ibid at [3]. We observe that there was also no basis upon which the Commissioner could issue a certificate in the extant proceedings that would be relevant for the purposes claimed by the Appellant.
[12] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[13] 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, [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].
[15] [2010] FWAFB 5343, 197 IR 266, [24] - [27].
[16] See also CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481.
[17] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481, [30].
[21] See Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica and others [2019] FWCFB 2771 at [29].
[22] Transcript of appeal proceedings dated 5 July 2022, at PN95-PN96.
[24] See Atkinson, Garth v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear & Palm, Adrian - [2015] FWCFB 6503 at [25].
Printed by authority of the Commonwealth Government Printer
Jeffrey Lyndon Piefke
Rio Tinto Aluminum Limited and Others [2022] FWCFB 140
(1989) 168 CLR 210
(2011) 85 ALJR 398
(1998) 89 FCR 200
(2000) 203 CLR 194
(2001) 116 FCR 481
(2011) 192 FCR 78