Mwango v Fair Work Commission

Federal Court of Australia|2019-08-15|Before: Thawley J

The application be dismissed.
Any party wishing to make an application for costs notify the Associate to Thawley J within 7 days of this order, supported by a submission of no longer than two pages as to why an order for costs is appropriate. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 22 September 2017, the applicant commenced proceedings in the Fair Work Commission (FWC) under s 394 of the Fair Work Act 2009 (Cth) (FW Act) in relation to a claimed unfair dismissal from his employment with the second respondent (WesTrac). 2 A Commissioner dismissed this application on 1 June 2018 (the original decision or the Commissioner's decision): Bernard Mwango v WesTrac Pty Ltd [2018] FWC 3135. The Commissioner concluded that the applicant "engaged in serious conduct" involving "threatening and aggressive" behaviour towards a co-worker. This gave WesTrac a valid reason for dismissal. The Commissioner determined that the applicant's dismissal was not harsh, unjust or unreasonable. 3 On 22 June 2018, the applicant lodged an appeal against the original decision. As is explained next, the statutory scheme was such that the applicant required "permission" to appeal. The Full Bench of the Fair Work Commission refused permission to appeal on the basis that it was not satisfied, for the purpose of s 400(1) of the FW Act, that it would be in the public interest to grant such permission: Bernard Mwango v WesTrac Pty Ltd [2018] FWCFB 5967. 4 These proceedings were commenced by an originating application and statement of claim filed on 18 December 2018. Relief was claimed under s 39B of the Judiciary Act 1903 (Cth) in respect of the Full Bench's decision. 5 By way of an amended statement of claim, ultimately filed on 22 July 2019, the applicant sought judicial review of both the original decision and the decision of the Full Bench. 6 Before explaining the background to the dispute and the reasons why the application must be dismissed, it is useful to set out certain aspects of the statutory scheme.

Provisions relevant to the Commissioner's Decision 7 Chapter 3 of the FW Act is entitled "Rights and Responsibilities of Employees, Employers, Organisations etc". Part 3-2, comprising ss 379 to 405, is entitled "Unfair Dismissal". 8 The role of the FWC, in respect of the applicant's unfair dismissal application, was to determine whether his dismissal was "harsh, unjust or unreasonable" within the meaning of s 385 of the FW Act. Section 385 provides: 385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. 9 Section 387 of the FW Act provides: 387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. 10 In Gregory v Qantas Airways Ltd and Another (2016) 241 FCR 72 at [40], Buchanan J observed (Bromberg and Rangiah JJ agreeing), in relation to the role of the FWC: … It was correct to observe that the FWC does not possess the range of discretions available to an employer, and is not in a position to substitute any judgment of its own for that of an employer, particularly where those judgments bear on aspects of business management. The task of the FWC is to apply the provisions of the FW Act, in accordance with any relevant statutory directions. 11 It was not the Commissioner's role to stand in the shoes of the employer and determine whether the decision was a decision which the FWC would make; rather, his role was to undertake a review in accordance with the relevant statutory provisions - see: Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

Provisions relevant to the appeal to the Full Bench 12 Chapter 5 of the FW Act is entitled "Administration". Part 5-1 is entitled "The Fair Work Commission". A number of provisions within Divs 3 and 4 of Pt 5-1 are relevant to an appeal to the Full Bench of the FWC. 13 Section 604 of the FW Act relevantly provides: 604 Appeal of decisions (1) A person who is aggrieved by a decision: (a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); … may appeal the decision, with the permission of the FWC. (2) 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. Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (3) A person may appeal the decision by applying to the FWC. 14 Section 613(1) of the FW Act relevantly provides: 613 Appeal of decisions (1) A Full Bench must (except as provided by subsection (2)): (a) decide under section 604 whether to grant permission to appeal a decision; and (b) if the Full Bench decides to grant the permission - hear the appeal in accordance with section 607. 15 As the note to s 604(2) recognises, s 400 of the FW Act, which is found in Div 5 of Pt 3-2, is also relevant. It provides: 400 Appeal Rights (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. 16 Because the relevant decision was one made under Part 3-2, the applicant could only appeal the original decision if he first obtained the permission of a Full Bench and the Full Bench could not grant that permission unless it considered it was in the public interest to do so. 17 The determination of whether it is in the public interest to grant permission involves a broad evaluative judgment: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44] (Buchanan J; Marshall and Cowdroy JJ agreeing); see also Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [78].

Background 18 The applicant was employed by WesTrac as a laboratory technician from about 26 November 2012 until 7 September 2017. He was dismissed from his employment on misconduct grounds after an incident that took place on 17 August 2017. This incident involved another laboratory technician employed by WesTrac, Mr Matthew Crotty. The applicant's supervisor, Mr David Lai, witnessed part of the incident. The incident is described below in referring to the Commissioner's decision and the decision of the Full Bench.

The Commissioner's Decision 19 The Commissioner stated at D[20] to [27] (footnotes omitted): [20] On 17 August 2017, Mr Mwango and Mr Crotty were both rostered to work the afternoon shift in the SOS Laboratory at the Tomogo WesTrac site (Laboratory). Mr Crotty commenced work at 12:00pm. [21] At approximately 2:00pm, Mr Mwango walked into the Laboratory. Mr Crotty said to Mr Mwango that he was about to start working on coolant samples, to which Mr Mwango responded with words to the effect "I'm sorry mate, I wasn't supposed to be here today." Mr Mwango then sat down on a black swivel chair facing the Ion Chromatography (IC) computer and began to complete a 'Take 5', which is a safety related procedure at WesTrac. [22] Mr Mwango had been attending training for two days prior to 17 August 2017 and had not worked in the Laboratory during that time. [23] At approximately 2:30pm, Mr Crotty walked over to Mr Mwango who was still seated facing the Ion Chromatography (IC) computer. Mr Crotty stood to the right of Mr Mwango. Mr Crotty began to update Mr Mwango on what had occurred in the Laboratory during Mr Mwango's absence. Mr Crotty told Mr Mwango that the Laboratory had received a nitrate standard, against which some initial results were tested, and a recalibration was performed to produce more acceptable results. In telling Mr Mwango this, there is no dispute that Mr Crotty said the word "shit". [24] According to Mr Crotty, he "specifically and purposefully" referred to the initial results as being "shit" as opposed to Mr Mwango personally or Mr Mwango's work. [25] Mr Crotty gave evidence that after he said the word "shit", Mr Mwango became extremely angry and aggressive. Mr Crotty gave evidence that Mr Mwango was shaking, his eyes were bulging and wide, and his voice changed dramatically. Mr Crotty gave evidence that the conversation continued in words to the following effect: Mr Mwango: "You are saying that everything I do here is shit." Mr Crotty: "I was referring to the nitrate result. This is not a personal attack on you." [26] Mr Crotty gave evidence that Mr Mwango then said "you better be Caref" in a raised and aggressive voice whilst shaking, bulging his eyes and pointing directly at him. Mr Crotty alleges that he then asked Mr Mwango what he meant and Mr Mwango responded by repeating the words "you better be Caref". Mr Crotty gave evidence that when [Mr] Mwango said "you better be Caref" he understood the words to mean "you better be careful" and that he felt physically threatened because of Mr Mwango's raised voice and body language. [27] Mr Crotty gave evidence that Mr Mwango then shouted words to the effect of "you can expect payback 150 percent" whilst shaking and gesturing towards him with an outstretched hand. Mr Crotty gave evidence that at that point he formed the view that Mr Mwango was going to punch him, so he walked five or six metres away from Mr Mwango but remained in the Laboratory. 20 The Commissioner recorded the applicant's account of the incident and submissions at D[30] to [35] (footnotes omitted): [30] Mr Mwango submits that Mr Crotty and Mr Lai colluded to fabricate their evidence in relation to the 17 August 2017 incident. [31] According to Mr Mwango, Mr Crotty said the word "shit" in reference to results that Mr Mwango had previously prepared, as well as in reference to him personally. Mr Mwango alleges that Mr Crotty repeatedly swore at him, shouted and banged his hands on a nearby bench. Mr Mwango gave evidence that he responded to Mr Crotty's alleged conduct by saying "please just talk to me nicely and stop swearing". [32] Mr Mwango denies that he was aggressive, pointed at Mr Crotty or said "you better be Caref". Mr Mwango cannot recall raising his voice. [33] Mr Mwango denies that he said he would repay Mr Crotty back; however, he admits that he said words to Mr Crotty to the following effect: "Now the line has been crossed if you think that is the appropriate language we should be using at work then from today onwards I will be using the same language as him. But I will be stepping it up, if you give me 100% I will give you 110%, 120% more." [34] During cross-examination, Mr Mwango explained that when he said to Mr Crotty "I will be stepping it up. If you give me 100 per cent I will give you 110" he meant: "… if you swore at me like that, he said he was swearing at me, I will swear to him in a way that you'll feel bad, you'll feel worse". [35] Mr Mwango denies that Mr Crotty walked away from him after he said this. 21 The Commissioner stated that, after considering all of the documentary and oral evidence in relation to the incident of 17 August 2017, he preferred the evidence given by Mr Crotty summarised at D[24] to [27]. He gave detailed reasons for preferring Mr Crotty's evidence at D[36] (footnotes omitted, emphasis in original): [36] Having considered all of the documentary and oral evidence in relation to the 17 August 2017 incident I prefer the evidence given by Mr Crotty as summarised in paragraphs [24] to [27] above for the following reasons: (a) First, there is a high level of consistency between the initial statement Mr Crotty gave to WesTrac dated 17 March 2017, his witness statement dated 26 February 2018 and filed in these proceedings and the oral evidence he gave at the hearing. Further, although Mr Crotty was shaken as a result of his interactions with Mr Mwango on 17 August 2017, Mr Crotty answered the questions put to him in cross examination by Mr Mwango in a direct and responsive manner and gave his oral evidence in a measured way; (b) Secondly, Mr Crotty's evidence (as summarised in paragraphs [24] to [27] above) is broadly consistent with evidence given by Mr Lai, who I accept witnessed much of the incident on 17 August 2017 (see paragraph [75]). For example, although Mr Lai's account is that Mr Mwango said words to the effect of "I will repay back 100, 1000 time worse to you etc." whilst pointing at Mr Crotty, shaking and clenching his fists (see paragraph [28] above), his account is still broadly consistent with Mr Crotty's evidence that Mr Mwango said that he could expect "payback" in a raised voice whilst aggressively gesturing towards him. Further examples of the broadly consistent evidence of Mr Crotty and Mr Lai include (i) Mr Crotty describing the calibration results as being "shit", (ii) Mr Mwango saying "you better be Caref" in a raised voice, and (iii) Mr Mwango behaving in an aggressive and threatening manner. In my opinion, the minor inconsistencies between the evidence given by Mr Crotty and Mr Lai are not a reflection of their credibility as witnesses and are explicable as a result of the passing of time since the incident on 17 August 2017. Although I accept Mr Lai gave credible evidence to the best of his recollection, his recollection of the 17 August 2017 incident was not as clear as Mr Crotty's recollection. Indeed, during cross-examination, Mr Lai admitted that his recollection was "cloudy"(see paragraph [29] above), which is understanding given the passage of time since the incident and the fact that, unlike Mr Crotty, Mr Lai was not on the receiving end of the aggressive and threatening behaviour on 17 August 2017. Therefore, I prefer the evidence given by Mr Crotty as summarised in paragraphs [24] to [27] above to that given by Mr Lai; (c) Thirdly, I do not accept Mr Mwango's contention that Mr Crotty and Mr Lai colluded in the preparation of their evidence. I accept as credible the denials by Mr Crotty and Mr Lai that they did collude. Their denials in that regard are supported by the different accounts given by each of them, both in their witness statements and in oral evidence, about some of the details of what happened on 17 August 2017. By way of example, Mr Crotty recalls Mr Mwango saying words to the effect of "you can expect payback 150 percent", whereas Mr Lai's recollection of that part of the conversation is that Mr Mwango said words to the effect "I will repay back 100, 1000 time worse to you"; and (d) Fourthly, Mr Mwango's accounts of the 17 August 2017 incident provided in his statement to WestTrac sent on 29 August 2017, his statement in chief served on 12 February 2018 and his statement in reply served on 12 March 2018, contain many inconsistencies. For example, in Mr Mwango's statement to WestTrac sent on 29 August 2017, he alleges that Mr Crotty said to him "I do not care about whatever fucking shit you are telling me, your results were shit" to which he responded "please just talk to me nicely…" Whereas in Mr Mwango's statement in chief, he alleges that Mr Crotty said words to the effect of "you fucking shit, fucking cunt, shit" repeatedly, to which he responded "please just talk to me nicely…" In my opinion, the statement "I do not care about whatever fucking shit you are telling me, your results were shit" cannot fairly be described as words to the effect of "you fucking shit, fucking cunt, shit". Although the statement contains the words "shit" and "fucking", these words are not directed to Mr Mwango personally nor does the statement contain the word "cunt". Another example of an inconsistency in Mr Mwango's evidence is what he alleges he said in retaliation, or in 'standing up' (as he describes), to Mr Crotty. In Mr Mwango's statement to WestTrac sent on 29 August 2017, he alleges he said in retaliation to Mr Crotty "… from today onwards I will be saying the same language he uses at me, I will be giving back at you actually more than you do it to me I will be giving back to you more than 100 percent, now the line has crossed I won't be tolerating your nonsense and will be giving you back more 150 percent and see how you will like it". Although I accept that Mr Mwango's evidence in this respect is broadly consistent with that adduced in his statement in chief (see paragraph [33]), I do not accept that it is consistent with the evidence given by Mr Mwango in his statement in reply, in which he asserted that he said words to the effect of "If you swear at me, I will swear at you" in retaliation to Mr Crotty. A further inconsistency in Mr Mwango's evidence was that, in his statement in chief, he alleges that he said to Mr Crotty "You stinking idiot. You stink if you do not know as old as you are cannot express yourself properly apart from swearing?" This evidence does not appear in Mr Mwango's statement to WesTrac sent on 29 August 2017. This inconsistency was raised with Mr Mwango during cross-examination. Mr Mwango maintained that he said to Mr Crotty "You stinking idiot. You stink if you do not know as old as you are cannot express yourself properly apart from swearing?"- but denied that his failure to include this part of the conversation in his 29 August 2017 statement gave rise to an inconsistency because in that statement, he asserted that he said to Mr Crotty words to the effect of "if it is the language that he understands then you stinking idiot get out face". I do not accept that this evidence is objectively consistent. Although some allowance must be made for the fact that Mr Mwango was self-represented throughout the material parts of these proceedings, the inconsistencies in Mr Mwango's evidence, as well as his refusal to accept such an inconsistency when brought to his attention, negatively affects his credibility as a witness. 22 At D[37], the Commissioner concluded that the incident occurred as summarised at D[20] to [27] and that: I am also satisfied that Mr Mwango's conduct during the 17 August 2017 incident was in breach of the Code and inconsistent with the Procedure for the following reasons: • The Code obliged Mr Mwango to ensure that his personal conduct and behaviour was at all times professional (and lawful). The conduct Mr Mwango engaged in on 17 August 2017 was unprofessional. It was inappropriate and threatening. • The Procedure required Mr Mwango to behave in an acceptable manner. Mr Mwango engaged in unacceptable behaviour by physically threatening and showing aggression to Mr Crotty. 23 When assessing whether the applicant had been provoked on 17 August 2017, the Commissioner made the following further findings of fact (footnotes omitted): [74] The catalyst for the incident between Mr Mwango and Mr Crotty on 17 August 2017 was Mr Crotty's use of the word "shit". According to Mr Mwango, Mr Crotty said the word "shit" in reference to results that Mr Mwango had previously prepared, as well as in reference to him personally. According to Mr Crotty, he said the word "shit" in reference to the initial results as opposed to Mr Mwango personally or Mr Mwango's work. Although it was not quite put in this way by Mr Mwango in his submissions, it is possible that Mr Crotty's use of the word "shit" provoked Mr Mwango to act in the way he did. [75] Mr Lai corroborated Mr Crotty's evidence that he used the word "shit" to describe results. Mr Lai gave evidence that when he entered the Laboratory he heard Mr Crotty say words to the effect of "the calibration is shit". Although Mr Mwango and Mr Crotty both gave evidence that they believe Mr Lai entered the Laboratory at a later stage in the discussion, I accept Mr Lai's evidence that he heard Mr Crotty say words to the effect of "the calibration is shit". During cross-examination, Mr Mwango accepted that it could have been the case that Mr Lai was standing in the doorway of the Laboratory and he did not notice. Indeed, I am satisfied that both Mr Mwango and Mr Crotty did not realise that Mr Lai had entered the Laboratory until he walked over to them and/or said something to them. 24 The Commissioner made the following factual findings about conduct after the incident and whether the applicant was notified of the reasons for his dismissal and given an opportunity to respond (footnotes omitted): [41] On 23 August 2017, Mr Mwango attended a meeting with Ms Fletcher and Mr Ward at the Tomago WesTrac site. At this meeting, Mr Mwango was provided with a letter dated 23 August 2017 (Stand Down Letter) which stated: "Dear Bernard, Stand down pending investigation This letter serves to confirm our conversation from today, in which you were advised that you will be stood down with full pay effective immediately pending an investigation. This investigation is in response to an incident in the lab on Thursday 17 August 2017, in which it is alleged that you made inappropriate and threatening comments to another employee. Upon completion of the investigation, you will be given 24 hours' notice of the requirement to return to site for a meeting. This meeting will involve myself and a representative from HR where you will be given the investigation findings and asked to provide a response. During this meeting you are able to use the Employee Resolution Process (as per Company policy) and have a support person present, if you wish. Please be aware that the outcome of this investigation may lead to disciplinary action. A copy of this letter will be kept in your personnel file. Yours faithfully, Brett Ward" [42] Although the Stand Down Letter did not set out the specific inappropriate and threatening comments (and other conduct) WesTrac relied on to terminate Mr Mwango's employment, I accept the evidence given by both Ms Fletcher and Mr Ward that Mr Mwango was orally informed of these specifics at the 23 August 2017 meeting. I also accept Ms Fletcher's and Mr Ward's evidence that Mr Mwango was asked at this meeting to provide a written statement of events by no later than 8:00am on 24 August 2017. Mr Mwango did not comply with the request. [43] I accept Mr Ward's evidence that Mr Mwango was provided with another opportunity on 25 August 2017 to respond to the allegations upon which WesTrac relied to dismiss him. Mr Ward's email to Ms Fletcher sent at 12:03pm on 25 August 2017 supports Mr Ward's contention that he gave Mr Mwango a further opportunity to respond to the allegations: "…I finally got a hold of Bernard by him texting me to give him a call. I asked him how he is going with the statement I asked him to produce to me 2 days ago. He informed me that he can not supply to me as I have not sent him Matthew's statement. I replied to Bernard that I never stated that he would receive a copy of his statement and this will not be occurring, he needs to supply his statement on versions of events as it actually occurred. He then continued in saying that he has written it but will not supply unless I send him I [sic] writing that I have only stood him down and reason I have not stood Matthew down. I informed him as discussed in the last face to face meeting a decision was made to stand Bernard down as we have 2 witness statements that describe his behaviour to be in breach of WesTrac behaviour procedure… I made a decision to … give him time to respond his version of events before any possible action is taken… I informed him that if I do not receive a statement from him I will have to act on only those statements I have received…" [44] On 28 August 2017, Mr Mwango attended another meeting with Ms Fletcher and Mr Ward at the Tomago WesTrac site. I accept Mr Fletcher's and Mr Ward's evidence that Mr Mwango was given yet another opportunity at this meeting to respond to the allegations made against him by Mr Crotty and Mr Lai. Indeed, following this meeting, Mr Mwango sent an email to Ms Fletcher and Mr Ward at 7:34am on 29 August 2017 in which he set out his version of the events on 17 August 2017. [45] On 7 September 2017, Mr Mwango attended a final meeting with Ms Fletcher and Mr Ward at the Tomago WesTrac site. The purpose of this meeting was to provide Mr Mwango with the outcome of the investigation. I accept M[s] Fletcher's and Mr Ward's evidence that Mr Mwango was again notified of the allegations made against him and that he was given yet another opportunity to respond to those allegations. 25 The applicant had argued that he had not been afforded procedural fairness by WesTrac before his dismissal. His arguments in this regard were summarised by the Commissioner at D[65]: [65] Mr Mwango contends that he was denied procedural fairness during the disciplinary process leading up to his dismissal for a number of reasons, including the following: (a) Mr Ward and Ms Fletcher refused to show Mr Mwango the statements made by Mr Crotty and Mr Lai, which contained the allegations upon which WesTrac relied to dismiss Mr Mwango; (b) Mr Ward and Ms Fletcher did not give Mr Mwango the opportunity to provide his version of events before they made the decision to stand him down pending the investigation; and (c) Mr Ward and Ms Fletcher did not provide him with the findings of their investigation when they decided to terminate him. 26 It was not disputed that the applicant had asked WesTrac to provide him with copies of the statements and that WesTrac had refused to provide them to him. 27 At the hearing before this Court, the applicant referred to paragraph D[67] emphasising the last sentence (footnotes omitted, emphasis added): [67] In light of my earlier findings that Mr Mwango was provided with the specifics of the allegations upon which WesTrac relied to dismiss Mr Mwango at the 23 August 2017 and 7 September 2017 meetings (see paragraph [42] and [45] above), I do not accept that Mr Mwango was denied procedural fairness by Ms Fletcher and Mr Ward refusing to show Mr Mwango the statements of Mr Crotty and Mr Lai. Mr Mwango was able to, and did, provide WesTrac with his version of the events on 17 August 2017. Although the process would have been a better one had those statements been provided to Mr Mwango, I am satisfied the process which was followed by WesTrac did not deny Mr Mwango procedural fairness.

The Full Bench Decision 28 The applicant's Notice of Appeal and submissions to the Full Bench in support of his application for permission to appeal were summarised by the Full Bench at J[4] and [5] as follows: [4] In the Appellant's Notice of Appeal, it was submitted that his application for an unfair dismissal remedy was dismissed based on "fake" and "forged" statements, that not all evidence provided to the Commission was considered, and that the Respondent had allegedly "lied" in the proceedings at first instance. [5] In the Appellant's submissions filed on 10 September 2018, the Appellant contended that the Commissioner fell into jurisdictional error because the Decision was allegedly founded upon witness evidence which was not credible, incorrect facts, and bias and discrimination. In support of these contentions, the Appellant attached an extensive amount of documentary materials which attempted to, inter alia, demonstrate; • that there was [sic] a number of inconsistencies, falsified statements, and forged documents in the Respondent's evidence at first instance; • that the statements submitted by the Respondent did not comply with company policy as they were typed, unsigned, unwitnessed, dated incorrectly, and not completed prior to the end of shift; • that no statement or correspondence was obtained from the Appellant prior to the first warning being issued, that he had not been requested to make a statement after the 17 August 2017 incident (whereas Mr Lai and Mr Crotty was [sic]), that no response was received in relation to his appeal of the first warning, and that all the Respondent's witnesses were allowed to review the Appellant's statement but he was not allowed to review theirs'. 29 The Full Bench refused the request for permission to appeal because the Full Bench was not satisfied, for the purpose of s 400(1) of the FW Act, that it would be in the public interest to grant permission to appeal. The Full Bench summarised and assessed the Commissioner's decision and reasoning from J[11] to [18], before concluding at J[19]: Having considered the Appellant's submissions and all the materials filed by the parties on appeal, we are not satisfied that there is an arguable case of error. We do not consider that the Decision was founded upon witness evidence which was "fake" or not credible, incorrect facts, or on bias and discrimination. It is clear from paragraphs [11]-[17] above, that the Commissioner applied the correct legal principles, considered and dealt with all the evidence (as well as the inconsistencies in evidence) in extensive detail, made findings of fact based on the evidence he considered to be credible, and took into account the procedural fairness, bias and discrimination issues which were raised by the Appellant at first instance. The basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant's unfair dismissal application, and we are not satisfied for the purposes of determining whether this appeal attracts the public interest that: • There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind; • The appeal raises issues of importance and/or general application; • The Decision at first instance manifests an injustice, or the result is counter intuitive; or • The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

The Application for Judicial Review 30 The originating application filed on 18 December 2018 sought the following relief under s 39B of the Judiciary Act: 1. The decision of the Respondent in case number C2018/3440 [the decision of the Full Bench] is quashed. 2. A declaration that that [sic] the Applicant's dismissal form [sic] employment by Westrac Pty Ltd - ABN 60 009 342 572 on 7 September 2017 was harsh, unjust and unreasonable. 3. An Order that the Second Defendant allow and hear the Appeal lodged by the defendant on the matter of damages. 31 The amended statement of claim, filed on 22 July 2019, sought the following relief under s 39B of the Judiciary Act: 26. A review of Case No: U2017/10323 [the original decision] and Case No: C2018/3440. 27. A declaration that the Applicant's dismissal by the Second Respondent was harsh and unreasonable. That the First Respondent denied the Applicant due process, procedural fairness and was bias [sic]. Their Decision lacked Natural Justice. 28. That the Court Order the writ of mandamus on the First Respondent. 29. That the Court make an Order for lost [sic] of wages and remuneration on behalf of the Applicant, from the Second Respondent. 30. Any other Orders that the Honourable Court sees fit. 32 The applicant confirmed at the hearing that he sought judicial review of both the Commissioner's decision and the decision of the Full Bench of the FWC. 33 WesTrac indicated at the hearing that it opposed leave being granted to the applicant to rely upon the amended statement of claim to the extent it sought judicial review of the Commissioner's decision, but that it was in a position to deal with it if leave were granted. 34 In circumstances where the matter has been considered and argued, the expedient course in the circumstances of this case is to grant leave to rely upon the amended statement of claim. 35 This Court has the jurisdiction to entertain an application for judicial review of a decision of a Commissioner of the FWC antecedent to a decision of a Full Bench. As Bromwich J stated in Barkhazen v Conair Australia Pty Ltd [2017] FCA 1585: [18] … Thus Linfox is not to be read as authority for any broader proposition that this Court cannot entertain an application for judicial review of a decision of the Fair Work Commission antecedent to a decision of the Full Bench in the same case. Given the scope of s 39B of the Judiciary Act and the status of the Fair Work Commission as an executive body, such a limitation would be surprising. [19] For completeness, it should, however, be noted that … there will often be compelling discretionary reasons for this Court not to entertain an application for judicial review of a decision of the Fair Work Commission antecedent to a decision of the Full Bench in the same case, including when an application for permission to appeal is pending before the Full Bench. This Court will usually require a compelling reason to intervene as an alternative to the appeal processes provided for by the FW Act. 36 Justice Bromwich's decision concerned an application for judicial review being brought to this Court without exhausting the appeal process contemplated by the statute. This matter is different in that the applicant has exhausted the appeal rights available to him under the FW Act. There will also often be compelling reasons for this Court not to entertain an application for judicial review of a decision of a Commissioner in addition to an application for judicial review of the Full Bench's decision relating to the Commissioner's decision. However, I have now considered whether there was any jurisdictional error in the Commissioner's decision and determined that there was not for the reasons identified below, and would dismiss the application for judicial review from the Commissioner's decision on that basis.

The relevant principles 37 Section 562 of the FW Act confers jurisdiction on this Court in relation to any matter arising under the FW Act. Section 39B(1A)(c) of the Judiciary Act provides: The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. 38 Section 23 of the Federal Court of Australia Act 1976 (Cth) provides: The Court has the power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 39 Whilst it is not as clear as it should be, the applicant seeks: (1) a writ in the nature of certiorari to quash the decisions of the Commissioner and the Full Bench; and (2) a writ of mandamus to compel the FWC to reconsider the unfair dismissal claim or the appeal to the Full Bench according to law. 40 The applicant did not raise any question of non-jurisdictional error on the face of the record - see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [94]. Accordingly, the relief which the applicant claims may only be granted if jurisdictional error is established. The applicant bears the onus in this respect. 41 In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, in describing the circumstances in which the Full Bench would fall into jurisdictional error, Gleeson CJ, Gaudron and Hayne JJ stated at [31] (footnotes omitted): There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it "misunder[stood] the nature of [its] jurisdiction … or 'misconceive[d] its duty' or 'failed to apply itself to the question which [s 45 of the Act] prescribes' … or '[misunderstood] the nature of the opinion which it [was] to form'". 42 Justice Buchannan further explained the task of this Court on judicial review in Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537 at [59] (emphasis in original): … The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all. 43 The statutory task of the Full Bench was first to determine whether it was in the public interest to permit the applicant to appeal the original decision of the Commissioner. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138 at [48], the Full Court (Barker, Rangiah and Wigney JJ) noted that the "question of the public interest is a broad consideration", further observing: Unless it can be shown that the Full Bench in the exercise of its power to grant permission to appeal misunderstood the nature of its jurisdiction, or somehow misconceived its duty, then, in accordance with the principles of jurisdictional error established in such cases as Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 and Marks [R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471], any error made in relation to a permission decision will be considered an error within jurisdiction. See also Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees' Union (2015) 234 FCR 405 at [58] - [69]. 44 It is not sufficient for the applicant to demonstrate non-jurisdictional legal error in the reasoning of the Full Bench or an erroneous finding of fact. The question the Full Bench was tasked with answering - whether or not it was in the public interest to grant permission to appeal - was not a jurisdictional fact; it is not for this Court to decide on judicial review whether it is, in fact, in the public interest to grant permission to appeal: Baker v Patrick Projects Pty Ltd and Another (2014) 226 FCR 302 at [33] to [36] (Katzmann J; Dowsett and Tracey JJ agreeing). 45 Examples of matters which might establish jurisdictional error on the part of the Full Bench or the Commissioner include: (1) a failure to take into account a matter which the statute conferring jurisdiction expressly or implicitly required be taken into account as a precondition to the exercise of the power; (2) taking into account a matter which the statute expressly or implicitly required not be taken into account in exercising the power; (3) misconstruing the statute and thereby misconceiving the nature of the function to be performed or the extent of the powers in the circumstances of the particular case (here, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern); and (4) a failure to provide procedural fairness. 46 This Court does not have the power to grant the relief sought at prayer 2 or 3 of the applicant's originating application (set out at [30] above), or for damages for lost wages and superannuation as sought at [29] of the amended statement of claim (set out at [31] above).

The Commissioner's Decision 47 The applicant's amended statement of claim made the following complaints with respect to the original decision: 23. During the Hearing of this matter on 16 March 2018, the First Respondent (Fair Work Commissioner) ordered the Second Respondent (Westrac Pty Ltd) to produce all material evidence as previously requested by the Applicant in his prior written submission and orally. The Second Respondent did not produce all the evidence as requested. Only some where [sic] produced, however, the First Respondent did not allow for the Applicant to cross examine the Second Respondent on some of that evidence produced by the Second Respondent. Due process was refused the Applicant by the First Respondent. 24. On 1 June 2018, the First Respondent (Fair Work Commission) in the first instance dismissed the Applicant's application in Case No: U2017/10323, without proper consideration. The First Respondent was bias, in given more weight to the Second Respondents evidence, in blatant disregard to all the inconsistencies in their written and oral testimonies. 48 The applicant's written (AS) and oral submissions with respect to the original decision can be summarised as follows: (1) the decision was infected with bias, as shown by the Commissioner's failure to give "equal weight" to each party's evidence; (2) the Commissioner denied the applicant due process in labelling his evidence "excessive and cumbersome"; (3) the Commissioner failed to give weight to the "ethno-sociological response" of the applicant; (4) the Commissioner failed to apply the Anti-Discrimination Act 1997 (NSW); (5) the Commissioner failed to take into account relevant considerations, namely that the applicant was provoked, that his usual behaviour at work was "excellent", and the duration of his service; (6) WesTrac failed to respond to a subpoena, and this issue was not considered by the Commissioner, which denied the applicant due process; (7) the Commissioner failed to accord the applicant natural justice. 49 The allegation of bias on the part of the Commissioner was not made good. The applicant made the following relevant submissions in this respect (errors in original): • The Commissioner of the Fair Work Commission at first instance, was bias and failed to allow due process. • The Commissioner blatantly ignore and failed to give proper weight all the evidence produced by the Applicant. • The Commissioner failed to accept the Applicant's oral testimonies. • Discriminated the Applicant where the Applicant does not reproduces his statement word for word as the Applicant's previous written statements. • However, the Commissioner blatantly refused to accord the same rigour to the Second Respondent and their witnesses when their statements are inconsistent. Thus, the balance of probabilities and the standards of proof on which the Commissioner relies to arrive at His decision was; "inexact proofs, indefinite testimony, or indirect inferences" or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion". See; Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p362 and per Rich J at p 350. • The Commissioner accepted all the evidence and inconsistent statements of the Second Respondent to the detriment and bias of the Applicant. See paragraph 36(a)(b) (the Commissioner refers to the Second Respondents inconsistencies "as minor") and accepts that it was due to the passage of time, however, the Commissioner refused to see the Applicants own inconsistencies "as minor", (d), of the first instance decision of Commissioner Saunders. See also paragraph 80 of the first instance decision. 50 The Commissioner's reasons at D[36] (reproduced above) set out in detail his conclusions and reasoning with respect to the documentary and oral evidence and his reasons for preferring the evidence given by Mr Crotty (and others) over that given by the applicant. It is evident that the Commissioner well understood the statutory function. The Commissioner was faced with differing accounts of the relevant events. The Commissioner reached a conclusion as to which account he preferred. The Commissioner did not approach the fact finding task with a closed mind or having pre-judged the issues - cf: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [25]-[29] (Flick J). 51 The applicant, who bears the onus, did not demonstrate by reference to the reasons for decision, the transcript of the proceedings, or any other material, that the Commissioner approached the hearing and its decision otherwise than independently and giving the applicant a proper opportunity to be heard. It is plain from the Commissioner's reasons that he conscientiously undertook the fact finding task which the statutory scheme necessarily required be undertaken. 52 I am not satisfied that the Commissioner referred to the applicant's evidence as "extensive and cumbersome", as alleged at AS[17]. Even if he had, that would not of itself have given rise to jurisdictional error. 53 As to the contention that the Commissioner failed to give weight to the applicant's "ethno-sociological response", I am not satisfied that this issue was put to the Commissioner. I note that this was not a factor the Commissioner was required to take into account by s 387 of the FW Act and, accordingly, would not have demonstrated jurisdictional error in any event. 54 As to the contention that the Commissioner failed to apply the Anti-Discrimination Act 1997 (NSW), the Commissioner was neither bound nor empowered to apply that legislation in his decision. 55 The applicant's submissions set out at [48(5)] above assert that the Commissioner failed to take into account certain relevant considerations. For this to constitute jurisdictional error it would need to be demonstrated that these considerations were ones which the Commissioner was bound by the express or implied terms of the statute to take into account. A fair reading of his reasons shows that the Commissioner did identify and consider the matters referred to - see, in particular: D[57] to [64] and [74] to [80]. It is therefore unnecessary to consider whether the matters were ones which the Commissioner was bound to take into account 56 The applicant also contended (see [48(6)] above) that WesTrac failed to answer a subpoena and that the Commissioner failed to consider that fact. This contention has a number of difficulties. First, the relevant subpoena was not identified. The Commissioner did make an order for production under s 590 of the FW Act which was complied with by WesTrac. The applicant was specifically asked by the Commissioner whether he had any issue with WesTrac's compliance with the order for production and the applicant stated he did not. Secondly, there was no evidence that the Commissioner was asked to take into account non-compliance with a subpoena. Thirdly, even if the Commissioner had been asked to take into account non-compliance with a subpoena, a subsequent failure to do so would not amount to jurisdictional error unless the statute required such non-compliance to be taken into account or the failure to take it into account demonstrated jurisdictional error in some other way, for example, by indicating that the Commissioner misunderstood the statutory task. No jurisdictional error has been established in this respect. 57 I am not satisfied that the Commissioner failed to afford the applicant natural justice. 58 The applicant has failed to demonstrate that the Commissioner's decision was affected by jurisdictional error.

The Full Bench Decision 59 The applicant's Statement of Claim filed with the Originating Application largely addressed factual matters. It did raise two matters relating to the decision of the Full Bench which WesTrac correctly accepted were capable of constituting jurisdictional error: 33. On 27 September 2018, in case number C2018/3440, the First Respondent refused leave to the Applicant to appeal the decision without a proper consideration of or in disregard of the evidence presented in toto and the denial to the Applicant of procedural fairness in Case number U2017/10323. 60 The amended statement of claim raised the following matter relating to the decision of the Full Bench: 25. On 27 September 2018, in case No: C2018/3440, the full bench of the First Respondent refused the Applicant's leave to appeal the erroneous decisions of the first instance, without a proper consideration. The First respondent failed to give proper weight to the lies and inconsistencies in the Second Respondents statements compared to the oral testimonies on oath. The First Respondent refers to these inconsistencies as "minor" (see full bench decision page 4, paragraph 13(b)). However, what is "minor" is relative. Those "minor inconsistencies" given proper consideration would have turned the case in favour of the Applicant. 61 The Full Bench appreciated that it must not grant permission to appeal unless it considered that it was in the public interest to do so: s 400(1) of the FW Act. The Full Bench undertook the statutory task of reaching a state of satisfaction about whether it was in the public interest to grant such permission. The approach taken by the Full Bench in considering the matters identified at J[19], extracted at [29] above, does not reveal jurisdictional error. 62 The applicant's complaint that the Full bench did not consider the evidence 'in toto' is not made out. In connection with this complaint, the applicant also asserted that bias was demonstrated by the Full Bench placing weight on the decision of the Commissioner "without giving due consideration to the evidence produced by the applicant". The Full Court did not fail to consider the evidence 'in toto' as asserted. At J[5], the Full Bench noted that the applicant had filed an "extensive amount of documentary materials". Later, at J[19], the Full Bench expressly stated that it had considered those materials, and the applicant's submissions, in reaching its conclusion. The Full Bench was plainly not biased. 63 The Full Bench did not give a perfunctory and cursory consideration to the case. The Full Bench was required to determine, first, whether it was in the public interest to grant permission to appeal. It was not the role of the Full Bench to examine in detail the merit of the grounds of appeal as if on a hearing of the appeal. The Full Bench assessed, in detail, the Commissioner's reasoning in the original decision, including the weight given to various pieces of evidence and the reason given for the Commissioner's decisions in that regard. The Full Bench concluded, after analysis of the Commissioner's reasons, that "[t]he basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant's unfair dismissal application": J[19]. 64 There is nothing in the reasons of the Full Bench, or the submissions made by the applicant, to support the allegation of denial of procedural fairness on the part of the Full Bench.

Conclusion 65 The applicant has failed to establish jurisdictional error in relation to either the Commissioner's decision or the decision of the Full Bench. The application must be dismissed. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.

Anti-Discrimination Act 1997(NSW)

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