Warrell v Walton

Federal Court of Australia|2013-04-04|Before: Perram J, Flick J

REASONS FOR JUDGMENT 1 The Applicant in the present proceeding, Mr Edward George Warrell, was employed as a gardener by the Second Respondent, Bacto Laboratories Pty Ltd ("Bacto Laboratories"). 2 Mr Warrell's services were terminated by a letter dated 16 March 2011. 3 Mr Warrell sought to challenge his dismissal. Regrettably, however, he mistakenly lodged an unfair dismissal application with the Fair Work Ombudsman rather than with Fair Work Australia. Mr Warrell has difficulties with reading and writing and is brain damaged. The application was not lodged with Fair Work Australia until after the time prescribed by s 394(2) of the Fair Work Act 2009 (Cth) ("Fair Work Act") had expired. 4 A Senior Deputy President on 12 September 2011 refused an extension of time within which an application seeking a remedy for unfair dismissal could be brought. An application seeking permission to appeal from that decision was heard and rejected by a Full Bench of Fair Work Australia on 27 October 2011: Warrell v Bacto Laboratories Pty Ltd [2011] FWAFB 7548. An application made by Mr Warrell to have that hearing adjourned was refused by the Full Bench. A Judge of this Court, Perram J, set aside that decision of the Full Bench on the basis that it had denied Mr Warrell procedural fairness in refusing an application for an adjournment: Warrell v Fair Work Australia [2012] FCA 267. 5 An application seeking permission to appeal was thereafter heard and resolved by a differently constituted Full Bench. On 5 June 2012 that Full Bench also refused permission to appeal: Warrell v Bacto Laboratories Pty Ltd [2012] FWAFB 4700. 6 Now before the Court is an Originating Application seeking (inter alia) an order setting aside the June 2012 decision of the Full Bench. The Respondents to that Originating Application are the members constituting the Full Bench and Bacto Laboratories. All Respondents have filed submitting appearances.

A FAIR AND JUST HEARING? 19 Before the Full Bench of Fair Work Australia in the June 2012 hearing, the submission was advanced that the Senior Deputy President had conducted the hearing in a manner that was not fair and just by allowing Mr Warrell to proceed to conduct his case unrepresented. This submission was rejected: [2012] FWAFB 4700 at [24]. 20 No submission was expressly advanced that the Senior Deputy President had erred by failing to provide reasons for granting "permission" for Bacto Laboratories to be represented by a solicitor; nor was any submission advanced that the granting of "permission" was contrary to s 596(2) and that the Senior Deputy President had thereby denied to Mr Warrell a "fair and just" hearing for the purposes of s 577(a). 21 Before this Court is both the broad submission that: any hearing which was conducted where the discretion to grant "permission" to appear by a lawyer had miscarried was necessarily a hearing which was not "fair and just"; and the alternate, more confined submission that: the hearing in the present proceeding was not "fair and just" by reason of Bacto Laboratories having been impliedly granted "permission" to appear by a lawyer. The broader submission need not be resolved. 22 The alternative and more confined submission, however, should prevail. In reaching the conclusion that the Full Bench erred in concluding that the hearing before the Senior Deputy President was "fair and just", it is respectfully considered that the Full Bench failed to take into account: the fact that Mr Warrell was functionally illiterate and brain damaged; the failure on the part of the Senior Deputy President to make findings of fact relevant to her apparent conclusion that the requirements imposed by s 596(2) had been satisfied; and the manifest advantages that Bacto Laboratories would have in cross-examining Mr Warrell and the manifest difficulties confronting Mr Warrell in his questioning of Mr Carter. In support of its contention that the hearing was not "fair and just", reliance was also placed upon the failure of the Senior Deputy President to: provide reasons for apparently granting permission to Mr Butterfield. The absence of any reasons for granting permission is only reinforced by the comparatively simple and confined factual dispute that arose for resolution. Mr Warrell gave one account of a conversation with Mr Carter; Mr Carter gave a different account. There was an absence of any "complexity" for the purposes of s 596(2)(a). Nor was there any self-evident reason why Bacto Laboratories could not fairly represent itself for the purposes of s 596(2)(b). Nor was any apparent consideration given to "fairness between the parties" for the purposes of s 596(2)(c). Why one or other of the constraints imposed by s 596(2) was satisfied is far from apparent. 23 Even if the constraints imposed by s 596(2) can be left to one side, the potential for unfairness readily emerged during the hearing. This potential for unfairness to Mr Warrell was compounded when, having apparently granted permission to Bacto Laboratories to appear by way of Mr Butterfield, the Senior Deputy President proceeded to make findings adverse to the credit of Mr Warrell based upon his cross-examination and proceeded to accept Mr Carter as "a witness of truth" when he was not exposed to any effective cross-examination. Whether or not the same conclusions may have been reached by the Senior Deputy President had Mr Butterfield not been granted permission to appear for Bacto Laboratories or had Mr Warrell himself sought and obtained permission to appear during the hearing by way of a lawyer may also be left to one side. The unfairness to Mr Warrell had its roots in the failure at the outset on the part of the Senior Deputy President to apparently consider the terms of s 596(2) and the potential prejudice thereafter experienced by Mr Warrell in being effectively cross-examined by a lawyer. Having granted permission for Mr Butterfield to appear, the "damage was done". 24 A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission…". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission". 25 The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided in relevant part as follows: 2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative. 2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission. … 2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties. 26 Neither on a review of the reasons for decision of the Senior Deputy President nor the transcript of the proceedings does it appear that any consideration at all was given to the constraints imposed by s 596(2). Nor was there any apparent consideration given to the manner in which the discretion was to be exercised - even if s 596(2)(a), (b) or (c) was satisfied. These matters cannot be regarded as some mere oversight assuming no real importance or exposing Mr Warrell to no real prejudice. Given the nature of the issues to be resolved by the Senior Deputy President and the difficulties confronting Mr Warrell, it is not self evident that Bacto Laboratories could have readily satisfied one or other of those constraints. 27 It is thus concluded that the Senior Deputy President either erred in granting permission for Mr Butterfield to represent Bacto Laboratories or in failing to consider whether one or other of the constraints imposed by s 596(2) had been satisfied. A decision which fails to properly address whether permission should be granted or refused in the present proceeding had the consequence that the hearing was not "fair and just" as required by s 577(a). The Full Bench, it is respectfully concluded, erred in not so concluding.

HARSH AND UNJUST? 28 In the event that Mr Warrell was successful in his primary submission, it was accepted that his alternative submission need not be resolved. 29 The alternative submission was that no reasons or findings had been made in respect to the conclusion that Mr Warrell had engaged in "gross misconduct" or that the termination of his services was not "harsh, unjust or unreasonable". 30 The conclusion of the Senior Deputy President, it was submitted, was no more than a conclusion unsupported by findings of fact or reasons. 31 A conclusion as to whether conduct is "misconduct" is ordinarily a question of fact: Griffin v London Bank of Australia Limited (1919) 19 SR (NSW) 154 at 162 per Cullen CJ (Pring and Sly JJ agreeing). The strength of Mr Warrell's submission is that no findings of fact were made. 32 Had it been necessary to resolve the alternative submission as to the absence of findings of fact in support of a conclusion that Mr Warrell had engaged in "misconduct", that submission may well have been unsuccessful. Findings were made as to Mr Carter being a witness of truth and Mr Warrell not being a "witness of truth". And the "conduct" engaged in by Mr Warrell which was presumably accepted was the conduct described by Mr Carter in his evidence. Mr Warrell should, perhaps, not be left to speculate as to what "conduct" was envisaged by the Senior Deputy President. But not much speculation is called for in that regard. 33 More difficult to determine is why the Senior Deputy President also concluded that termination of Mr Warrell's employment was not "harsh unjust or unreasonable". The ambit of that conduct which may fall within that phrase was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows: …. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. Why the termination of Mr Warrell's employment upon the basis of the presumed conduct was not considered to be "harsh, unjust or unreasonable" is open to greater uncertainty. It is unclear, for example, whether the Senior Deputy President took into account the "personal and economic" circumstances of Mr Warrell's case, including his disabilities, or the circumstances surrounding the conduct in question. 34 But it is unnecessary to resolve the alternative submission.

CONCLUSIONS 35 It follows that the orders made by the Full Bench on 5 June 2012 should be quashed and that the matter should be reconsidered. 36 The Applicant is to bring in proposed short minutes of orders within 14 days.

THE ORDERS OF THE COURT ARE:

The Applicant is to bring in Short Minutes of Orders to give effect to these reasons within 14 days. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Fair Work Amendment Act 2012(Cth)

Fair Work Act 2009(Cth)ss 385, 387, 394, 400, 577, 596, 604

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