Federal Court of Australia

Hancock v DP World Pty Ltd [2024] FCA 116

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Pursuant to s 570 of the Fair Work Act 2009 (Cth), there be no order as to costs.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    By an originating application filed on 21 October 2022, the applicant sought judicial review of a decision of the Fair Work Commission which dismissed the applicant's application for an unfair dismissal remedy pursuant to Part 3-2 of the Fair Work Act 2009 (Cth): Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406 (Commissioner's Decision or D). The applicant contended that the Commissioner’s Decision was infected by jurisdictional error on the basis that the Commissioner misconstrued the statute by misapprehending the nature of the opinion she was required to form, or otherwise erred in law which affected the Commissioner's assessment of harshness.

2    In the alternative, if this Court finds that the Commissioner's Decision is not operative, the applicant seeks judicial review of a decision of the Full Bench of the Commission which did not grant permission to appeal the Commissioner's Decision: Hancock v DP World Brisbane Pty Ltd [2022] FWCFB 142 (Full Bench Decision or AD).

3    For the reasons that follow, the application is dismissed.

lEGISLATIVE FRAMEWORK

4    Unfair dismissals are governed by Part 3-2 of the Act. Pursuant to s 394 of the Act, a person who has been dismissed from their employment can apply to the Commission for an order granting a remedy. Division 4 of the Act sets out the available remedies, and s 390(1) provides that the Commission may order that a person be reinstated, or that compensation be paid to a person if the Commission is satisfied that the person was protected from unfair dismissal at the time of the dismissal, and that the person was unfairly dismissed.

5    Section 385 details what constitutes an unfair dismissal:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a)    the person has been dismissed; and

(b)    the dismissal was harsh, unjust or unreasonable; and

(c)    the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)    the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

6    Section 387 sets out the criteria to apply when considering whether a dismissal was harsh:

387 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

7    Section 604 of the Act provides for a right of appeal from a decision of the Commission. Pursuant to s 613 of the Act, an appeal is to be considered by the Full Bench of the Commission.

8    Section 604 provides:

604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made under the Registered Organisations Act by:

(i) the General Manager (including delegate of the General Manager); or

(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC. 

9    Despite the Note to s 604(2), s 400 of the Act provides the following with respect to appeals from decisions made under Part 3-2 of the Act:

400 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

10    In Reliable Petroleum Pty Ltd v Fraser Murray [2017] FWCFB 5843 at [7]-[9], the Full Bench of the Commission detailed the well-established principles with respect to the public interest test pursuant to s 400 of the Act:

In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”

It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.

(Footnotes omitted)

BACKGROUND

11    The background to this matter is uncontroversial and is taken largely from the Commissioner’s Decision.

12    The applicant commenced employment with the first respondent in 1996, initially as an Australian Vocational Trainee and, after obtaining the appropriate qualification, as a stevedore, at first on a casual basis then, on a permanent part time basis for twelve months, and thereafter on a full-time basis. At the time of his dismissal, the applicant had been employed by the first respondent for approximately 25 years.

13    At the time that the applicant was dismissed, he was assigned to work as a “controller”. In that capacity, his responsibilities included operating a computer system that directed the operation of automated cranes, unloading trucks or repositioning containers at the terminal. The role required that he override the computer system when it malfunctioned, to ensure the completion of the function manually.

14    The applicant was elected a member of the Employee Representative Committee (ERC) in around 2002 and has participated in the Part A negotiations, as elected by the ERC, in 2016 and 2020. As a member of the ERC the applicant had also acted as a support person for employees in disciplinary meetings and as an advocate for members. The applicant was also a member of the Health and Safety Committee for about 13 years from 2002.

15    The applicant has a history of mental health issues after being exposed to a traumatic incident during his schooldays. He was diagnosed with an anxiety disorder and depression about 12 years ago, and has been taking medication in that regard, initially at a higher dosage which has been reduced as his mental health improved. The applicant experienced a decline in his mental health as a result of his participation in the 2020 enterprise bargaining and his experience during the COVID-19 pandemic, including concerns regarding his wife’s health and the mental health of his daughters.

16    While on annual leave, the applicant smoked cannabis. The applicant says that it alleviated the symptoms of anxiety that he was experiencing and helped him sleep. The applicant smoked cannabis regularly during the time that he was not working, up until the evening of 10 August 2021.

17    On 11 August 2021, the applicant attended work where he was subject to a random drug test. After returning a "non-negative" result for cannabis, he was immediately stood down. Confirmatory testing was conducted which returned a positive result for cannabis.

18    The applicant attended a "show cause" meeting on 20 August 2021 as to why his employment should not be terminated. Ultimately, the first respondent decided to terminate the applicant's employment on 20 August 2021 for "serious and wilful misconduct" with immediate effect. The applicant received formal notification of the termination on 24 August 2021. The applicant lodged an application to the Fair Work Commission on 24 August 2021 for an unfair dismissal remedy. The Commissioner found that the applicant’s dismissal was not “harsh, unjust or unreasonable”, and that therefore he was not unfairly dismissed. On 21 June 2022, the applicant sought permission to appeal against the Commissioner’s decision from the Full Bench of the Commission, which was refused.

19    The application to this Court is made pursuant to s 39B of the Judiciary Act 1903 (Cth) and/or s 562 of the Fair Work Act.

COMMISSIONER’S DECISION

20    On 24 August 2021, the applicant applied to the Commission pursuant to s 394 of the Act for an unfair dismissal remedy under Part 3-2 of the Act. It is necessary to set out only that portion of the Commissioner's Decision which relates to the current application.

21    One of the arguments led by the applicant before the Commission was that his termination from employment was harsh, unjust or unreasonable when taking into account the context in which he smoked cannabis, his past history as a model employee and the impact termination would have on his mental health and financial circumstances.

22    The Commissioner considered the factors in s 387 of the Act in order to determine whether the applicant's dismissal was harsh, unjust or unreasonable. Under the heading "(h) any other matters that the FWC considers relevant", the Commissioner at D[192]-[193] stated:

The Respondent submitted that for the reasons explained above, the Applicant's decision to attend for [sic] work with cannabis in his system was plainly serious misconduct. The observations of the Full Bench in Parmalat are then relevant:

"…[h]aving found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."

The Respondent, having complied with the statutory requirements for procedural fairness, it is then, consistent with Full Bench authority, only if significant mitigating factors are present, that a conclusion of harshness is reasonably open.

23    The Commissioner then considered at [194] - [201] the applicant's length of service, remorse and apology, any differentiation in the treatment of the applicant compared to that of other employees, the applicant's personal circumstances, the proportionality of the first respondent's response and whether reinstatement is appropriate.

24    At D[204], the Commissioner concluded:

Despite his awareness of the drug and alcohol policy, after consuming an unknown quantity of cannabis the night before his shift, the Applicant proceeded to present for work the following day and tested positive at a high level. The Applicant's actions in this regard have been weighed with all of the other relevant factors and do not support a finding that the dismissal was harsh, unjust and unreasonable. On that basis the application pursuant to s.394 is dismissed.

25    The Commissioner ultimately dismissed the application.

 FULL BENCH’S DECISION

26    As set out above, the applicant sought permission to appeal pursuant to s 604 of the Act.

27    At AD[35], the Full Bench set out one of the applicant's submissions relevant to the question of public interest, namely:

[35] Mr Hancock submits that the appeal is in the public interest because:

…

c. The appeal raises for consideration the correctness of the approach in Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 which has been questioned by the Full Court in Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537 at [100] and imposes an impermissible decision-rule.

…

28    The Full Bench set out the “Principles on appeal” at AD[376] – [38], including as they relate to the public interest test as follows:

The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”

It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

(footnotes omitted)

29    At AD[53]-[54] and [57]-[59], the Full Bench stated:

Mr Hancock submits that the Commissioner erred by proceeding on the basis that Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at [24] imposed a decision rule that if an employer submits that an employee has committed serious misconduct and the Commission finds that the employee has been afforded procedural fairness a conclusion of harshness is only open if significant mitigating factors were present.

Mr Hancock submits that such a decision rule fetters the discretion conferred by s.387 and results in a jurisdictional error for the reasons detailed in Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537 at [100].

…

On any reading the Parmalat Case does not (as asserted by Mr Hancock) purport to establish a decision rule that if an employer submits that an employee has committed serious misconduct and the Commission finds that the employee has been afforded procedural fairness a conclusion of harshness is only open if significant mitigating factors were present. Nor does the Commissioner assert it does in the Decision.

In the Parmalat Case, and since, the Full Bench has made clear that a finding of serious misconduct must made [sic] by the Commission and not merely an assertion made by the employer. In this matter the Commissioner satisfied herself that the conduct engaged in by Mr Hancock occurred and that it was appropriate to characterise the conduct as serious misconduct.

We are satisfied that no jurisdictional error on the part of the Commissioner has been demonstrated. The Commissioner did not ‘resort to the generalities drawn’ from Parmalat. Rather she weighed up all of the considerations set out in s.387 including any findings in relation to mitigating circumstances before concluding that Mr Hancock’s dismissal was not unfair. We are satisfied that that conclusion was open to her on the evidence before her and find no appealable error.

30    The Full Bench ultimately refused permission to appeal, concluding at [67] and [68]:

We do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds or submissions have demonstrated appealable error in the Commissioner’s Decision. Further, no injustice or counter-intuitive result is manifest. The Commissioner’s findings and conclusion were open to her.

For the reasons set out above, permission to appeal is refused.

APPLICATION FOR JUDICIAL REVIEW

31    The applicant read the affidavits of Ms Carr affirmed on 19 October 2022 and 15 March 2023.

32    The originating application filed on 21 October 2022 sought the following relief under s 39B of the Judiciary Act 1903 (Cth) and s 562 of the Act:

1.    A writ of certiorari issue pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) removing into this Court and quashing the order and decision of the Fair Work Commission in matter U2021/7533 issued 3 June 2022 in Craig Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406 (First Decision).

2.    A writ of mandamus issue pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) compelling the Fair Work Commission to proceed to determine the applicant’s application for a remedy under Part 3-2 of the FW Act in Matter Number U2021/7533 in accordance with law.

3.    Such further or other orders as this Court thinks appropriate.

33    In the instance that this Court finds that the Commissioner’s Decision is not "conclusive and operative", the following relief was sought pursuant to s 39B of the Judiciary Act and s 562 of the Act in relation to the Appeal Decision:

1.    A writ of certiorari issue pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) removing into this Court and quashing the order and decision of the Fair Work Commission in matter C2022/3596 issued 2 September 2022.

2.    A writ of mandamus issue pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) compelling the Fair Work Commission to proceed to determine the applicant’s application for a remedy under Part 3-2 of the FW Act in Matter Number C2022/3596 in accordance with law.

3.    Order that the Full Bench of the Fair Work Commission that hears and determines the applicant’s appeal be differently constituted to that which made the order and handed down the decision on 2 September 2022.

4.    Such further or other orders as this Court thinks appropriate.

CONSIDERATION

Which decision is amendable to judicial review?

34    In this proceeding, there are two decisions, being the primary decision made by the Commissioner, and the interlocutory decision made by the Full Bench refusing permission to appeal. The Full Bench, in refusing permission to appeal, did not conduct a substantive appeal and did not affirm or replace the decision made by the Commissioner.

35    The parties’ written submissions dealt extensively with the question of whether the “conclusive and operable decision” subject to judicial review, was that of the Commissioner or of the Full Bench. At the hearing, the applicant initially argued that the conclusive and operable decision must be that of the Commissioner as permission to appeal was not granted by the Full Bench.

36    The applicant relied on Australian Building and Construction Cmr v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169; 247 FCR 138 (Barker, Rangiah and Wigney JJ) (ABCC v CFMEU) as authority for there being no need to establish jurisdictional error in relation to the Full Bench’s refusal of permission to appeal before this Court can grant a constitutional writ with respect to the Commissioner’s decision. In that case, the Full Court acknowledged at [37] that it is theoretically possible that there could be two decisions, both of which have continuing legal effect, and both amenable to being quashed. These decisions include first, a primary decision of the Commission, and secondly a decision made by the Full Bench refusing permission to appeal from the primary decision. At [39], the Full Court compared that scenario to the situation where the Full Bench grants permission to appeal and makes a decision either affirming the primary decision or replacing the primary decision in some way, in which case the appealed decision would be the conclusive and operative decision, and constitutional writs could not be issued for the primary decision. At [45], the Full Court noted that in the application before it, where the Full Bench did not grant permission to appeal, the appeal decision is not conclusive and operative and therefore both the primary decision and the decision of the Full Bench may be amenable to constitutional writs.

37    Therefore, the applicant submitted, in the present case, the Appeal Decision is not conclusive and operative, and both decisions may be open to constitutional writs.

38    The reasoning in ABCC v CFMEU is consistent with subsequent decisions, including Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139; (2018) 265 FCR 134 (Bromberg, Mortimer (as her Honour then was) and Lee JJ) in which the Full Court at [41] noted that in circumstances where the Full Bench refuses permission to appeal, the appellate decision is not conclusive and operative, and therefore there is no jurisdictional impediment to an application for judicial review of the primary decision of the Commission. Furthermore, in Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128 (Allsop CJ, Griffiths and O’Callaghan JJ) the Full Court, in applying ABCC v CFMEU, determined that as the Full Bench in that matter granted permission to appeal and dismissed the appeal, which operated as a conclusive and operative decision, the primary decision of the Commission was not amenable to judicial review unless the Full Bench's decision was infected with jurisdictional error.

39    As the High Court confirmed in Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [51] – [52], citing R v Ross-Jones, where jurisdictional error has occurred, a party is entitled to a writ almost as a right. However, the Court does retain discretion to refuse relief if that is the proper course of action to take in the circumstances. At [53], the High Court elaborated on the discretion to refuse relief:

The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves “two separate questions”. The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny to the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings. For example, damages or equitable relief may be sought for tortious injury to private or individual rights. In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable.

(footnotes omitted)

40    The first respondent submitted that the Court should not exercise discretionary relief pursuant to s 39B of the Judiciary Act against the Commissioner's Decision unless it can be established that an error occurred in the Full Bench Decision, relying on Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 (Mortimer J, as her Honour then was). In Dafallah, as in this matter, the Commission determined that the applicant had not been unfairly dismissed from her employment, and the Full Bench refused permission to appeal. At [54] and [56], her Honour said:

Notwithstanding the differences in opinion about the curing or otherwise of a denial of procedural fairness, Katzmann and Rangiah JJ made it clear they would not grant the relief sought under s 39B of the Judiciary Act unless they were satisfied the decision of the Full Bench was affected by jurisdictional error. Unless it was, their Honours reasoned, “it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operative” (at [176]). One might add to that the proposition that it is not in the interests of the administration of justice for this court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error. In my respectful opinion, this means this court should not begin with a fresh and unfettered examination of the decision of a Commissioner for legal error, and then move to see if any error thus identified had been properly addressed by the Full Bench. That is essentially what Ms Dafallah invited the court to do in this proceeding. Rather, this court should begin with an examination of the decision of the Full Bench and, unless and until it appears that decision is affected by jurisdictional error, in my respectful opinion it is not appropriate to embark on a fresh and detailed consideration of the decision of the Commissioner. There were many points in both the written and oral submissions on behalf of Ms Dafallah where it appeared that her legal representative approached this court’s supervisory jurisdiction over the Commissioner’s decision as if the decision of the Full Bench did not exist, and the appellate jurisdiction in s 604 of the FW Act, conditioned as it is by s 400(1), did not exist. It is not the case that an applicant, having unsuccessfully applied for permission to appeal, can proceed in this court as if s 604 does not exist.

…

In my opinion, as a matter of discretion and applying the approach set out in Abigroup [2013] FCAFC 148 and R v Marks 147 CLR 471, orders made in exercise of the court’s jurisdiction under s 39B of the Judiciary Act (or ss 562 and 563 of the FW Act read with s 545) should not issue against a first-instance decision of the Commission, where leave to appeal had been sought and refused after full argument, and the refusal of leave is not affected by jurisdictional error, unless there are compelling reasons to permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them. There are no such compelling reasons in the present case. Accordingly, there is no occasion to consider separately whether the Commissioner’s decision is affected by jurisdictional error.

41    Dafallah was applied in D&D Traffic Management Pty Ltd v Australian Workers' Union [2022] FCAFC 113 (Katzmann, Thawley and Goodman JJ), where permission to appeal was also refused. The Full Court said at [75] (in obiter):

Secondly, D&D did not seek judicial review of the decision of the Full Bench. It is not in the interests of the administration of justice for this Court on judicial review to call up and quash the decision of a Commissioner and in doing so reach conclusions which are in substance contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, unless this Court has also formed the view that the decision of the Full Bench is itself affected by error or there is some other compelling reason to do so: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [54] to [56] (Mortimer J); Cook v Australian Postal Corporation [2017] FCA 509 at [67] (Katzmann J); Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102 at [67] (Wigney J); Pal v Commonwealth [2020] FCA 1483 at [52] (Anderson J). As Mortimer J noted in Dafallah at [56] permitting an applicant to challenge decisions of a Commissioner on a basis which ignores a decision of the Full Bench would be to “permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them”.

42    The applicant submitted that the conclusion reached in Dafallah, that one ought not scrutinise the first instance decision where permission to appeal has been refused by the Full Bench, is not consistent with Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 or R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471; [1981] HCA 33.

43    In Abigroup, a denial of procedural fairness occurred at first instance, and the Full Bench granted permission to appeal. The Full Court considered whether it ought to refuse relief on the discretionary ground that the denial of procedural fairness was cured on appeal. The Full Court ultimately concluded that the decision of the Full Bench was infected with jurisdictional error and therefore the procedural fairness defect at first instance was not cured. Katzmann and Rangiah JJ (with Buchanan J dissenting) considered that it would be prudent to refuse relief against a decision at first instance unless the Full Bench's decision involved jurisdictional error, in circumstances where the Full Bench's decision is conclusive and operative. The applicant’s submission was that the analysis undertaken by their Honours therein was directed to a circumstance where permission to appeal had been granted and that it stands for the proposition that where permission to appeal is not granted, the Full Bench decision is not conclusive and operative. 

44    R v Marks involved an application for a writ of prohibition directed to a member of the Australian Conciliation and Arbitration Commission in respect of a demarcation dispute. In that matter, it was argued that a denial of procedural fairness occurred at first instance, but it was held that the denial of procedural fairness was ultimately cured on appeal, where a full and fair hearing took place. In the applicant’s submission therefore, R v Marks does not support Dafallah as in R v Marks, the Full bench decision was conclusive and operable.  

45    It is clear that Dafallah does not operate so as to prevent the Court from issuing relief against a primary decision where the Full Bench refuses permission to appeal. Rather, it is concerned with the discretionary nature of providing relief, including preventing circumnavigation of the statutory appeals process. Dafallah does not impose a decision rule, but rather is about the exercise of the discretion to refuse relief in the circumstances of that case. Nor does Dafallah attempt to apply Abigroup or R v Marks in the manner contended for by the applicant. Instead, Mortimer J (as her Honour then was) applied both Abigroup and R v Marks as cases which also dealt with discretionary questions of relief. Her Honour's point in Dafallah is that statutory appeal mechanisms ought not be ignored as doing so has a detrimental effect on the administration of justice.

46    In respect of Dafallah, the applicant referred to Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd (2022) 289 FCR 508 (CFMMEU v MSS) wherein Rangiah J considered Dafallah and noted its reliance on Abigroup. His Honour then referred to, and applied, the Full Court’s findings in ABCC v CFMEU, which notably distinguished Abigroup. While Rangiah J was delivering a dissenting judgment in that case, O’Callaghan and Wheelahan JJ did not consider his Honour’s findings in respect of Dafallah as it was found that the applicants had not established a claim for relief and, therefore, it was unnecessary to deal with the first respondent’s reliance on Dafallah. In any event, as set out above, I do not consider that Dafallah was relying on Abigroup in the contended manner and, as such, imposing a decision rule.

47    While I accept that the Commissioner's Decision is conclusive and operative, I am not of the view that the Full Bench Decision should be effectively ignored. As identified, this is a matter of discretion to be informed by the circumstances of the case. In this instance, I am not satisfied that it is in the interests of the administration of justice to circumvent the appeal process without first considering the Full Bench Decision. Accordingly, I do not consider that relief should be issued pursuant to s 39B of the Judiciary Act in relation to the Commissioner's Decision unless the Full Bench Decision is affected by jurisdictional error, or there are compelling reasons to effectively ignore the Full Bench Decision.

Did the Full Bench err

48    The applicant contended that the Full Bench Decision is infected by jurisdictional error in that the Full Bench failed to respond to a substantial and clearly articulated argument raised by the applicant, which amounts to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Gummow and Callinan JJ). The applicant contended that the Full Bench did not deal with his argument that it was in the public interest, pursuant to s 400(1) of the Act, for permission to be granted to appeal the Commissioner's Decision. The applicant’s basis for that contention was that the Commissioner had fettered her statutory decision-making task by relying upon propositions enunciated in Parmalat, which have been the subject of criticism by judges of the Federal Court for imposing what was contended to be a rule that impermissibly constrains the Commissioner's exercise of jurisdiction. In Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537; [2015] FCAFC 35 at [100], the Full Court stated:

Statements of principle often serve a useful and legitimate function. They provide a body of appellate guidance against which to test suggestions of error in future cases. They cannot substitute for, or alter, a statutory prescription but they are not jurisdictionally flawed unless they are given (or assume) the status of a “rule” or are general pronouncements not related sufficiently to the facts of the particular case: see, by way of example of the principle in the exercise of federal appellate judicial discretion, Wong v R (2001) 207 CLR 584 ; 185 ALR 233 ; [2001] HCA 64 per Gaudron, Gummow and Hayne JJ at [83]. It is arguable that the statement in Parmalat which I set out earlier, infringed this restriction. It appears to be a dogmatic pronouncement if it was intended as a general rule. It could not fetter the broad evaluative task assigned by the FW Act using the principles I have discussed of “a fair go all round”. But, in a case such as the present, attention must remain focused on the significance of the statement for the outcome of the present case, not some other case.

49    In his notice of appeal to the Full Bench, the applicant expressed the following ground of appeal (amongst others):

Section 387(h)

5.    The Commissioner erred at D [192]-[193] in approaching the assessment of harshness on the basis that because the respondent submitted the appellant's decision to attend for [sic] work with cannabis in his system was serious misconduct and had afforded the appellant procedural fairness, that a conclusion of harshness was open only if significant mitigating factors were present.

Particulars

a.    The mere fact an employer submits an employee has been dismissed for serious misconduct does not dictate the Commission's approach to assessment of harshness. The Commissioner committed jurisdictional error in misapprehending the nature of the statutory task reposed in per, asked herself the wrong question and impermissibly fettered her discretion.

b.    The Commissioner's acceptance and application of the proposition stated in Parmalat Food Products Pty Ltd v Wililo [2011] FWAFC 1166 at [24] wrongly imposed a prescription or decision-rule as to how cases of serious misconduct are to be determined that fetters the discretion conferred by s 387 of the FW Act and results in jurisdictional error for the reasons details in Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537 at [100].

c.    In the alternative, presuming Parmalat to be correct, the Commissioner erred in failing to determine whether the appellant had in fact engaged in serious misconduct and presuming it was sufficient for the respondent to allege serious misconduct to trigger the 'decision rule' imposed in Parmalat.

(emphasis in original)

50    I am satisfied, based on the applicant's grounds of appeal, and his written submissions provided to the Full Bench, that a clearly articulated argument arose with respect to the application of what the applicant describes as the 'decision rule' in Parmalat.

51    In determining whether the Full Bench failed to deal with this argument, it is important to first consider the nature of the Full Bench's task in granting or rejecting permission to appeal.

52    In Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82] (Siopis, Collier and Katzmann JJ) at [82], the Full Court, citing Waters v Australian Taxation Office (Cth) [2015] FCAFC 46 at [9]–[10] (Flick J), observed that in considering an application for permission to appeal, the Full Bench is not conducting a de-facto or preliminary hearing of the appeal, and it is both unnecessary and inappropriate for a full examination of the grounds of appeal to be undertaken.

53    At AD[35], the Full Bench notes a submission from the applicant that the appeal is in the public interest because, it “raises for consideration the correctness of the approach in Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 which has been questioned by the Full Court in Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537 at [100] and imposes an impermissible decision-rule.” From AD[53]-[59], the Full Bench considered the applicant's argument with respect to the applicability of Parmalat, by reference to Toms, and decided at AD[57]-[59]:

On any reading the Parmalat Case does not (as asserted by Mr Hancock) purport to establish a decision rule that if an employer submits that an employee has committed serious misconduct and the Commission finds that the employee has been afforded procedural fairness a conclusion [sic] of harshness is only open if significant mitigating factors were present. Nor does the Commissioner assert it does in the Decision.

In the Parmalat Case, and since, the Full Bench has made clear that a finding of serious misconduct must [sic] made by the Commission and not merely an assertion made by the employer. In this matter the Commissioner satisfied herself that the conduct engaged in by Mr Hancock occurred and that it was appropriate to characterise the conduct as serious misconduct.

We are satisfied that no jurisdictional error on the part of the Commissioner has been demonstrated. The Commissioner did not ‘resort to the generalities drawn’ from Parmalat. Rather she weighed up all of the considerations set out in s.387 including any findings in relation to mitigating circumstances before concluding that Mr Hancock’s dismissal was not unfair. We are satisfied that that conclusion was open to her on the evidence before her and find no appealable error.

54    The applicant submitted that the Full Bench erroneously thought that the applicant's case was premised on Parmalat applying where an employer submits than an employee committed serious misconduct, and failed to deal with the central argument as to why it is in the public interest that permission to appeal be granted in relation to the status of the principle derived from Parmalat.

55    I do not accept the applicant's contention in that regard. The Full Bench was cognizant of the applicant’s argument regarding the public interest it contended attached to the application of the approach in Parmalat, by reason of Toms. A subset of that argument included the submission that the Commissioner erred in purporting to apply Parmalat on the basis of the first respondent’s submission that the appellant was terminated for serious misconduct. The Full Bench first determined that Parmalat does not impose a decision rule that if an employee submits that serious misconduct occurred which resulted in termination, and if procedural fairness was afforded to the applicant, a finding of harshness is only open where significant mitigating factors are present. The Full Bench went on to reiterate that Parmalat and previous Full Bench decisions have established that a Commissioner must be satisfied that serious misconduct occurred, and that in this matter, the Commissioner was so satisfied.

56    The first respondent contended that the applicant’s submissions in relation to jurisdictional error were advanced beyond the applicant’s notice of appeal. As the applicant did not seek leave to amend the notice of appeal, the first respondent submitted that it would be unsurprising that the Full Bench dismissed the argument based on a submission of misconduct. Indeed, the applicant’s grounds of appeal did not refer to the public interest considerations raised by his contentions regarding the Commissioner’s reliance on Parmalat, as contained in his written submissions.

57    The Full Bench noted that the public interest test is not satisfied merely by the identification of an error in the Commissioner’s Decision. At AD[38], the Full Bench noted that an arguable case of an appealable error would ordinarily need to be demonstrated to warrant the grant of the permission to appeal. The Full Bench considered the appellant’s grounds of appeal and found that no appealable error existed. In such circumstances, and by reference to the considerations identified in GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27], it would seemingly be rare for there to be no finding of an appealable error but a finding that it is in the public interest to grant permission to appeal.

58    Further and consistent with the observations in MTGI Trust, I adopt the reasoning in CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57 at [34] and [58] (Allsop CJ, Markovic and Colvin JJ), where the Full Court said:

…Therefore, the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. What is required in order to demonstrate jurisdictional error in such instances is a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered. Even then, it is to be noted that when reasons are used to determine whether there has been a failure to deal with the nature of the application that has been made, it is only the crucial arguments that are to be addressed by judges in their reasons and it is for the judge to formulate the issues by considering the application: DL v R [2018] HCA 26; 266 CLR 1 at 12 –13 [33].

…

Consequently, the nature and character of the application has been so fundamentally misunderstood by the Federal Circuit Court judge as to lead to the conclusion that he was not dealing with the matter as placed before the Court.

59    It was submitted by the first respondent, and I accept, that even if it can be considered that the Full Bench failed to consider the applicant's argument, any such error is immaterial when one reads the entirety of the Full Bench Decision, including that it considered that the Commissioner's conclusions were open on the evidence before her and no such appealable error occurred. Accordingly, I am not satisfied that there is any material prospect that the Full Bench would have granted permission to appeal in light of that finding.

60    However, if I am wrong and it can be considered that the Commissioner did reflect Parmalat in an overly restrictive manner, she did not ultimately apply, or have regard to, the relevant principle from the case. Notably, the Commissioner did not make any findings as to whether any ‘significant mitigating factors’ existed in this case. On a fair reading of the Commissioner’s Decision, the Commissioner undertook a balancing exercise of the considerations set out in s 387 of the Act and thus did not depart from the broad evaluative discretionary jurisdiction conferred upon the Commission. Therefore, even if it can be considered that the Full Court failed to consider the applicant’s argument, no appealable error occurred on the basis of the Commissioner’s consideration of Parmalat.

conclusion

61    I am not satisfied that there is any error in the Full Bench's Decision, or that there is any compelling reason to overlook the Full Bench's Decision and only deal with the Commissioner's Decision. Accordingly, I am not minded to exercise the discretion to issue relief pursuant to s 39B of the Judiciary Act. The application is dismissed. In accordance with s 570 of the Act, there be no orders as to costs.

Associate:

Dated:    22 February 2024