Fair Work Act 2009

s.604 - Appeal of decisions

Commonwealth of Australia (Australian Criminal Intelligence Commission)

Appeal against decision [ [2017] FWC 2488] of Deputy President Kovacic at Sydney on 5 May 2017 in matter number U2016/15080 - application for permission to appeal from decision of DP Kovacic - whether permission to appear required - performance improvement plan - application of enterprise agreements - consideration of evidence - permission not in public interest - application dismissed.

[1] Mr Michael Knight has applied for permission to appeal a decision of Deputy President Kovacic issued on 5 May 2017 (Decision).[1] In that decision, the Deputy President found that Mr Knight's dismissal by the Australian Criminal Intelligence Commission (ACIC) was not unfair, and dismissed his application for an unfair dismissal remedy.

[2] Mr Knight's employment was terminated on 30 November 2016 following a performance improvement process. The Deputy President found that the process undertaken by ACIC had been thorough and fair,[2] and that there was a valid reason for his dismissal.[3]

[3] The Commission's powers in relation to an appeal under s.604 of the FW Act are only exercisable if there is error on the part of the primary decision-maker.[4] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[4] The decision subject to appeal was made under Part 3-2 of the FW Act, which relates to unfair dismissal. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a "significant error of fact" (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one".[5]

[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may enliven 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."[7]

[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.[8] 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.[9]

[7] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[10]

[8] We deal first with the question of representation.

[9] Ms Krause, a lawyer employed by the Australian Government Solicitor (AGS), sought to appear on behalf of ACIC.[11] She contended that AGS lawyers are entitled to appear on behalf of the Commonwealth as of right, without seeking permission under s596 of the Act, and that this position had been affirmed by a recent decision of the Full Bench in Gibbens v The Commonwealth of Australia (Department of Immigration and Border Protection) (Gibbens).[12] In the alternative, it was submitted that permission to appear should be granted pursuant to s596(2)(a), on the basis that the notice of appeal raises complex arguments, and that granting permission to appear would enable the matter to be dealt with more efficiently, taking into account this complexity.

[10] At the hearing, we granted permission to appear, and indicated that we would address our consideration of Gibbens in our decision on the application for permission to appeal.

[11] Having now considered the decision in Gibbens, we have concluded that its reasoning is applicable to the circumstances of the current proceedings, and that ACIC was entitled to be represented by an AGS lawyer as of right. Mr Knight contended that ACIC is a Commission, not a government department as was the case in Gibbens, and that this distinction is significant.

[12] It will be recalled that, under s596(4), a person is not taken to be represented by a lawyer or paid agent if the lawyer or paid agent is 'an employee or officer of the person'. In Gibbens, the appellant contended, among other things, that the AGS was a separate entity from the Commonwealth.[13] The Full Bench rejected this contention.[14] It found that, having regard to the Judiciary Act 1903 and the Public Service Act 1999, AGS lawyers are employees of the Commonwealth, engaged by the Secretary of the Attorney-General's department to work in that department.[15]

[13] Like employees of the AGS, employees of ACIC are employed under the Public Service Act.[16] Section 22 of that Act provides that an Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency. Section 47 of the Australian Crime Commission Act 2002 provides that the CEO and the staff assisting the CEO constitute a statutory Agency, and that the CEO of ACIC is the Head of that Agency.

[14] In our view, as in Gibben, an AGS lawyer is 'an employee of the person' in the proceeding (the Commonwealth). We cannot identify any point of meaningful distinction between ACIC and the Department of Immigration and Border Protection, as concerns the analysis of s596(4). In our view, ACIC was entitled to be represented by Ms Krause.

[15] We briefly address the factual background to the application for permission to appeal. Mr Knight was employed by CrimTrac on 30 September 2013. On 1 July 2016, the functions of CrimTrac were transferred to the Australian Crime Commission (ACC).[17] ACIC is the name by which the ACC is known. From June 2015, Mr Knight was employed as a 'Business Architect', and continued in this role following the transfer of CrimTrac's functions to the ACC.

[16] In late 2015 Mr Knight's supervisor, Mr Toms, developed concerns about Mr Knight's performance. Mr Knight received informal performance management. On 12 April 2016, the CEO of CrimTrac wrote to Mr Knight advising that a formal underperformance process would commence. A draft Performance Improvement Plan (PIP) was attached. Following several meetings, the PIP was finalised. It was signed by both Mr Knight and Mr Toms on 3 June 2016. The PIP required Mr Knight to prepare a CrimTrac Business Architectural Framework (Framework). The PIP set out what the Framework was to cover.[18] Mr Knight submitted the Framework in July. It was reviewed by a number of people. On 19 September 2016, Mr Toms told Mr Knight that he did not believe the requirements of the PIP had been met. He provided written comments to Mr Knight and asked that he read, sign and return them to him. On 28 September 2016, Mr Toms sent Mr Knight an email advising that he had determined that the PIP requirements had not been met, and that he would be forwarding his summary and recommendation to Human Resources. This recommendation was that Mr Knight's employment be terminated.[19]

[17] On 2 November 2016, Mr Knight received a meeting request from Mr Jones, ACIC's Chief Technology Officer, stating that he needed to meet with Mr Knight to discuss the formal underperformance process. The message stated that Mr Knight was welcome to bring a support person.[20] At the meeting, Mr Knight was handed a 'proposal to terminate employment' letter, and was invited to respond to it. On 16 November, Mr Knight submitted a lengthy response, including character references and a detailed submission challenging the basis for the proposed termination. On 30 November, Mr Williams, the ACIC delegate with the relevant responsibility, wrote to Mr Knight advising that he had decided to dismiss Mr Knight on the ground of unsatisfactory performance.

[18] It should be noted that, prior to the merger of CrimTrac and the ACC on 1 July 2016, Mr Knight's employment was covered by the CrimTrac Enterprise Agreement 2011-2014 (CrimTrac Agreement). Following the merger, it was covered by the Australian Crime Commission Enterprise Agreement 2011-2014 (ACC Agreement).

[19] Mr Knight puts forward 12 grounds of appeal. We have considered each of these grounds and deal with them in turn below.

The application of the ACC Agreement and its significance for the PIP

[20] Grounds 1, 3 and 9 relate to the merger of CrimTrac with the ACC, the application of the ACC Agreement, and the significance of both for the PIP.

[21] Ground 1 contends that the Deputy President erred by either not considering, or not properly considering, a range of matters pertaining to the continuation of the CrimTrac PIP to Mr Knight after 1 July 2016. It is contended that the PIP should have been modified to take into account the application of the ACC Agreement and to comply with it. Among the various sub-grounds, it is submitted that the Deputy President did not consider the requirements of the ACC Agreement that there be 'close supervision' and 'on the job assistance', and that he did not consider whether the ACC Agreement allowed Mr Toms to continue to supervise the PIP following his transfer to ACIC.

[22] Ground 3 contends that the Deputy President erred in his consideration of the significance of the merger of CrimTrac into ACC, as regards to the requirements and outcomes of the PIP. In particular, it is submitted that the Deputy President did not consider, or did not properly consider, the alleged confusion that arose surrounding the transfer, the differences in culture between CrimTrac and the ACC, the changes to Mr Knight's role after 1 July, and whether the PIP requirements remained appropriate after this date.

[23] Ground 9 contends that Mr Knight was not fully and appropriately informed of matters related to the development and conduct of the PIP, including in relation to the question of the on-going application of the CrimTrac PIP in conjunction with the ACC Agreement.

[24] We appreciate that Mr Knight considers that the PIP should have been conducted differently, particularly in light of the changes that occurred on 1 July 2016. However, the Deputy President considered Mr Knight's contentions in relation to the transfer and the application of a new enterprise agreement to his employment from 1 July 2016.[21] He noted that Mr Knight did not appear to have raised with ACIC any questions about the implications of the merger for his PIP.[22] The Deputy President stated that, as an Executive Level 1 Employee, Mr Knight bore some responsibility for staying abreast of his terms and conditions of employment, and that he was given the chance to do so through 'staff induction sessions'.[23]

[25] Mr Knight's contentions in relation to alleged breaches of the ACC Agreement were considered by the Deputy President in the Decision. He concluded that 'to the extent that there was any non-compliance by ACIC with the terms of the ACC or CrimTrac Agreements, I do not consider it to have been material or to have affected the integrity of the process.'[24] We do not consider that the Deputy President erred in relation to this assessment.

[26] In our view, grounds 1, 3 and 9 do not present an arguable case of appealable error on the part of the Deputy President.

[27] Grounds 2, 4, 5, 7 and 8 address contentions that go to the Deputy President's consideration of the evidence and the conclusions he draws from it.

[28] Ground 2 contends that the Deputy President 'compounded small unrelated errors and mistakes as fanciful interpretations which he then used together to incorrectly support his decision that there were valid reasons for dismissal'. At the hearing, we asked Mr Knight to take us to these errors and explain what role they played in the Deputy President's reasoning process.

[29] Mr Knight pointed to the employer's evidence that at one point, when asked by Mr Toms about his work, Mr Knight responded 'I am doing stuff'. The Deputy President notes this exchange at paragraph 31 of the Decision where Mr Knight's evidence is set out, along with 26 other points of evidence. The exchange is also referred to in paragraph 42, where the Deputy President recounts ACIC's submissions about having a valid reason for dismissal. Here, the exchange is one of nine points cited. Although Mr Knight's remark that he was 'doing stuff' might be regarded as a 'small error', it did not feature significantly in the Deputy President's decision. It does not appear to be one part of a series of small errors that are aggregated to 'incorrectly support the decision' concerning valid reason. The Deputy President considered a wide range of evidence in reaching his conclusion as to the existence of a valid reason for dismissal. We do not consider this ground of appeal to have substance.

[30] By ground 4 it is alleged that the Deputy President erred in his consideration of the suitability of the PIP review to inform the final assessment, and in particular whether the feedback from the review provided evidence to support a different conclusion concerning the outcome of the PIP. Mr Knight contends that the Deputy President did not consider, or did not properly consider, the relevant evidence in the various respects outlined in the six paragraphs in ground 4. He contends (among other things) that those who reviewed the Framework document were not subject matter experts; that the reviewers had not used objective metrics or considered all of the PIP requirements; and that he had received little assistance during the last two weeks of the PIP.

[31] The Deputy President considers the review and the role of the reviewers in various parts of the Decision.[25] He sets out the issues that the reviewers of the Framework were asked to focus on. He notes the summary of the reviewers' comments that was provided to Mr Knight, and the conclusion that the Framework document did not meet the PIP requirements.[26] He reaches the conclusion that the process adopted was thorough and fair to Mr Knight.[27] Based on the evidence, the Deputy President finds that 'PIP was consistent with Mr Knight's duties ... and that he did not meet the expectations reflected in the PIP after being provided a reasonable opportunity to do so'[28]. In doing so, he rejected Mr Knight's contentions about the qualifications and actions of the reviewers.

[32] Ground 5 contends that the Deputy President erred in 'repeatedly assigning responsibility to the Applicant for the failures of the Respondent to fulfil their PIP management responsibilities'. The failures in question, and how they were wrongly attributed to Mr Knight, are not specified or apparent.

[33] Ground 7 contends that the Deputy President erred in his assessment of the employer's concerns about Mr Knight's behavioural issues. At various points in his Decision, the Deputy President considers the behaviour of Mr Knight, in the context of his examination of the submissions and the broader evidence.[29] We cannot identify any apparent error in relation to the treatment of these matters in the Decision. In any event, the Deputy President's consideration of behavioural issues did feature prominently in the Decision.

[34] In ground 8, it is said that the Deputy President erred by failing to place sufficient weight on the role of the ACIC Delegate, Mr Williams. In particular, Mr Knight contends that Mr Williams did not conduct a sufficient assessment of the PIP process and its outcome, and that the Deputy President did not consider, or properly consider, how this affected the fairness of the dismissal. However, the Deputy President considered Mr Williams' role in some detail, [30] and he responds to arguments raised by Mr Knight about the role of Mr Williams. The Deputy President engaged with Mr Knight's submission below that Mr Williams should have spoken with the referees he nominated in his response to the proposed termination letter and found that it was unclear what they could have added to the process.

[35] Ground 8 also refers to an alleged failure of the Deputy President to consider the delegate's responsibilities under the Public Service Act, and in particular whether Mr Williams acted in a way that was 'fair, impartial and ethical'. It is not clear to us how Mr Williams could be said to have failed to carry out his responsibilities, or how the Deputy President erred in this connection.

[36] We are not persuaded that grounds 2, 4, 5, 7 and 8 disclose an arguable case of error on the part of the Deputy President.

[37] Ground 6 concerns Mr Knight's contention that he was denied an opportunity to have a support person at the meeting of 2 November 2016. It appears Mr Knight did not see or read the message advising of the meeting (and the possibility of bringing a support person), as it was sent shortly before the meeting. It seems Mr Knight was told about the meeting, and attended it without having read the message. However, the Deputy President considered this argument and rejected it.[31] He concluded that ACIC had not unreasonably refused to allow Mr Knight a support person. That conclusion is consistent with the wording of s.387(d), as applied to the circumstances of this case. That section identifies as a relevant consideration of whether there was any 'unreasonable refusal by the employer to allow a support person to be present'. It seems to us there was no refusal at all. We see no merit in this ground of appeal.

[38] Ground 10 alleges that the Deputy President did not properly interpret the concept of 'valid reason', as expounded in the decision in Rode.[32] We reject this ground. The Deputy President set out the law and relevant authorities concerning valid reason and in our view applied them correctly.

[39] Ground 11 contends that the Deputy President should not have rejected Mr Knight's application to require the attendance of certain witnesses and the production of certain documentation from the employer. In this regard, Mr Knight refers in his submissions to documentation from before the start of the PIP that he had sought, unsuccessfully, to have produced.[33]. Mr Knight did not seek to appeal the decision of the Deputy President not to order the attendance of the witnesses concerned or the production of the relevant documents. Nor is it clear how the relevant evidence would have assisted Mr Knight's case. We note that the Deputy President made various orders sought by Mr Knight, both for the attendance of a witness and the production of documents. There is nothing unusual about a party being only partially successful in such applications.

[40] By ground 12, Mr Knight contends that the employer was 'tardy' in delivering documents which the Commission had ordered to produce; but in fact, the employer complied with the directions for the production of documents. It is further contended that Mr Knight did not understand that only evidence 'produced during the evidence phase could be presented', and that the Deputy President did not assist Mr Knight. A tribunal has a duty to assist a self-represented litigant[34]; however it is not clear to us what assistance Mr Knight believes the Deputy President should have provided to him, or what if any evidence he was not able to produce.

[41] Finally, at the hearing of permission to appeal, Mr Knight contended that he had made an amendment to the draft PIP, whereby an 'independent entity' would 'adjudicate' whether Mr Knight had delivered an acceptable Framework document. Mr Knight pointed to a handwritten comment he had made on page 6 of a draft of the PIP document.[35] This amendment does not appear in the final version of the PIP. However, Mr Knight signed the final version of the PIP. Further, this issue was not raised in the proceedings before the Deputy President.

[42] We do not see substance in these grounds.

[43] In his decision, the Deputy President carefully reviewed and weighed all of the evidence before him and made appropriate findings in relation to the evidence. Mr Knight has not pointed to any part of the evidence that causes us to conclude that findings were made in error. He has not identified any issue that raises matters of importance or general application that would be sufficient to enliven the public interest and for permission to appeal to be granted. In our view, the conclusions of the Deputy President, in light of his findings, were harmonious with other decisions of the Commission.

[44] For these reasons, we do not consider that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s400(1) of the Act, permission to appeal is refused.

Ms Krause, AGS lawyer, appeared on behalf of the Commonwealth

[1] [2017] FWC 2488

[4] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[5] [2011] FCAFC 54; (2011) 192 FCR 78 at paragraph 43

[6] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] to [46]

[7] [2010] FWAFB 5343, 197 IR 266 at [27]

[8] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

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

[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[11] Respondent's request for permission for legal representation, 14 June 2017

[12] [2017] FWCFB 2812

[16] See clause 2 of the current enterprise agreement; and the website of ACIC, https://www.acic.gov.au/about-us/careers

[17] See further details in this regard on the website of ACIC https://www.acic.gov.au/about-us/legislation:

On 1 July 2016 the Australian Crime Commission Amendment (National Policing Information) Act 2016 (Cwlth) amended the ACC Act to implement the carrying over of CrimTrac's functions to the ACC, including the provision of systems and services relating to national policing information and nationally coordinated criminal history checks. In doing so Australia's national criminal intelligence and information capabilities were brought under one banner, allowing police, justice agencies and policy makers at all levels of government to adopt a more effective, efficient and evidence-based response to crime. As a Commonwealth statutory authority, the Australian Criminal Intelligence Commission also has responsibilities under the Public Service Act 1999 (Cth) and the Public Governance, Performance and Accountability Act 2013 (Cth).

[21] [2017] FWC 2488, at [66] - [70]

[25] Ibid, at [31], [35], [42], [46], [47], [48] and [70]

[29] See paragraphs [21], [31], [33], [34] and [42]

[32] Rode v Burwood Mitsubishi, Print R4471

[33] Appellant's submission, paragraph 12

[34] Trustee for the MTGI Trust v Johnson [2016] FCAFC 140at 102.

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