Federal Court of Australia

Twomey v Que 5 Pty Ltd [2023] FCA 1155

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    By 4.00 pm on 11 October 2023, the first respondent must file and serve any submissions on the costs of the proceeding, of not more than three pages in length.

3.    By 4.00 pm on 25 October 2023, the applicant must file and serve any submissions on the costs of the proceeding, of not more than three pages in length.

4.    The question of whether the first respondent is entitled to its costs of the proceeding will be determined on the papers.

5.    Liberty to apply in relation to paragraphs 2-4.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Twomey, claimed in the Fair Work Commission that the first respondent, Que 5 Pty Ltd, unfairly dismissed him from his employment. At first instance, the Commission dismissed the application on the basis that Mr Twomey did not meet the minimum employment period required in order for him to be a person who is protected from unfair dismissal under s 382 of the Fair Work Act 2009 (Cth) (FWA). Mr Twomey then applied to the Full Bench of the Commission for permission to appeal, which was refused. Mr Twomey now seeks judicial review of the Commission's decisions.

2    Mr Twomey has been self-represented throughout. His application for judicial review was filed as a Form 66 under r 31.01(1) of the Federal Court Rules 2011 (Cth) (FCR). Rule 31.01(1) concerns applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). However, this application cannot be brought under the ADJR Act, as decisions under the FWA are not decisions to which the ADJR Act applies: ADJR Act s 3 (definition of 'decision to which this Act applies'), Schedule 1, item (a). In the circumstances, the application filed will be taken to be an application under s 39B of the Judiciary Act 1903 (Cth) made under r 31.11(1) of the FCR.

3    Mr Twomey relies on five affidavits he has made in support of his case, being three sworn on 29 May 2023 and two sworn on 31 August 2023. These were admitted into evidence without objection.

4    It has proved difficult to understand the basis on which Mr Twomey seeks judicial review in this Court. However, conscious that he is self-represented, and doing my best to identify his true grounds of review, a handful of intelligible complaints did emerge from his evidence and submissions, as will be described. However while intelligible the complaints are, regrettably, misconceived or without foundation. For the following reasons, the application for judicial review will be dismissed.

The Commission's decision at first instance

5    Before the Commission it was accepted by both parties that Que 5 was a small business employer within the meaning of s 23 of the FWA, as it only had six employees at the relevant time. The evidence to that effect given by the director of the company, Phillip Coulter, was unchallenged. This meant that, for an employee of that company, the 'minimum employment period' to be completed before an employee was protected from unfair dismissal was one year: FWA s 382, s 383.

6    It was also accepted by both parties before the Commission at first instance that Mr Twomey had commenced employment with Que 5 on 3 January 2022. This was consistent with payslips that he tendered. The first payslip had a payment date of 9 January 2022 and indicated a pay period of 3 January 2022 to 9 January 2022.

7    The parties also agreed that Mr Twomey's dismissal took effect on 1 September 2022.

8    The Commission therefore dismissed Mr Twomey's application because, having been employed by Que 5 for less than one year, he did not meet the minimum employment period and therefore was not a person who was protected from unfair dismissal.

9    The Commission noted that the period of employment that counted towards protection needed to be a 'period of continuous service': FWA s 384(1). It also considered the definitions that make up the meaning of that term and how, under s 384(2) (in broad terms), a period of service would only count if the employee's employment was on a regular and systematic basis, where the employee had a reasonable expectation of continuing employment by the employer on such a basis. However, because of its finding that, however characterised, Mr Twomey's period of employment was less than 12 months, the Commission did not see it necessary to examine his payslips to determine whether his engagement as a casual worker was regular for the purposes of these provisions.

The application to the Full Bench

10    The Full Bench of the Commission's decision concerned whether Mr Twomey should be granted permission to appeal from the first instance decision.

11    The application was heard on the papers. The Full Bench summarised Mr Twomey's grounds of appeal as follows (para 11, emphasis in original):

1.    The Deputy President 'gave permission for an incorrect appeal procedure' in respect of which the Appellant was not notified or present until the phone hearing was in process and 'blatantly contradicted' the established findings of the staff member of the Commission who conducted the conciliation conference in the matter.

2.    The Deputy President refused to alter the Decision 'without reading, or properly investigating appropriate evidence [9] (Deputy President Beaumont's, Decision, Background, Consideration, Conclusion, 18th November 2022) or my payslips.'

3.    The Deputy President failed to acknowledge or examine further complaints or 'apply the appropriate legislation. s789FD, s105-(l)(a)(b), s19-(1)(a)(b), s530.'

12    The Full Bench then outlined Mr Twomey's submissions regarding permission to appeal (para 12):

The Appellant submits that the grant of permission to appeal would be in the public interest. The Appellant's position, as we apprehend it, is that the legislation has not been correctly applied and if the Deputy President's actions are deliberate or lacking in capacity, it would be 'detrimental' for the matter not to be the subject of reconsideration.

13    The Full Bench outlined the principles of law relating to permission to appeal including that:

(a)    there is no right to appeal from a decision of the Commission;

(b)    the Commission must not grant permission to appeal unless the Commission considers that it is in the public interest to do so (FWA s 400(1));

(c)    whether granting permission to appeal is in the public interest is a matter of discretion involving a broad value judgment;

(d)    the test is not satisfied simply by the identification of an error or a preference for a different result, but it might be satisfied if a matter raises issues of importance and general application, or where guidance from an appellate court is required or where the decision manifests an injustice;

(e)    it will rarely be appropriate to grant permission to appeal if there is not an arguable case of appealable error; and

(f)    in determining whether an appellant should be granted leave to appeal it is inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.

14    The Full Bench briefly considered each ground of appeal. On Mr Twomey's first ground it found that the Deputy President's approach at first instance was 'both conventional and entirely unremarkable' and there was nothing in the correspondence with the parties which could be regarded as incorrect or improper, nor could the proceeding in the Commission at first instance be regarded as an 'appeal procedure' (para 21).

15    The Full Bench also rejected what it perceived was Mr Twomey's contention that the Deputy President's decision 'blatantly contradicted' the conciliator's findings. The Full Bench pointed out that conciliation was a confidential process for the purposes of exploring the possibility of reaching an agreed settlement and so the conciliator could not make 'established findings', to use Mr Twomey's words. The referral of the matter to the Deputy President for hearing when conciliation failed to result in settlement was not an appeal process. The contention that the Deputy President was capable of 'blatantly contradicting' a conciliator's 'findings' was rejected by the Full Bench as 'unsustainable' (para 22). The Full Bench found that no arguable contention of error was disclosed by Mr Twomey's first ground of appeal.

16    The Full Bench discerned the second ground of appeal to be a claim that the Deputy President erred by refusing to consider Mr Twomey's payslips or a statement purportedly given by Mr Coulter to the police in relation to an incident between Mr Twomey and a member of the public during Mr Twomey's period of employment with Que 5. On the payslips, the Full Bench said there was no error disclosed in the Deputy President's decision, as her reasons demonstrated she had regard to the payslips in the necessary way. There was no need for her to consider whether they disclosed regular employment, as that did not bear on the fact that in any event, Mr Twomey had not completed one year of continuous service.

17    On the police statement, the Full Bench said that it was not in evidence before the Deputy President and so it could not have been considered. The Full Bench then said that if Mr Twomey was seeking to rely on the statement as fresh evidence in the appeal, 'the appeal process is not an avenue for an unsuccessful party to seek to cure shortcomings in the way the case was run at first instance' (para 29). The Full Bench went on to say that 'well-settled principles governing the discretion to admit new evidence or to consider further material do not satisfy us that the new evidence should be admitted' because it was 'not satisfied that Mr Coulter's police statement disclosed any relevant material such that there was a high degree of probability that it would lead to a different decision'.

18    Also on the second ground of appeal, the Full Bench rejected Mr Twomey's contention in his written submissions that '[t]he payslips demonstrate that s 23(2)(a)(b) is apparent' (para 30). It appeared to be saying at this point that whether or not Mr Twomey was included in the calculation of the respondent's employees because of s 23(2)(b) of the FWA (which they noted would not align with his primary contention), Que 5 would still be a small business employer with less than 15 employees at the relevant time.

19    The third ground of appeal contended that the Deputy President failed to consider other complaints Mr Twomey had made under sections of the FWA and Work Health and Safety Act 2011 (Cth). The Full Bench dismissed this ground, finding that the Deputy President, as stated at paragraph 3 of her reasons, had advised the parties that she would first need to resolve the question of whether Mr Twomey was a person protected from unfair dismissal before the merits of his unfair dismissal claim could be considered. The Full Bench said that because the Deputy President had found Mr Twomey was not a person who was protected from unfair dismissal, the Commission was not empowered to further consider his case.

20    The Full Bench then considered the overarching question of whether it was in the public interest for permission to appeal to be granted, concluding that there was nothing in the material that indicated this was the case. It said (para 35):

The Deputy President has taken an entirely orthodox approach to the determination of the relevant facts in the matter and the application of the law to those facts. Nothing in the material before us indicates that it would be in the public interest to grant permission to appeal. There is no issue of importance or general application arising in the matter and the legal principles applied are not disharmonious when compared with other decisions dealing with similar matters. We do not consider that the Decision manifests an injustice and nor is the result counter intuitive.

21    Accordingly, the Full Bench refused permission to appeal under s 400(1) of the FWA.

Judicial review in this Court

22    Mr Twomey's originating application states (all bold, italics and errors as in original):

The Applicant applies to the Court to

review the decision of the First Respondent DEPUTY PRESIDENT MILLHOUSE & Associate - 'permission to appeal refused'.

review the conduct of the First Respondent DEPUTY PRESIDENT MILLHOUSE & Associate - I opted for 'Written Appeal - by Form of submissions', after successfully submitting the F7 - Notice of appeal - to the Fair Work Commission Registry.

review the failure of the DEPUTY PRESIDENT MILLHOUSE & Associate to decide that incompetency and or deliberate actions.

Details of claim

The Applicant is aggrieved by the decision, conduct and failure because:

1.    Resulting in severe financial hardship.

2.    Unreasonable grounds for current unemployment situation and defamation to my valid and valuable experience.

3.    Severely limiting past (During all proceedings) & future employment prospects.

Grounds of application

1.    If DEPUTY PRESIDENT MILLHOUSE & Associate actions are deliberate and or lacking in capacity, it would be detrimental to all concerned.

2.    DEPUTY PRESIDENT BEAUMONT & Associate actions are very similar.

Orders sought.

1.    An order to annul DEPUTY PRESIDENT MILLHOUSE decision 'permission to appeal refused'.

2.    To find, Appeal by Rhys Twomey successful, and find appropriate resolution moving forwards.

23    Mr Twomey seeks for Deputy President Millhouse's decision (being the Full Bench's decision) to be 'annulled'. This can be taken as a request for relief in the nature of certiorari to quash the Full Bench's decision to refuse permission to appeal. To obtain a writ of certiorari, Mr Twomey must establish that the Full Bench made a jurisdictional error: Gregory v Qantas Airways Ltd [2016] FCAFC 7; (2016) 241 FCR 72 at [2] (Buchanan J, Bromberg and Rangiah JJ agreeing).

24    As for Mr Twomey's request that I find his appeal successful and find an appropriate resolution moving forward, that is not a function of this Court on judicial review. Even if the Court were to determine that the decision of the Full Bench was vitiated by jurisdictional error, there is a small number of remedies available, none of which permit the Court to substitute its own view as to how the matter should be resolved for that of the Full Bench. In relation to finding an appropriate resolution moving forward, during case management I offered the parties the opportunity to mediate their dispute, to be facilitated by a registrar of the Court, but Mr Twomey made it very clear that he would not mediate. With that option off the table, the Court is not empowered to assist in a final resolution of the dispute moving forward, save by means of allowing or dismissing the application for judicial review.

25    With respect, Mr Twomey's originating application does not identify any coherent grounds of judicial review. A failure to particularise a ground of review can be sufficient basis for the application to be dismissed, although the consequences of that failure will depend on the circumstances: MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25] (McKerracher J); DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4]-[8] (Colvin J). Where an applicant is self-represented, it can be appropriate for them to be given the opportunity to put orally the matters that they consider give rise to a ground of review: DQQ17 at [9]. While this was said in the different context of an application for a protection visa, where the stakes for the unrepresented applicant can be very high and where the Court has the assistance of a model litigant as the respondent, I determined to proceed on that basis here. Que 5 did not move for dismissal of the application on the ground of a lack of particulars.

26    From Mr Twomey's originating application, five affidavits and oral submissions, it can be deduced that he has three contentions, which are, broadly speaking, concerns regarding:

(a)    the application of s 23(2)(b) of the FWA;

(b)    the conciliation that took place in the Commission; and

(c)    Mr Coulter's police statement.

27    At the first case management hearing I explained to Mr Twomey that the role of the Court was not to start from scratch and decide whether he was unfairly dismissed. Rather, it was necessary for him to persuade the Court that the Full Bench had committed an error of a relevant kind. At the final hearing I explained that, broadly speaking, it needed to be a legal error. I invited Mr Twomey to tell me what error he said the Full Bench had committed and why I should overturn the decision. He seemed to understand the need to show an error, although, as will be explained, he has not established any.

28    Also, the originating application refers to Deputy President Beaumont, who was the Deputy President who constituted the Commission at first instance. To the extent that Mr Twomey seeks to challenge the first instance decision, the following observations of Wigney J in Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102 at [67] are relevant:

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': [Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148] 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 [v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328] at [54].

I also tried to explain this to Mr Twomey at the first case management hearing.

Consideration of Mr Twomey's contentions

29    Within these constraints of the Court's jurisdiction to review decisions of the Commission, I will now consider Mr Twomey's contentions, as best as I can make them out.

30    In his first contention, Mr Twomey appears to say that under s 23(2)(b) of the FWA he meets the requirements to be a person who is protected from unfair dismissal. He says that the payslips which were in evidence for the period of 3 January 2022 to 30 August 2022 show that he was employed on a regular basis throughout that time. At the hearing I explained that this only shows an employment period of eight months and that he needs 12 months to be a person protected from unfair dismissal. It appeared from the ensuing discussion that Mr Twomey was relying on his understanding of s 23(2)(b) that, Que 5 being a small business, 'a casual employee is not to be counted unless at the time the employee is a regular casual employee …' (transcript (ts) 12). He says he meets this requirement.

31    While in essence that is what s 23(2)(b) says, it does not follow that Mr Twomey is a person protected from unfair dismissal. Section 23 concerns the definition of a 'small business employer' (being an employer that employs less than 15 employees at a particular time). Section 23(2) relates to calculating how many employees an employer has. Regardless of whether Mr Twomey is a person who is counted for the purpose of determining whether Que 5 was a small business employer, the Full Bench was correct to find that Que 5 still had less than 15 employees at the relevant time.

32    The Full Bench was also correct to find that the operation of s 23(2)(b) did not impact the Deputy President's ultimate conclusion that Mr Twomey did not meet the minimum employment period of one year so as to be a person protected from unfair dismissal. With respect, Mr Twomey's first contention appears to rest on a fundamental misunderstanding. Section 23(2)(b) of the FWA is about counting the number of employees a business has so as to determine whether it is a small business employer. But even if an employee is counted, it does not follow that he or she is protected against unfair dismissal. Whether that protection does apply depends, not on s 23(2)(b), but on different provisions of the FWA, namely s 382-s 384. Subject to the other two contentions I am about to consider, it is clear that Mr Twomey does not come under the protection extended by those provisions in relation to his employment by Que 5 in 2022, because that employment only lasted for about eight months, when it needed to last for at least a year. Section 23(2)(b) is about something different and does not help Mr Twomey in this case.

33    Mr Twomey's second contention was that a conciliator in the Commission had said that Que 5 did not have a case, but then the Deputy President said Mr Twomey did not have a case, which he characterised as 'chang[ing] it during the hearing without notice' (ts 7). A similar point was raised before the Full Bench and rejected. No jurisdictional error is evident in the Full Bench's reasoning that a conciliator's findings are essentially irrelevant to a future decision made by a Deputy President, because conciliators do not make findings to which a Deputy President must have regard, let alone agree with. A conciliation is a confidential process to try to achieve an agreed settlement 'out of court', and if it does not achieve a settlement, whatever happens during the conciliation can have no bearing on the decision the Commission makes after a hearing.

34    To the extent that Mr Twomey is complaining of a denial of procedural fairness, whatever the conciliator said in the confidential conference (of which there is no evidence) cannot reasonably be taken to be an expression of a concluded view by the Commission, or to have modified the grounds on which Que 5 was resisting the claim. There is no suggestion that Mr Twomey was unaware of those grounds or that the decision of the Deputy President at first instance involved some different ground. The Deputy President's decision specifically recorded that she raised with the parties the implications of the fact that Que 5 appeared to be a small business employer and of Mr Twomey's own account of his start and finish dates with Que 5. Those were the bases on which the Deputy President ended up deciding the matter against Mr Twomey. No denial of procedural fairness has been established and there is no error, jurisdictional or otherwise, apparent in the Full Bench's rejection of this contention.

35    Mr Twomey's third contention related to a police statement made by Mr Coulter dated 3 September 2022 which says that Mr Twomey 'has been working off and on for us for the past three years and has been working full time for us for the last eight months'. At the hearing in this Court, counsel for Que 5 accepted that Mr Twomey was employed by Que 5 in 2019 but submitted that, even if this evidence was before the Deputy President (which it was not), the Deputy President would have been correct in not taking this earlier period into account, because it was not continuous with the eight months which ended in his dismissal: see FWA s 384(1). That submission is correct.

36    In any event, Mr Twomey does not suggest that the police statement was in evidence before the Deputy President at first instance, or that it should have been. So there is no possible basis to contend that the Commission at first instance erred in not having regard to the statement.

37    As for the Full Bench, its findings regarding the police statement and its refusal to admit it as fresh evidence are outlined above. The Full Bench appears to have proceeded in an entirely orthodox way and Mr Twomey has given no reason as to why the refusal to receive the police statement was a jurisdictional error. Fundamentally, it would not have made any difference, because it would not have established that Mr Twomey's service with Que 5 was continuous with the period of service in January to September 2022.

38    I therefore do not accept any of Mr Twomey's three contentions. I make two other comments for completeness. First, the Full Bench's ultimate conclusion was that it was not in the public interest for Mr Twomey to be given permission to appeal. Mr Twomey has not established any error in the way the Full Bench approached that question, nor is any error apparent on the face of the Full Bench's reasons.

39    Second, the originating application appears to complain about the fact that the Full Bench determined the application for permission to appeal on the papers. The reasons for decision referred to the requirements in FWA s 607(1) as to when an appeal may be conducted without holding a hearing, and said that Mr Twomey consented to the application being heard in that way, and that the Full Bench was satisfied that the application could be adequately determined without the need for oral submissions. Mr Twomey has not pointed to anything to suggest that the Full Bench erred in proceeding that way.

Conclusion

40    Mr Twomey has not established any jurisdictional error on the part of the Fair Work Commission. His application will be dismissed.

41    Que 5 indicated that if it was successful in resisting the application, it would seek costs under s 570(2)(a) of the FWA on the ground that Mr Twomey instituted the proceeding without reasonable cause. The parties agreed that this could be determined on the papers and programming orders on that basis will be made.

Associate:

Dated:    27 September 2023