FEDERAL COURT OF AUSTRALIA

Cook v Australian Postal Corporation [2017] FCA 509

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s interlocutory application for summary judgment filed on 31 March 2017 be dismissed.

2.    By 22 May 2017, the applicant file and serve an amended originating application identifying the relief he seeks which is within the Court’s power to grant.

3.    By 29 May 2017, the applicant serve on the first respondent an index of documents to be included in an application book.

4.    Within 7 days thereafter, the first respondent notify the applicant of any additional documents that should be incorporated in the application book.

5.    The applicant’s originating application (as amended) be listed for hearing on a date to be fixed.

6.    No later than 10 days before the hearing date, the applicant file and serve the application book together with an outline of his submissions, not exceeding 10 pages, and his list of authorities.

7.    No later than 3 days before the hearing date, the first respondent file and serve its outline of submissions, not exceeding 10 pages, together with its list of authorities.

8.    Outlines of submissions be in a font size of 12 points and one and a half line spacing, except for quotations and footnotes which are to be in single spacing and a font size of 11 points and 10 points respectively.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for summary judgment. The moving party is the first respondent, the Australian Postal Corporation (Australia Post). The substantive proceeding is an application under s 39B of the Judiciary Act 1903 (Cth) for the review of orders made by the Fair Work Commission in an unfair dismissal application.

Background

2    The applicant, Quentin Cook, was an employee of Australia Post for nearly 38 years when on 17 December 2015, following an investigation, he was dismissed without notice for serious and wilful misconduct. The next day he filed an application with the Fair Work Commission seeking a remedy (reinstatement) for unfair dismissal under Pt 3–2 of the Fair Work Act 2009 (Cth) (FW Act). Mr Cook alleged that his dismissal was “harsh, unjust and unreasonable” on the ground that the reasons he was given were “technical, trivial and [not] within the parameters of the [FW Act] and the [enterprise bargaining agreement]”.

3    The Commission (constituted by Commissioner Cambridge) found that= the dismissal was justified: Quentin Cook v Australian Postal Corporation t/as Australia Post [2016] FWC 5692. Nonetheless, the Commissioner also found that the dismissal was unreasonable and unjust. He did so because he considered that the decision to dismiss summarily was inconsistent with the decision to allow Mr Cook to work during the investigation “in the full knowledge of the nature and extent of [his] misconduct”. The Commissioner declined to order reinstatement however, on the basis that, having regard to the serious misconduct proved against Mr Cook, Australia Post had “legitimately” lost trust and confidence in him. Instead, the Commissioner ordered Australia Post to pay compensation equivalent to five weeks’ remuneration, five weeks being the Commissioner’s view as to the period of notice that should have been given.

4    Mr Cook filed a notice of appeal but an appeal may only be brought with the permission of the Commission and a Full Bench of the Commission refused him permission: Quentin Cook v Australian Postal Corporation t/as Australia Post [2016] FWCFB 7203.

The substantive proceeding in this Court

5    On 17 November 2016 Mr Cook filed an originating application in this Court. The relief he sought was “reinstatement”. The application was supported by an affidavit in which Mr Cook briefly described the proceedings in the Commission and purported to set out the grounds upon which the relief was claimed. The only paragraph which could be said to include the grounds for relief is paragraph 7, which reads:

I now seek relief under s 39B Judiciary Act of [the decision of the Full Bench] based upon my belief of errors of fact and errors of law both at first instance and appeal”.

6    The affidavit did not, however, identify the alleged errors or indicate a basis upon which they were reviewable under s 39B.

7    At the first case management hearing on 20 February 2017 I told Mr Cook that I believed it was in his interests to obtain some proper legal advice before proceeding any further and, in the first instance, determine whether there is a valid basis for challenging the decision or decisions, work out what decision or decisions he wants to set aside, and, if there is such a basis, that it be identified. Consequently, I made orders, amongst other things, requiring Mr Cook to file any amended application and affidavit in support together with a statement identifying the error or errors said to give rise to relief under s 39B. I contemplated issuing a referral certificate for Mr Cook to obtain legal assistance. I decided not to when he informed me that he had already engaged counsel (on a direct access basis) but that his counsel, Peter King, could not attend court that day “due to the shortness of the notice”. I suggested that he speak to Mr King about the matters I had raised with him.

8    Mr Cook filed no amended application or further affidavit. He did, however, file a statement. The statement detailed several errors of fact allegedly made by the Commissioner. The only reference to an error of law and to the decision of the Full Bench, appeared in paras 7 to 10:

7.    Section 772 (d) and (e) of the Fair Work Act states respectively that: 1. an employer must not terminate an employee’s employment for one of the following reasons, or for reasons including one or more of the following reasons (d) seeking offers as, or acting, or have acted in the capacity of a representative of employees, (e) the filing of a complaint or participation in proceedings against an employer involving alleged violation of the laws or regulations, or recourse to competent administrative authorities[.]

8.     The failure by the Commission at first instance and on appeal to the Full Bench of the Fair Work Commission to apply the applicable law to the applicable circumstance.

9.     The Applicants dismissal by the respondent was largely due to the Applicant’s representation of fellow employees[.]

10.     Section 772 (d) and (e) is clear, directive, prescriptive and unequivocal but was not applied by the Commission both at first instance and on appeal[.]

9    The statement concluded with the following (without alteration):

Application to be heard by Full Bench

11.    The application should be heard by a Full Bench because of the failure of the application in the inferior jurisdictions and that no common law applies to Section 772(d) and (e) of the Fair Work Act

12.    This is also its Public Interest requirement

10    The reference to “Full Bench” here appears to be an allusion to a “Full Court”. The reference to “its Public Interest requirement” is elusive.

11    At a second case management hearing on 13 March 2017 Australia Post foreshadowed filing an interlocutory application for summary judgment. I ordered that any such application be filed and served by 31 March 2017, made timetabling orders for the exchange of submissions, and fixed a further date either for directions or (in the event that an interlocutory application was filed) for the hearing of the interlocutory application. I also ordered Mr Cook to file and serve a statement identifying the error or errors he claims were made by the Full Bench.

12    On 11 April 2017 Mr Cook filed a statement in the following terms (without alteration):

This statement is compliant with the order of Justice Katzmann of the Federal Court issued on 13/3/17.

The error of law can be identified by the Full Bench of the Fair Work Commission failing to give proper consideration to the application of Section 772 (d) and (e) of the Fair Work Act (Commonwealth 2009) after the Commission, at first instance, also failed to give proper consideration to that section and its application in the matter of Cook V Australia Post.

Leave to Appeal to the Full Bench must be on Public Interest grounds but the failure to include the non-application of the relevant law to the relevant circumstances is of Public Interest and consequently constitutes an error of fact.

13    On 24 April 2017 Mr Cook appeared for the first time by counsel. Mr King applied for an adjournment and, over the opposition of Australia Post, I acceded to the application, adjourned the hearing of the interlocutory application until 4 May 2017, and ordered Mr Cook to file further submissions and Australia Post to file submissions in reply.

The present application

14    By an interlocutory application filed on 31 March 2017, supported by an affidavit sworn on 3 April 2017 by its solicitor, Aaron Goonrey, Australia Post seeks orders that the proceeding be summarily dismissed on the grounds that Mr Cook has no reasonable prospect of successfully prosecuting the proceeding (Federal Court of Australia Act 1976 (Cth) (FCA Act), s 31A(2)) and/or that the application discloses “no reasonable cause of action” (Federal Court Rules 2011 (Cth) (FCR), r 26.01(c)). It also seeks an order that Mr Cook pay its costs on the ground that the proceeding was instituted “without reasonable cause”.

15    In a nutshell, Australia Post’s case was that to succeed on his application Mr Cook had to establish that the Full Bench committed jurisdictional error or made an error of law on the face of the record and that none of the arguments he advanced raised an arguable case of error of either kind.

The Court’s powers

16    Section 31A of the FCA Act entitles the Court to give judgment for a respondent if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. It relevantly provides:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, … a proceeding or part of a proceeding need not be:

    (a)    hopeless; or

    (b)    bound to fail;

    for it to have no reasonable prospects of success.

17    Rule 26.01(c) entitles a respondent to apply to the Court for judgment if “no reasonable cause of action is disclosed”. The Court has the power to make an order in such circumstances either on such an application or of its own initiative (FCR r 1.40). Neither party addressed the Court on the application of these rules and, in my opinion, they add nothing to Australia Post’s application. That is because the power to order summary judgment under s 31A is wider than the power to dismiss an action under the Rules for non-disclosure of a reasonable action.

18    The proper approach to an application by a respondent for summary judgment under s 31A was the subject of the High Court’s decision in Spencer v The Commonwealth (2010) 241 CLR 118. Nevertheless, Mr King contended that, unless it was plainly wrong, in deciding whether to grant summary judgment, the Court was bound to follow what Macfarlan JA said in O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]. There, his Honour referred to Spencer, noted that it was concerned with s 31A of the FCA Act, but said that “the following principles stated in it [were] of general application”:

(a)    On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).

(b)    The critical question can be expressed as whether there is more than a “fanciful” prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).

(c)    Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]).

19    This may well be an accurate summary of the principles a NSW court should apply in granting an application for summary dismissal of a proceeding (see Uniform Civil Procedure Rules 2005 (NSW), r 13.4). But to the extent that Mr King relied upon it as a statement of the principles to be followed in applying s 31A of the FCA Act or as a concise summary of the decision in Spencer, in some respects it is misleading; in others it is wrong.

20    I do not take the first “principle” to be in doubt. In Spencer at [23] French CJ and Gummow J observed that an application for summary judgment is to be distinguished from an application to strike out a pleading. Their Honours cited with approval Lindgren J’s statement in White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47] that s 31A(2) would not empower the Court to give judgment for a respondent against an applicant where the evidence discloses that the applicant has or may have a reasonable cause of action or reasonable prospects of success but his pleading does not.

21    The second “principle”, however, does not represent the position under s 31A.

22    First, the test under s 31A is whether there is “no reasonable prospect” of success. Self-evidently that requires an assessment of the prospect of the success of the litigation. Plainly, a case where the prospect of success is fanciful will not be one which enjoys a reasonable prospect of success. But it does not necessarily follow that if the prospect of success is more than fanciful, the Court could not be satisfied that there is “no reasonable prospect”. To the extent that there is a difference in the approaches taken by French CJ and Gummow J on the one hand and the plurality on the other, the plurality’s approach must prevail. The plurality stressed (at [60]) that “full weight must be given to the expression as a whole”.

23    Second, if Macfarlan J is to be taken as signifying that what the plurality said at [53] represents its view of the way s 31A is to be understood to operate, then, with respect, its statements have been taken out of context. The reference to the need for certainty of outcome was a reference to the position before the enactment of s 31A, not to the approach to be taken under s 31A. The plurality began by examining the words of the section before contrasting the previous approach:

51    First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.

52    Secondly, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

53    In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW).

(Citations omitted, emphasis added.)

24    Their Honours proceeded to discuss the judgments in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 in order to distinguish them. Their Honours pointed out at [56] that, because of the negative admonition in s 31A(3), it was not necessary to show “certainty of failure” in order to establish that a plaintiff has no reasonable prospect of successfully prosecuting an action. They said it was “evident” that s 31A calls for “a different inquiry from that which had to be made under earlier procedural regimes” and that it was “dangerous to seek to elucidate the meaning of [the expression in s 31A(2)]” by reference to what was said in the earlier cases or in jurisdictions where the statutory tests were couched in different terms. It was apparently common ground in O’Brien that the principles in Dey and General Steel continue to apply in NSW: Bank of Western Australia Ltd v O'Brien [2012] NSWSC 456 at [23]; O’Brien at [66] (Ward J). They no longer apply in this Court.

25    The reference in the third “principle” to the need for “exceptional caution” picks up what was said by Barwick CJ in General Steel at 129. The plurality in Spencer accepted (at [60]) that the power under s 31A should not be exercised lightly. French CJ and Gummow J at [24] said that the power to summarily terminate proceedings “must always be attended with caution”. It is indisputable, however, that the power to order summary judgment under s 31A is not to be exercised in accordance with the principles enunciated in Dey and General Steel. The Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth), which introduced s 31A, stated at [22] that the section “moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the ‘no reasonable cause of action’ test in [Dey and General Steel]”, which “demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable”. In contrast, the Explanatory Memorandum noted at [23] that “[s] 31A will allow the Court greater flexibility in giving summary judgment”.

26    The relevant inquiry, then, is whether the applicant has no reasonable prospect of successfully prosecuting the proceeding, not whether “certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52].

27    On an application for judicial review under s 39B of the Judiciary Act, the Court has the power to quash the decision under review and order that it be determined according to law. It does not have the power to grant the relief Mr Cook seeks. For the reasons given in Spencer at [23], it would not be appropriate to grant summary judgment on that account, but if summary judgment is refused, the originating application will need to be amended. It is not apparent why no application to amend was ever made. At the hearing, Mr King conceded that the Court could not order that Mr Cook be reinstated in his employment. Mr King foreshadowed an amendment to seek an order in the nature of a writ of certiorari to quash the orders of the Commissioner and the decisions of the Commissioner and the Full Bench and mandamus against the Commission to decide the application before it according to law.

28    Absent error of law on the face of the record, relief under s 39B is only available if the decision under review is affected by jurisdictional error: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [70]; Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302 at [28]–[29]; Gregory v Qantas Airways Limited (2016) 241 FCR 72 at [2].

29    This means that the Court may make an order for summary judgment only if it is satisfied that there is no reasonable prospect that the applicant will be able to establish that the Commission fell into jurisdictional error or there is an error of law on the face of the record.

The reasons given for dismissal

30    Australia Post gave seven reasons for its decision to terminate Mr Cook’s employment, each of which was said to amount to serious and wilful misconduct, which together justified his immediate dismissal.

31    The first related to an incident on 4 September 2015 when Mr Cook refused to return to work as directed and advised his supervisor that he would not resume work until he received an immediate response to a worker’s compensation query he had made earlier that morning.

32    The second reason was that Mr Cook left work 75 minutes early on 9 September 2015 after working continuously for more than six hours. When his 30 minute meal break was taken into account, this meant he was absent from work without approval for a period of 45 minutes.

33    The third reason was that Mr Cook had worked on 10 September 2015 for about 11 hours 30 minutes without a meal break.

34    The fourth reason was that on 14 September 2015 (and for the third time) Mr Cook failed to secure, and consequently lost, an electronic cyber key.

35    The fifth reason was that on 21 September 2015, after seeking permission from his team leader to take an authorised meal break between 10.30 am and 11.00 am, Mr Cook took part in a teleconference with the Commission, representing a fellow employee against Australia Post, while purportedly off-site during his delivery round, and attempted to claim 30 minutes of the time involved as overtime.

36    The sixth reason was that on 24 September 2015 Mr Cook disobeyed a direction to work until 1.30pm and to take a 30 minute meal break before leaving, and was absent from duty without approval for 50 minutes.

37    In each respect Mr Cook’s conduct was said to be in breach of Australia Post’s code of ethics for reasons particularised in the dismissal letter.

38    The seventh reason was that in or around September 2015 Mr Cook performed work as a paid employee representative, receiving weekly payments from a co-worker to represent him in employment matters after being directed not to. In a letter dated 14 July 2015, after a warning counselling interview the previous day, Australia Post told Mr Cook that it considered his activities as a paid employee representative represented a conflict of interest and breached the code of ethics and that any further breaches could result in his dismissal from employment. The warning counselling interview was set up in response to Mr Cook’s involvement in proceedings before the Commission on 25 May 2015, which Australia Post characterised as a “paid advocacy service”.

39    I note that the Commissioner found that throughout his employment with Australia Post, Mr Cook had been involved in the representation of fellow employees, first in connection with registered employee organisations, and later in his own capacity, which expanded into a business operated through a company he owned and operated (ELISA Pty Ltd). In May 2014 Australia Post became aware that a regular payment for service arrangement had been set up between Mr Cook and his co-workers, whereby employees had authorised payroll deductions to be directed to a bank account in the company’s name.

Unfair dismissal under the FW Act

40    A person has been unfairly dismissed within the meaning of the FW Act if the Commission is satisfied that the person has been dismissed and that the dismissal was harsh, unjust or unreasonable, was not consistent with the Small Business Fair Dismissal Code, and was not a case of genuine redundancy: FW Act, s 385. The question whether the dismissal was harsh, unjust or unreasonable is to be determined in accordance with s 387, which provides:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the [Commission] 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 [Commission] considers relevant.

41    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169 at [69], speaking of s 513(g) of the Act, which is in identical terms to s 387(h), the Full Court said:

Paragraph (g) obliges the Commission to take into account other matters, beyond those prescribed by paras (1)(a) to (f), that it considers relevant. It is for the Commission to determine what other matters it considers relevant. It is not open, in our view, for the applicant, simply by making submissions about what he considers the Commission must regard, thereby to require the Commission to regard those matters for the purposes of para (g). It is for the Commission to decide what other matters are relevant. If it were to identify a matter as relevant, but then to ignore it in its subsequent decision-making, then jurisdictional error would be indicated.

42    The remedies for unfair dismissal are set out in Div 4 of Pt 3–2 (ss 390–393) of the FW Act. The principal remedy is reinstatement; compensation may only be awarded if the Commission is satisfied that it is appropriate in all the circumstances and reinstatement is inappropriate: FW Act, s 390. The criteria for deciding the amount of compensation are listed in s 392(2). The Commission is required to reduce the amount of compensation where it is satisfied that the employee’s misconduct contributed to the employer’s decision to dismiss the employee: s 392(3). The amount may not include a component for “shock, distress or humiliation, or other analogous hurt, caused to the [employee] by the manner of [his or her] dismissal”: s 392(4).

The right to appeal

43    A person who is aggrieved by a decision of a Commissioner may appeal, but only with the permission of the Commission constituted by a Full Bench: FW Act, s 604(1) read with s 613(1). The Full Bench must grant permission to appeal if it is satisfied that it is in the public interest to do so: FW Act, s 604(2). The Full Bench must not grant permission to appeal from a decision made under Pt 3–2 of the Act unless it considers that it is in the public interest to do so and, to the extent that the appeal is on a question of fact, an appeal on this ground can only be made if the decision involved “a significant error of fact”: FW Act, s 400. Otherwise the decision whether to grant permission to appeal is entirely discretionary, limited only by any necessary implications derived from the subject matter, scope and purpose of the Act.

The reasons of the Commissioner

44    The Commissioner held that Mr Cook’s conduct in charging other employees to represent them, in “blatant defiance” of the warnings issued by his employer, constituted “of itself” a valid reason for his dismissal. He referred to this seventh reason as representing “the gravamen of the serious misconduct”. He also decided that, with the exception of the fifth reason, the “findings” of the employer concerning these matters had been “verified” and together represented a valid reason for Mr Cook’s dismissal.

45    Although the reasons of the Commissioner refer to the submissions made by both parties as to the application of s 772(1)(d) and (e) of the FW Act, the Commissioner did not address these submissions directly or decide in terms that the dismissal was not (or was) unlawful under s 772.

46    The Commissioner did, however, consider whether Mr Cook had acted in the capacity of a workplace representative. He said that a workplace representative was a person who “undertakes to speak on behalf of her or his fellow workers on a voluntary basis, without any direct fee or reward being provided to the representative from those being represented” (emphasis added). He found that Mr Cook had been engaged in the role of a workplace representative for many years and that Australia Post had appeared to recognise and accommodate it, but that that role changed dramatically when Mr Cook began to receive payment for his services, albeit through his company. At this point the Commissioner found that Mr Cook was no longer a workplace representative but was performing a role akin to a paid union official and that that represented a “manifest conflict of interest”.

47    Mr Cook initially told the Commission that he had never received money to represent fellow employees at work The Commissioner did not accept that evidence. At [60] the Commissioner said:

Although the applicant refused to openly acknowledge the conflict of interest, his own evidence revealed an unfortunate attempt to disingenuously conceal his fundamental understanding of the conflict that had been created once he started obtaining financial benefit from his representative activities. The applicant stated; “I have never received, solicited or accepted any money to represent the legitimate industrial interests, grievances or enquiries of any employee at work.” During cross-examination, the applicant sought to defend this statement on the basis that he did not receive payment for representation activities conducted “at work” as opposed to representation activities that he conducted away from the workplace. Despite there being no practical capacity to distinguish whether payments made to ELISA were applied only to representation activities conducted away from the workplace, the underlying and inescapable inference of the statement acknowledges the conflict associated with receiving money to conduct an activity inimical to the interests of the employer.

48    The Commissioner found that, due to the nature and severity of Mr Cook’s misconduct, the appropriate remedy would be a limited amount of compensation representing approximately five weeks remuneration as payment in lieu of notice.

49    While the Commissioner did address the criteria for determining the amount of compensation set out in s 392(2), he did not reduce the amount for misconduct according to the obligation in s 392(3). Indeed, as the Full Bench noted at [6], he did not address s 392(3).

50    On 18 August 2016 the Commissioner issued an order in the following terms:

Application for relief from unfair dismissal.

Further to the Decision made in this matter [2016] FWC 5692, involving an application made pursuant to s. 394 of the Fair Work Act 2009 (the Act), the Fair Work Commission makes the following Orders:

1.    Pursuant to section 392 of the Act, Australian Postal Corporation t/a Australia Post (the employer), is hereby Ordered to pay to Quentin Cook (the applicant), the amount of $4,514.00.

2.    The amount Ordered in 1 above is a gross figure and appropriate taxation treatment is a matter for the Parties.

3.    The amount Ordered in 1 above is to be paid to the applicant within 21 days of the date of this Order.

The appeal to the Full Bench

51    Mr Cook challenged the Commissioner’s decision not to order his reinstatement. The Full Bench construed his notice of appeal as involving the following propositions:

(1)    The determination that Australia Post’s finding of serious misconduct regarding Mr Cook conducting a paid employee representative role in blatant defiance of the warnings provided by the employer had established a valid reason for his dismissal was a significant error of fact because the Commissioner had failed to give proper consideration to evidence that Mr Cook was not a paid agent of the organisation set up to represent the legitimate industrial interests of [its] clients during any period that Mr Cook was being paid by Australia Post and had failed to make the distinction between the functionary and the entity and payment for secondary employment as opposed to payment for incurring ordinary expenses.

(2)    The Commissioner’s failure to acknowledge that there was an ongoing dispute regarding meal breaks under the dispute settlement procedure of the applicable enterprise agreement was a significant error of fact and it was in the public interest that regard be had to dispute settlement procedures in enterprise agreements.

(3)    The Commissioner’s failure to give any consideration to s.772(1)(d) or (e) of the FW Act was a significant error of law and it was in the public interest that they be defined by common law.

(4)    The effect of the Commissioner’s decision was to limit the application of the Freedom of Association provisions of the FW Act which was contrary to the public interest.

The reasons of the Full Bench

52    The Full Bench began by referring to the nature of the appeal and the need for error on the part of the primary decision maker. It also referred to the fact that an appeal only lies with the permission of the Commission and noted the limits on the power of the Commission imposed by s 400 of the Act. It then considered the public interest, observing that the test was “a stringent one” and involves “a broad value judgment” citing, amongst other authorities, Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44]–[46]. It noted that in GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27] a Full Bench of the Commission had said that “the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters”. It observed, however, that it will rarely be appropriate to grant permission to appeal unless there is an arguable case of appealable error. On the other hand, it also observed that the fact that error has been made is not necessarily a sufficient basis to grant permission to appeal.

53    It is not suggested that the Full Bench erred in this analysis.

54    The Full Bench then proceeded to examine the four grounds it had distilled from Mr Cook’s submissions and concluded that he had not demonstrated any arguable error of a kind that would attract the public interest and had not identified any other basis for the grant of permission to appeal. Consequently, the Full Bench said that it was not satisfied granting permission to appeal would be in the public interest and so refused to do so. The reasons the Full Bench gave were as follows:

[14]    The first ground needs to be considered having regard to the findings made by the Commissioner in paragraphs [58] and [60] of the Decision. The distinctions Mr Cook sought to maintain in submissions regarding his relationship with the company he established to provide representative services (ELISA) were illusory. The evidence was that Mr Cook was the company’s sole director and shareholder and it was open to the Commissioner to make the findings outlined at paragraph [58] of the Decision:

“[58]    The workplace representative role of the applicant was transformed once the applicant was receiving payment or other direct reward from those that he was representing. Essentially, the applicant had obtained secondary employment, the purpose of which was directly inimical to the interests of the employer. In the context of the registered organisations regime, the applicant had moved from being a workplace representative to a paid Union official. The applicant’s position was plainly untenable and represented a manifest conflict of interest.”

[15]    At paragraph [60], the Commissioner dealt further with the distinctions Mr Cook sought to make in order to justify his behaviour (footnotes omitted):

“[60]    Although the applicant refused to openly acknowledge the conflict of interest, his own evidence revealed an unfortunate attempt to disingenuously conceal his fundamental understanding of the conflict that had been created once he started obtaining financial benefit from his representative activities. The applicant stated; “I have never received, solicited or accepted any money to represent the legitimate industrial interests, grievances or enquiries of any employee at work.” During cross-examination, the applicant sought to defend this statement on the basis that he did not receive payment for representation activities conducted “at work” as opposed to representation activities that he conducted away from the workplace. Despite there being no practical capacity to distinguish whether payments made to ELISA were applied only to representation activities conducted away from the workplace, the underlying and inescapable inference of the statement acknowledges the conflict associated with receiving money to conduct an activity inimical to the interests of the employer.”

[16]    The Commissioner gave consideration to the transformed nature of Mr Cook’s role as a paid workplace representative. It was open to him to conclude that it represented a conflict of interest, despite Mr Cook’s assertions to the contrary, and that Mr Cook’s continuing to perform the role, in defiance of warnings from his employer that doing so would jeopardise his employment, represented serious misconduct. The Commissioner’s other findings of misconduct included further failures to comply with lawful and reasonable directions. We do not consider the Commissioner’s finding that Australia Post would have lost trust and confidence in Mr Cook constitutes a significant error of fact.

[17]    The second ground has no substance. The Commissioner acknowledged there was a dispute between Mr Cook and Australia Post relating to meal breaks and the operation of clause 16.9.1 of the Australia Post Enterprise Agreement 2013 (Agreement) but having considered the substance of the dispute, concluded that clause 16.9.1 of the Agreement did not permit an employee to determine the duration of meal breaks. He was satisfied that in three separate instances, Mr Cooks’ actions in relation to meal breaks were contrary to site practices and directions of his supervisor, thereby representing a valid reason for his dismissal. It was open to him to approach the meal break dispute in this way.

[18]    As to the third ground, the Commissioner made reference in the Decision to the submissions made by both parties in relation to s. 772(1)(d) and(e) of the FW Act. These provisions do not fall within Part 3–2 of the FW Act, so while the Commissioner did not directly deal with the submissions the parties made regarding them, we do not consider it was necessary for him to do so in order to determine the application before him.

[19]    In relation to the fourth ground, the submission of Mr Cook was that the effect of the Commissioner’s Decision was to prevent a form of freedom of association. This is not sustainable. In the Decision, the Commissioner acknowledged the role Mr Cook had played as a workplace representative outside of the registered organisations regime over many years and had noted that Australia Post had “quite correctly” recognised him in this role and afforded him appropriate accommodations and protections. The Commissioner, appropriately in our view, took issue with Mr Cook carrying out this function only after he began receiving payment from those whom he was representing in secondary employment on the basis it represented a conflict of interest.

(Citations omitted, emphasis added.)

Does the applicant have “no reasonable prospect” of success?

55    Many of the arguments advanced on Mr Cook’s behalf are of doubtful merit, involving challenges to factual findings which appear to be reasonably open on the evidence. Some suggest error of expression of the kind that would not support the grant of relief: see, for example Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

56    But his principal argument cannot be so easily dismissed. That argument was to the effect that the Commissioner erred in finding that the seventh reason, which concerned his conduct in representing a fellow employee, was a valid reason for his dismissal. Mr Cook submitted that it could not be a valid reason because termination on such a basis was unlawful under s 772(1)(d) and (e). He further submitted that the other six reasons were also based on his representative activities, and consequently they, too, could not be valid reasons for his dismissal. Australia Post conceded that it was open to the Commissioner to consider whether the termination was unlawful under s 772(1)(d) or (e), but submitted that, since the application was brought under a different Part of the FW Act (Pt 3–2) the Commissioner was not required to do so.

57    Section 772, which is found in Pt 6–4 of the Act, relevantly provides:

Employment not to be terminated on certain grounds

(1)    An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

…

(d)    seeking office as, or acting or having acted in the capacity of, a representative of employees[.]

(e)    the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities[.]

58    Mr Cook also submitted that, since he advanced the same argument in the hearing before the Commissioner as his “substantive ground of unfair dismissal”, the Commissioner fell into jurisdictional error by failing to deal with it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55].

59    Mr Cook further submitted that the Commissioner erred in his construction of the enterprise bargaining agreement and that the Commissioner’s finding that he was remunerated for his representational activities was perverse and unsupported by the evidence.

60    Mr Cook contended that if the Court were to find that the Commissioner erred, then it follows that the Full Bench failed to exercise its jurisdiction under s 400 of the FW Act, because “it is in the public interest that the law be observed, and it is against the public interest that [the decision] should remain on the public record with such errors apparent on it: Yirrell v Yirrell [(1939) 62 CLR 287]”.

61    This contention must be rejected. It is contrary to authority. A failure by the Full Bench to detect error on the part of the Commissioner does not involve jurisdictional error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 (Coal and Allied v AIRC) at [32]; Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; 177 ALR 491 at [24] (McHugh J); Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (2015) 230 FCR 565 at [157]–[158]. As Hayne J explained in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163]:

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

62    Absent any question of procedural unfairness, the Full Bench would only have committed jurisdictional error if it had misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the relevant question, or misunderstood the nature of the opinion it was to form: Coal and Allied v AIRC at [31], Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537 at [47]–[59] (Buchanan J, Allsop CJ and Siopis J agreeing at [1] and [2]). As Buchanan J explained in Toms at [59]:

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.

(Original emphasis.)

63    It is not a jurisdictional error to fail to apply a particular principle or discharge a particular legal obligation which does not affect the decision maker’s jurisdiction: Re Operative Plasterers Workers Federation of Australia; Ex parte Brown (1992) 67 ALJR 179 at 180 (Gaudron J). Without more, the erroneous interpretation of a statute or an industrial instrument does not give rise to jurisdictional error: Teys per Buchanan J at [86]–[87]. Any error in this respect is an error within jurisdiction.

64    In these circumstances, it is difficult to see how Mr Cook could establish that the Full Bench committed jurisdictional error.

65    If, as Australia Post appeared to concede, the Commissioner failed to consider whether Mr Cook was terminated in contravention of s 772(1)(d) and (e), Mr Cook might be able to persuade the Court that the Commissioner fell into jurisdictional error. In NABE, in the context of the exercise of the review function of the Refugee Review Tribunal under s 414 of the Migration Act 1958 (Cth), the Full Court said at [55]:

[T]here is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.

(Emphasis added.)

66    Whether what was said in NABE and Dranichnikov applies to the decision-making process under the FW Act, however, must depend in part at least on a close examination of the provisions of the FW Act relating to the duties and powers of the Commission. Neither party took the Court to the relevant provisions to explain why they would or would not. If the reasoning in NABE and Dranichnikov is applicable by analogy, and the Commissioner did not in fact deal with the submission (directly or otherwise), then the Commissioner might have fallen into jurisdictional error by denying Mr Cook procedural fairness or constructively failing to exercise his jurisdiction. But that does not mean that the Full Bench would also have committed jurisdictional error.

67    Yet, in the absence of jurisdictional error on the part of the Full Bench, it is unlikely that the Court would quash the Commissioner’s decision for jurisdictional error on his part. In Dafallah v Fair Work Commission (2014) 225 FCR 559 at [54] Mortimer J observed that:

It is not in the interests of the administration of justice for this Court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error. In my respectful opinion, this means this Court should not begin with a fresh and unfettered examination of the decision of a Commissioner for legal error, and then move to see if any error thus identified had been properly addressed by the Full Bench.

68    Nevertheless, Mr Cook’s application is not limited to jurisdictional error. He is entitled to succeed if he can show that there is error of law on the face of the record.

69    I am not satisfied that Mr Cook has no reasonable prospect of demonstrating that the Full Bench erred in law in holding that, because s 772(1)(d) and (e) do not come within Pt 3–2 of the FW Act, the Commissioner was not obliged to deal directly with his submission that, insofar as Australia Post terminated his employment in reliance on his activities in representing fellow employees, the termination was unlawful and the reasons invalid.

70    It is true, as Australia Post submitted, that the FW Act seeks to prevent multiple actions: (see Pt 6–1) and that s 725 would preclude Mr Cook from making an application or complaint under s 773 of the Act for the Commission to deal with a dispute about whether his employment was terminated in contravention of s 772(1).

71    Section 725 provides that:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

72    Sections 726 to 732 refer to applications and complaints that can be made about an employee’s dismissal, both under the Act and under other laws. For present purposes it is sufficient to note that s 729 refers to unfair dismissal applications made under s 394(1), such as the application made by Mr Cook, and s 730 refers to unlawful termination applications made in the Commission, which applies to applications brought under s 773.

73    Australia Post submitted that an employee in Mr Cook’s position was, in effect, required to elect whether to bring an unfair dismissal application under Pt 3–2 or one of the other remedies afforded by the Act, such as a general protections application (under Pt 3–1) or an unlawful termination application (under Pt 6–4). That may well be so. But Mr Cook did not bring an application or complaint under s 773. Consequently, s 725 does not apply: see RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [121] (Perry J).

74    Accordingly, the Full Bench might have misinterpreted that statute (and therefore erred in law) in concluding that it was not necessary for the Commissioner to deal directly with Mr Cook’s submission.

75    The relationship between s 772 and s 387 is a vexed one. It is arguable that the Commission had no power to find that the termination of Mr Cook’s employment was unlawful under s 772(1) in the absence of an application under s 773 and in circumstances where the procedure set out in s 777 has not been followed. On the other hand, the matter was raised in the context of an application for a remedy for unfair dismissal under s 394 and, if the termination was indeed unlawful under s 772, it is difficult to see how Mr Cook’s conduct in representing fellow employees could be a valid reason for his dismissal under s 387(a). Neither party was able to point to an authority directly on point or to one dealing with the scope and meaning of s 772(1)(d). It would be inappropriate to determine the point on an application for summary judgment.

76    Of course, even if the Full Bench did err as alleged, the error will only be reviewable if the reasons of the Full Bench form part of the record. Both parties proceeded on the basis that they did. I am not convinced that that is correct: see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [87] ff. But I do not think that this is a question that should be determined on an application for summary judgment either, particularly in the absence of informed argument.

Conclusion

77    For these reasons I do not consider that this is a suitable case for summary disposition. Having come to this conclusion it is unnecessary to express a final view on the merits of Mr Cook’s other arguments. I would dismiss the interlocutory application. Mr Cook should have leave to file an amended originating application to claim relief the Court is empowered to grant. Mr Cook made a claim for costs but withdrew it. In view of the limits on the Court’s jurisdiction to award costs in a matter arising under the FW Act (see FW Act, s 570), there should be no order as to costs.

Associate:

Dated:    15 May 2017