Fair Work Act 2009

s.604 - Appeal of decision

Appeal against alleged decision of Spencer C at Brisbane in matter number C2018/1901.

[1] On 17 May 2018 Mr Luke Tamu lodged a notice of appeal in the Commission, for which permission to appeal is necessary, against what he perceived to be a decision by Commissioner Spencer in the course of her dealing with Mr Tamu's general protections application involving dismissal under s 365 of the Fair Work Act 2009 (FW Act). Mr Tamu's notice of appeal states that it arises "from the decision made regarding jurisdictional issues". There is no published decision in relation to this matter.

[2] The appeal is made under section 604 of the FW Act. There is no right to appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing. The Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[1]

[3] This decision concerns whether permission to appeal should be granted.

[4] Section 604(2) of the FW Act provides:

Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

[5] 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."[2]

[6] 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.[3] 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.[4]

[7] Mr Tamu's general protections application involving a dismissal was filed in the Commission on 11 April 2018. In his application Mr Tamu alleged that he had been dismissed by Australia for UNHCR with several general protections contraventions being indicated including that his dismissal was unfair, discriminatory and unlawful; that he had not been paid correctly; and that his termination of employment came about for reasons that included reports made by him of various colleagues committing fraud and timesheet theft. While the application itself is unclear about the precise date of termination, it states that on 9 March 2017 he was called by a person from Australia for UNHCR who is alleged to have told him that he had been advised by a person from the Public Fundraising Regulatory Association that Mr Tamu was detrimental to UNHCR and that this was the main reason for his termination. Mr Tamu stated that this information was consistent with the matters set out in a termination letter he received on 15 March 2018.

[8] On any available construct the general protections application made by Mr Tamu appears to have been made more than 21 days after the date on which his termination took effect. Section 366 of the FW Act provides that a general protections dismissal application must be made within 21 days after the dismissal took effect. For an application made on 11 April 2018 to be within time, the relevant dismissal must have taken effect not earlier than 21 March 2018.

[9] As a result of the application apparently being out of time, Mr Tamu and Australia for UNHCR were sent a letter by the Commission's staff on the same day the application was made. That letter asserted Mr Tamu's application had been filed outside of the time limits provided for within the FW Act and invited a response from Australia for UNHCR in standard form.

[10] On the following day, 12 April 2018, an email was sent from the Commission staff to both the Applicant and the Respondent advising that the application appeared to be out of time and invited consent from the Respondent for a conciliation conference to be conducted. The Respondent later advised the Commission on 16 April 2018 that no consent was given for a conciliation conference, as a result of which the question of whether or not the application required an extension of time for filing was assigned in the usual manner to be heard and determined before a member of the Fair Work Commission, with the matter being assigned to Commissioner Spencer.

[11] Consistent with these steps, a notice of listing was issued by the Commission on 19 April 2018 listing Mr Tamu's application for a jurisdictional hearing before Commissioner Spencer on the question of whether or not an extension of time for the making of the application was required and should be granted. The Notice of Listing indicated that the matter would be heard and determined by the Commission on 14 May 2018.

[12] On 23 April 2018 Australia for UNHCR filed its response to Mr Tamu's application. Its response denied the general protections contraventions alleged by Mr Tamu and attached the letter of termination of employment it had sent to him. The letter is from Matthew Keating, the organisation's Face to Face Manager; is dated 12 March 2018 and confirms Mr Keating's discussion with Mr Tamu on 9 March 2018 stating that in the discussion he had "confirmed with you the immediate termination of your employment with Australia for UNHCR, effective 9th March 2018". The letter also indicated that Australia for UNHCR would make a further payment to Mr Tamu in lieu of notice for the following day, 10 March 2018 and for one hour of travel time for Mr Tamu's return to Brisbane.

[13] Between the matter being assigned to Commissioner Spencer on 18 April 2018 and the hearing commencing on 14 May 2018, there was contact by the parties with the Commissioner's Chambers, including submissions from both parties dealing with the extension of time criteria in s 366 of the FW Act relevant to Mr Tamu's application.

[14] As a result of one of the items of correspondence from the Applicant, the Commissioner's Chambers identified to the Applicant that if he wished, he could discontinue his application. In response to that suggestion the Applicant indicated that he pressed his application and so it remained listed before Commissioner Spencer for determination of the jurisdictional matter.

[15] When the matter commenced before Commissioner Spencer on 14 May 2018 she took appearances and then asked for people with decision-making authority to stay in the room, after which she expressed the view to those remaining that she believed this matter to be one where in the first instance there should be a discussion about resolving the matter. Neither party voiced an objection to that prospect and shortly afterwards the recording of the proceedings was ended with an indication that the Commission would go off the record for the purpose of the discussions that had been indicated and if necessary come back on to the transcript at a later time.

[16] There were then no further proceedings on the record; however it appears from Mr Tamu's own submissions in the appeal proceedings, which were confirmed by the respondent, that the matter then proceeded through what may be regarded as a relatively orthodox telephone conciliation process in which the Commissioner spoke directly with each party to ascertain their views. In the course of that process Mr Tamu said to the Full Bench that he had indicated to Commissioner Spencer he was prepared to resolve the application through a monetary payment. After some further dialogue the matter had sufficiently progressed for it to not be relisted before the Commissioner for any determinative proceedings. Later that day the Commissioner's Chambers provided to both parties a draft deed of release for their consideration.

[17] On 17 May 2018, Mr Tamu filed his Notice of Appeal. Later the same day the Commissioner's Associate wrote to the parties in the following terms, (noting that the reference to a Form F7 is a reference the Commission's Notice of Appeal form):

C2018/1901 - Tamu, Luke v Australia for UNHCR - Notice of appeal - Settlement reached

The Commissioner is in receipt of the attached Form F7.

The Commissioner notes that no decision was made in respect of this matter, given that a settlement was reached between the parties before the Commission.

The Fair Work Commission's Brisbane Registry has been copied into this correspondence for their information.

Please note that any further correspondence in respect of the appeal should be directed to Brisbane@fwc.gov.au.

[18] The notice of appeal makes no reference to the decision to be appealed or the grounds for the appeal, and the only substantive material within the notice is in the section of the standard form which invites the appellant to set out the matters it believes make it in the public interest for the Commission to grant permission for the appeal. In response to this question Mr Tamu set out the following:

"Its in the public interest to appeal and seek a departure from the decision made regarding jurisdictional issues. I was not notified in writing of who will participate in at the jurisdictional hearing from the Respondent's side, inspite my repeated request in writing, and I petition for an opportunity to show evidence why the application was filed on 9th April, rather than earlier, if the Respondent will avail a copy of the recording of the alleged dismissal, which according to them appeared on the 9th of March, but according to me, I cannot accept. The Respondent sought my application for justice to be struck out on the basis of timeframe, but other than provide documentary evidence, especially the recording, there is no evidence of when I was allegedly dismissed, and I had sought, in writing, that the letter dated 12th April 2018 and signed by Mr Keating be struck out as it does not appear to substantiate what was discussed in the absence of a recording and the onus to proof when I was terminated , if I was terminated, is on their part, since they rang me on someone else's number. Further, I have attached a copy of the deed or release to this application, which sets out reasons why I be live it is in the public interest that the matter proceed to full hearing and appropriate relief be granted. Additionally, I will be submitting further evidence and calender within 7 days, as required to prosecute this notice of appeal. The submissions will include and will not be limited to why I filed my application on 9th, which in my estimation is not outside the time specified, since the respondent has not proved beyond a shadow of doubt when I was terminated and if due and fair proceess was followed. Further, there is a third party, the Public Fundraising Regulatory Association and others that will be enjoined if I would get a free and fair decision in the work-place, and I petition for justice in alleged conflicts of interest, and a determination as to whether or not they were possible or actual, or whether it was a question of mistaken identity as well as whether or not they impacted on my role as a fundraiser.

As mentioned at the hearing, I was sick and stressed during my time at Australia for UNHCR and subsequent to alleged dismissal and I took appropriate steps to dispute. I will be presenting evidence that Australia for UNHCR has not complied with its own complainst procedures and I'm still awaiting for written response regarding my complaint. I will be adducing additional evidence, new, that was not disclosed initially to seek the matter to proceed to a full hearing, so we can discuss the substantial issues and merits of this case." [sic]

[19] We now consider whether there is a competent appeal before us and, if so, whether permission to appeal should be granted.

[20] For a competent appeal to be commenced under s 604 of the FW Act, it is obviously necessary for there to be a decision about which the putative appellant is aggrieved.

[21] It is clear that the Commission has not made any decision as to whether Mr Tamu should be granted an extension of time, or whether indeed he even requires an extension of time. While Mr Tamu's submissions on the subject of the "decision" about which he is aggrieved are somewhat difficult to discern, he appears to complain about two different possible "decisions" - the first being a "decision" on the part of the Commissioner to not actually make a decision concerning whether Mr Tamu's general protections application required an extension of time and, if so, whether it should be granted, the second being to list his matter for determination of the extension of time issue but then to change the nature of the proceedings from a determinative hearing on a jurisdictional question to a conciliation focused upon the possible settlement of Mr Tamu's application.

[22] We are not satisfied that there was any decision by the Commissioner not to make a decision concerning the extension of time issue. Once a matter is allocated to a Member the procedures to be adopted by the Member are largely a matter for that Member. Whilst the procedure adopted must be in accordance with the requirements of the FW Act and principles of procedural fairness, including the considerations set out within the Commission's Fair Hearings Practice Note, beyond those matters determination of how to proceed is at the Member's discretion.

[23] When the matter commenced before the Commissioner on 14 May 2018 she properly expressed to the parties her view that this was a matter capable of being the subject of a discussion to resolve it. There is no evidence that either party objected to that course, and the matter then proceeded through the usual stages of the conciliation. On the material before us, it is apparent that the Commissioner formed the view at the end of the conciliation that the parties had reached a settlement of the matter. It is equally apparent that, subsequent to 14 May 2018, Mr Tamu has denied that any settlement was ever reached. However there is nothing to indicate that on or after 14 May 2018 the Commissioner formed the view that she would not make a decision about the extension of time issue. Accordingly the appeal is not competent on that basis.

[24] The second basis for the appeal apparently raised by Mr Tamu is that the Commissioner made a "decision" adverse to his interests by changing the nature of the proceedings at short notice from a determinative jurisdictional question to a conciliation focused upon the possible settlement of his application.

[25] It must be observed that the nature of the Commission's work on a daily basis is a constant endeavour to bring together parties of all shapes, strengths, forms and sizes, often with different perspectives about workplaces and events or conduct within them. The suggestion made by the Commissioner at the start of the proceedings on 14 May 2018 that there should be a discussion to resolve the matter was the expression of an orthodox and frequently asked question by every Member of the Commission - could this matter be better dealt with through an agreed outcome? In circumstances where there was then apparent consent that settlement of the matter should be explored through conciliation, we do not consider that there could be said to have been any appealable "decision" not to proceed to determine the extension of time issue. The appeal therefore cannot be said to be competent on this basis either.

[26] The simple fact of the matter is that the extension of time question posed in relation to Mr Tamu's application has not been determined by any member of the Commission. On the face of it Mr Tamu's originating application plainly requires the Commission to determine whether an extension of time is required, if the matter is not otherwise resolved. The material filed by Australia for UNHCR in response to Mr Tamu's originating general protections application merely reinforces the need for the extension of time issue to be determined. In those circumstances the appropriate course is for the application to return to the Commissioner for determination as to the next step to be taken.

[27] The appeal is incompetent and is dismissed.

[1] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[2] [2010] FWAFB 5343 at [27].

[3] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30]

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28]

Printed by authority of the Commonwealth Government Printer