Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against adjournment of listing - no utility in adjournment appeal - the other matters raised do not give rise to a competent appeal - public interest not enlivened - permission to appeal refused.

[1] Mr Luke Tamu has applied for permission to appeal, and appeals, against a decision by Commissioner Spencer to adjourn the date for the hearing of a jurisdictional objection to his general protections dismissal application.

[2] The appeal is made under s.604 of the Fair Work Act 2009 (the 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] This decision concerns whether permission to appeal should be granted. The background to the matter before us may be shortly stated.

[3] On 11 April 2018 Mr Tamu filed a general protections dismissal application in which he alleged that he had been dismissed by Australia for UNHCR ('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 is apparent that Mr Tamu received a termination letter on 15 March 2018.

[4] Section 366 of the Act deals with the period of time in which a general protections dismissal application must be made:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

[5] On 12 April 2018, the Commission wrote to Mr Tamu and Australia for UNHCR advising the application had been lodged outside the statutory time frame of 21 days and sought the Respondent's consent to progress the matter to conciliation. The Respondent did not consent to a conciliation conference and the matter was listed for a jurisdictional hearing on Monday 14 May 2018.

[6] What took place on 14 May 2018 is set out in the decision dealing with a subsequent appeal by Mr Tamu:

'[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.'[2]

[7] On 17 May 2018 UNHCR emailed the Commission noting the deed of release had not been received from Mr Tamu. The Commissioner's Chambers forwarded the correspondence to Mr Tamu and asked if any assistance was required. On the same day Mr Tamu lodged a Notice of Appeal 'from the decision made regarding jurisdictional issues' (the first appeal).

[8] On 13 June 2018 Mr Tamu emailed the Commission stating that the matter was 'never listed for conciliation on 14 May 2018' and requested a relisting of the matter.

[9] In a decision issued on 26 June 2018 Mr Tamu's first appeal was dismissed as incompetent, on the basis that there was no decision about which he could be said to be aggrieved.[3]

[10] On 28 June 2018 UNHCR's jurisdictional objection to Mr Tamu's s.365 application was listed for hearing on Monday 23 July 2018.

[11] On 29 June 2018 the Respondent called the Commissioner's Chambers to enquire whether the hearing could be adjourned; and, on 2 July 2018, made a written request for an adjournment, citing annual leave of the person dealing with the matter. Mr Tamu was copied into the written request.

[12] On 2 July 2018 the Commissioner's Chambers emailed both parties advising that due to the Respondent's unavailability the matter would be relisted for hearing on Friday 27 July 2018. It appears that Mr Tamu was not asked, expressly, to provide his views on the adjournment request. An amended Notice of Listing was issued on the same day.

[13] Mr Tamu was subsequently granted an extension of the date by which he was required to file additional material.

[14] On 17 July 2018 Mr Tamu filed a Notice of Appeal against the decision to adjourn the hearing, which is the matter before us.

[15] We also note that on 20 July 2018 Mr Tamu emailed the Commissioner's Chambers requesting that the Commissioner issue an 'Order to Produce.' The subject of the proposed order was a recording of a telephone conversation on 9 March 2018 during which Mr Tamu's employment with UNHCR was terminated. On the same day the Commissioner made an Order to Produce in respect of the recording and on 23 July 2018 the Respondent indicated no recording existed and that it would provide affidavits to that effect.

[16] The Notice of Appeal lodged by Mr Tamu advances the following grounds of appeal:

• The adjournment of the hearing to 27 July 2018 is unfair, Mr Tamu has incurred costs and he was not given sufficient time to file an objection to the Respondent's request for the adjournment;

• There is no just reason for why the issue of whether extension of time to file the general protections dismissal application should be heard and determined, and the matter should proceed to the hearing of the substantive application for the following reasons:

  • ➢ The jurisdictional objection hearing has already occurred and no decision was made, which denied Mr Tamu the ability to proceed with the application;

  • ➢ The Respondent has not produced the tape recording that is subject of the Order to Produce made on 20 July 2018; and

  • ➢ Evidence filed in the substantive matter should not be relied upon without the tape recording.

[17] As mentioned earlier, this decision concerns whether permission to appeal should be granted. Section 604(2) of the 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.'

[18] 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.'[4]

[19] 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.[5] 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.[6]

[20] We also observe that this appeal concerns an interlocutory procedural matter, namely the Commissioner's decision to grant the respondent an adjournment in relation to a jurisdictional objection to Mr Tamu's s.365 application.

[21] Courts and tribunals have generally discouraged interlocutory appeals on the basis that they may prolong the proceedings and increase costs.[7] Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties.[8] There are other reasons why appellate intervention at an early stage may be undesirable;[9] procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such cases any earlier appeal in relation to a preliminary or procedural issue would be rendered futile.[10]

[22] In the present matter we accept that ideally the Commissioner should have expressly sought Mr Tamu's views in relation to the adjournment request, rather than simply relying on the fact that the Respondent had provided a copy of their request to Mr Tamu and no objection had been made. To that extent it may be said that Mr Tamu was not afforded procedural fairness; but we are not persuaded that the adjournment has resulted in any substantial injustice.

[23] The adjournment was for a short period, from 23 July to 27 July 2018. Further, on 24 July 2018, Mr Tamu requested the hearing listed for 27 July be adjourned due to changes in his own circumstances. The Commissioner granted Mr Tamu's request, and a new hearing date is yet to be fixed. In the circumstances there is no utility in granting permission to appeal as the initial adjournment decision (which is the subject of the appeal) has been overtaken by events, namely the grant of Mr Tamu's subsequent adjournment request. In any event, concerns about the scheduling of matters before the Commission should be fully addressed with the Member responsible before an appeal of this nature is contemplated by a party who is impacted by a change in such arrangements.

[24] The other matters Mr Tamu seeks to agitate on appeal do not give rise to a competent appeal.

[25] The first is that the jurisdictional objection hearing has already occurred and no decision was made; here Mr Tamu is referring to the proceeding which took place on 14 May 2018. As he put it during the course of oral argument:

'And there is an error in terms of law and fact for me to be actually asked to attend a jurisdictional hearing twice. On 14 May I attended a jurisdictional hearing and I am not prepared to attend another jurisdictional hearing again. It's a question of injustice and unfair to me.'[11]

[26] This submission proceeds on an erroneous premise. No such jurisdictional hearing has taken place. As the Full Bench observed in Mr Tamu's first appeal:

'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.

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.'[12]

[27] The other matters raised by Mr Tamu relate to the Respondent's response to the 'Order to Produce' referred to above, at [15]. The Respondent has advised that no such recording exists. On appeal Mr Tamu complains about the non-production of the recording and submits that other evidence filed in the proceeding at first instance should not be relied on without the tape recording. For a competent appeal to be commenced under s.604 of the Act it is obviously necessary for there to be a decision about which the putative appellant is aggrieved.[13] Here Mr Tamu's complaint is about the Respondent's response to the Order to Produce, not about any decision made by the Commissioner. These are matters which may be properly raised before the Commissioner in the first instance proceedings. They do not give rise to a competent appeal.

[28] We do not consider that it would be in the public interest to grant permission to appeal; nor are we persuaded that there is any other proper basis for the grant of permission to appeal. Permission to appeal is refused.

[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] [2018] FWCFB 3522.

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27].

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

[6] 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].

[7] See In re the will of F.B. Gilbert 91946) [1946] NSWStRp 24; 46 SR (NSW) 318 at 323; Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Ltd Print PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2012] FWAFB 6907; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Spectrum Community Focus v Valenzuela [2017] FWCFB 4524.

[8] Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3].

[12] [2018] FWCFB 3522 at [21], [26].

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