Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2024] FWC 246 of Deputy President Grayson at Sydney on 30 January 2024 in matter number U2023/6215 - appeal not competent - utility of appeal - appeal dismissed.

[1] Mr Scott Matthew Ashburner (Appellant) lodged an appeal under s. 604 of the Fair Work Act 2009 (the FW Act), for which permission is required, against a Decision[1] of Deputy President Grayson issued on 30 January 2024, dealing with an application for an unfair dismissal remedy under s. 394 of the FW Act. The appeal was listed for hearing in relation to permission to appeal and merits. At the hearing of the appeal we issued an ex-tempore decision dismissing the appeal on the grounds that it was not competent. These are our reasons for that decision.

[2] The Appellant was dismissed following a series of verbal altercations with colleagues, some of which were conceded by the Appellant as constituting inappropriate conduct while other incidents were denied. In the Decision, the Deputy President found that the Respondent had a valid reason for the dismissal but determined that the Appellant had been unfairly dismissed. The Deputy President reached this conclusion based on a finding that the Appellant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

[3] The Deputy President did not reach a conclusion as to what remedy should be ordered, finding that neither of the parties adequately addressed the question of remedy in their submissions, and issued Directions requiring the parties to file submissions addressing the appropriate remedy, if any, to be ordered. When the Notice of appeal was lodged, the Deputy President vacated the Directions to allow for the determination of the appeal.

[4] The original Notice of appeal asserted errors of fact and law on five grounds and 21 sub-grounds, directed at the Deputy President's finding that there was a valid reason for the Appellant's dismissal. The appeal did not otherwise assert error in the Decision. The Appellant's initial submissions filed in response to Directions for the hearing of the appeal included a statement from a witness (Mr Kyle Hamilton) who was not called at first instance. The statement was said to support the Appellant's version of events relating to an incident about which the Deputy President made findings adverse to the Appellant.

[5] A case management hearing was conducted and further Directions issued, in relation to the fresh evidence the Appellant sought to call at the hearing of the appeal. Subsequent to the case management hearing, correspondence was received from Anderson Gray Lawyers seeking permission to represent the Appellant and requesting that the Directions issued at the case management hearing and the hearing date be vacated, and that the Full Bench issue further Directions granting the Appellant leave to amend his Notice of appeal and to file amended submissions and witness statements. The Respondent opposed this course of action.

[6] Correspondence was forwarded to the Appellant's representative from the Chambers of the Presiding Member, advising that the hearing of the appeal had been moved twice to accommodate availability of the parties, including the availability of the witness the Appellant sought to call, and that it would proceed as listed. The Appellant's representative was also informed that the Directions issued following the case management hearing provided an opportunity for the Appellant to file evidence in the appeal that he maintained could not have been adduced at the first instance hearing and was not an opportunity to relitigate the first instance proceedings or advance an entirely new appeal. Further, it was pointed out that the Full Bench had not, at that stage, given permission for either party to file further evidence or submissions and that the further Directions allowed the Respondent to file response material, to deal with the Appellant's fresh evidence, if he was permitted to call that evidence in the appeal.

[7] The Appellant subsequently filed an amended Notice of appeal comprising five grounds asserting errors of fact and law, limited to the Deputy President's finding that there was a valid reason for the Appellant's dismissal. The amended notice sought that the Full Bench quash the Deputy President's decision and orders in relation to the finding that there was a valid reason for dismissal, and remit the matter to the Deputy President for determination on the question of remedy, or alternatively, that the Full Bench remit the matter to the Deputy President on the question of valid reason and remedy. After the Appellant's amended Notice of appeal and submissions were filed, the Respondent's representative corresponded with the Commission stating that the Appellant's lawyer had confirmed that the Appellant would not be relying on the material filed by the Appellant or seeking leave to call new evidence. This information was not confirmed by the Appellant until the hearing of the appeal.

[8] Prior to the hearing of the appeal further correspondence was sent to the Appellant, via his legal representative, on behalf of the Full Bench, stating that at the hearing of the appeal, submissions would be invited from the parties in relation to the competency of the appeal given that the Deputy President had decided that the dismissal was unfair but had not determined remedy, the Appellant had indicated that he did not seek to disturb the decision insofar as the Deputy President found he had been unfairly dismissed, and in that context a finding that there was a valid reason for dismissal may not be a decision within the meaning in s. 604 of the Act. The Appellant was further informed that in the event the appeal was dismissed on the basis that it is not competent, he could apply to the Deputy President to adduce further evidence of the kind sought to be admitted on appeal and that if he was not satisfied with the decision the Deputy President made on the question of remedy, he could lodge an appeal at that point, and also agitate any issue concerning the validity of the reason for the dismissal. The parties were further informed that the hearing of the appeal would be conducted by Microsoft Teams rather than in person.

[9] The appeal is brought under s. 604 of the FW Act. Section 604 of the FW Act provides:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);

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."

[10] For an appeal under s. 604(1)(a) to be competent, it must identify what is, properly speaking, the "decision" of the Commission which is the subject of the appeal. Section 598 of the FW Act defines what is a "decision" for the purposes of s. 604(1) as follows:

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include a statement under section 188B (which deals with principles on genuine agreement to enterprise agreements) or an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC's decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order."

[11] In relation to the competency of the appeal, the Appellant contended that by way of s. 598(4) of the FW Act, the reasons for the decision at first instance can constitute an appealable decision on the basis that a decision of the Commission that is not described as an order, may be made by order. The Appellant submitted that the Commission has discretion to choose whether a particular decision, especially a minor procedural decision, warrants being made an order. In the Appellant's view, the reasons for the decision disposes of the issue of whether the dismissal was unfair and therefore can constitute an appealable decision.

[12] The Appellant also contended that the content of the first instance decision has the "character" of a decision. Specifically, the Appellant submitted the Deputy President's finding that the dismissal was unfair is a determination of a question of substance as it resolves a substantive issue that was in dispute. The Appellant asserted that it is open to an appellant to appeal against any part of the first instance decision, including the valid reason findings.

[13] In response to questions regarding the utility of the appeal in circumstances where the Appellant could have appealed the valid reason finding after the Deputy President had issued her decision in relation to remedy, the Appellant submitted that there is great utility in the present appeal on the basis that it would avoid an unnecessary hearing. The Appellant asserted that, on its best case, if the appeal was upheld and the Full Bench made a finding that there was no valid reason for dismissal, then the matter could be remitted to the Deputy President to determine remedy on the basis that there was no valid reason for dismissal. In this instance, the Appellant contended that it was more likely for the Deputy President to determine a remedy that would not result in the Appellant being aggrieved and for the remedy decision to be subject to appeal. The Appellant submitted that if he had withdrawn his Notice of appeal prior to the hearing, this would have resulted in additional hearings as it is likely the Appellant would not have been satisfied with the remedy determined on the basis that it would be impacted by the finding that there was a valid reason for his dismissal.

[14] Further, the Appellant contended that if an unfairness finding is sufficient for the reasons for the decision to become a decision, then it was open for the Appellant to appeal against any part of that decision.

[15] The Respondent contended that the appeal is not competent for two interrelated reasons. First, the appeal is not against a decision but rather against reasons of the Commission and second, even if a decision has been made by the Commission, the Appellant is not an aggrieved person in relation to that decision.

[16] In relation to the submission that the appeal is not against a decision, the Respondent contended that under the FW Act, there is only an ability to challenge a decision of the Commission, not findings. Contrary to subparagraph (c) of the Appellant's proposed amended notice of appeal seeking the decisions and orders, to the extent that they concern the valid reason finding, to be quashed, the Respondent asserted that no orders have been made and the Appellant has failed to articulate how a decision can be quashed only to the extent it relates to findings.

[17] On making a distinction between reasons and decisions, the Respondent submitted that the authorities emphasise examining, within the scheme of the FW Act, whether the purported decision had an operative effect. The Respondent submitted that once it is recognised that the appeal is, in effect, only an appeal against the valid reason finding, then it flows squarely from Mosca & Ors v DP World Sydney Limited & Ors[2] that there is no competency in this appeal. As the Appellant seeks to only challenge the decision on whether or not there was a valid reason, this is not a decision for the purposes of the FW Act and the Appellant has no capacity to appeal from it.

[18] The Respondent also relied on Shop, Distributive and Allied Employees Association v Australian Industry Group,[4] where a Full Court of the Federal Court determined that, in the context of varying modern awards, the relevant decision under the FW Act was the determination to vary the modern awards, not the reasons given. Further, the Court emphasised the need to consider the operative effect of the purported decision to determine whether it is a decision for the purposes of the FW Act.[5]

[19] In relation to the submission that the Appellant is not an aggrieved person under s. 604 of the FW Act, the Respondent contended that even if it is assumed that a finding that a person has been unfairly dismissed is a decision, in the present circumstances, the Appellant has been found to have been unfairly dismissed. As such, the Appellant is not a person aggrieved by the decision, or by reference to the decision, although he may disagree with the reasons for the finding that he was unfairly dismissed.

[20] The Respondent also submitted that even if the appeal was found to be competent it lacks utility, in circumstances where the Appellant can appeal the valid reason finding once the decision on remedy is issued.

[21] In Buksh v Ramsay Health Care T/A Peninsula Private Hospital,[6] a Full Bench of the Commission dealt with a notice of appeal describing the decision(s) sought to be appealed as provisions of a settlement agreement reached in a conciliation conference before a Member of the Commission and a subsequent notice of discontinuance. In considering whether the notice of appeal in that case related to any decision within the meaning of s. 598 of the FW Act, the Full Bench said:

"[17] \Section 598 does not in terms define what a 'decision' is, but two interpretative conclusions of relevance may be drawn from the provision:

(1) The first sentence of s 598, and the note which follows the subsection, indicates that "decision" was intended to have a broad meaning and include both substantive and procedural decisions.

(2) The second sentence of s 598(1) makes it clear that outcomes pertaining from dispute resolution processes conducted pursuant to s 595(2) (that is, mediation, conciliation, the making of a recommendation or the expression of an opinion, but not arbitration) are not appealable.

[18] Relevant to the first conclusion, in the High Court decision in Australian Broadcasting Tribunal v Bond, Mason CJ (with whom Brennan and Dean JJ agreed) said as to the meaning of the word "decision":

"The word has a variety of potential meanings. As Deane J. noted in Director-General of Social Services v. Chaney (1980) 47 FLR 80, at p 100; [1980] FCA 87; 31 ALR 571, at p 590, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney." (emphasis added)

[22] In Mosca & Ors v DP World Sydney Limited & Ors[7] (Mosca) a Full Bench of the Commission was dealing with an appeal against a decision which determined only whether there was a valid reason for the dismissals of a group of employees as provided in s. 387(a), and did not determine the other matters in s. 387(b) - (h) relevant to whether the dismissals were unfair. The Full Bench concluded that "the decision under appeal could not properly be described as a substantive or procedural decision with operative legal effect". (emphasis added) The Appellant also referred to the decision of the High Court in Australian Broadcasting Tribunal v Bond,[8] where it was held that:

(1) For a determination to be a reviewable decision it will generally, but not always, entail a decision required by or authorized by a statute which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.

(2) A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision will not ordinarily be a reviewable decision unless the statute provides for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

(3) Accordingly, if a statute requires or authorizes a decision-maker to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order, the determination of the issue is a reviewable decision. In ordinary circumstances a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination."

[23] We accept that Mosca can be distinguished from the present case on the basis that only one of the matters in s. 387 was determined. Here the Deputy President's decision determines all the matters in s. 387 and concludes that the dismissal was unfair. To that extent the decision is a substantive decision. If that is the case (and it is not necessary for us to determine this matter) the difficulty is that the Appellant does not seek to impugn that decision. Rather, the Appellant seeks that the Full Bench set aside a finding made by the Deputy President as a step along the way in the decision-making process by which the conclusion that the dismissal was unfair, was reached. Further, the Appellant seeks to overturn the finding based on the potential impact it will have on the question of remedy, which is yet to be determined. The Appellant's contention in this regard is that the finding that there was a valid reason for his dismissal will necessarily limit remedies for his unfair dismissal. However, neither of the potential remedies available to the Appellant under Division 4 Part 3 - 2 of the Act have been foreclosed.

[24] It is also the case that the Deputy President's finding that there was not a valid reason for the Appellant's dismissal, is not an essential preliminary step to the taking of ultimate action or the making of an ultimate order. Rather, to the extent that a conclusion that a dismissal is unfair may itself be a decision capable of being appealed, it is the overall finding of unfairness based on an assessment of all the matters in s. 387 that is capable of being appealed, not a finding related to one of the matters that led to the conclusion of unfairness. As we have noted, the Appellant does not seek to appeal the overall finding. It is also the case that if the Appellant is aggrieved at a decision in relation to remedy, he may appeal that decision and the basis upon which that decision is made, including the finding in relation to valid reason about which he complains in the present appeal. Accordingly, the appeal has no utility.

[25] Even if we are wrong in relation to utility, we would have refused permission to appeal on the grounds that an appeal in the present case is contrary to the public interest. To allow an aggrieved applicant to appeal a finding in relation to one of the criteria in s. 387 of the Act, in circumstances where the conclusion in relation to unfairness is not the subject of the appeal and the finding is not determinative of the ultimate conclusion in relation to unfairness or remedy, would cause unnecessary expense to the parties involved and encourage other applicants to mount similar appeals. This would be an unjustifiable drain on the resources of parties in such proceedings, and the Commission.

[26] Accordingly, we issued an order[9] dismissing the appeal brought by the Appellant under s. 604 of the FW Act against the Decision [2024] FWC 246 of Deputy President Grayson issued on 30 January 2024.

[1] [2024] FWC 246.

[2]3 [2023] FWCFB 62 at [12].

[4] (2017) 253 FCR 401; [2017] FCAFC 161 at [73] - [76].

[6] [2020] FWCFB 4352.

[7] [2023] FWCFB 62.

[9] PR775442.

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