The applicant was employed by the Crown working for the predecessors of Transport for NSW, including the Roads and Maritime Services Division (RMS) from 2006-2017. During that time there were disputes between the applicant and his employer, whose functions were exercised by the respondent.[3] The applicant made a number of internal complaints concerning his employment. He also made complaints to the Australian Human Rights Commission and this Commission concerning issues including racial discrimination. In 2012, the applicant and RMS reached a settlement in relation to a number of complaints made by the applicant in 2011 and 2012, as a consequence of which the applicant received a compensation payment.
On 5 June 2014, the applicant was charged with contempt of court for threatening a witness in a defamation proceeding that the applicant had commenced. On 9 August 2016, following a plea of guilty to and conviction on that charge on 18 November 2015, the applicant was sentenced to nine months' imprisonment with a non-parole period of six months. The applicant's sentence was suspended on the basis that he entered into a good behaviour bond.
On 14 August 2016, the Sydney Morning Herald published an article which identified the applicant as an RMS employee. Two days later, on 16 August 2016, the applicant was suspended from work and an investigation was conducted in relation to an allegation that he had breached the Transport Code of Conduct by failing to disclose that he had been charged with and convicted of a criminal offence. The applicant's employment with RMS was terminated on 31 March 2017 following the investigation.
On 6 April 2017, the applicant commenced unfair dismissal proceedings in the Commission pursuant to s 84 of the Industrial Relations Act 1996 (NSW) () On 10 April 2017, the applicant made a separate complaint to the Australian Human Rights Commission alleging discrimination and victimisation in regard to the termination of his employment. In July 2017, a settlement was reached with respect to the applicant's unfair dismissal proceeding which was recorded in a Deed of Release (the Deed). The Deed stated that the applicant would be provided with a statement of service by RMS which included the words "he resigned from his employment effective 3 April 2017" and that a copy of the applicant's resignation letter would be placed on his personnel file. In addition, specified employees of the respondent would be told that the applicant had resigned from his position with the respondent and questions from prospective employers would be directed to a specified individual at RMS who would answer those questions consistently with the statement of service.
IR Act
.
In December 2022, the applicant applied for the position of Project Manager EL3 with the respondent. He was later identified as and informed that he was the preferred candidate for the position. He was then the subject of pre-employment checks, which included a criminal record check and a previous employment check.
The applicant's contempt conviction was identified during his criminal record check by the Manager Professional Standards Portfolio 3, Mr Kevin Carty. The applicant's criminal record was assessed by Mr Carty and Senior Manager Professional Standards and Conduct, Mr Darren Keenan, who recommended that the applicant's application for the Project Manager EL3 role be rejected.
Consequently, on 24 February 2023 at approximately 9.00am, Mr Jarrad Perks, Talent Specialist from the respondent's Talent team, rang the applicant and told him that his application for employment was unsuccessful (Recruitment Decision). The respondent confirmed its decision by way of an email to the applicant from Mr David Hutchison, Senior Manager Talent Acquisition, at 4.01pm that same day. Also on that day, the applicant's file was flagged as unsuitable for re-employment (Red Flagging Decision).
The applicant sought an explanation from the respondent for its decision. That request from the applicant prompted a series of internal communications to determine how to respond to the applicant. One of the people involved in those communications was Ms Bronwyn Maynard, Director, Legal - Employment, and Safety, Legal, Privacy and Internal Audit, who sent a copy of the Deed to Mr Keenan at 1.17pm on 24 February 2023.
On 2 March 2023, the applicant commenced proceedings against the respondent in the Commission, to obtain relief pursuant to s 213 of the IR Act in respect of his alleged victimisation for reasons prohibited by s 210(g) and (j) of the IR Act. He sought an order that the respondent employ him in the Project Manager (EL3) position for which he had applied. He also sought an order that the respondent not continue to victimise him, an order that he be paid the remuneration that he had lost or forgone and a compensation payment of $45,000 for damage to his mental health, together with any other order that the Commission deemed appropriate.
In the proceedings below and on appeal, the applicant contended that the reasons given by the respondent for refusing to employ him - namely, that he had a criminal history, and that he had not made it through the pre-employment police checks, medical checks and reference checks - were false. The applicant contended that the reason for the respondent rejecting his employment application was the respondent's awareness of the history of his employment with RMS, including the many complaints that he had made about his employer. He noted that two of those complaints to this Commission resulted in RMS paying him significant sums of money, as referred to above. The applicant also contended that his employment application had been unsuccessful because the respondent erroneously relied upon a belief that the applicant's employment had previously been terminated by the respondent, when he had in fact resigned.
On 9 September 2024, Commissioner O'Sullivan heard an application by the applicant for Mr Prasanna, the applicant's nephew, to be appointed as the applicant's tutor in the proceedings, because the applicant was a person under a legal incapacity. Commissioner O'Sullivan gave ex tempore reasons for that decision in the presence of the parties and subsequently had written orders sent to the parties. On 29 October 2024, Commissioner O'Sullivan published a written decision containing the ex tempore reasons.[4]
Closing submissions in the matter occurred on 16 October 2024. On that date, the applicant presented a medical certificate from his treating general practitioner indicating that he was fit for full time duties. Commissioner O'Sullivan did not accept that medical certificate as evidence that the applicant was no longer a person under a legal incapacity.
Also on that date, Mr Prasanna made an application to withdraw as the applicant's tutor on the basis that he had not been able to find a solicitor to instruct in the matter. Commissioner O'Sullivan told him that he was able to withdraw but that if he did so, he might incur a costs order. Mr Prasanna therefore did not press his application to withdraw as the applicant's tutor. Instead, with a 30-minute adjournment to enable him to prepare, Mr Prasanna made oral closing submissions in the applicant's case, supplementing 80 pages of written submissions that had been filed by the applicant prior to the appointment of Mr Prasanna as tutor.
For the reasons expressed in the Second Decision, Commissioner O'Sullivan dismissed the application on 17 October 2024.
[2]
On 18 November 2024, the respondent filed a Notice of Motion seeking to have the applicant's application for leave to appeal and appeal dismissed as incompetent, supported by an affidavit of Felicity Edwards, solicitor for the respondent, sworn on that date. In essence, the motion relied on the fact that the application had been filed by the applicant and not by his tutor at a time when his legal capacity to commence proceedings did not exist.
Both matters were listed before Paingakulam J on 25 November 2024, pursuant to s 156(5)(b) of the IR Act, to enable directions to be made. That hearing occurred by audiovisual link. The applicant appeared for himself at the directions hearing and stated that he was now fit to represent himself in the appeal proceedings. In effect, the applicant made an application to have the finding that he was a person under a legal incapacity set aside. Pursuant to s 156(5)(b) of the IR Act, Paingakulam J acceded to that application on 25 November 2024. Her Honour published reasons for that decision on 26 November 2024.[5] Briefly, those reasons were:
[3]
(1) Medical evidence provided to the Commission in the form of a medical certificate dated 9 November 2024 from Consultant Psychiatrist Dr Richa Rastogi which stated that the applicant is "fit to represent himself in the current court proceedings from the psychological perspective"; and
(2) Her Honour's assessment of the presentation of the applicant before the Commission on 25 November 2024.
[4]
By a Notice of Motion filed on 20 February 2025, the applicant sought to have Paingakulam J's decision set aside due to its alleged non-compliance with s 156(5)(b) of the IR Act, namely that her Honour did not have power to give reasons for her decision. The Motion also sought for Paingakulam J to recuse herself or be removed from the bench due to a conflict of interest arising from her participation on the Full Bench of an appeal from an earlier interlocutory decision of Commissioner O'Sullivan concerning the appointment of a tutor for the applicant.
Both Notices of Motion were dealt with at the outset of the appeal hearing. The respondent did not press its Motion to have the applicant's appeal struck out as incompetent. As a result, the applicant did not press his apprehended bias application in relation to Paingakulam J. He confirmed that no such application was made against the remaining members of the Full Bench.
The application to set aside the decision of Paingakulam J of 25 November 2024 was dismissed. Reasons were given on transcript by the Full Bench during the hearing of the appeal. In short, the Full Bench determined that the Motion was misconceived as the Commission is required to give reasons when it makes an order.[6]
The final preliminary issue arising on appeal was an application by the applicant to rely on new evidence contained in his statement of 25 February 2025, most of which was material that was otherwise before the Commission in the Appeal Book. The Commission accepted the attachments of the statement into evidence, save for the attachment SM-09, which was a statement of Mr Sachin Prasanna. The content of the statement was accepted as a submission rather than evidence.
[5]
Leave to appeal the decision of a Commission member can only be granted if the Full Bench of the Commission is of the opinion that the matter is of such importance that, in the public interest, leave should be granted: s 188(2) IR Act.
"The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2)[1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2)[2002] NSWIRComm 353; (2002) 126 IR 407 at [52]- [55] and Knowles at 381-382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price[2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Ltd[2005] NSWIRComm 353; (2005) 146 IR 113 at [5]."
[7]
Further, the Full Bench in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW[2016] NSWIRComm 1050 held at [12] that "it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error".
One essential prerequisite for the grant of leave to appeal is that "the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal": Sharpe v Heywood[2013] NSWCA 192 at [34].
[8]
An appeal before the Full Bench of the Commission is determined on the evidence and material adduced in the first instance proceedings, unless leave is given to adduce further evidence: IR Act s 191. An appeal under the IR Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error or where there has been a demonstrable failure by the primary decision-maker to properly exercise the discretion afforded to them: Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Roads and Maritime Services(2015) 250 IR 412; [2015] NSWIRComm 16 at [10].
[9]
The applicant's Notice of Appeal contained 21 grounds of appeal spanning approximately 10 pages. Many of those grounds were repetitive. They did not distinguish between the First Decision and the Second Decision. Some of the appeal grounds were relevant to both decisions. A number of the appeal grounds were directed to procedural decisions that were not the subject of appeal. They asserted errors of both a legal and factual nature. We will not reproduce them here. The applicant's submissions in support of those grounds were in large part simply a reproduction of them. The appeal grounds can be summarised as follows:
[10]
(1) The decision published by Commissioner O'Sullivan on 29 October 2024 concerning the appointment of Mr Sachin Prasanna as the applicant's tutor: was wrongly backdated to 9 September 2024; did not reflect the decision handed down by Commissioner O'Sullivan on 9 September 2024; and contradicted the orders made by the Commissioner on that date.
(2) The Commissioner erred in appointing Mr Sachin Prasanna as the applicant's tutor on 9 September 2024 in the absence of a solicitor's certificate as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.16(b).
(3) The Commissioner erred in proceeding with the matter on 16 October 2024 in the absence of a solicitor's certificate and in contravention of his own order that the matter would be stood over until the solicitor's certificate was produced.
(4) As Mr Prasanna was not correctly appointed as the applicant's tutor, he should not have made the closing submissions on behalf of the applicant on 16 October 2024.
(5) The Commissioner erred in denying Mr Prasanna's adjournment application on the basis that he had not been able to retain a solicitor to act for the applicant because the applicant was not in a position to pay the associated legal costs. The proceedings should have been stayed pending the appointment of a new tutor or the applicant returned to represent himself (as to which, see (8) below).
(6) The Commissioner erred by putting pressure on Mr Prasanna to carry on with the proceedings by making oral submissions for the applicant when Mr Prasanna had indicated that he wanted to withdraw as the applicant's tutor and he had no knowledge about the applicant's proceedings to that point.
(7) The Commissioner erred by affording Mr Prasanna only half an hour to prepare for his closing submissions on 16 October 2024.
(8) The Commissioner erred by not accepting that a medical certificate from Dr Machado dated 16 October 2024, which stated that the applicant was fit for full-time duties, demonstrated that he was no longer a person under a legal incapacity.
(9) The Commissioner was biased in favour of the respondent because he asked the respondent's counsel a number of legal and technical questions and followed his advice.
(10) The Commissioner erred by ignoring evidence which demonstrated that Mr Keenan had read the Deed between the applicant and the respondent before making his recommendation at 3.16pm on 24 February 2023 that the applicant not be appointed to the role for which he applied.
(11) The Commissioner erred by finding that Mr Keenan was the decision-maker when his own evidence was that he was only making a recommendation, that recommendation was made on the advice of Ms Maynard, and the respondent's policy was that the hiring manager (in this case, Mr Pattekar) was responsible for hiring decisions.
[11]
The asserted errors listed at [29(3)-(8)] above relate to interlocutory decisions made by the Commissioner during the course of closing submissions on 16 October 2024. The application for leave to appeal and appeal does not seek to appeal from any decision made on 16 October 2024. Notwithstanding that, we have considered the matters raised by the applicant in relation to the conduct of the proceedings on 16 October 2024 to the extent that they are relevant to the two decisions which are the subject of the appeals.
In addition to his grounds summarised above, the applicant provided extensive material under the heading "Reasons Why Leave to Appeal Should be Granted". That material largely replicated the applicant's grounds of appeal. In addition, the applicant stated that the appeal "is of public interest because it raises significant violation of procedural fairness and natural justice". The approximately three pages of material provided by the applicant under the heading "Questions of Law" similarly restated the applicant's grounds of appeal.
[12]
The contentions at paragraphs [29(1)] and [29(2)], set out above, relate to the First Decision. In essence, the applicant complains that the First Decision, which was published on 29 October 2024, but dated 9 September 2024 being the date that an ex tempore decision was given, did not reflect what occurred on that date. The decision published on 29 October provides as follows at [18]-[20]:
[13]
"[18] I also observe the requirements of UCPR 7.16 that a tutor may not commence any or carry on proceedings on behalf of a person under a legal incapacity unless there has been filed (a) the tutor's consent to act as a tutor. To a certain extent, I think that requirement has been fulfilled by the affidavit of Mr Prasanna dated 8 September 2024. However, there also needs to be filed into the Commission a certificate signed by the tutor's solicitor in the proceedings to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
[19] I am not prepared to waive that requirement and I do require that.
[20] Mr Prasanna, as Mr Mallegowda's tutor, will need to file that certificate into the Commission and, for those purposes, I intend to stand this matter over, hopefully for a particular short period of time, to allow that to occur."
[14]
Those matters were not reflected in the orders made by Commissioner O'Sullivan on 9 September 2024 and sent to the parties that day. Those orders were:
[15]
"1. Pursuant to UCPR 7.18(1)(a), the Commission appoints Mr Sachin Prasanna as a tutor for the applicant.
2. Pursuant to UCPR 7.14(2), Mr Sachin Prasanna to carry on the proceedings of this matter.
3. The matter is listed for further hearing on 18 September 2024 at 10.00am in person.
4. The time for the applicant and respondent for closing submissions is limited to 2 hours unless leave is granted.
5. The time for the applicant's reply submissions is limited for 1 hour unless leave is granted."
[16]
In addition, the applicant asserts that the First Decision was wrong because, in the absence of a solicitor's certificate, Mr Prasanna could not have been validly appointed as the applicant's tutor on 9 September 2024.
[17]
The applicant's appeal was filed on 6 November 2024. The First Decision, being the orders sent to the parties supported by ex tempore reasons, was made on 9 September 2024. Accordingly, the appeal in respect of that decision was lodged well outside the 21-day time limit imposed by s 189(1) of the IR Act.
The discretion to extend time where the justice of a particular case requires that outcome is wide. In exercising the discretion to extend time, the Commission will consider a number of factors, such as the length of delay, whether there is a reasonable explanation for the delay, the extent of any prejudice that would be suffered by each of the parties by reason of extending time or refusing the application and the applicant's prospects of success in the subject appeal: Charisse Cachuela v Commissioner of Police[2025] NSWIRComm 1 at [8]; Smith v Industrial Relations Secretary in respect of Local Land Services(No 3)[2024] NSWIRComm 1028 at [16]. However, the ultimate exercise of the discretion is governed by the requirements of justice in a particular case: Skelly v Prouds Jewellers Pty Limited[1994] NSWIRComm 10; (1994) 53 IR 3 at 5-6; [1994] NSWIRComm 10.
In the course of oral submissions, the applicant submitted that he should be granted an extension of time because he did not receive the published decision until 29 October 2024. Further, he submitted that orders 1 and 2 made on 9 September 2024 were erroneous because the solicitor's certificate was not provided on that date or at all. The second error with the published decision was that it did not include the orders which were in fact made on 9 September 2024.
When asked about the prejudice to him if the decision were not overturned and he had a tutor acting for him in the proceedings for a brief period, the applicant stated that he cannot trust "some XYZ person" to act in his interests. The applicant listed a number of concerns that could arise with the performance of a tutor who had not declared that they had no conflict of interest with the person for whom they acted as a tutor. However, he confirmed that none of those problems arose in his proceedings, where the tutor appointed was his nominated tutor. The applicant further stated that there would be prejudice to him if his opponent were to seek to take advantage of the lack of valid appointment of the tutor to undermine the proceedings.
Further, it is apparent from the errors asserted in the applicant's Notice of Appeal outlined above, and particularly those matters at [29(6)] and [29(7)], that he was advancing prejudice on the basis that the tutor who was (he says invalidly) appointed to act for him had to make closing submissions concerning proceedings about which he had no knowledge with only half an hour's preparation. This, he asserted, adversely impacted the presentation of the applicant's case before the Commission. The applicant submitted that if Mr Prasanna had not been invalidly appointed as the applicant's tutor, the proceedings would have been unable to continue.
The respondent submitted that it would "visit significant injustice" if the applicant were to be permitted to proceed with his appeal of this decision out of time. The decision in question granted the very relief expressly sought by the applicant. The appeal was filed on 6 November 2024, nearly two months after the decision was made. It was submitted that the applicant had very low prospects of success on appeal and, in the event that he were to be successful, it would have no bearing on the disposition of the applicant's substantive case at first instance.
The respondent acknowledged that the applicant had not filed a solicitor's certificate as required by UCPR r 7.16(b). However, the respondent submitted that this neither invalidated the Commissioner's finding that the applicant was a person under a legal incapacity, nor the Commissioner's order that Mr Prasanna be appointed as the applicant's tutor. Rather, it was an irregularity that, pursuant to s 63(1) and (2) of the Civil Procedure Act 2005 (NSW) did not invalidate the proceedings, or the substantive decision arising from them as held by Darke J in Stonewall Hotel Pty Ltd v Papantoniou (No 3)[2018] NSWSC 443 at [31].
[18]
7.16 Tutor to file certain documents
A tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed -
(a) the tutor's consent to act as tutor, and
(b) a certificate, signed by the tutor's solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
[19]
Commissioner O'Sullivan did not publish the reasons for his decision on 9 September 2024 until 29 October 2024. The applicant filed his appeal on 6 November 2024. Accordingly, he moved promptly to file his appeal once the reasons for the Commission's decision on 9 September 2024 were published.
It is common ground between the parties that no solicitor's certificate was ever produced by Mr Prasanna, and therefore, pursuant to UCPR r 7.16(b), he was not permitted to carry on the proceedings in place of the applicant. However, as submitted by the respondent, that did not prevent the Commissioner finding that the applicant was a person under a legal incapacity and appointing Mr Prasanna as his tutor on 9 September 2024. It simply meant that no further steps ought to have been taken in the matter, pending the production of the solicitor's certificate. Further, to the extent that the proceedings continued, this was a procedural irregularity that did not invalidate those proceedings.[7]
As the respondent also submitted, the order to appoint Mr Prasanna as the applicant's tutor was made at the applicant's request. Far from being "some XYZ person", Mr Prasanna was the applicant's nephew. The applicant accepted at the appeal hearing that Mr Prasanna did not act in a way that compromised the applicant's interests. While Mr Prasanna may not have been in a position to make effective closing submissions due to his lack of familiarity with the matter, the Commission had the benefit of 80 pages of written submissions (in chief and by way of reply) that had been provided by the applicant prior to the appointment of the tutor. Further, Mr Prasanna had been on notice for some weeks that he was the tutor with carriage of the proceedings and that it was listed that day for closing submissions. There was no reason why Mr Prasanna should have assumed that his application to adjourn would succeed, or that for any other reason he would not be called on to make oral submissions that day. In those circumstances, no absence of procedural fairness arises simply because Mr Prasanna had not prepared to put oral submissions prior to obtaining the 30-minute adjournment.
Taking the above matters into account, it is apparent firstly, that there was a reasonable explanation for the delay in the applicant filing his application for leave to appeal, namely the decision was published late and in terms which contained an outcome that did not squarely reflect the orders made on the day the decision was made. Secondly, we accept that refusing to extend time to appeal may result in some prejudice to the applicant in that the proceedings were conducted subject to procedural irregularity.
Notwithstanding those findings, we refuse leave to file an appeal out of time in respect of the First Decision because, in our view, the application for leave to appeal and the appeal itself have no prospect of success. We come to that conclusion for two reasons. First, the decision that is the subject of the appeal was to grant the very order that the applicant sought. Second, the asserted error, namely the absence of a solicitor's certificate, was no more than a procedural error and no other error is apparent.
As noted above, the application for leave to appeal and appeal is not in respect of any decision made on 16 October 2024. Accordingly, to the extent the grounds of appeal go to decisions made on that day, there is no appeal to be determined. As such, we do not need to determine the complaints concerning: the continuation of the proceedings on that date in the absence of a solicitor's certificate (as required by UCPR r 7.16(b)); the refusal of Mr Prasanna's adjournment application and the requirement that he make closing submissions on behalf of the applicant when he had indicated that he wished to withdraw as the applicant's tutor (which application was not pressed due to an indication from the Commissioner that it may result in a costs order against him), together with the Commissioner's unwillingness to find that the applicant was no longer a person under a legal incapacity based on a medical certificate from the applicant's general practitioner, Dr Machado. However, for completeness we add that had those decisions been the subject of appeal we would not have granted leave to appeal them. We have addressed the procedural irregularity and the prejudice said to arise from the refusal of the applicant's adjournment application above. No error arises in circumstances where Mr Prasanna had advance notice of the proceedings and the Commission had the benefit of 80 pages of written submissions from the applicant. There was no error in Commissioner O'Sullivan's decision not to accept the evidence from Dr Machado as proof that the applicant was no longer a person under a legal incapacity. The indication that the Commissioner gave Mr Prasanna that pressing his application to withdraw as the applicant's tutor in the proceedings had the potential to result in a costs order against him was appropriate given that Mr Prasanna was not a sophisticated litigant. It enabled him to make an informed decision not to press that application.
[20]
In his Notice of Appeal and submissions in support of them, the applicant's various grounds of appeal amount to three complaints in essence:
[21]
(1) Commissioner O'Sullivan was biased in favour of the respondent because he asked the respondent's counsel a number of legal questions and followed the advice that he was given.
(2) The Commissioner erred by ignoring evidence which demonstrated that Mr Keenan had read the Deed between the applicant and the respondent before making his recommendation at 3.16pm on 24 February 2023 that the applicant ought not be appointed to the role for which he had applied.
(3) Commissioner O'Sullivan erred by finding that Mr Keenan was the decision-maker when, on his own evidence, Mr Keenan was only making a recommendation. The applicant's case was that Ms Maynard was the person who made the decision not to employ him, and that Mr Keenan simply implemented the decision made by Ms Maynard.
[22]
Towards the end of the appeal hearing, the applicant identified a fourth matter which he asserted retrospectively invalidated the Second Decision. He pointed to the withdrawal of Mr Prasanna's appointment as his tutor after the Second Decision had been made, in the context of the respondent's costs application in respect of those proceedings as a further basis to quash that decision and submitted:
[23]
"Ultimately, ultimately, on 27 November, Commissioner sent an order saying the order which made to appoint Mr Prassana on that day is now vacated. As of 27 November, the Commissioner considering he's - he is no longer a tutor. What happens to the previous things, what has happened? He made an oral submission. Oral submission was accepted, and judgment is published. Now you are withdrawing him. If you withdraw, the judgment should also be withdrawn. Because he also made oral submission, and the Commissioner confirms in his judgment that 'I consider Mr Prassana's oral evidence.' That means that decision, made by the Commissioner, has a portion of submission which Mr Sachin Prassana has made, how can that be withdrawn now? That can be only withdrawn by withdrawing the whole decision. The whole decision has to be set aside, because you are making orders that Mr Prassana is no longer a tutor, not no longer."
[24]
The applicant alleged that Commissioner O'Sullivan "made biased rulings/decisions" during hearings and directions because he was "carried away by the Respondent's counsel's advice". In support of that ground, the applicant pointed to the fact that "on numerous occasion the Commissioner asked legal and technical questions to Respondent's counsel about the procedures and legal interpretations." This allegation appears to include the fact that Commissioner O'Sullivan acted in accordance with the submissions made by the respondent's counsel as to the legal issues raised with him.
No recusal application was made during the proceedings in which the Second Decision was made. Nor does the applicant identify any particular decision or ruling which was said to be influenced by the Commissioner's alleged bias.
The mere fact that the Commissioner at various points, including as to the overall result, concurred with submissions or contentions of the respondent does not support a finding of bias or apprehended bias. The directing of legal questions to the respondent's counsel does not demonstrate that the Commissioner was committed to a conclusion irrespective of the evidence or arguments presented and not open to persuasion on the question before him. Accordingly, it is not a circumstance that could substantiate a claim of actual bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72].
Nor do the facts support a finding of apprehended bias because "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy(2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing at [182]), relied upon in Charisteas v Charisteas(2021) 273 CLR 289; [2021] HCA 29 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ). As submitted by the respondent, it was unremarkable that Commissioner O'Sullivan directed legal and technical questions to the respondent's counsel in circumstances where the respondent was legally represented and the applicant was not.
We reject the submission that the Commissioner's decision was, or could reasonably be perceived to be, influenced by bias.
[25]
Second complaint - Evidence about Mr Keenan reading the Deed
[26]
The applicant's primary contention in the proceedings giving rise to the Second Decision was that the person who made the Recruitment Decision and the Red Flagging Decision was aware of the history of his employment with RMS before making those decisions. The applicant contended that it was because of that history of him making complaints about RMS and bringing proceedings against RMS that the respondent made both the Recruitment Decision and the Red Flagging Decision. As he submitted before the Full Bench of the Commission:
[27]
"They paid me a lot of money on two occasions because they were at fault. They [didn't] admit liability, but they paid me compensation ... I can't say everything that what's in the deed, but there are two deeds, 2012 deed and 2017 deed. So if someone knows all these issues, would you as someone will give a job to me, no, obviously no, that's what they've done."
[28]
The applicant also relied on the "fact" that his employment was not terminated by RMS in 2017. Rather, he submitted that, in accordance with the Deed, he was asked to resign, and therefore the reason given to him for the Recruitment Decision was false. In reply, the applicant expanded on that submission and stated that the reasons given for the Recruitment Decision in the letter sent to him were not genuine. The applicant asserted that the real reasons for the Recruitment Decision were reasons which were proscribed by the IR Act and the letter sent to him set out other reasons to disguise the real reason for his dismissal.
In support of his contentions, the applicant placed significant weight on evidence that Mr Keenan received an email from Ms Maynard at 1.17pm on 24 February 2023 which attached the Deed, and so was aware of the Deed and the fact that the applicant had made two claims that were settled prior to the time that Mr Keenan drafted a recommended response to the applicant's question as to why the offer of employment had been withdrawn at 9.00am that morning.
In cross-examination before the Commission, Mr Keenan accepted that he had received that email and that he had read it shortly thereafter, and before he sent an email to Mr Hutchinson at 3.16pm on 24 February 2023 which read as follows:
[29]
"Recommended response to Mr Mallegowda is as follows:
Dear Shashi
I refer to your request below. The decision not to proceed with your application was made as your employment with RMS was terminated in 2017 following a disciplinary investigation.
Regards
David"
[30]
The applicant also submitted that Mr Perks was not authorised to make the phone call to the applicant at 9.00am that day, 24 February 2023, to inform the applicant that his application had been unsuccessful. He submitted that that call was "invalidated" because Mr Perks had not gone back to Mr Keenan to obtain more information about the reasons for declining the applicant's job application as Mr Henderson had asked Mr Perks to do before he made the call, and also because it was made on the basis of a recommendation only. The applicant's contention was that the Recruitment Decision was not officially made until 3.16pm when Mr Keenan sent the email set out in the previous paragraph.
The respondent submitted that the applicant's submissions were not consistent with the evidence about what occurred. The respondent pointed to evidence which we accept establishes the following chronology:
[31]
(1) Mr Carty wrote to the applicant on 15 February 2023 to advise him that a criminal record check was being conducted.
(2) The applicant responded to that email, disclosing for the first time that he had a conviction for contempt of court, and asking for that to be discussed with him the following day.
(3) A discussion took place between Mr Carty and the applicant on the morning of 16 February 2023, consistent with those emails.
(4) At 3.06pm on 16 February 2023, Mr Carty sent an email to Mr Keenan setting out a detailed assessment of the applicant's criminal record check, which included consideration of the applicant's email response to the assessment process in addition to the discussion set out in (3) above. Mr Carty's assessment referenced additional information which he had sourced from a Sydney Morning Herald article. Mr Carty was explicit in stating that his recommendation that the applicant not proceed to appointment was made in light of the threatening nature of the offence and the applicant's repeated attempts to downplay it, the potential use of RMS equipment to commit the offence, the severity of the penalty imposed and the sentencing judge's remarks, the reputational risk to the business and the applicant's failure to report the conviction to his employer at the time it occurred.
(5) The applicant sent an email to Mr Carty on 21 February 2023, which requested that he review the applicant's staff records file and the Deed, but Mr Carty paid no regard to that email and did not read the Deed.
(6) In a Microsoft Teams message exchange with Mr Keenan on 23 February 2023, Mr Carty advised Mr Keenan that the applicant's employment was terminated in 2017 for failing to disclose his criminal conviction. This was almost immediately followed up by an email in which Mr Carty provided details of a conversation that he had earlier in the day with the applicant's manager at the time that his employment was terminated, which attached the applicant's Notice of Termination, signed on behalf of RMS.
(7) At 5.48pm on 23 February 2023, Mr Keenan acknowledged the updated information provided by Mr Carty. He advised both Mr Carty and Ms Maynard that he would advise the Talent team that they did not consider the applicant to be competitive in the role for which he had applied.
(8) Two minutes after sending the above email back to Mr Carty, Mr Keenan sent an email to Ms Javed stating that Professional Standards had conducted a thorough assessment of the applicant's criminal history and based on that assessment, they no longer considered the applicant to be competitive in the role applied for.
(9) At 6.12pm on 23 February 2023, Ms Javed sent an email to Mr Perks, attaching the "decision of PNC Unit for Shashi", being the email referred to at (8) above.
(10) Mr Perks' evidence was that when the Talent team was given a recommendation not to proceed with an employment application, the talent specialist would simply adopt that recommendation, and the applicant would not pass the preemployment checks. The talent specialist was not required to obtain any further approval or discuss the recommendation with the hiring manager before informing the candidate of that outcome.
(11) At around 9.00am on 24 February 2023, Mr Perks telephoned the applicant to tell him that he had been unsuccessful in his employment application.
(12) Between 9.30am and 10.00am on 24 February 2023, the applicant sent emails to Mr Perks and Ms Javed, asking to be provided with reasons for them not proceeding with his recruitment. The applicant also telephoned Mr Perks "making orders" for Mr Perks to email him by a certain time to provide details of the reason that his employment application was not progressed.
(13) During the day, there was a series of emails between the various parties involved in the recruitment process discussing the appropriate response to the applicant's request for reasons as to why his employment application was unsuccessful. This included the email sent by Ms Maynard to Mr Keenan at approximately 1.17pm, which attached the Deed and which Mr Keenan accepted in cross-examination that he read not long after he received it.
(14) At 2.47pm on 24 February 2023, Mr Carty sent a message on Microsoft Teams to Mr Keenan as follows:
[32]
"I propose not to progress him to 'do not hire' until the situation is resolved?
Thoughts?"
[33]
(15) At 2.49pm, Mr Keenan responded to Mr Carty (who immediately acknowledged receipt) as follows:
[34]
"We're very comfortable with our position. The flag should have been placed there on the basis he was terminated - I reckon keep progressing."
[35]
(16) The email traffic concerning the appropriate response to the applicant's request for information regarding the decision not to progress his application included the email at 3.16pm from Mr Keenan to Mr Hutchinson, set out at [59] above, upon which the applicant relied as being the communication of the decision not to employ him.
[36]
(17) At Mr Keenan's recommendation, Mr Hutchinson sent the applicant an email at 4.01pm in the terms provided to him by Mr Keenan.
[37]
(18) The applicant replied to that email at 4.08pm, stating that he had resigned from his employment and was not terminated. He told Mr Hutchinson to read the Deed and review his staff file.
[38]
(19) At 4.14pm, the applicant sent a further email to Mr Hutchinson asserting that his employment application was unsuccessful because of his criminal record check (which he asserted did not affect his ability to perform the inherent requirements of the role for which he had applied) and his past employment history, including his complaints to this Commission and the Australian Human Rights Commission.
[39]
This second complaint is pressed by the applicant on the basis that Mr Keenan was the respondent's decision-maker in relation to both the Recruitment Decision and the Red Flagging Decision. That contradicts the applicant's Ground 21, which asserts error in Commissioner O'Sullivan's finding that Mr Keenan was the decision-maker for the respondent. We will address that issue below when we turn to the third complaint. For the purposes of this complaint, we have proceeded on the basis that Mr Keenan was the person who made the Recruitment Decision and who, jointly with Mr Carty, made the Red Flagging Decision on behalf of the respondent.
Commissioner O'Sullivan made the following finding at [58] of his decision concerning the timing of the Recruitment Decision:
[40]
"In relation to the Recruitment Decision, this was quite clearly made prior to the applicant being informed by Mr Perks on 24/2/2023 at approximately 9am that he had been removed from the process."
[41]
Commissioner O'Sullivan made the following finding at [59] of his decision concerning the timing of the Red Flagging Decision:
[42]
"As to the Red Flagging Decision, I accept the respondent's submission that it occurred sometime prior to 2.49pm on 24 February 2023, given the message from Mr Keenan which clearly states 'keep processing' the red flag, clearly indicating that the process had already started."
[43]
Commissioner O'Sullivan then proceeded to make factual findings as to who the decision-maker was in each case, which included the following findings at [62]-[64]:
[44]
"[62] As to the Recruitment Decision, the evidence is clear that Mr Keenan made a recommendation which was accepted and communicated by Mr Perks. Accordingly, Mr Keenan was the decision-maker for the recruitment process.
[63] As to the Red Flagging Decision, I accept the decision was made by Mr Carty and Mr Keenan as evidenced by the messages of 24 February 2023 at 2.47 and 2.49pm. I am satisfied that neither Mr Carty nor Mr Keenan at that stage or prior to the sending of those messages was aware of the 2017 IRC proceedings and the 2011 OH & S complaint and thus I am satisfied that neither of those protected attributes formed a substantial and operative reason for the Recruitment Decision.
[64] The message of 2.49pm, on 24 February 2023 is conclusive of a finding that the reason for Red Flagging Decision is solely that of the applicant's termination of employment. I am further satisfied in terms of finding that the 2017 protected attribute and the 2011 protected attribute did not form a substantial and operative reason for the for the Red Flagging Decision."
[45]
Appeal courts are generally reluctant to overturn factual findings made by decision-makers sitting at first instance. An appeal court will not disturb a factual finding made at first instance unless such a finding was not reasonably open to the decision-maker (or clearly wrong) on the facts before them: Burge v NSW BHP Steel Pty Ltd(2001) 105 IR 325; [2001] NSWIRComm 117 at [7]; Haynes v CI&D Manufacturing Pty Ltd(1994) 60 IR 149 at 154-155; Port Macquarie Golf Club Ltd v Stead(1996) 64 IR 53 at 59.
In relation to the Recruitment Decision, we can identify no error in Commissioner O'Sullivan's finding at [58] that the decision was made prior to the applicant receiving the call at 9.00am on 24 February 2023 to inform him that his application was not successful. If Mr Keenan was the decision-maker, as the Commissioner held, it was a decision made without any awareness of a history of prior complaints as set out in the Deed, since Mr Keenan did not receive the Deed from Ms Maynard and read it until about 1.17pm on that date. As the Commissioner held, that was sufficient to find that the Recruitment Decision was not a decision made because of a history of prior complaints. Further, while the Commissioner did not expressly rely on it, the evidence summarised above at [61] establishes that the factor which motivated the decision not to employ the applicant was his criminal history and the potential reputational damage to Transport for NSW if the respondent were to re-employ him.
In relation to the Red Flagging Decision, the Commissioner concluded that the protected attributes did not form a substantial and operative reason for that decision for two reasons. First, at [63], on our reading, the Commissioner appears to have held that, at the time they made the decision, the relevant decision-makers were not aware of the existence of the prior complaints that constituted the protected attribute. For the reasons that follow, we find that conclusion was not correct. Second, at [64], the Commissioner held that on the material before him, the sole reason for the Red Flagging Decision was the applicant's previous termination of employment. As we explain below, that finding was open on the evidence and determinative of that aspect of the claim.
Starting with the first reason, the Commissioner's reasoning at [63] commences with a finding that the Red Flagging Decision was made by Mr Carty and Mr Keenan at 2.47pm and 2.49pm. No complaint is made about that finding. It is a finding that was clearly open on the evidence summarised above.
The Commissioner then appeared to find that he was satisfied that the Red Flagging Decision was not made because of the protected attributes as neither Mr Carty nor Mr Keenan were aware of the prior complaints at the time that they made that decision.
We note that the Commissioner's decision at [63] in this respect is unclear. While the paragraph commences by stating that the Commissioner is addressing the Red Flagging Decision, it concludes with a finding that given the lack of knowledge of Mr Carty and Mr Keenan, neither of the protected attributes in issue formed a substantial reason for the Recruitment Decision. The reference to the Recruitment Decision at the end of that paragraph appears to be a slip, even though paragraph [64] makes a finding in the same terms in relation to the Red Flagging Decision. That appears to be the case, given that the paragraph is examining the state of knowledge of both Mr Carty and Mr Keenan (when only Mr Keenan's knowledge would be relevant to the Recruitment Decision) and doing so as at 2.47pm and 2.49pm on 24 February 2023, in circumstances where the Commissioner had found at [58] that the Recruitment Decision was made the previous day.
If the Commissioner at [63] was giving the first of two reasons for finding that the protected attributes were not a substantial and operative reason for the Red Flagging Decision, then in our view the Commissioner erred, given that there was evidence that by 2.49pm Mr Keenan was aware of the prior complaints. Mr Keenan not only had received an email attaching the Deed before the Red Flagging Decision was made, but accepted in his evidence that it "appears to be the case" that he read the Deed before recommending to Mr Carty that he proceed with placing the flag on the applicant's record and that he was aware of its content when he recommended that Mr Carty go ahead with the Red Flagging Decision.
The Commissioner's second reason for finding that the protected attributes were not substantial and operative reasons for the Red Flagging Decision was his positive finding at [64] that the sole reason for the Red Flagging Decision was the applicant's previous termination of employment for failing to disclose a criminal conviction. Such a finding was clearly open on the evidence - in particular the email from Mr Keenan at 2.49pm set out above at [61(15)] which set out his reason. Further, Mr Keenan confirmed that the termination of the applicant's employment was the reason that he recommended to Mr Carty in his 2.49pm email that the Red Flagging Decision be progressed.
Quite apart from that evidence, we accept the submission of the respondent that when considered as a whole, the evidence established that the Red Flagging Decision was connected with and arose directly from the making of the Recruitment Decision. This supports the Commissioner's findings at [64] that the reason for the Red Flagging Decision was solely the termination of the applicant's employment. It follows that it was open for the Commissioner to find that the applicant's employment history of complaints about and instituting proceedings against RMS did not form a substantial and operative reason for that decision.
Given that finding, it follows that any error at [63] as to the state of knowledge of Mr Keenan at 2.49pm (if indeed that paragraph was directed to the Red Flagging Decision) did not affect the outcome of the proceedings. For completeness we note that merely because Mr Keenan was aware of the prior complaints by the time of the Red Flagging Decision, it does not follow that he was motivated in any way by that knowledge. The finding by the Commissioner that the sole reason for the Red Flagging Decision was the applicant's termination of employment was clearly open. It follows that Mr Keenan's knowledge of the prior complaints was irrelevant to the decision, thereby rebutting any presumption attaching to this knowledge.
In asserting factual error, the applicant also relies on the second sentence in [55] of Commissioner O'Sullivan's decision. Paragraph [55] provides as follows:
[46]
"As to Mr Keenan, the application referred to an answer - relied on an answer provided by Mr Keenan by way of cross-examination that he was aware of the contents of the deed of release of 2017 after he had received the email providing unspecified legal advice from Ms Maynard at 1:17pm 2025 (as said). However, that answer did not specify at what time he had read that email. Further, the applicant submitted that others involved in the recruitment must have known about the 2017 IR proceedings decisions for some unspecified reasons."
[47]
The sentence to which the applicant points appears to imply that because Mr Keenan did not specify a time when he read the 1.17pm Maynard email, the Commission could not make a positive finding that he knew about the Deed when he sent the 2.49pm email. Again, that part of the decision is not entirely clear. The relevant sentence forms part of the decision where Commissioner O'Sullivan is reciting the applicant's submissions. It occurs before the heading "Consideration" where the Commissioner has otherwise recorded findings. As we have found that the factual finding that Mr Keenan was not aware of the 2017 Commission proceedings when he sent the 2.49pm email was in error, nothing turns on this issue.
To the extent that the applicant takes issue with the decision being based on the fact that his employment in 2017 was terminated at the initiative of his employer as opposed to his having resigned, his submission is not consistent with the contents of the Deed, and in particular recital K to the Deed under the heading "Background", which provides as follows:
[48]
"RMS dismissed the Employee because of his conduct with effect on 3 April 2017 (Termination)".
[49]
Third complaint - Finding that Mr Keenan made the Recruitment Decision
[50]
The second factual matter agitated by the applicant in his Notice of Appeal was Commissioner O'Sullivan's finding that Mr Keenan was the decision-maker for the respondent in relation to the Recruitment Decision. In submissions, the applicant appeared to extend this to the finding that Mr Keenan and Mr Carty were the decision-makers of the Red Flagging Decision.
Commissioner O'Sullivan's findings concerning the decision-maker of the Recruitment Decision were as follows:
[51]
"[60] As to the decision-maker, I reject the applicant's submission that it was Ms Maynard. Any advice provided by Ms Maynard does not constitute the making of a decision. This advice may or may not be followed by the decision-maker, in this case, Mr Keenan.
[61] I also reject the applicant's contention that the decision-maker in regard to the recruitment must be Mr Pataka as he is the hiring manager, and the policy required his approval ...
[62] As to the Recruitment Decision, the evidence is clear that Mr Keenan made a recommendation which was accepted and communicated by Mr Perks. Accordingly, Mr Keenan was the decision-maker for the recruitment process."
[52]
In relation to the Red Flagging Decision, Commissioner O'Sullivan found, at [63] (set out at [65] above), that it was made by Mr Carty and Mr Keenan, based on the Microsoft Teams message exchange between them at 2.47pm and 2.49pm.
At the appeal hearing, the applicant initially appeared to accept that Mr Keenan was the person who made the Recruitment Decision, as found by Commissioner O'Sullivan. He made the following oral submissions in relation to that issue:
[53]
"Ms Sadia Javed and Mr Keenan and Ms Maynard, you can consider any of them as a decision maker, but I accept today, since Keenan the moment is more than anybody because Mr Keenan had meetings [sic].
...
My position for me now, rather confusing anybody, I would accept Mr Keenan to be a decision-maker because of his significant involvement. That's, that's the thing."
[54]
However, when pressed to clarify his position, given that he had referred to Mr Keenan as "a decision-maker" (rather than "the decision-maker") the applicant appeared to resile from the above concession and instead return to his position as pleaded. The following exchange occurred between the applicant and the President after the above concessions were made:
[55]
"PRESIDENT: But what I just want to make sure that I understand is that you say that Mr Keenan was a decision-maker. Is there anyone else that you identify made the decision not to employ you?
APPLICANT: Look, it has come from the legal director, Ms Maynard. She, at 2017, deed of release. She sent that deed of release at 1.17pm on the 24th to Mr Keenan. So, that means she has clearly read everything, and she's clearly given instructions to the next person who is Keenan and, 'Don't employ him, give some reason and just send him out.' That's it, so that's why I consider--
PRESIDENT: You're maintaining that the decision-maker was Ms Maynard--
APPLICANT: Yeah, yeah.
PRESIDENT: --in communications which you haven't been able to see because they were privileged.
APPLICANT: Legal - legal - legal privilege.
PRESIDENT: But you're maintaining that the same position you had below--
APPLICANT: Yes.
PRESIDENT: --Ms Maynard made the decision--
APPLICANT: Yes.
PRESIDENT: --and all that Keenan did was implement it.
APPLICANT: Yes. Exactly."
[56]
However, by the end of the hearing, the applicant again appeared to accept that Mr Keenan made the Recruitment Decision and made the Red Flagging Decision together with his subordinate, Mr Carty. The applicant made the following submission:
[57]
"So the - the last factual l ... (not transcribable) ... which I want to touch base is, here, I think I've already admitted now that Mr Pattekar was the decision-maker, but in the grounds 21, I'm trying to challenge the way he was appointed as a decision-maker. That's what I'm trying to raise here. Like, any hiring decision should be done by the hiring manager as he is the authorised person to make a decision. This is the argument I'm trying to place in the grounds 21, but which I've already discussed and now I accepted to move on with considering Mr Keenan as that. So, otherwise, I don't have any factual error issues."
[58]
The respondent's contention was that Mr Keenan was the person who made the Recruitment Decision and that Mr Keenan and Mr Carty together made the Red Flagging Decision. This was notwithstanding Mr Keenan's evidence that he did not consider himself to be the decision-maker, as he merely made recommendations.
It was plainly open to Commissioner O'Sullivan, on the evidence before the Commission, to reject the applicant's submission that it was Ms Maynard who made the Recruitment Decision and instead find that the Recruitment Decision was made by Mr Keenan. Commissioner O'Sullivan gave reasons for that finding. Ms Maynard was performing an advisory role to other teams within Transport for NSW, including the Professional Standards Unit. The evidence was that the Talent team simply acted on the recommendation made by the Professional Standards Unit. While Mr Keenan gave evidence that he was not the decision-maker, and that his role was limited to making a recommendation, it was clearly open to find that as a matter of fact his decision to make that recommendation was in fact the relevant decision. Accordingly, to the extent that it is pressed that the Commissioner erred in finding that Mr Keenan was the decision-maker, it is not made out.
Similarly, the finding that Mr Keenan and Mr Carty made the Red Flagging Decision was plainly available on the evidence before the Commission. The finding made by Commissioner O'Sullivan at [60] rejecting the contention that Ms Maynard was a decision-maker, based on her advisory role, applies to any relevant decision in respect of which Ms Maynard may have provided advice.
We note that the position taken by the respondent in this matter concerning the identity of the decision-maker contradicted the evidence of his staff. This unfortunate circumstance highlights the benefit that attaches to agencies having a clear decision-making structure and delegation system. Staff making operational decisions can only benefit from clarity which enables them to fully appreciate the significance of their role to the decision-making of government agencies.
[59]
Fourth complaint - Subsequent variation of order appointing Mr Prasanna as the applicant's tutor
[60]
Contrary to the submission of the applicant, the withdrawal of Mr Prasanna as the applicant's tutor in respect of the first instance proceedings in late November 2024 does not invalidate what occurred during those proceedings while Mr Prasanna held that appointment.
[61]
Conclusion as to leave to appeal and appeal in respect of the Second Decision
[62]
We have determined not to grant leave to appeal the Second Decision. We do not consider that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal. That is the case notwithstanding our conclusion that the Commissioner's finding at [63] concerning Mr Keenan's lack of access to the Deed at the time that he made the Red Flagging Decision was at least unclear and, to the extent that it was relied upon by the Commissioner to justify his conclusion that the Red Flagging Decision was not made for a protected reason, was not open on the evidence.
As set out above, any such error did not affect the Commissioner's ultimate conclusions. It was clearly open for the reasons given by the Commissioner to find that the protected attributes that were in issue did not form a substantial and operative reason for the Recruitment Decision since they were not known by the decision-maker at the time the decision was made. It was further open on the evidence before Commissioner O'Sullivan to find that the reasons that the relevant decision-makers made the associated Red Flagging Decision did not include any prohibited reason pursuant to s 210 of the IR Act, but rather that it was a consequential decision made for the same reason as the Recruitment Decision, namely due to the previous termination of the applicant's employment.
[63]
(1) Leave to appeal the First Decision is refused.
(2) Leave to appeal the Second Decision is refused.