FEDERAL COURT OF AUSTRALIA

Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Any party wishing to make an order for costs must, within seven days of the date of this judgment, file any such application, any evidence in support of that application and written submissions (not exceeding two pages in length) which address the operation of s 570 of the Fair Work Act 2009 (Cth) and the reasons why a costs order can and should be made.

3.    If no application is filed in accordance with order 2, this proceeding is deemed to be finally disposed of on the basis that no order is made as to costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant in this matter, Mr Loi Toma, formerly worked for a labour hire company within the Workforce International Group Pty Ltd group of companies. That employment ended in February 2018. Mr Toma claimed that he had been unfairly dismissed and filed an application for relief in the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (Cth). During the interlocutory stages of that proceeding, the name of Mr Toma’s employer, the respondent to the proceeding, was amended, apparently against Mr Toma’s wishes, from Workforce Variable Pty Ltd to Workforce Recruitment and Labour Services Pty Ltd. Mr Toma’s application was dismissed by the Commission in March 2019, essentially on the basis that Mr Toma had resigned, not been dismissed, and that the resignation had not been forced by any action taken by his employer. Mr Toma lodged an appeal against the dismissal of his application with the Full Bench of the Commission. Permission to appeal to the Full Bench is required under s 604 and s 400 of the Act. On 18 June 2019, the Full Bench refused Mr Toma permission to appeal.

2    Mr Toma commenced proceedings in this Court seeking relief relating to the decision or decisions of the Commission pursuant to s 39B of the Judiciary Act 1903 (Cth). He claimed, in effect, that the Commission denied him procedural fairness because it provided an “incompetent” interpreter who did not accurately interpret the proceedings in his native tongue, Samoan, and that the name of the respondent company was incorrect. As will be seen, the two grounds were somewhat intertwined because the incorrect interpretation of the proceedings was said to have occurred at a directions hearing during which the Commission amended the name of the respondent from Workforce Variable to Workforce Recruitment.

3    For the reasons that follow, Mr Toma’s application must be dismissed. While there are some issues surrounding both the accuracy and sufficiency of the interpretation at the directions hearing at which the name of the respondent was changed, and the circumstances in which that change was made, ultimately any error arising from either the deficient interpretation or the change of the name of the respondent was essentially immaterial and had no bearing on either the decision of the Senior Deputy President of the Commission who decided Mr Toma’s application at first instance, or the decision of the Full Bench which refused Mr Toma permission to appeal. There was accordingly no jurisdictional error on the part of either decision-maker.

4    To address Mr Toma’s review grounds it is necessary to give more detailed consideration to Mr Toma’s claims concerning the termination of his employment and his contentions concerning the errors or irregularities which he maintained occurred at both the interlocutory stages of his proceeding in the Commission and in the decisions of both the Senior Deputy President and the Full Bench.

factual background

5    It is necessary to provide some brief factual background before addressing what occurred in the Commission. The following background facts were essentially uncontentious except where specifically noted. The same can be said about the descriptions of what occurred in the Commission.

Mr Toma’s employment comes to an end

6    Workforce International, or one of its subsidiary companies, had supplied labour on a contract basis to a factory at Ingleburn, referred to in the evidence as the PAX factory, since 2004. The PAX factory was a manufacturing plant for mixing and filling aerosols and liquids for therapeutic and personal care goods, as well as industrial, insecticides and household products. Around 100 to 150 unskilled or semi-skilled workers were provided to the factory each week depending on the varying workload. Mr Toma had worked at the factory since May 2016, mainly as a forklift driver, general labourer and process worker.

7    On the morning of 6 February 2018, Mr Toma was working at the PAX factory cleaning some empty buckets that had been used to mix chemicals when some of the solution splashed on his face. That resulted in some burning and irritation to his skin. He attended a doctor later that day. He was certified as being fit to work other than in a “similar environment” to that where he was working when he suffered the injury.

8    There was some apparently contentious evidence from an officer of Workforce International to the effect that Workforce International suggested that Mr Toma return to work as a forklift driver and that a return-to-work plan which provided accordingly was prepared and signed by Mr Toma on 7 February 2018. Mr Toma, however, never returned to work. There was a series of text and email messages between Mr Toma and Workforce International over the days and weeks that followed. Those messages culminated in a text message that Mr Toma sent on 15 February 2018 in which he stated: “I’m sorry I quit from Pax due from my doctor’s advice for my health and I will start my new job on Monday so thank you so much and appreciate the time I work with you all…”. Two business days later, he sent another text message in which he requested some outstanding pay and stated “I’m not at work at Pax due from doctor’s advices and also I have a new job not from workforce”.

Mr Toma files an unfair dismissal application

9    Mr Toma lodged an unfair dismissal application with the Commission on or shortly after 1 March 2018. He named Workforce Variable as the respondent.

10    Mr Toma asserted, in his application, that the reasons for his dismissal were as follows:

I submitted my Workcover medical certificate and waited for my RTW plans and suitable duties. The chemicals caused my injury. When I did not hear from them, I called. I was verbally told that I had resigned. I deny this and I have not received any written correspondence. I only got [a] text saying my shift was cancelled.

11    As for why his dismissal was unfair, Mr Toma stated:

1.    They say I resigned. I did not.

2.    I got a severe injury at work. They were informed immediately. I am following the doctor’s advice. Why would I resign if I am entitled to Workcover benefits of paying wages and medical expenses.

3.    The employer has done this to another employee who also took them to Fairwork. I am obtaining a statement.

12    The respondent lodged a response to Mr Toma’s application on 12 March 2018. Somewhat confusingly, the response stated that the legal name of the business responding to the application was Workforce Variable Pty Ltd and the trading name of that company was Workforce International Group. The substantive response to Mr Toma’s claim was that Mr Toma had not been dismissed but had resigned of his own initiative. The response annexed, amongst other things, Mr Toma’s text message sent on 15 February 2018 in which he stated that he had “quit”.

Summary dismissal of Mr Toma’s application

13    Mr Toma’s application was summarily dismissed pursuant to s 587 of the Act by a Commissioner on 24 May 2018. The grounds for the summary dismissal were said to be that the application had no reasonable prospects of success and that it was otherwise “taken in pursuit of collateral purposes” and was frivolous, vexatious and an abuse of process.

14    The Full Bench of the Commission, however, allowed Mr Toma’s appeal from the summary dismissal of his application. The Full Bench held that the Commissioner had deprived Mr Toma of an opportunity to present his case, that there was a live issue of fact as to whether Mr Toma had been dismissed and that a “conclusive view on this issue could not have been reached without a full substantive hearing”. Mr Toma’s application was referred to another Commissioner for rehearing.

The 31 October directions hearing

15    Upon remittal of the application, there was a directions hearing before a Commissioner on 31 October 2018. The directions hearing was conducted by telephone. It was the conduct of this directions hearing and one of the orders made at it which lay at the heart of Mr Toma’s complaints.

16    Mr Toma was not represented by a lawyer or anyone else at the directions hearing. Workforce Variable had previously been granted permission to be represented by a lawyer or “paid agent” in accordance with s 596 of the Act. It was represented by a paid agent at the directions hearing. The Commission arranged for a Samoan interpreter to interpret the hearing for the benefit of Mr Toma. It is readily apparent from the transcript of the directions hearing, however, that the interpreter did not interpret the entirety of the proceeding. And, as discussed in more detail later, when the interpreter was asked to interpret some of what was said, he did so deficiently and defectively.

17    Towards the beginning of the directions hearing, the agent acting for Workforce Variable raised an issue about whether Mr Toma had made his application against the “wrong corporate entity”. The Commissioner expressed some surprise when that issue was raised given that the matter had already “obviously gone through several processes at first instance” and had also “gone on appeal” and yet the issue had apparently not been addressed. It would also appear that Workforce Variable had not filed any written application to amend or “correct” what it said was an error on the part of Mr Toma. Nor had it filed any evidence in support of any such application.

18    Workforce Variable’s agent told the Commissioner that the issue had been raised before the Commissioner who had summarily dismissed the application. He also told the Commissioner, it seems incorrectly, that Mr Toma did not dispute that the “real employer” was Workforce Recruitment and that “all the payslips and pay advice” recorded that fact. The Commissioner appeared to accept what he was told by the agent, but said that he would confirm this with Mr Toma. It is important to emphasise that none of the lengthy exchange between the agent and the Commissioner on this topic, up to this point, had been interpreted by the interpreter.

19    The Commissioner then addressed the interpreter in the following terms:

So can I ask you, Mr Foaga [the interpreter], to explain that to Mr Toma that we’re just sort of going through a technical process of making sure we’ve got the correct legal name of the respondent, and I’m being told that whilst the application has been describing his employer, Mr Toma’s employer, as Workforce Variable Proprietary Limited, trading as Workforce International, the respondent now says, well, look, that was always an error, but the proper name is Workforce Recruitment and Labour Services Proprietary Limited.

20    The interpreter then purported to interpret what the Commissioner said into Samoan. It would appear to be fairly clear, however, that the interpreter did not strictly or literally interpret what the Commissioner said.

21    It should be emphasised, at this point, that despite his complaints concerning the interpreter, Mr Toma did not adduce evidence from a Samoan interpreter about what occurred during the directions hearing, either at the later substantive hearing before the Senior Deputy President, or before the Full Bench or in this Court.

22    At the hearing of Mr Toma’s application in this Court, Mr Toma tendered the audio recording of the directions hearing. That recording was played. Mr Toma also tendered a copy of the transcript which contained his handwritten notes, though those notes did not include his version of what was in fact said to him in the Samoan language, and what he said, in Samoan, in reply. Ultimately, Mr Toma sought to use the Samoan interpreter who had been arranged by the Court to interpret the proceedings to assist him in explaining what had been said in Samoan at the directions hearing in the Commission. While that course was irregular and somewhat unsatisfactory, it was not opposed by Workforce Recruitment and, given that Mr Toma was unrepresented, was acceded to by the Court. It would also appear that Workforce Recruitment had received assistance from a Samoan interpreter in preparing its defence to these proceedings and therefore had some level of awareness about the issues with the interpreting at the directions hearing.

23    The following account of what the Samoan interpreter said to Mr Toma at the directions hearing is essentially uncontentious.

24    Despite being asked to interpret what the Commissioner had said about the “correct legal name” of his employer, the interpreter said the following to Mr Toma, which he was asked to repeat by Mr Toma:

What’s the name of your boss that employ you and pay you all whatever penalties that you should get.

…

What is the name of boss who pay you all the penalties and other penalty things you rightly deserved to get?

25    Needless to say, the transcript of the directions hearing did not include an English translation of those words. Nor did the transcript contain an English translation of what Mr Toma said, in Samoan, in response, which was:

Can I ask you this question? Can I ask you in Samoan; all right? Does the other company cover me and does the other company have an insurance that cover me while I’m under their employment?

26    The interpreter then said, in Samoan:

Among many other things, they really – the Commission – really want to know who is the name of the boss when you were under – employed?

Once we know the name of the boss then we will work it out – all the entitlement that you should have – and the right that you have as an employer – as an employee. So please, tell us the name of your boss.

27    The interpreter thereafter said, on a number of occasions, words in Samoan to the effect of “the Commissioner wants to know the name of your boss”. It was common ground, at the hearing in this Court at least, that in response Mr Toma said, in English, “Workforce Variable”, though those words were not included in the transcript.

28    The transcript then reproduces the following exchange:

THE COMMISSIONER: Mr Foaga, its Commissioner Simpson here.

MR FOAGA: Yes

THE COMMISSIONER: Can you ask Mr Simpson [sic], does he agree, or not agree, that he was employed by a business whose legal name was Workforce Recruitment and Labour Services Proprietary Limited? Because that’s who the respondent says employed him.

MR FOAGA: Yes.

MR TOMA: Yes. Okay, yes. Yes.

MR FOAGA: He agrees with that.

THE COMMISSIONER: He agrees with that.

MR FOAGA: Yes.

THE COMMISSIONER: All right. Well, on that basis I’m prepared to exercise power under the legislation. I’ll just make sure I get the right – I think its 586, from memory – just bear with us.

…

THE COMMISSIONER: Yes. Yes, well, look, all right, I’ll exercise power under section 586 to allow a correction, or amendment to the application so that the legal identity of the employer is Workforce Recruitment and Labour Services Proprietary Limited. …

29    It is important to emphasise that Mr Toma did not take any issue with this part of the transcript or the Samoan interpretation of it.

30    There followed a further lengthy exchange between the Commissioner and Workforce Recruitment’s agent, none of which appears to have been interpreted for Mr Toma’s benefit.

31    More will be said later about these exchanges between the Commissioner, the interpreter and Mr Toma and the order made by the Commissioner as a consequence of them. It suffices at this point to note three things: first, the interpretation, by the Samoan interpreter, of what the Commissioner had said was plainly deficient; second, it was in any event somewhat irregular and unusual for Mr Toma’s application to be amended on the application of the respondent, be it Workforce Variable or Workforce Recruitment; and third, while Mr Toma appears to have agreed, towards the end of the exchange, that Workforce Recruitment was his employer, it is somewhat difficult to accept, given the deficient interpretation and the irregular way in which the issue of the identity of his employer had been raised, that he fully understood exactly what was going on and what he was agreeing to.

32    Following the directions hearing, Mr Toma’s application was eventually listed for hearing before the Senior Deputy President. It is unclear whether the Commissioner formally entered any order concerning the amendment of the respondent’s name. It would appear not. The notice of listing sent to Mr Toma continued to refer to Workforce Variable as the respondent. An exchange which occurred at the hearing before the Senior Deputy President, which is addressed later, also suggested that no order was entered, or no formal record made of the amendment in the Commission’s system or records.

33    In any event, directions were made allowing for the filing of a witness statement by Mr Toma for the purposes of the final hearing. The application was ultimately heard in February 2019.

The hearing before the Senior Deputy President

34    Six relevant features or aspects of the hearing before the Senior Deputy President should be noted.

35    First, Mr Toma again appeared unrepresented at the hearing. The Commission again organised a Samoan interpreter for the hearing, though it was a different interpreter to the one who had been at the directions hearing. Mr Toma made no complaint about the interpretation at the hearing before the Senior Deputy President.

36    Second, at the very commencement of the hearing, the Senior Deputy President raised with Mr Toma the issue concerning the correct name of the respondent. The Senior Deputy President noted that Mr Toma had named the respondent as Workforce Variable, but that the respondent had claimed that Mr Toma was in fact employed by Workforce Recruitment. Mr Toma said (through the interpreter) that: “[t]he name that I know is Workforce International Limited, but I think they have changed to two other names”. The Senior Deputy President noted that there were payslips that named Mr Toma’s employer as Workforce Recruitment and asked Mr Toma if he was applying to change the name of the respondent to Workforce Recruitment. Mr Toma said that he was not and that he would just “go with” Workforce International.

37    At that point, however, counsel for Workforce Recruitment indicated that the amendment had been made by the Commissioner at the directions hearing on 31 October 2018. The Senior Deputy President then indicated that if the amendment had already been made, it was unnecessary for him to “deal with it any further”. It should be noted that Mr Toma did not, either at this point or at any other stage of the hearing, raise any objection or complaint before the Senior Deputy President about the conduct of the directions hearing or the amendment that had been made to the name of the respondent to his application. The transcript of the hearing before the Senior Deputy President, which was tendered in this proceeding, does not record any submission by Mr Toma to the effect that the Commissioner who made the amendment, or ordered that it be made, erred in so doing.

38    The third feature or aspect of the hearing to note is that there was evidence before the Senior Deputy President which was capable of supporting a finding that Mr Toma was in fact employed by Workforce Recruitment. An officer of Workforce International, who provided a witness statement and gave evidence at the hearing, stated that Mr Toma was at “all material times” employed by Workforce Recruitment. Payslips issued to Mr Toma in March 2018 were tendered. They were in the name of Workforce Recruitment. Mr Toma cross-examined this officer. He did not, however, challenge her evidence that he was employed by Workforce Recruitment.

39    The fourth relevant feature of the hearing is that Mr Toma said nothing before the Senior Deputy President about what he now says was the defective or deficient interpreting at the directions hearing on 31 October 2018, or the manner or circumstances in which the name of the respondent to his application had been amended. Nor did he adduce any evidence, from an interpreter or otherwise, in an attempt to prove that the interpreting at the directions hearing was defective. It would appear from the reasons published by the Senior Deputy President, which will be addressed shortly, that the Senior Deputy President listened to the recording of the directions hearing before the Commissioner on 31 October 2018. It would also appear, however, that he only did so because Mr Toma had raised an objection to the statement of the officer of Workforce International which was based on changes that had been made to the statement. That was a matter which had been considered at the directions hearing.

40    The fifth matter to note is that Mr Toma did make an application that the Senior Deputy President recuse himself. That application, however, apparently had nothing to do with the issues raised by Mr Toma in this proceeding. The basis of the application was said to be that the Senior Deputy President was “new to the case” and did not know “fully of what has happened before”. Perhaps not surprisingly, the Senior Deputy President refused to recuse himself on that basis.

41    The sixth and final matter to note about the hearing before the Senior Deputy President is that Mr Toma gave evidence about the circumstances in which his employment came to an end. His case, of course, was that he had been dismissed, whereas Workforce Recruitment argued that Mr Toma had resigned. This was undoubtedly the central issue in the proceeding. Mr Toma was cross-examined by counsel for Workforce Recruitment. As will be seen, a fundamental problem for Mr Toma was that, having considered the material filed by Mr Toma and having observed him during cross-examination, the Senior Deputy President concluded that he had “little faith in [Mr Toma’s] credibility”.

THE DECISION OF THE SENIOR DEPUTY PRESIDENT

42    In a decision handed down and published on 11 March 2019 (Decision), the Senior Deputy President dismissed Mr Toma’s application.

43    The critical finding that led to the dismissal of Mr Toma’s application was that he was not dismissed within the meaning of s 386 of the Act. Section 386(1) of the Act provides that a person has been dismissed if either “the person’s employment with his or her employer has been terminated on the employer’s initiative” or “the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”.

44    The Senior Deputy President found that there was “no question that [Mr Toma] resigned his employment with [Workforce Variable]”: Decision at [54]. It was noted, in that context, that Mr Toma had twice told his employer, in his text messages sent on 15 and 19 February 2018, that he had “quit” and had a new job: Reasons at [54].

45    The Senior Deputy President rejected Mr Toma’s evidence and assertion that he was “dismissed by cancellation of shifts and by deliberately being given shifts at Pax when the doctor advised that I should avoid chemicals” because it was “inconsistent with the facts”: Reasons at [54]-[55]. As noted earlier, the Senior Deputy President found that he had “little faith” in Mr Toma’s credibility as a witness, whereas the witness called by Workforce Recruitment gave evidence which was “clear and consistent with the contemporary written records”: Decision at [21]-[22].

46    The Senior Deputy President found that the evidence of the witness called by Workforce Recruitment, as well as the documentary records, established that Workforce Recruitment had continued to offer Mr Toma shifts after his Workforce injury and did not support Mr Toma’s claim that “he was (deliberately or otherwise) being given shifts that were inconsistent with his doctor’s advice”: Decision at [55]. Rather, the evidence established that Mr Toma had been offered shifts driving a forklift “which was consistent with the restrictions imposed by the only [credible] medical evidence”: Decision at [56].

47    The only other significant point to note about the Decision is that the Senior Deputy President found that, although Mr Toma had commenced the proceeding against Workforce Variable, it was “clear from evidence tendered during the proceedings (including [Mr Toma’s] pay slips) that his employer was actually Workforce Recruitment and Labour Services Pty Ltd, a related entity of Workforce International Group”: Decision at [1].

appeal to, and THE DECISION OF, THE FULL BENCH

48    Section 604(1) of the Act provides that a person who is aggrieved by a decision made by, relevantly, the Commission, may appeal the decision with the permission of the Commission. Section 604(2) provides that, without limiting when the Commission may grant permission to appeal, the Commission may grant permission if it is “satisfied that it is in the public interest to do so”.

49    Section 400(1) of the Act, which is in the Part of the Act which deals with unfair dismissal, Pt 3-2, provides that “[d]espite subsection 604(2), the [Commission] must not grant permission to appeal from a decision made by the [Commission] under this Part unless the [Commission] considers that it is in the public interest to do so”. The “public interest” test under s 400 has been charactered as being “stringent”: Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54 at [43] (per Buchanan J). The identification of an error of law in the first instance decision, without more, will not necessarily compel a conclusion by the Full Bench that it is in the public interest to grant permission to appeal; nor will a conclusion by the Full Bench that it would have reached a different conclusion: GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; [2010] FWCFB 5343 at [28]-[29]; Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 at [40].

50    Mr Toma filed a notice of appeal against the decision of the Senior Deputy President to dismiss his application. He relied on three grounds of appeal.

51    The first ground of appeal was that the Decision was “not enforceable as the name of the respondent is incorrect”. Mr Toma contended that his action was against Workforce Variable and the Commissioner made an error in changing the name of the respondent.

52    The second ground of appeal seems to have been directed primarily, if not solely, at the “conduct” of the Commissioner who conducted the directions hearing on 31 October 2018. Mr Toma contended that the conduct of the Commissioner “resulted in me being unable to run my case”. Mr Toma also referred, in the context of this ground, to a complaint he had made against the Senior Deputy President, though the precise basis of that complaint remained somewhat unclear.

53    The third ground of appeal was that the Senior Deputy President had “made significant errors [of] fact”. Those alleged errors were set out separately in the notice of appeal in support of the contention that it was in the public interest for the Commission to grant permission to appeal. Given the limited grounds in Mr Toma’s application in this Court, it is unnecessary to refer to all of the alleged errors. Many are, in any event, expressed in broad and sweeping terms, are bereft of adequate particulars, or are otherwise difficult to understand. The only alleged errors that could conceivably be relevant to Mr Toma’s application in this Court were that the Commissioner “behaved in a discriminatory manner” in dealing with the interpreter at the directions hearing and that the Senior Deputy President discriminated against Mr Toma by not listening to the audio of the directions hearing.

54    Mr Toma again appeared unrepresented before the Full Bench. He was again assisted by a Samoan interpreter. He made no complaint about the interpretation at the hearing before the Full Bench.

55    The Full Bench refused Mr Toma permission to appeal. In its decision handed down and published on 18 June 2019 (FB Decision), the Full Bench found that Mr Toma had not demonstrated that it was in the public interest to grant permission to appeal because the Senior Deputy President had “addressed the relevant statutory requirements” and the Decision did not disclose “any error of principle or significant error of fact”: FB Decision at [28].

56    As for Mr Toma’s first ground of appeal, the Full Bench referred (FB Decision at [16]) to the portion of the transcript of the directions hearing on 31 October 2018, extracted earlier in these reasons, where the Commissioner asked Mr Toma whether he agreed that he was employed by Workforce Recruitment and Mr Toma replied that he did agree. It should again be noted, in this context, that Mr Toma did not, in this proceeding, contend that this portion of the transcript had not been accurately interpreted to him or was incorrect in any way. The Full Bench also referred to the Senior Deputy President’s finding that it was clear from the evidence that Mr Toma’s employer was Workforce Recruitment: Decision at [1]; FB Decision at [17].

57    The Full Bench concluded that it was satisfied that there was “no error having corrected the name of the Respondent” and that the “evidence, including a reliance on [Mr Toma’s] payslips, constituted a proper evidentiary basis upon which to make such a correction”: FB Decision at [18]. Mr Toma’s first ground of appeal was accordingly rejected.

58    As for Mr Toma’s second ground of appeal, the Full Bench noted that Mr Toma did not “expand on” this appeal ground or his contention that the conduct of either the Commissioner or the Senior Deputy President had resulted in him being unable to run his case: FB Decision at [20]. The Full Bench concluded that it was unable to discern any reason why Mr Toma was unable to run his case and that Mr Toma had been “provided with a full opportunity to present his case” and there was nothing in the Decision “which would suggest otherwise”: FB Decision at [20]. Mr Toma’s second ground of appeal was accordingly rejected.

59    As for Mr Toma’s third ground of appeal, the Full Bench noted that Mr Toma had contended that the most significant error made by the Senior Deputy President was that he failed to listen to the audio recording of the directions hearing and that, had he done so, he “would have been fully aware of what happened before”: FB Decision at [22]. That allegation was also apparently related to Mr Toma’s contention that the Senior Deputy President should have recused himself.

60    The Full Bench noted, in the context of this ground of appeal, that the Senior Deputy President had stated that he had listened to the audio recording of the directions hearing: Decision at [19]; FB Decision at [22] and [23]. It was also noted that the Full Bench had arranged for a transcript of the directions hearing to be prepared and had provided that transcript to the parties: FB Decision at [24]. The Full Bench concluded that there was no basis for the Senior Deputy President to recuse himself and that Mr Toma had not made out “any reasonable grounds for him to do so”: FB Decision at [25]. The Full Bench accordingly found that there was no basis for Mr Toma’s third ground of appeal.

61    Finally, the Full Bench found that there was nothing in the evidence which supported any of the public interest grounds put forward by Mr Toma: FB Decision at [27]. As noted earlier, those public interest grounds included the allegation that both the Commissioner and the Senior Deputy President had discriminated against Mr Toma.

MR TOMA’S REVIEW GROUNDS

62    While the originating application and supporting affidavit filed by Mr Toma in this proceeding were not entirely clear or easy to follow, at the hearing of his application Mr Toma confirmed that he relied on two grounds of review. Those grounds of review related to the decision of the Senior Deputy President to dismiss his unfair dismissal application and the decision of the Full Bench to refuse him permission to appeal.

63    The first ground was that the Commission provided an interpreter who was incompetent and did not translate what the Commissioner was saying accurately. Mr Toma confirmed that his complaint concerning the interpreter was limited to the interpreter who interpreted at the 31 October 2018 directions hearing before the Commissioner. As events transpired, it also became clear during the hearing that Mr Toma’s complaint about the accuracy of the translation was limited to only a very small part of the hearing. Mr Toma did not raise any complaint or argument concerning the interpreting at the hearing before the Senior Deputy President or the hearing before the Full Bench.

64    The second ground of review was that the name of the respondent was incorrect. The essence of Mr Toma’s contention concerning this ground was that the Commissioner who presided at the directions hearing on 31 October 2018 was wrong to change the name of the respondent to his unfair dismissal application from Workforce Variable to Workforce Recruitment.

RELEVANT PRINCIPLES

65    Although it is perhaps trite to do so, it is nonetheless important to emphasise that this proceeding is in no sense, or in no respect, an appeal from the decision of either the Senior Deputy President or the Full Bench of the Commission. It is, in effect, an application for judicial review of the decisions, or the exercise of jurisdiction, by the Commission. In order to obtain relief under s 39B of the Judiciary Act, Mr Toma must demonstrate jurisdictional error on the part of the Commission. It would not be sufficient for Mr Toma to demonstrate that the Commission made an error of fact or law within jurisdiction.

66    It should also be noted that Mr Toma sought to challenge both the decision of the Senior Deputy President and the decision of the Full Bench. It may be accepted that the Court can exercise its jurisdiction under s 39B of the Judiciary Act (and under s 562 of the Act) over a person holding office under the Act, whether a single Commissioner or the Full Bench: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [171]. The granting of relief under s 39B, however, is discretionary: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [52]-[53].

67    Where an applicant challenges both a first instance decision of the Commission and a decision of the Full Bench which either refused permission to appeal or dismissed an appeal, the Court would ordinarily refuse relief in respect of the first instance decision unless it was also established that the Full Bench had made a jurisdictional error. That is because “it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operate”: Abigroup at [176]. It would also not be “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”: Dafallah at [54].

68    It is, in those circumstances, effectively necessary for Mr Toma to demonstrate jurisdictional error on the part of both the Senior Deputy President and the Full Bench.

GROUND 1 – DEFECTIVE AND DEFICIENT INTERPRETING

69    Mr Toma’s first ground of review in this Court, which concerned the interpreter and the interpreting at the directions hearing on 31 October 2018, was tantamount to a claim that the Commission had denied him procedural fairness. It is well established that members of the Commission are obliged to observe procedural fairness in carrying out their functions under the Act: Lawler at [25]; Abigroup at [118].

70    It is equally well established that defective interpretation may give rise to a denial of procedural fairness: see BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52] and the cases there cited. Whether an interpreting error or deficiency will give rise to a denial of procedural fairness is a question of evaluation which will depend on a number of considerations or circumstances, including, relevantly, the materiality of the error or deficiency: see BZAID at [52]; SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 at [9]; CPN16 v Minister for Home Affairs [2018] FCA 872 at [79]. Moreover, a denial of procedural fairness will not amount to a jurisdictional error unless it was material, in the sense that “compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].

71    There is some merit in Mr Toma’s contention that the interpreting at the directions hearing on 31 October 2018 was defective and deficient. It does not follow, however, that Mr Toma was denied procedural fairness. Nor does it follow that the decisions of either the Senior Deputy President or the Full Bench were in any way infected by jurisdictional error.

72    Dealing first with the interpreting at the directions hearing, as was discussed earlier, it is readily apparent from the transcript of the directions hearing that many of the exchanges between the Commissioner and the agent who represented the respondent, then Workforce Variable, at the directions hearing was not interpreted in the Samoan language to Mr Toma. It would appear that the interpreter only interpreted what was said by the Commissioner and Workforce Variable’s agent if specifically requested to do so. It is unclear why that was so. It may well have been a product of the fact that the directions hearing was conducted by telephone. It might equally have simply been a product of the failings or incompetence of the interpreter. It was, in any event, important for Mr Toma to be able to understand exactly what was being said by the Commissioner and Workforce Variable’s agent throughout the hearing. It was unsatisfactory that only small parts of the hearing were interpreted into Samoan for Mr Toma’s benefit, unless of course Mr Toma had agreed that only parts of the hearing needed to be interpreted to him. There was no evidence that he did.

73    The earlier discussion of the evidence that was adduced in the course of this proceeding, albeit somewhat unusually via the Court appointed interpreter, also demonstrated that some parts of the hearing that were interpreted to Mr Toma were interpreted incorrectly or inadequately. Plainly the interpreter at the directions hearing did not literally or accurately translate to Mr Toma the Commissioner’s questions about whether Workforce Recruitment, not Workforce Variable, was Mr Toma’s employer. It was plainly incorrect to interpret those questions into questions about who was Mr Toma’s “boss”. Asking someone who their boss was is obviously and fundamentally different to asking them what the legal name of their employer was.

74    The problem for Mr Toma, however, is that it cannot be concluded that the deficiencies in the interpreting at the directions hearing, or the specific interpretation errors on which he relied, were sufficiently significant or material to support a finding that he was denied procedural fairness. Perhaps more fundamentally, there is also no basis upon which it could be concluded that any denial of procedural fairness — arising from either the deficiencies in the interpreting or the specific interpretation errors — was material, in the sense that it could be said that, had the error or errors not occurred, either the decision of the Senior Deputy President or the decision of the Full Bench could realistically have been different. That is so for a number of reasons.

75    First, Mr Toma did not point to any exchange between the Commissioner and Workforce Variable’s agent which, had it been interpreted to him, would or could have made any difference to the outcome of the directions hearing, let alone the outcome of the proceeding before the Senior Deputy President or the Full Bench. It was not enough for Mr Toma to simply demonstrate that parts of the hearing were not interpreted to him. It was necessary for him to demonstrate that the fact that something that was not translated to him could, had it been translated, have made a difference; for example, that, as a result, he would or could have made a particular submission, or sought to persuade the Commissioner to decide something differently.

76    Second, even though the interpreter incorrectly interpreted some of the Commissioner’s questions concerning the identity of Mr Toma’s employer, the transcript revealed that ultimately Mr Toma agreed that he was employed by Workforce Recruitment, not Workforce Variable. As discussed earlier, the portion of the transcript that recorded that exchange was not challenged by Mr Toma. Mr Toma did not contend that the interpreter incorrectly interpreted the Commissioner’s question or his answer as reproduced in this part of the transcript. It might perhaps be thought that, given what had occurred prior to this exchange, including the deficient interpretation and the somewhat irregular way in which the issue concerning the correct identity of the employer was put, Mr Toma may not have fully understood exactly what he was agreeing to. That said, Mr Toma did not give evidence, or contend in his submissions, that he did not understand that he was effectively agreeing with the proposition that Workforce Recruitment, not Workforce Variable, was his employer.

77    Third, Mr Toma did not raise, or squarely raise, the alleged deficiencies with the interpretation at the directions hearing, either before the Senior Deputy President or the Full Bench. He certainly did not adduce any evidence concerning the interpretation errors at either the hearing before the Senior Deputy President or the Full Bench. The errors that were eventually exposed in the course of the hearing in this proceeding were not apparent from the transcript of the directions hearing. It is difficult, if not impossible, to see how it could be concluded that either the Senior Deputy President or the Full Bench could be found to have made a jurisdictional error in respect of an argument that was not raised before them, or in respect of alleged interpretation errors that were not the subject of evidence before them. It is important to note, in this context, that although the Senior Deputy President “had the opportunity to listen to the recording of the directions hearing”, that recording was tendered in respect of changes to the statement given by an officer of Workforce International, not for the purpose of questioning or challenging the interpretation provided to Mr Toma.

78    Even if Mr Toma had sought to demonstrate, or had demonstrated, that the interpreter’s failings had somehow led him to incorrectly agree that he was employed by Workforce Recruitment, not Workforce Variable, or that it was the interpretation errors that led the Commissioner to change the name of the respondent from Workforce Variable to Workforce Recruitment, that would still not have demonstrated that the interpretation errors or deficiencies, or any denial of procedural fairness arising from them, were material. That is because, as discussed in more detail in the context of Mr Toma’s second review ground, the identity of the respondent was not at all material to the decision ultimately reached by the Senior Deputy President or the Full Bench.

79    The critical issue in Mr Toma’s unfair dismissal application was whether he was dismissed or whether he resigned. That question was resolved against Mr Toma for reasons that had nothing whatsoever to do with the precise identity of his employer. He was, in short, found to be a witness who was not credible. The evidence, both oral and documentary, also strongly supported Workplace Recruitment’s case that Mr Toma had resigned. Mr Toma would have lost his case whether his employer was Workforce Variable or Workforce Recruitment. It must follow that the problems with the interpreting at the directions hearing were immaterial. Even if the interpreting at the directions hearing had been perfect, the end result for Mr Toma would almost certainly have been the same.

80    It follows that, despite the issues or problems with the interpreting at the directions hearing which were exposed in this proceeding, it cannot be concluded that Mr Toma was denied procedural fairness at the directions hearing. More fundamentally, it cannot be concluded that any denial of procedural fairness that may have occurred at the directions hearing as a result of the deficient or defective interpreting was material and was accordingly capable of giving rise to any jurisdictional error, least of all by either the Senior Deputy President or the Full Bench. Compliance with the rules of procedural fairness at the directions hearing could not realistically have resulted in a different decision in respect of Mr Toma’s unfair dismissal application or his attempted appeal to the Full Bench.

81    Mr Toma’s first review ground must accordingly be rejected.

GROUND 2 – THE RESPONDENT’S NAME

82    It may perhaps be accepted that the circumstances in which the respondent’s name was amended or changed from Workforce Variable to Workforce Recruitment were in some respects irregular or unusual and in some respects unsatisfactory. It was perhaps appropriate for Workforce Variable’s paid agent to have alerted Mr Toma to the fact that, at least as far as it was concerned, one of Workforce Variable’s related companies, not it, was Mr Toma’s employer. Having been so alerted, however, it was entirely a matter for Mr Toma to consider and determine whether he wished to amend his application to change the name of the respondent. If he chose not to amend and ended up losing the case because he sued the wrong respondent, that would be his problem and, having been alerted to that fact, he would have no cause for complaint. It was not, in all the circumstances, a matter for Workforce Variable to apply to amend or change Mr Toma’s application. Nor should the Commission have necessarily granted that application, particularly if that course was opposed by Mr Toma.

83    The manner in which the application to amend, or change the name of the respondent, was raised before the Commissioner was also somewhat irregular and unsatisfactory. As the Commissioner noted when this issue was first raised at the directions hearing, the correct identity of the respondent was not raised in Workforce Variable’s response to Mr Toma’s application, or in the course of the initial summary dismissal of the application or the appeal to the Full Bench from that summary dismissal. There is also no indication that Workforce Variable filed any formal application to amend Mr Toma’s application, or change the name of the respondent or that Mr Toma or the Commission was given any advance notice of the application. Nor, it appears, was any evidence filed in support of that application. It was made on the basis of mere assertions by Workforce Variable’s agent from the Bar table, as it were.

84    Despite the irregular and somewhat unsatisfactory circumstances in which the name of the respondent to Mr Toma’s application was changed, it cannot be concluded that either the Senior Deputy President or the Full Bench made any jurisdictional error in deciding Mr Toma’s case as they did. That is so for a number of reasons.

85    First, whatever may have happened at the directions hearing, as discussed earlier, ultimately the Senior Deputy President found that it was “clear from evidence tendered during the proceedings (including [Mr Toma’s] pay slips) that his employer was actually Workforce Recruitment and Labour Services Pty Ltd”: Decision at [1]. While it would appear that Mr Toma disagreed, and continues to disagree, with that conclusion, it was at the very least a conclusion that was open on the evidence before the Senior Deputy President. There was evidence from an officer of Workforce International that Workforce Recruitment employed Mr Toma and that evidence was not challenged by Mr Toma. There were also payslips which suggested that Workforce Recruitment was Mr Toma’s employer. In those circumstances, even if Mr Toma had been able to demonstrate that the Senior Deputy President somehow erred in concluding that Workforce Recruitment was his employer, that would amount to no more than an error of fact within jurisdiction, or perhaps an error of mixed fact and law within jurisdiction. It would not amount to a jurisdictional error.

86    It should perhaps be observed in this context that the evidence was perhaps not all one way as was suggested by the Senior Deputy President. The evidence of the officer of Workforce International really amounted to little more than bare assertion. More significantly, while there were payslips in the name of Workforce Recruitment, those payslips were all dated in March and April 2018, after Mr Toma’s employment had ceased. Equally, there was at least one payslip made out to Mr Toma that was in the name of Workplace Variable and that payslip was dated 4 January 2018, which was before Mr Toma’s employment ceased. The existence of that payslip in the name of Workplace Variable, dated not too long before Mr Toma’s employment ceased, was never explained in the evidence.

87    Be that as it may, for the reasons already given, the Senior Deputy President’s finding that Workplace Recruitment was Mr Toma’s employer was at least open on the evidence and could not be said to amount to a jurisdictional error. Nor could it be said that the Full Bench made a jurisdictional error in finding that the Senior Deputy President did not err in making that finding.

88    It should also perhaps be noted in this context that, while one of Mr Toma’s grounds of appeal concerned the change of the respondent’s name, or the correctness of the respondent’s name, this was not an issue which he squarely raised before the Senior Deputy President. As was discussed earlier, at the very commencement of the hearing, the Senior Deputy President raised the issue concerning the name of Mr Toma’s employer. Mr Toma indicated that he was not applying to change the name of the respondent and that he was content to proceed on the basis that the respondent was Workforce International. Workforce International was not the named respondent, but was apparently the parent company. When Workforce Recruitment’s counsel indicated that the name of the respondent to the application had already been amended, Mr Toma did not raise any objection. He did not, at that point, contend that the Commissioner had erred in changing the name of the respondent, or that Workforce Recruitment was not the correct name of his employer and not the correct respondent to his application. It is difficult to see how it could be said, in those circumstances, that the Senior Deputy President erred jurisdictionally, even if it could be said that the respondent’s name had been incorrectly changed.

89    Second, and more fundamentally, as has already been adverted to, the precise identity of Mr Toma’s employer was ultimately entirely immaterial to the Senior Deputy President’s decision to dismiss Mr Toma’s unfair dismissal application and the Full Bench’s decision to refuse permission to appeal. The problem for Mr Toma is that the Senior Deputy President found that he resigned and had not been dismissed. That finding was fatal to his unfair dismissal application and had nothing whatsoever to do with the precise identity of the employer. It would, of course, have been entirely different if Mr Toma’s application had been dismissed because he had proceeded against the wrong party. That, however, was clearly not the case.

90    It follows that Mr Toma’s second review ground has no merit and must be rejected.

CONCLUSION AND DISPOSITION

91    Neither of Mr Toma’s review grounds have any merit. He did not demonstrate any jurisdictional error on the part of either the Senior Deputy President or the Full Bench. His application must accordingly be dismissed.

92    As for costs, Workforce Recruitment submitted that, if Mr Toma’s application was dismissed, it would be appropriate to order that any party who wished to apply for costs must make that application within seven days of the judgment, supported by any evidence to be relied on and short written submissions addressing why an order for costs was appropriate. In making that submission, Workforce Recruitment was no doubt mindful of the operation of s 570 of the Act as a potential bar to any such order for costs. Mr Toma made no submissions concerning costs. In the circumstances, an order along the lines proposed by Workforce Recruitment is appropriate.

Associate:

Dated:    3 August 2020