Toma v Workforce Recruitment and Labour Services Pty Ltd

Introduction 1 Mr Toma was employed by a labour hire company within the Workforce International Group Pty Ltd group of companies, between May 2016 and February 2018. Mr Toma's employment with the Workforce International Group ended in February 2018. On 5 March 2018, Mr Toma filed an application for unfair dismissal against "Workforce Variable Pty Ltd t/a Workforce International Group", in the Fair Work Commission (FWC) pursuant to s 394 the Fair Work Act 2009 (Cth) (FWA). During the interlocutory stages of the proceedings in the FWC, the name of Mr Toma's employer was amended, apparently without Mr Toma's consent, from Workforce Variable to Workforce Recruitment and Labour Services Pty Ltd. 2 The procedural history of the matter may be summarised briefly. Mr Toma's application was first heard by a Commissioner of the FWC on 24 May 2018 and was dismissed pursuant to s 587 of the FWA (FWC's first decision): Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWC 2963. 3 On 27 September 2018, the Full Bench of the FWC (Full Bench) quashed the FWC's first decision and remitted the application (Full Bench's first decision): Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWCFB 5811. 4 On 11 March 2019, after the subsequent hearing of Mr Toma's application before the Senior Deputy President, Mr Toma's application was again dismissed (FWC's second decision): Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 1564. 5 On 25 March 2019, Mr Toma filed a notice of appeal. On 18 June 2019, the Full Bench refused Mr Toma permission to appeal, finding at [28] that Mr Toma had not demonstrated that it was in the public interest to grant permission to appeal as the Senior Deputy President had "addressed the relevant statutory requirements" and the Commission's decision did not disclose "any error of principle or any significant error of fact" (Full Bench's second decision): Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240. 6 Mr Toma applied to the Federal Court for judicial review of the FWC's second decision and the Full Bench's second decision on the basis that the FWC had denied him procedural fairness by providing an "incompetent" interpreter, who did not accurately interpret the proceedings, and that the name of the first respondent was incorrect. On 3 August 2020, that application was dismissed, the primary judge finding that any error arising from either deficient interpretation or the change of the first respondent's name was immaterial and had no bearing on either the FWC's second decision or the Full Bench's second decision. Accordingly, there was no jurisdictional error on the part of either decision-maker (Reasons at [3]). 7 Mr Toma appeals from the decision of the primary judge on three grounds: (1) The Judge made a significant error in applying an incorrect principle of law and thus denied the appellant an opportunity to run his case; (Ground 1) (2) The Judge made findings on important issues which cannot be supported by the evidence; (Ground 2) (3) The Judge appeared distracted by an appeal, into another of his decisions, and this affected the performance of his duties. (Ground 3) 8 By interlocutory application filed on 28 February 2022, Mr Toma also sought an order that he be allowed to subpoena Lisa Jacalyn Vanzwan to answer questions in relation to the evidence she gave before the FWC. 9 Mr Toma has represented himself throughout the proceedings, including during his appeal to this Court. He relied on three sets of written submissions to this Court, one in relation to the interlocutory application, and one in chief and one in reply in relation to his substantive appeal. Mr Toma asked that his friend Mr Nagan, who was in Court with him, be permitted to read a statement, in English, on his behalf in relation to the interlocutory application. The Court permitted Mr Nagan to read the statement, although at times it was clear that Mr Nagan was doing more than merely reading and was attempting to make submissions on Mr Toma's behalf. Mr Toma also made brief oral submissions through a Court-appointed interpreter of the Samoan language after indicating to the Court that he wished to use an interpreter. 10 For the reasons that follow, both the interlocutory application and the appeal must be dismissed.

Background to the unfair dismissal claim 11 The first respondent supplied labour on a contract basis to a factory in Ingleburn, referred to as the PAX factory. The PAX factory was a manufacturing plant for mixing and filling aerosols and liquids for therapeutic and personal care goods, in addition to industrial, insecticides and household products. Mr Toma worked at the PAX factory primarily as a forklift driver, general labourer and process worker. 12 On 6 February 2018, while working at the PAX factory, chemical solution splashed onto Mr Toma's face. Mr Toma attended a doctor later that day and was certified as being fit to work other than in a "similar environment" to that where he was working when he suffered the injury. 13 On 15 February 2018, Mr Toma sent a text message to the first respondent in which he resigned. On 19 February 2018, Mr Toma sent a text message to the first respondent in which he requested outstanding pay. 14 The difficulty for Mr Toma in this appeal is that none of his grounds have any bearing on the fundamental finding of fact made by the FWC's second decision, and upheld on appeal by the Full Bench's second decision, namely, that Mr Toma resigned from his position and was not dismissed. At [54] of the reasons for the FWC's second decision, the Senior Deputy President found: There can be no question that the applicant resigned his employment with the respondent. He told them twice, on 15 and 19 February 2018, that he had quit and had a new job with another employer. 15 As the primary judge said (Reasons at [79]): The critical issue in Mr Toma's unfair dismissal application was whether he was dismissed or whether he resigned. That question was resolved against Mr Toma for reasons that had nothing whatsoever to do with the precise identity of his employer. He was, in short, found to be a witness who was not credible. The evidence, both oral and documentary, also strongly supported Workplace Recruitment's case that Mr Toma had resigned. Mr Toma would have lost his case whether his employer was Workforce Variable or Workforce Recruitment. It must follow that the problems with the interpreting at the directions hearing were immaterial. Even if the interpreting at the directions hearing had been perfect, the end result for Mr Toma would almost certainly have been the same. 16 Mr Toma did not challenge the finding that he resigned in his application for judicial review before the primary judge. He relied on two grounds only. The first was that the FWC provided an interpreter who was incompetent. The second was that the name of the first respondent was incorrect.

Application to subpoena witness to adduce new evidence 17 The purpose of Mr Toma's interlocutory application seeking leave to subpoena Ms Vanzwan was apparently to adduce evidence from the witness that she gave false testimony before the FWC as to the identity of Mr Toma's employer, and in relation to a return to work plan. Mr Toma submitted that, on the basis of her oral testimony, both the Senior Deputy President (FWC's second decision at [31]) and the primary judge (Reasons at [8]) made factual errors in stating that Mr Toma signed a return-to-work plan. Mr Toma asserted that were Ms Vanzwan to give evidence before this Court, she would admit that she had lied. The evidence sought to be adduced was clearly evidence that was not before the FWC and therefore is to be characterised as "fresh evidence". 18 The Court dismissed Mr Toma's application to subpoena Ms Vanzwan and indicated that it would give its reasons in the judgment. 19 Section 27 of the Federal Court of Australia Act 1976 (Cth) provides: 27 Evidence on appeal In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken: (a) on affidavit; or (b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or (c) by oral examination before the Court or a Judge; or (d) otherwise in accordance with section 46. 20 The relevant principles which guide the exercise of the Court's discretion under s 27 were restated by the Full Court in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16], per Griffiths and White JJ (and were adopted and applied by the Full Court in District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33 at [149]: Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows: (1) The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle. (2) The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry. (3) The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of "fresh evidence". (4) The following two considerations will normally be relevant to the exercise of the discretion: (i) the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and (ii) the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence; (5) The interests of third parties and the public at large may outweigh a party's interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally. 21 The only real issue that falls for determination in relation to the application for leave to adduce fresh evidence is whether the result at trial would have very probably been different had Ms Vanzwan given different evidence before the FWC. As is explained below, any evidence sought to be adduced from Ms Vanzwan in relation to the name of the respondent could not achieve a different result for Mr Toma in the face of the finding of fact by the FWC, and upheld on appeal to the Full Bench, that Mr Toma resigned from his position. 22 As to the allegation of a factual error having been made by the FWC and the primary judge, there is simply no basis for such an allegation. The Senior Deputy President found that Mr Toma signed the return-to-work plan, to return as a forklift driver, on 7 February 2018 (FWC's second decision at [31]). Although Mr Toma maintains that this is not so, the documentary evidence suggests otherwise. The affidavit of David Ross Slater filed on 27 September 2021 annexes a return-to-work plan dated 6 February 2018 which, in all material respects, is identical to the document to which the Court was taken by Mr Toma as proof of the error (at pp 137-139 of Part C of the Appeal Book) with the exception that the return-to-work plan does indeed appear to have been signed by Mr Toma on 7 February 2018 (as found by the FWC), by his Work Location Supervisor on the same date, and by his treating doctor on 8 February 2018. 23 Further, there is no basis for the allegation that Ms Vanzwan gave false testimony about the nature of the duties that were recorded on the return-to-work plan. Those duties were listed as "Line duties, Forklift driving [and] General cleaning duties". Ms Vanzwan gave evidence that when "working on a forklift, you'd either be working as part of the warehouse team, or you'd be working as part of the line on the forklift team" (PN603). This differed from Mr Toma's previous role which involved washing buckets. This evidence, and the duties listed on the return-to-work plan, were consistent with the "statement of capacity (as per [Mr Toma's] medical certificate)" which was also recorded on the return-to-work plan - "work-place assessment to ensure contact of chemical solution or fume be prevented. Loi is not fit to work in [a] similar work environment". 24 Further, Mr Toma cross-examined Ms Vanzwan before the FWC and did not challenge her evidence in relation to any of these matters at that time. It would be contrary to the principle of promoting the finality of litigation for leave now to be given to adduce further evidence, particularly where it is immaterial to the findings below. 25 The proposed new evidence sought to be adduced from Ms Vanzwan was not demonstrated to be of such relevance and weight that it would very probably have led to a different result. Indeed, any evidence that was adduced is very likely to be confirmatory of the findings made. 26 For these reasons, the interlocutory application is dismissed.

Mr Toma's grounds of appeal 27 As to Ground 1 of his notice of appeal, Mr Toma contends that the primary judge made a significant error in applying an incorrect principle of law and therefore denied him an opportunity to run his case. The precise nature of the error is not identified but the complaint seems to be directed at the primary judge's refusal to permit Mr Nagan, who was perhaps in the position of a "McKenzie Friend", to act for Mr Toma. The transcript of the hearing before the primary judge records his Honour saying: I've allowed Mr Nagan to continue to sit at the bar table and to assist Mr Toma in relation to finding documents and, in some cases, otherwise speaking with him. And my perception is that Mr Toma is able to understand and respond appropriately himself in relation to the case. Nevertheless, I'm inclined to continue to allow Mr Nagan to assist Mr Toma as he has been doing so. If he wants to make submissions of any sort of [sic] Mr Toma's behalf, then, I will address whether he should be permitted to do so at that time because that's a different question to the question whether he can continue to assist Mr Toma as he has been. 28 Mr Toma submitted in writing that, "Had [the primary judge] allowed Nagan to speak for me, he would have made a different Decision. Nagan would have told him why the correct name was important, the importance of the RTW plan in proving my constructive dismissal and how [the Commissioner] failed to give me a fair hearing". In oral submissions, Mr Toma submitted that the matters he had wished Mr Nagan to raise before the primary judge were the same as those canvassed with this Court in relation to the application for leave to issue the subpoena. 29 As will be readily apparent, those matters were challenges to findings of fact made by a tribunal and upheld by an appellate tribunal. Findings of fact are a matter for the FWC and it is not for the Court to substitute its own conclusions on findings of fact made within jurisdiction. As the primary judge identified, correctly with respect, the application before him was "in no sense, or in no respect, an appeal from the decision of either the Senior Deputy President or the Full Bench of the Commission" (Reasons at [65]). It was, again as correctly described by his Honour, an application for relief under s 39B of the Judiciary Act 1903 (Cth) pursuant to which it was necessary for Mr Toma to establish jurisdictional error on the part of the FWC - not merely an error of fact or law within jurisdiction. 30 To the extent that Mr Toma's submissions touch on matters that might give rise to jurisdictional error, his complaint seems to be directed at two issues. First, the inadequate translation by the interpreter at the directions hearing on 31 October 2018 relating to the true identity of Mr Toma's employer which, it is discerned, might have denied him procedural fairness. Secondly, the admission into evidence in the hearing before the FWC of a revised witness statement of Ms Vanzwan, which is also said to have been procedurally unfair. 31 The primary judge observed that it is well established that members of the FWC are obliged to observe procedural fairness in carrying out their obligations (Reasons at [69]). A denial of procedural fairness is a jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [5], [41], [142], [169], [210]; Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [151], per Katzmann and Rangiah JJ. 32 As to the first complaint, the primary judge accepted Mr Toma's contention that there were deficiencies in the interpretation at the directions hearing but found that it could not be concluded that Mr Toma was denied procedural fairness. Further, even if there had been some denial of procedural fairness at the directions hearing, it could not have been material and therefore capable of giving rise to jurisdictional error in the making of the FWC's second decision or the Full Bench's second decision (Reasons at [80]).This was because: (1) Mr Toma was unable to point to any exchange between the Commissioner and the first respondent's agent which, had it been interpreted to him, would or could have made any difference to the outcome of the directions hearing, let alone to the FWC's second decision or the Full Bench's second decision (Reasons at [75]); (2) Despite the incorrect interpretation of some of the Commissioner's questions concerning the identity of Mr Toma's employer, the transcript revealed that Mr Toma ultimately agreed he was employed by Workforce Recruitment, not Workforce Variable (Reasons at [76]); (3) Mr Toma did not squarely raise the alleged deficiencies with the interpretation at the directions hearing, either before the Senior Deputy President or the Full Bench. It cannot be contended that either the Senior Deputy President or the Full Bench could be found to have made a jurisdictional error in respect of an argument that was not raised before them, or in respect of alleged interpretation errors that were not before them (Reasons at [77]). 33 As has already been observed, Mr Toma was unsuccessful in his claim for unfair dismissal because the FWC found that he had not been dismissed. The precise identity of his employer was irrelevant to that decision. Mr Toma has not established any denial of procedural fairness arising from the inadequate interpretation which could be considered material to the FWC's second decision. 34 As to the second complaint, this was not a ground of review before the primary judge. The circumstances giving rise to the complaint stem from a directions hearing before a Commissioner of the FWC at which the first respondent was granted an opportunity to revise Ms Vanzwan's statement to "correct errors". It transpired that the revisions went beyond what might be considered completely consistent with the intent of the directions. The Senior Deputy President was alive to the potential for procedural unfairness but said, (FWC's second decision at [19]-[20]): I have examined both versions of Ms Vanzwan's statement. Having also had the opportunity to listen to the recording of the directions hearing before [the Commissioner], I can understand why the applicant was surprised at the number of changes that had been made between the two versions. The respondent had not only taken the opportunity granted by [the Commissioner's] directions to produce an amended statement to 'correct errors'. It had also taken the opportunity to make a number of other changes. Nevertheless, while those additional changes were perhaps not completely consistent with the intent of the directions or what the applicant was led to believe at the directions hearing, it is important to emphasise that there were no changes of substance to the statement. The changes were generally to improve readability (e.g. introducing new headings, inserting material into the body of the statement that was previously only in the attachments to the statement, etc.) or changes in the order in which information was provided. As already noted, the applicant had the revised statement for around two weeks before the hearing. I am satisfied that accepting the revised witness statement of Ms Vanzwan into evidence was not unfair to the applicant. 35 There was no reasonable prospect before the primary judge of Mr Toma establishing any procedural unfairness on the part of the FWC in admitting the revised statement. 36 No error of principle on the part of the primary judge having been established, Ground 1 cannot succeed. 37 As to Ground 2, Mr Toma contends that the primary judge made findings on important issues which could not be supported by the evidence. Which issues, and how they are said to be unsupported by the evidence, are not identified with any clarity but appear to concern the findings as they relate to the return-to-work plan, including that Mr Toma would be required to engage in unsafe work, and as they relate to the true identity of Mr Toma's employer. 38 The findings relating to the return-to-work plan and the duties specified therein have been discussed above. There is no basis for Mr Toma's contention that the relevant findings by the primary judge could not be supported by the evidence. 39 As to the findings relating to the identity of Mr Toma's employer, the primary judge accepted that the circumstances in which the first respondent's name was changed from Workforce Variable to Workforce Recruitment "were in some respects irregular or unusual and in some respects unsatisfactory" (Reasons at [82]). It appears that the basis for the change to the respondent's name was mere assertion from the bar table by Workforce Variable's agent (Reasons at [83]). 40 Nevertheless, having regard to the evidence that had been tendered below, and having listened to the audio recording of the directions hearing, the primary judge agreed with the FWC's second decision, which found (at [1]) that it was "clear from evidence tendered during the proceedings (including [Mr Toma's] pay slips) that his employer was actually Workforce Recruitment and Labour Services Pty Ltd" (Reasons at [85]). Further, there was unchallenged evidence that Workforce Recruitment employed Mr Toma. There were also payslips identifying Workforce Recruitment as Mr Toma's employer. Although there was evidence of at least one payslip made out to Mr Toma in the name of Workplace Variable, as the primary judge observed, it was at least open on the evidence for the FWC to find that Workplace Recruitment was Mr Toma's employer. The primary judge concluded, correctly with respect, that even if that finding were wrong, it could not amount to jurisdictional error (Reasons at [87]). 41 The relevant findings were clearly open to the primary judge on the evidence that was before him. Ground 2 cannot succeed. 42 As to Ground 3, Mr Toma contends that the primary judge was distracted and was therefore affected in the performance of his duties. 43 There is no evidence whatsoever that the primary judge was in any way unable to perform his judicial function according to his judicial oath. There is no substance to this ground and it too cannot succeed.

Disposition and costs 44 For these reasons, the appeal must be dismissed. 45 Contrary to the usual orders in relation to costs in the Fair Work jurisdiction, the first respondent submitted that it should have its costs pursuant to the provisions of s 570 of the FWA: 570 Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. 46 The first respondent submitted that there was nothing in Mr Toma's submissions that raise grounds on which the appeal could be successful. It was contended that anyone reasonably informed of the judgment of the primary judge would not have brought an appeal from that decision and, as such, it was said that they have been made without reasonable cause or vexatiously. Alternatively, it was submitted that the institution of the appeal was unreasonable and has caused the first respondent to incur its costs of responding to the appeal. 47 The bar to engage s 570 of the FWA is set relatively high. That is no doubt because the effect of the section is to curtail, in proceedings relating to matters arising under the FWA, the discretion which the Court would otherwise have with respect to costs: Altintas v O'Dea Lawyers (No 2) [2018] FCAFC 187 at [6], per White, Perry and Charlesworth JJ. Thus, the discretion to award costs under s 570 of the FWA must be exercised cautiously. As Mortimer J explained in Ryan v Primesafe [2015] FCA 8; 323 ALR 107 at [64]: … The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties' pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. … 48 For similar reasons to those given by the primary judge in Toma v Workforce Recruitment and Labour Services Pty Ltd (No 2) [2020] FCA 1278, this is not an appropriate case in which to the exercise the discretion to award costs against an unsuccessful appellant. This was on the basis that although doomed to fail, the primary judge considered there were features of the proceedings before the FWC which gave some legitimacy to Mr Toma's complaints. In those circumstances, as with the primary judge, we do not consider this is an appropriate case in which to award costs. 49 In all the circumstances, the first respondent has not satisfied the onus of establishing a clear and compelling case for the exercise of the discretion under s 570 of the FWA. Accordingly, there will be no order as to costs in respect of the appeal. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, SC Derrington and Abraham.