FEDERAL COURT OF AUSTRALIA

Cook v Australian Postal Corporation [2018] FCA 81

ORDERS

THE COURT ORDERS THAT:

1.    Subject to Order 2, the proceeding is dismissed.

2.    The proceeding is stood over for hearing of submissions as to costs on 6 March 2018 at 9.30am.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Quentin Cook, was formerly an employee of the Australian Postal Corporation (“Australia Post”). Mr Cook had worked for Australia Post for almost 38 years and was employed as a Postal Delivery Officer.

2    From about May 2014, Australia Post was concerned that Mr Cook had expanded upon his previous activities as a workplace representative and that those expanded activities may have included payment for service arrangements. The concern was that Mr Cook may have placed himself in a position of conflict.

3    Attempts to resolve the concerns proved unsuccessful and a formal disciplinary inquiry was undertaken.

4    Mr Cook’s employment was terminated effective from the close of his shift on 17 December 2015.

5    On the following day, on 18 December 2015, Mr Cook filed an Unfair Dismissal Application with the Fair Work Commission (the “Commission” or “FWC”) “in accordance with Part 3-2” of the Fair Work Act 2009 (Cth). Mr Cook was seeking an order that his employment with Australia Post be reinstated.

6    A hearing was held before the Commission on 14 April 2016 and on 18 August 2016 the Commissioner published his reasons for concluding that the employer’s finding of serious misconduct “established valid reason for the dismissal of the applicant” but that “the summary dismissal of the applicant must be held to have been unreasonable and unjust”: Cook v Australian Postal Corporation [2016] FWC 5692 at [71] to [74]. Reinstatement was not ordered as “there was a valid reason for the dismissal of the applicant” and the “particular nature of that serious misconduct has provided proper basis upon which the employer would have legitimately lost trust and confidence in the applicant”: [2016] FWC 5692 at [75]. Mr Cook was, however, paid compensation in the sum of $4,514.

7    Permission to appeal against that decision of the Commissioner was refused by a Full Bench of the Fair Work Commission on 28 October 2016: Cook v Australian Postal Corporation [2016] FWCFB 7203.

8    Proceedings were thereafter commenced in this Court.

9    An Originating Application was filed in November 2016. Australia Post was named as the First Respondent and the Fair Work Commission was named as the Second Respondent. The only relief then claimed was “Reinstatement”.

10    The proceeding first came before Katzmann J on 20 February 2017 and an order was made requiring the filing of any Amended Originating Application and affidavit in support “together with a statement identifying the error or errors said to give rise to relief under s 39B of the Judiciary Act 1903 (Cth)”. On 13 March 2017 a further order was made by her Honour requiring the filing and service of “a statement identifying the error or errors [Mr Cook] claims were made by the Full Bench of the Fair Work Commission”. On 11 April 2017, a statement was filed by Mr Cook which provided the following statement expressed to be in compliance with orders made on 13 March 2017:

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 for 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.

On 15 May 2017, Katzmann J declined to summarily dismiss the Originating Application: Cook v Australian Postal Corporation [2017] FCA 509.

11    An Amended Originating Application was filed on 22 May 2017. As amended, the Application states that on “the grounds stated in the statement of claim, accompanying affidavit or other documents prescribed by the rules, the Applicant claims relief under section 39B of Judiciary Act 1903 [Cth]”. No “statement of claim” has been filed and no “grounds” of review have been identified in the Amended Originating Application. But relief is nevertheless sought “directed to the [Fair Work Commission] to quash its orders of 18 August 2016 and of 28 October 2016”. Other relief is also sought against the Fair Work Commission, together with a declaration as to the Constitutional invalidity of Pt 3-2 of the Fair Work Act. No relief is sought against Australia Post.

12    The proceeding is to be dismissed.

THE FAIR WORK ACT 2009 (Cth)

13    The resolution of the present proceeding essentially involves a consideration of two Chapters of the Fair Work Act, namely:

    Chapter 3 and, in particular, Pt 3-2, being that Part which deals with unfair dismissals; and

    Chapter 6, being that Chapter which deals with what are characterised as “Multiple actions” and which contains additional provisions related to termination of employment, including applications for “unlawful termination”.

14    Those Chapters are self-evidently to be construed by reference to (in particular) s 3 which sets forth the “Object of this Act”.

15    On the case advanced on behalf of Mr Cook, of particular concern is whether s 387 (which sets forth the criteria for considering whether a “dismissal was harsh, unjust or unreasonable”) is to be construed by reference to the prohibition imposed by s 772 upon the termination of an employee’s employment by reason of one or other of the reasons set forth in s 772(1).

Chapter 3 & Part 3-2 of the Fair Work Act

16    Chapter 3 is headed “Rights and responsibilities of employees, employers, organisations etc”.

17    Part 3-2 sets forth provisions with respect to “[u]nfair dismissal”. The “object” of that Part is identified in s 381(1) and includes the need “to establish procedures for dealing with unfair dismissal that are quick, flexible and informal”.

18    Division 3 within Pt 3-2 identifies “[w]hat is an unfair dismissal”. Importantly, s 387 provides as follows:

Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)    whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)    whether the person was notified of that reason; and

(c)    whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)    any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)    if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)    the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)    the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)    any other matters that the FWC considers relevant.

19    Division 4 sets forth the “[r]emedies for unfair dismissal”. Within that Division, s 390 identifies the orders that may be made by the Commission. That section provides as follows:

When the FWC may order remedy for unfair dismissal

(1)    Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a)    the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b)    the person has been unfairly dismissed (see Division 3).

(2)    The FWC may make the order only if the person has made an application under section 394.

(3)    The FWC must not order the payment of compensation to the person unless:

(a)    the FWC is satisfied that reinstatement of the person is inappropriate; and

(b)    the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

20    Section 400 of the Fair Work Act provides as follows:

Appeal rights

(1)    Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2)    Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

21    In Coal & Allied Mining Services v Lawler [2011] FCAFC 54, (2011) 192 FCR 78 at 90 Buchanan J said in respect to the consideration to be given by the Full Bench to the test imposed by s 400:

[43]    … It is not necessary in the present case to consider whether Parliament had in mind that permission to appeal under s 400 would be given only rarely or that a sufficient public interest to give permission to appeal would arise only in a rare case. It is enough to note that criticism is not available to suggest that the Full Bench failed to appreciate that the test under s 400 was a stringent one. Provided the Full Bench did not misunderstand its powers and functions in some respect relevant to the present matter, the evaluation of the matters relevant to whether permission to appeal should be given was an issue committed to the Full Bench by the Act. It is not a matter for this Court, whose role in a case such as the present is limited to examining whether jurisdictional error was committed.

Justices Marshall and Cowdroy agreed with Buchanan J. In applying Lawler, North, Katzmann and Bromberg JJ in Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113 concluded:

[18]    The argument of the applicant was no more than an assertion that it disagreed with the judgment and orders of the Full Bench. In order to succeed, however, the applicant needed to show that the Full Bench misconstrued, misunderstood or failed to apply the test of whether it was in the public interest to grant permission to appeal …

The application for judicial review was there refused.

22    More recently, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169 at [48], (2016) 247 FCR 138 at 148 to 149, Barker, Rangiah and Wigney JJ acknowledged that the “question of the public interest is a broad consideration”. Their Honours there went on to further observe that:

[u]nless it can be shown that the Full Bench in the exercise of its power to grant permission to appeal misunderstood the nature of its jurisdiction, or somehow misconceived its duty, then, in accordance with the principles of jurisdictional error … any error made in relation to a permission decision will be considered an error within jurisdiction.

23    Their Honours concluded that “no proper basis” had been established making out any jurisdictional error.

Chapter 6 & Parts 6-1 and 6-4 of the Fair Work Act

24    Chapter 6 has within it a number of Parts. Relevant to the present application is Pt 6-1, which is headed “Multiple actions”. Division 3 within Pt 6-1 is headed “Preventing multiple actions”. Subdivision B of Div 3 is headed “Applications and complaints relating to dismissal”. Within that Subdivision, the “[g]eneral rule” is set forth as follows in s 725:

General rule

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.

25    Section 729, being one of the sections identified in s 725, addresses “unfair dismissal applications” and provides as follows:

Unfair dismissal applications

(1)    This section applies if:

(a)    an unfair dismissal application has been made by the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction; or

(iii)    failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2)    An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

Where an “unfair dismissal application has been made”, s 729 “applies” and the “[g]eneral rule” in s 725 operates such that no other application “of a kind referred to” in ss 726 to 732 may be made.

26    Section 730, being another of the provisions identified in s 725, addresses the making of an application to the Fair Work Commission to resolve an “unlawful termination” application and is a provision expressed in like terms to s 729. Section 730(1) provides as follows:

Unlawful termination FWC applications

(1)    This section applies if:

(a)    an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction; or

(iii)    resulted in the issue of a certificate under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

27    Section 731, being another of the sections identified in s 725 and the provision which addresses the making of an unlawful termination application to a court, provides as follows:

Unlawful termination court applications

This section applies if:

(a)    an unlawful termination court application has been made by, or on behalf of, the person in relation to the dismissal; and

(b)    the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)    failed for want of jurisdiction.

28    Within Ch 6 also appears Pt 6-4, being a Part headed “Additional provisions relating to termination of employment”.

29    Division 2 within Pt 6-4 is headed “Termination of employment”. Section 771 sets forth the “Object of this Division” which may loosely be described as giving effect to a number of international conventions. Section 772 thereafter sets forth the circumstances in which employment may not be terminated. Section 772(1) provides as follows:

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:

(a)    temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b)    trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c)    non-membership of a trade union;

(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;

(f)    race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g)    absence from work during maternity leave or other parental leave;

(h)    temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

30    Section 773 provides for the making of an application to the Commission by an employee where a claim is made that s 772(1) has been contravened. Section 774 provides that any such application “must be made” within 21 days after the employment was terminated or within such further time as the Commission allows. Section 775 provides for the payment of an application fee. Section 776 provides that if an application is made under s 773, and the Commission is unable to resolve the dispute “other than by arbitration”, the Commission “must issue a certificate to that effect”. Section 777 thereafter deals with the arbitration of the dispute by the Commission, but that section only applies if the Commission has “issue[d] a certificate under paragraph 776(3)(a)”. The issue of a certificate, it has been said, is necessary to put an application “on a proper jurisdictional footing”: Newman v East Yarra Friendly Society Pty Ltd [2011] FCA 1262 at [7] per North J.

31    Section 778 provides for “[t]aking a dispute to court”. An application to a court for a contravention of s 772 is an “unlawful termination court application”. So much is apparent from s 778 which provides as follows:

Taking a dispute to court

A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:

(a)    both of the following apply:

(i)    the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;

(ii)    the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b)    the unlawful termination court application includes an application for an interim injunction.

Relevantly for present purposes, a person “must not make an unlawful termination court application … unless … the FWC has issued a certificate under paragraph 776(3)(a)”.

32    The effect of these provisions is that an employee who has made (for example) an “unfair dismissal application” seeking an order from the Commission pursuant to s 390 within Pt 3-2 falls within s 729 and is precluded by the “general rule” in s 725 from also bringing (for example) an “unlawful termination FWC application” within the meaning of s 730, being an application pursuant to s 773.

33    In such circumstances, an employee must make an election as to which application is to be pursued. In some circumstances an employee is called upon to make “tactical decisions” as to which remedy to pursue: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [136], (2015) 238 FCR 273 at 302 to 303 per Rangiah J. The effect of the provisions is to avoid “double dipping”: Reeve v Ramsay Health Care Australia Pty Ltd [2012] FCA 1294 at [27] to [28] and [79] to [81], (2012) 213 FCR 563 at 568, 573 to 574 per Barker J; Cavar v Green Gate Management Services Pty Ltd [2017] FCA 471 at [20] per Flick J.

THE DECISION-MAKING PROCESSES WITHIN THE COMMISSION

34    The manner in which the arguments in the present proceeding are to be resolved require consideration to be given to:

    the decision to dismiss Mr Cook and the reasons for that decision;

    the manner in which Mr Cook made his application to the Fair Work Commission;

    the arguments presented for resolution by (initially) the Commissioner;

    the reasons for decision of the Commissioner;

    the arguments presented for resolution when seeking the “permission” of the Full Bench of the Fair Work Commission to appeal from the decision of the Commissioner; and

    the reasons for decision of the Full Bench in refusing “permission” to appeal.

35    The manner in which Mr Cook sought to challenge the decision made by the Commissioner has, with respect, changed over time. And the manner in which Mr Cook has thereafter sought to impugn the decision initially made by the Full Bench has also changed over time.

36    The relevance of noting the fact that the bases upon which the challenges have been mounted have varied over time is simply to recognise at the outset that there is a potential difficulty in the path of any applicant in seeking to allege error in not resolving either an application not made or in not resolving an argument which was not previously advanced: cf. BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 at [41] per Flick J.

37    Notwithstanding the “shifting sands” as to the issues to be resolved, there forever remained at the forefront of Mr Cook’s claim the allegation that he had been unfairly dismissed. There was at no stage an application made by Mr Cook that his employment had been wrongfully terminated by reason of the termination being for one or other of the reasons set forth in s 772, a provision within Part 6-4 of the Act. The application was expressed to be made “in accordance with Part 3-2” of the Act. What was less certain was the manner in which Mr Cook sought to make relevant to his unfair dismissal application any consideration of s 772. It was the manner in which reliance was sought to be placed upon s 772 which varied over time.

The reasons for dismissal

38    The letter dated 17 December 2015 notifying Mr Cook of his dismissal sets forth seven “allegations” that had been made against him. The letter also referred to the Disciplinary Inquiry undertaken on 19 October 2015.

39    Allegation 5 as set forth in the letter provided in part:

5.    On Monday 21 September 2015 at Seven Hills Delivery Facility, after seeking permission and receiving approval from your Team Leader, Mr Brian Morris to take your authorised meal break between the hours 10.30am to 11.00am whilst off site and during your delivery round, you then:

a.    Engaged in a Fair Work Commission Conference via teleconference call between the hours 10.00am to 11.00am resulting in an absence from work without authority for the period 10.00am to 10.30am, and;

b.    Represented an employee, Ms Monica Murray, Strathfield Delivery Facility (Nightshift) in the above mentioned Fair Work Commission Conference in matters involving Australia Post during work time and without authority.

c.    Attempted to claim a total of 30 minutes unjustified overtime payment.

In doing so, you failed to discharge your responsibilities as an Australia Post employee …

There are thereafter set forth seven bases upon which it was alleged that Mr Cook had failed to discharge his responsibilities, including (for example) a failure to comply with “all our policies and procedures”.

40    Allegation 7 provided in part as follows:

7.    On or around September 2015 at Seven Hills Delivery Facility you performed work as a paid employee representative in that you had Mr Charlie Vassallo make an ongoing payment of ten (10) dollars per week to represent you in employment matters after being directed in a Warning Counselling interview on 13 July 2015 not to do so.

In doing so, you failed to discharge your responsibilities as an Australia Post employee …

There are thereafter set forth four bases upon which it was alleged Mr Cook had failed to discharge his responsibilities including (again by way of example) a failure to comply with “all our policies and procedures”.

41    The letter continued as follows:

I have received and read a copy of the Disciplinary Inquiry Report.

Based on the Disciplinary Inquiry Report, I agree with the recommendation of the Inquiry Officer.

In view of the above, my decision is that your conduct in relation to the seven matters identified above constitutes serious and wilful misconduct and that you be dismissed from Australia Post.

Your dismissal will be effective from close of shift on Thursday 17 December 2015 and you will shortly receive a separate advice regarding any outstanding entitlements.

The unfair dismissal application & the submissions before the Commissioner

42    The Unfair Dismissal Application as filed by Mr Cook with the Commission on 18 December 2015 was in accordance with the “Form” approved by the President of the Commission in June 2014.

43    It was, not surprisingly, expressed to be an “application to the Fair Work Commission for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009”.

44    Part 3.2 of that Form set forth as follows in handwriting the reasons relied upon by Mr Cook for his belief that he had been unfairly dismissed:

The dismissal was harsh unjust and unreasonable because all seven incidents described in the notice of dismissal were technical trivial and within the parameters of the FWA and EBA.

45    An undated submission filed by Mr Cook with the Commission stated in part as follows (without alteration):

The next incident that Australia Post relies upon in relation to the applicant’s representation of other employees is Mr. Cook’s attendance at a telephone conciliation. Australia Post was aware that Mr. Cook was representing his colleague. At no time did Australia Post advise Mr. Cook that there was a time limit on his attendance or representation. It is questionable that Australia Post was entitled to limit Mr Cook’s ability to represent his colleague. The Enterprise Agreement at 42.1.4 provides that an employee may appoint a representative of their choice, including a union representative. the wording of the section indicates that the representative is not required to be a union representative. Section 772(d) and (e) of the Fair Work Act prohibit an employer from dismissing and employee for representing an employee or employees or from participating in proceedings against an employer. The fact that Mr. Cook returned late from representing a colleague does not provide a valid reason for dismissal and is harsh, unjust and unreasonable.

The applicant’s evidence is that he has never received any payment for his representation of his fellow employees. Australia Post’s claim that Mr. Cook has a conflict of interest is spurious. The applicant has no more conflict of interest than a union delegate might. The Enterprise Agreement provides that an employee other than a union representative may represent an employee. The final incident is not a valid reason for the termination of the applicant’s employment. Australia Post’s termination of Mr. Cook’s employment is harsh, unjust and unreasonable.

This submission and the reference to the “next incident” are understood to be a reference to Allegation 5. There emerged, during the course of the hearing conducted before the Commissioner on 14 April 2016, a question as to who prepared this undated submission. Mr Cook initially maintained that he “prepare[d]” the submission but later maintained that he did not draft it and that his representative did so. But nothing presently turns on who prepared or drafted the submission; it was a submission before the Commission.

46    There was also provided to the Commissioner “Closing Submissions” from Mr Cook dated 29 April 2016. Reference was there made to “Section 772(d) and (e)” and two authorities directed to the interpretation to be given to the word “must”. That Submission concluded with the following statement:

25.    Employees also have an entitlement to be represented by the representative of their choice under the EBA 8 Section 42.1.4 and a statutory right under the Fair Work Act (see FWA Section 3(e)).

Australia Post also filed a submission in respect to s 772 contending (inter alia) that s 772(1)(e) dealt with a different subject matter. Section 772(1)(d), it was further submitted:

is not contemplated as including a person offering a representation service akin to that provided by the Applicant to co-workers in the present case, that being an organised service through a private incorporated entity (in this case ELISA Pty Ltd) run by a sole director and shareholder (as is the case with the Applicant’s operation) concurrently with his employment and sometimes directly in opposition to the interests of a[n] existing employer and without that employer’s consent.

47    Faced with the Application as made and the submissions, the Commissioner summarised in his reason for decision the argument sought to be advanced on behalf of Mr Cook in reliance upon s 772 as follows:

[26]    The applicant’s submissions also addressed what was described as the representative related offences. The applicant submitted that the employer’s actions in seeking to rely upon the conduct of the applicant involving his representative activities would breach subsections 772 (d) and (e) of the Act. Consequently, according to the submissions of the applicant, there was a statutory right for employees to be represented by persons of their choice, and to dismiss the applicant because of his representative role was in breach of these statutory rights.

The Commissioner also summarised the submissions advanced on behalf of Australia Post as follows:

[39]    In further submissions, the employer rejected certain challenges arising from the applicant’s defence of his actions in respect to both the operational aspects of his work as a [Postal Delivery Officer] and the conflict of interest that the employer had found in respect to his representative activities. … The employer also rejected that the applicant’s paid representative activities had some relevance in respect to subsections 772 (1) (d) or 772 (1) (e) of the Act.

[40]    In summary, the employer submitted that the applicant bears the burden of establishing that his dismissal was unfair. Further, it was submitted that the employer had established that the conduct of the applicant, properly considered, constituted serious and wilful misconduct that justified dismissal. The employer submitted that it was entitled to dismiss the applicant summarily because his proven actions constituted serious misconduct. Consequently, it was contended that the dismissal of the applicant was not harsh, unjust nor unreasonable. The employer submitted that the application should be dismissed.

There was no further reference made by the Commissioner to the arguments advanced in respect to s 772(1)(d) or (e).

48    In respect to Allegations 5 and 7, the Commissioner reasoned as follows:

Representative Related Issues - Allegations 5 and 7

[53]    Allegation five involved an event which occurred on 21 September 2015, when the applicant participated in a teleconference proceeding before the Commission. On that day the applicant had obtained approval from his team leader to take a meal break between 10:30 am and 11 am. However, the applicant represented a fellow employee during the teleconference conducted in respect of an application to stop bullying, and that conference and the applicant’s participation in it, occurred between 10 am and 11 am. Consequently, from 10 am to 10:30 am the applicant was not performing his duties as a [Postal Delivery Officer], but instead he was representing a fellow employee in proceedings before the Commission.

[54]    The conduct of the applicant in respect to allegation five may have provided the employer with legitimate concern in respect to the applicant apparently misleading his team leader in connection with the alteration to the timing of the taking of a meal break, so that it coincided with part of the period that included the teleconference proceedings before the Commission. However, there would need to be considerable caution applied to any contemplation of invoking some disciplinary penalty in respect to circumstances where an employee was acting as a representative of a fellow employee in proceedings before the Commission. In a different circumstance where a fellow employee was seeking to represent an applicant in a stop bullying matter in proceedings before the Commission, it would seem that some reasonable accommodation for such representation should be provided by the employer.

[55]    Allegation seven represented the gravamen of the serious misconduct of the applicant as found by the employer. During September 2015, the applicant engaged in further paid representative activities providing assistance to a fellow employee. The employer had previously warned the applicant that it considered this conduct to represent a conflict of interest of such a serious nature that it jeopardised the applicant’s employment.

[56]    The role of a workplace representative is often difficult as it frequently involves direct challenge to the representative’s own employer. Ordinarily, the workplace representative 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. The workplace representative (aka job delegate or shop steward) who is speaking on behalf of fellow workers often engages in an activity which is directly contrary to the interests of her or his employer. The resulting tensions are often difficult to manage, and employment law in Australia has generally recognised that certain protections should be provided in respect to persons exercising representative roles on behalf of fellow workers.

[57]    For many years the applicant had engaged in the role of a workplace representative, albeit outside of the registered organisations regime. It appeared that the employer had, quite correctly, recognised the workplace representative role of the applicant, and generally afforded him the appropriate accommodations and protections. However, the workplace representative role of the applicant altered significantly and dramatically with the establishment of a payment for service arrangement via what can be referred to as ELISA.

[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.

[59]    It should also be recognised that the conflict of interest concerns would not be confined to the actions of the applicant against the interests of the employer. There is further prospect for conflict of interest concerns to arise for any one of the applicant’s co-workers that he represented, and for whom he was unsuccessful. This potential difficulty was to some extent realised and commented upon in the Decision of Johns C in the case of Mr Robert Buellsbach v Australian Postal Corporation T/A Australia Post.

[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.

[61]    Consequently, allegation seven involving the applicant conducting a paid employee representative role in blatant defiance of the warnings provided by the employer, represented serious and wilful misconduct. The particular misconduct established in allegation seven would, of itself, provide valid reason for dismissal. In the context of the various other aspects of the applicant’s misconduct involving refusal to follow the reasonable instructions of the employer in respect to his duties as a [Postal Delivery Officer], all but one of the seven allegations particularised in the letter of dismissal provided multiple facets upon which valid reason for the dismissal can be substantiated.

[62]    Therefore, when the findings made by the employer in connection with the seven allegations which established serious misconduct are properly, carefully and objectively analysed, all of those allegations other than allegation five, can be supported as representing valid reason for the dismissal of the applicant. The particular findings of serious misconduct made by the employer in respect to allegations one, two, three, four, six and seven have been verified, and represent valid reason for the dismissal of the applicant.

The footnotes in the reasons of the Commissioner have been omitted.

49    The conclusion of the Commissioner was expressed as follows in his reasons for decision:

Conclusion

[71]    The applicant was summarily dismissed for serious misconduct involving the employer’s findings in respect to seven allegations. Upon proper analysis all but one of the employer’s findings of serious misconduct have been confirmed.

[72]    The employer’s finding of serious misconduct in respect to allegation seven regarding the applicant conducting a paid employee representative role in blatant defiance of the warnings provided by the employer, has, of itself, established valid reason for the dismissal of the applicant. Further, other particular incidents of misconduct of the applicant aggregate to represent an elevated level of serious misconduct that would, ordinarily, justify summary dismissal.

[73]    However, the employer invoked a summary dismissal in circumstances where the employee had not been suspended from duty, and thus it was deprived of the capacity to dismiss without notice. This particular procedural error made by the employer has rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal.

[74]    Therefore, the summary dismissal of the applicant must be held to have been unreasonable and unjust. The applicant is entitled to remedy for unfair dismissal.

Remedy

[75]    The applicant has sought reinstatement as remedy for his unfair dismissal. In this instance, there was a valid reason for the dismissal of the applicant involving serious misconduct. The particular nature of that serious misconduct has provided proper basis upon which the employer would have legitimately lost trust and confidence in the applicant. Therefore, any remedy of reinstatement would be inappropriate. Alternatively, in the particular circumstances of this case, the appropriate remedy would be some limited amount of compensation.

The conclusion of the Commissioner, accordingly, was that all but Allegation 5 had been sustained.

The application for permission to appeal – the decision of the Full Bench of the Fair Work Commission

50    Following the decision of the Commissioner, Mr Cook filed with the Commission on 7 September 2016 a Notice of Appeal in accordance with Form F7.

51    When addressing Pt 3 of that Form and the “public interest” requirement imposed by s 400 of the Fair Work Act when seeking “permission to appeal”, Mr Cook made reference to “[a]ttachments”. One of the “[a]ttachments” took the form of an Outline of Submissions dated 7 September 2016, which stated in part as follows (without alteration):

Significant Errors of Fact

7.    It is further submitted that the Commissioner failed to give proper consideration to the evidence both adduced and submitted that the applicant was indeed not a paid agent of the organisation set up to represent the legitimate industrial interests of its clients during any period that the applicant was being paid by the respondent and that the Commissioner failed to make the distinction between the functionary and the entity and failed to make the distinction between what he characterised as secondary employment and payment for incurring ordinary expenses.

8.    Further the applicant submits at 49 (the decision) the Commissioner failed to acknowledge that the issue of the meal break was already part of a registered dispute under Section 42 of the Australia Post Enterprise Bargaining Agreement 8. Even though this was part of the Applicant’s submission.

Significant Errors of Law

9.    It is further submitted that the Commissioner failed to give any consideration to Section 772 (1) (d) and (e) Fair Work Act 2009 (Cth) even though this was a significant submission by the applicant and the statute itself is clear, unequivocal and prescriptive.

Public Interest Consideration

10.    This submission contends that the public interest test is satisfied by the issues surrounding Section 772 (1) (d) and (e) Fair Work Act 2009 (Cth) because the statute remains undetermined at common law.

11.    Further, the issues surrounding the consideration by the Commissioner (49) of the decision brings into question the integrity of Australia Post EBA 8 and indeed all EBAs generally.

12.    If the dispute settling procedures are to be disregarded by parties who are signatories to it, including the Commission, then the Public Interest, interest is clear.

13.    Further, the reasons for summary dismissal were trifling, insignificant and absurd and in the public domain, do not constitute serious and wilful misconduct, a breakdown in the employer/employee relationship as characterised, and are indeed harsh, unjust and unreasonable, and would not pass the test of reasonableness of the “man on the Clapham bus.”

14.    Further the Commission’s decision has effectively restricted the application of the significant Freedom of Association sections of the Fair Work Act 2009 (Cth).

15.    The decision has substantially denied the ability of employees to practically realise the rights afforded to them by statute.

16.    It is submitted by the Appellant that the content of these submissions demonstrates an arguable case of appealable error made by Commissioner Cambridge at first instance in determining the question of jurisdiction. It is submitted that these errors are in the public interest and demonstrate significant errors of fact and law.

17.    In the circumstances the appellant seeks the full bench’s leave of appeal.

52    In its reasons for decision, the Full Bench characterised the “grounds of appeal” as involving four propositions, the last two of which were as follows:

[8]    Mr Cook’s grounds of appeal involved the following propositions:

…

(3)    The Commissioner’s failure to give any consideration to s 772(1)(d) or (e) of the [Fair Work 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 [Fair Work Act] which was contrary to the public interest.

53    In resolving these grounds, and in reaching its conclusion, the Full Bench stated:

[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 [Fair Work Act]. These provisions do not fall within Part 3-2 of the [Fair Work 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.

[20]    Mr Cook has therefore not demonstrated any arguable case of appealable error of a nature that would attract the public interest. Nor do we consider that he has identified any other basis for the grant of permission to appeal.

[21]    For the reasons given, we are not satisfied that it would be in the public interest to grant permission to appeal. In accordance with s.400(1) permission to appeal must therefore be refused.

(Footnote omitted.)

THE ERRORS RELIED UPON

54    In seeking to challenge the decision of both the Commissioner and the decision of the Full Bench, reliance was placed by Counsel for Mr Cook upon the provisions of the Fair Work Act in Pt 3-2 and Pt 6-4 and the reasons provided by both the Commissioner and the Full Bench.

55    Leaving aside for present purposes any argument as to the Constitutional validity of Pt 3-2 of the Fair Work Act, the errors otherwise relied upon by Mr Cook before this Court in seeking to impugn the decisions of both the Commissioner and the Full Bench were helpfully summarised during the course of oral submissions as being:

    a failure to consider the prohibition imposed by s 772(1)(d) and/or (e) of the Fair Work Act when making a decision as to whether the termination of Mr Cook’s employment was “unfair” within the meaning of and for the purposes of s 385 and when making an order under s 390;

    a denial of procedural fairness by reason of the acceptance of the argument advanced on behalf of Australia Post and the failure to consider Mr Cook’s submissions as to the necessity to consider s 772;

    the failure to consider, when determining the unfair dismissal application, a “mandatory relevant consideration” – namely the prohibition imposed by s 772(1)(d) and/or (e); and

    an erroneous construction of s 390(1) when declining to order reinstatement – the erroneous construction being said to be a failure to consider the “primacy” of ordering “reinstatement” and an approach whereby reinstatement was seen by the Commissioner to be but an alternative to compensation.

A further error relied upon by Counsel for Mr Cook, albeit not an error identified as such at the outset of his oral submissions, was an error committed by the Commissioner in respect to:

    the order that Mr Cook not be reinstated.

56    In summarising these arguments, there was (with respect) a disturbing fluctuation in the manner in which reliance was sought to be placed upon s 772. That fluctuation varied from a submission that the reasons for termination of Mr Cook’s employment fell foul of s 772 to a submission that Mr Cook’s conduct was “nothing more than what is accepted by the Parliament as legitimate at s 772(1)(d) and (e)”. The latter variation, of course, does considerable damage to the text of s 772 – that section being a prohibition upon an employer terminating an employee’s employment for any one or other of the reasons there identified; the section does not set any standard as to what may be “accepted” conduct on the part of an employee. But such fluctuations in the way in which Counsel for the Applicant advanced his argument may be left to one side. The substance of his argument was understood to be that ss 772 and 773 were of assistance in some way to resolving a claim of unfair dismissal.

57    It is concluded that none of these errors relied upon have been made out. It thus matters not whether any of the errors relied upon be characterised as errors of law on the face of the record or jurisdictional error.

58    Neither the Commissioner nor the Full Bench were required to give consideration to s 772 or, more widely expressed, give consideration to whether Mr Cook’s employment had been terminated because he was acting as “a representative of employees” (s 772(1)(d)) or had “fil[ed] … a complaint … against an employer” (s 772(1)(e)).

59    This conclusion has been reached primarily because:

    there was nothing in the reasons for dismissal as set forth in the letter dated 17 December 2015 which called for any consideration to be given to any question as to whether there had been a contravention of s 772(1)(d) and/or (e); and

    the Unfair Dismissal Application filed with the Commission on 18 December 2015 was an application confined to seeking relief in respect to unfair dismissal and could neither be construed as an application seeking relief in respect of an unlawful termination FWC application in contravention of s 772 nor capable of being entertained by the Commission as such an application contemporaneously with the unfair dismissal application.

60    More broadly expressed, this conclusion has been reached because:

    when considering an application for unfair dismissal, the “criteria” to be applied are those set forth in s 387 and the existence of any “reason” for termination which may render the termination in contravention of s 772 is not a consideration which the Commission is “bound” to take into account;

or, as a matter of fact:

    the reasons for decision of the Commissioner expose consideration being given to Mr Cook’s acting as “a representative of employees” (s 772(1)(d)) and the conclusion reached that that was not what made his conduct “serious and wilful misconduct”.

There is, finally, no error exposed in the decision of the Commissioner in respect to:

    the exercise of the discretion not to order reinstatement.

There is, in the challenge made to the decision of the Full Bench, a further difficulty, namely that the function entrusted to the Full Bench pursuant to s 400 was the exercise of a statutory discretion and no error of the kind described in House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ has been made out.

The reasons for dismissal & the application made

61    The reasons for dismissal dated 17 December 2015 set forth the seven Allegations made by Australia Post against Mr Cook and the conclusion that his “conduct in relation to the seven matters identified … constitutes serious and wilful misconduct”.

62    There is nothing in that letter or the Allegations made that suggests that Mr Cook’s employment was terminated for either of the reasons identified in s 772(1)(d) or (e). In particular, when making reference in the fifth Allegation to the fact that Mr Cook had “[r]epresented an employee”, the substance of the complaint was thereafter identified as being a “fail[ure] to discharge [his] responsibilities”. And, when making reference in Allegation 7 to Mr Cook having acted as an “employee representative”, the substance of that Allegation was that he had been paid for doing so and that he had again therefore “failed to discharge [his] responsibilities”.

63    The Allegations made against Mr Cook, and which formed the basis upon which he was dismissed, ultimately centred in substance upon his failure to discharge his responsibilities as an employee and the position of conflict in which he placed himself by receiving payment for the services he performed on behalf of other employees rather than the fact that he had acted as an “employee representative”.

64    It was in respect to this decision taken on 17 December 2015 that Mr Cook filed the Unfair Dismissal Application on 18 December 2015.

65    And there is nothing in the form of that application which suggested that Mr Cook was then contending anything other than that his dismissal was unfair. There is nothing in the form of that application which called for any consideration to be given to any question as to whether his employment had been terminated in contravention of s 772. Notwithstanding the reliance sought to be placed by Counsel on behalf of Mr Cook upon the hand-written reasons in Pt 3.2 of the application form, there is nothing in those hand-written reasons to call for any consideration to be given to whether there was any “reason” for termination which could potentially fall within s 772. Mr Cook did not assert either in his form of application or in his submissions to the Commissioner any contravention of s 772(1)(d) or (e). Neither the undated submissions nor the “Closing Submissions” can be construed as raising any question as to whether there had been a contravention of s 772. The highest that those submissions can be construed is that Mr Cook was asserting an entitlement to represent employees.

An inability to entertain an application under s 773

66    Even if these conclusions be incorrect, and it be concluded that an application was in fact being made by Mr Cook for the Commission to resolve a complaint that his employment had been terminated in contravention of s 772, the Commissioner could not entertain that application as part of the unfair dismissal application.

67    The inability to do so arises from the fact that:

    section 725 and the “[g]eneral rule” against “[m]ultiple actions” applied because Mr Cook had in fact made an unfair dismissal application and could not also make an “unlawful termination FWC application”;

and there had in any event been:

    a failure to make any such application within the 21 days permitted (s 774), an absence of payment of the requisite application fee (s 775) and an absence of any certificate having been issued (s 776).

The relevance of prohibited reasons to unfair dismissal determinations

68    Separate from any consideration as to whether Ch 6 and (in particular) whether ss 772 and 773 provide a remedy for an employee whose employment has come to an end as an alternative to the remedy provided by Pt 3-2, it is further concluded that any consideration as to any reason for the termination of employment that may otherwise fall within s 772 is not a relevant consideration that must be taken into account when making a determination as to whether there has been an unfair dismissal.

69    This conclusion is founded upon an interpretation of s 387 informed as it is by reference to the object of the Fair Work Act as set forth in s 3 and, more particularly, the object to Pt 3-2 as set forth in s 381 and the terms of s 387 itself.

70    It was common ground that an identification of the considerations which a decision-maker is “bound” to take into account are to be determined by reference to the following observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 41:

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. … Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a)    The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. …

(b)    What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c)    Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. …

(d)    The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.

(Citations omitted.)

Although these observations were made in the context of reviewing a decision made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), they are of general application and have been applied (accordingly) in many diverse statutory contexts including the Fair Work Act: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126 at [38], (2015) 233 FCR 301 at 312 per Jessup, Tracey and Reeves JJ; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169 at [68], (2016) 247 FCR 138 at 152 per Barker, Rangiah and Wigney JJ.

71    The “relevant consideration” which Mr Cook submitted the Commissioner was “bound” to take into account was not expressed with any degree of clarity. It was understood to be either the “general principles as to what are not valid reasons for dismissal” or the “protections advanced by the Applicant as applicable thereto by s 772(1)(d) and (e)”. It could, potentially at least, have been framed more broadly and in terms of the entitlement – or, at least, an ability – of a person to (for example) act as a “representative of employees” or to make a “complaint … against an employer”. A potential variant of the submission, but one not expressly advanced in the present proceeding, was that the pursuit of a reason proscribed by s 772(1) may render a dismissal “unreasonable” for the purposes of s 387.

72    However expressed, the argument is rejected.

73    Confronted with an application made “in accordance with Part 3-2” of the Fair Work Act seeking a remedy for unfair dismissal, the task of the Commission was to resolve that application in accordance with the criteria set forth in s 387. It was no part of the task entrusted to the Commission when resolving such an application to take into account when determining whether a dismissal had been unfair any unexpressed question as to whether a “reason” may have existed which would have prohibited the termination of employment in contravention of s 772. For the purposes of resolving the Pt 3-2 application, the Commission was to apply the terms of s 387 and not the terms of s 772.

74    In circumstances where facts may clearly emerge that an employee is also seeking to advance a claim for unlawful termination, it may nevertheless be appropriate for the Commission to give consideration to whether it should adjourn the Pt 3-2 application in order for an application to be made pursuant to s 773. But that is not this case and is a separate question.

75    Section 387(h), namely the licence for the Commission to consider “any other matters that the [Commission] considers relevant”, is a licence to consider “any other matter” that may render the dismissal unfair as opposed to the termination of employment for a proscribed “reason”.

76    The statutory scheme whereby an employee is faced with an election to either seek a remedy for unfair dismissal pursuant to Pt 3-2 or a remedy to resolve a dispute pursuant to Pt 6-4 (and the inability to pursue both remedies concurrently in contravention of s 725) supports a conclusion that the regime provided for in Pt 3-2 stands separate and apart from that provided for in Pt 6-4. It would considerably undermine the legislative insistence upon an employee making an election if an employee were to be permitted to merge the considerations of relevance to the pursuit of one remedy with the considerations of relevance to the other.

77    Even more broadly expressed, there is no statutory requirement which compels the Commissioner when considering a Pt 3-2 application to give consideration to the circumstances in which an employee may act as “a representative of employees”.

78    There is nothing in the terms of s 387 which requires matters of relevance to the pursuit of an application under s 773 to be necessarily taken into account. To employ the language of Mason J in Peko-Wallsend, the Commission when considering an unfair dismissal application is not “bound” to take into account matters of relevance to an application under s 773. Any consideration of matters of relevance to a s 773 application, moreover, may also render more complex, and undermine the informality of, an unfair dismissal application and run contrary to the objects of Pt 3-2 as set forth in s 381.

The consideration in fact given to Mr Cook as an employee representative

79    Even if it be assumed, contrary to the conclusions in fact reached, that the Commissioner could consider – and was required to consider – any entitlement on the part of Mr Cook to act as “a representative of employees”, the Commissioner did in fact take such matters into account.

80    So much appears from (inter alia) paras [56] and [57] and the Commissioner’s:

    acceptance of the fact that the “role of a workplace representative is often difficult as it frequently involves direct challenge to the representative’s own employer”; and

    acceptance that “the employer had, quite correctly, recognised the workplace representative role of the applicant, and generally afforded him the appropriate accommodations and protections”.

81    Contrary to the submissions advanced on behalf of Mr Cook, the Commissioner did in fact have regard to the representative role being undertaken. The Commissioner’s reasons for decision, with respect, make it manifestly apparent that the conduct which justified the dismissal of Mr Cook was not his representative activities but rather the fact (inter alia) that:

    Mr Cook was being paid for providing such services such that it “represent[ed] a conflict of interest of such a serious nature that it jeopardised the applicant’s employment” (at para [55]); and

    “the applicant had obtained secondary employment, the purpose of which was directly inimical to the interests of the employer” (at para [58]).

82    Falling outside the errors identified at the outset of the hearing, but nevertheless an argument apparently pressed in the written submissions, was an argument advanced on behalf of Mr Cook that the Commissioner further erred in concluding (at para [72]) that the receipt of payment for the representative services offered by Mr Cook was “of itself” sufficient to justify his dismissal. The Commissioner had earlier characterised Mr Cook’s involvement as “secondary employment” (at para [58]). In challenging these conclusions, the argument was (in part) that the conclusions “erroneously implie[d] he was employed by ELISA which is inconsistent with the Applicant’s status as its director”. It was further argued that the conclusions were inconsistent with “the evidence [that] he did not receive a wage or a fee but rather without any assertion by Australia Post or proof of a contract of employment between Mr Cook and ELISA was reimbursed for expenses like a shop steward or union official”. This further argument, with respect, cavils more with the manner in which the Commissioner expressed his reasons than with the substance of the findings made. The concern of the Commissioner, as was repeatedly stated, was that Mr Cook had placed himself in a position of conflict. This argument is also thus rejected.

The exercise of the discretion to order reinstatement

83    The final error relied upon by Counsel for Mr Cook as a reason for setting aside the decision of the Commissioner is said to emerge from paras [75] to [77] of the reasons for decision.

84    The reasoning of the Commissioner, so it was submitted, failed to recognise what was characterised as the “primacy” of making an order for reinstatement as opposed to ordering compensation. The error, so the submission ran, was that the Commission adopted an “either/or approach” – namely, that Mr Cook was entitled to either reinstatement or compensation. To so reason, it was submitted, failed to recognise that s 390(3) provided that compensation was not to be ordered unless the Commission was satisfied that “reinstatement … is inappropriate”.

85    That submission is rejected. The submission misconstrues the reasoning in fact pursued by the Commissioner. The Commissioner did in fact give consideration to whether an order for reinstatement was “appropriate” and concluded otherwise. The employer, so it was concluded, had a “proper basis upon which [it] would have legitimately lost trust and confidence” in Mr Cook: at para [75].

The decisions of the Commissioner & the Full Bench

86    The errors advanced for resolution in this Court were relied upon as vitiating both the decision of the Commissioner and the refusal by the Full Bench of permission to appeal.

87    When the challenge was more directly targeted upon the Full Bench, the challenge was made to para [18] of its reasons for decision. The Full Bench concluded that “the Commissioner did not directly deal with the submissions the parties made” in relation to ss 772(1)(d) and (e) but also the Full Bench “did not consider it was necessary for him to do so”. Counsel on behalf of Mr Cook submitted to the contrary. That submission, as with the like submission directed to the decision of the Commissioner, is rejected.

88    Given the application that was before the Commissioner, namely an application for unfair dismissal, the Full Bench was correct in concluding that it was not “necessary” for the Commissioner to deal with the submissions.

89    Given both the reasons for decision of the Commissioner and Mr Cook’s Outline of Submissions to the Full Bench and the submissions made (in particular) in respect to what were there described as “Public Interest Consideration”, it was open to the Full Bench to be “not satisfied that it would be in the public interest to grant permission to appeal” (at para [21]).

90    In so concluding, the Full Bench was exercising a discretion. In order to challenge that exercise of discretion, it was necessary to establish an error of the kind described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 to 505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Counsel for Mr Cook failed to identify any error of the kind described by their Honours.

THE CONSTITUTIONAL VALIDITY OF PART 3-2

91    The two principal arguments advanced on behalf of Mr Cook were that:

    as a matter of statutory construction, the prohibition imposed by s 772 was a matter that necessarily had to be considered when determining whether a dismissal had been “unfair”; and

    Part 3-2, upon the approach pursued by Australia Post, was beyond the legislative competence of the Commonwealth legislature.

The former argument – albeit developed in a number of different ways – has been rejected. It is the latter argument which now needs to be resolved.

92    The argument as to the invalidity of Pt 3-2 of the Fair Work Act as expressed on behalf of Mr Cook (without alteration) was that Pt 3-2 “is invalid to the extent that its terms operation or effect restricts the constitutionally protected freedom of which it forms as aspect or part”. In further written submissions handed up during the course of the hearing, the submission was expressed as follows:

As such the Respondent’s submission fails to have regard to the principle of legality relevant to the construction of a statute protecting fundamental rights with respect to dismissal from employment being freedom of association and that freedom as a corollary of the constitutionally protected freedom of political communication, because nothing in the terms of Pt 3-2 or Pt 6-4 with that necessary clarity that admits of no doubt excludes the operation of the substantive rights conferred by s 772(1): Electrolux Home Products Pty Ltd v AWU [2004] HCA 40; 221 CLR 309 at [19]-[21] per Gleeson CJ;

Some considerable difficulty has been experienced in understanding this submission

93    Reliance is placed upon (inter alia) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

94    An apparent irony confronting Mr Cook in respect to this part of his argument is that he seeks to strike down as unconstitutional the very statutory provisions which he expressly sought to invoke when making his claim for unfair dismissal pursuant to Pt 3-2.

95    Notwithstanding the irony confronting Mr Cook, he nevertheless pressed a submission that if Pt 3-2 does not involve any consideration being given to the prohibitions upon dismissal when making a decision as to whether a dismissal has been “unfair”, or any consideration of those factors which may make a termination wrongful, then Pt 3-2 is beyond the legislative competence of the Commonwealth Legislature. In such circumstances, it is said that Pt 3-2 should be read as subject to “an exception for freedom of association as a corollary of the freedom of communication”.

96    The argument is rejected for either of two reasons.

97    First, there is no Constitutionally protected “free-standing” right of association: Tajjour v State of New South Wales [2014] HCA 35, (2014) 254 CLR 508 at 566. Hayne J there summarised the authorities as follows:

[95]    This court has held, more than once, that no “free-standing” right of association is to be implied from the Constitution. That is, “[a]ny freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply”.

The authorities to which his Honour there referred in the footnotes were Mulholland v Australian Electoral Commission [2004] HCA 41, (2004) 220 CLR 181 and Wainohu v State of New South Wales [2011] HCA 24, (2011) 243 CLR 181. In also referring to Mulholland and Wainohu, Keane J endorsed the view previously expressed in Wainohu [2011] HCA 24 at [112], (2011) 243 CLR at 230 per Heydon J that:

Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication.

See: [2014] HCA 35 at [243] to [244], (2014) 254 CLR at 605 to 606.

98    Second, Pt 3-2 in any event has no impact upon any freedom of association. Mr Cook remains free, as the Commissioner recognised, to act as “a representative of employees”. That which characterised his conduct as “serious misconduct” was his placing himself in a position of conflict.

99    In so concluding, it must be recognised that it is no more the practice of this Court than that of the High Court to “decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties”: Lambert v Weichelt (1954) 28 ALJ 282 at 283 per Dixon CJ. See also: Knight v The State of Victoria [2017] HCA 29 at [32], (2017) 345 ALR 560 per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.

100    The latter of the two reasons relied upon is sufficient to dispose of Mr Cook’s challenge to the constitutionality of Pt 3-2. No further consideration of the argument is appropriate. The argument, with respect, is specious.

CONCLUSIONS

101    The proceeding is dismissed.

102    No error has been exposed in the reasoning of the Commissioner, be the error characterised as either an error of law or a jurisdictional error.

103    Nor has any error been exposed in the reasoning of the Full Bench or, in particular, the exercise of the discretion conferred by s 400 to refuse to grant permission to appeal.

104    Senior Counsel for Australia Post at the conclusion of the hearing sought an opportunity to make submissions as to the appropriate order to be made (if any) in respect to costs. The deferral of the question as to costs is appropriate, especially given the fact that a hearing otherwise set down on 20 July 2017 was adjourned as a consequence of the failure of the Applicant to comply with orders relating to the preparation of the proceeding for hearing.

105    The matter is, accordingly, stood over to 9.30am on 6 March 2018 for the hearing of submissions as to costs. Subject only to the order to be made as to costs (if any) the proceeding should otherwise be dismissed.

The orders of the court are:

1.    Subject to Order 2, the proceeding is dismissed.

2.    The proceeding is stood over for hearing of submissions as to costs on 6 March 2018 at 9.30am.

Associate:

Dated:    14 February 2018