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Introduction

This is Full Bench decision of the Fair Work Commission is a perfect example where things can get well out of hand, ending in a lot of frustration (for all parties) and huge costs to a business. The problem being that he was achieved the outcome he sought! All this before we even kick off the case in proper.

The “litigant” or “applicant” in this matter was described as a lawyer. Whether his legal skills were required by the applicant was unclear. However, put this was one determined person, who was determined to get his own way…and did (to a point).

As I noted in the headline, this matter is still to be determined despite at least (by my count and set out at the end of this report) 50 separate actions, involving:

  • The Fair Work Commission.
  • The Full Bench of the FWC (2 appeals).
  • The Federal Court of Australia (5 applications).
  • Allegations by the applicant, including letters to the President of the FWC and Commonwealth Attorney General that the DP hearing the matter was unfit to hold office.
  • Disputing the right of the respondent to be legally represented and objecting to the legal firm they chose.

Background

The applicant was engaged to perform work by the respondent, on 19 November 2018. There is a dispute about whether he was engaged in the capacity of employee or independent contractor. The engagement was terminated effective from 31 January 2020. The applicant filed an unfair dismissal application in respect of the termination.

Cutting to the “last step” (ie beyond the 50 previous actions) the FB found somewhat in favour of the applicant (the “squeaky wheel” does indeed get the oil), finding that in the first instance there was no proper process that clearly identified that the DP had formally allowed the respondent to be legally represented (a matter the FB allowed in the appeals hearting). As a consequence of allowing the appeal and finding in the applicant’s favour, the matter was to be heard by another member of the FWC. The FB stating:

“The two errors we have identified – namely allowing [the respondent] to be represented by [law firm] without having decided to grant permission for legal representation pursuant to s 596, and denying the applicant procedural fairness in relation to the genuine redundancy issue – are significant matters. At least the latter, and arguably the former, constitutes jurisdictional error, and both involve manifest injustice to [the applicant]. In the circumstances, we consider that it would be in the public interest to grant permission to appeal…

“We consider that the appropriate course, having regard to the history of this litigation, is to remit [the applicant’s] unfair dismissal application to a member of this Full Bench for further consideration (including the determination of any application for permission for legal representation) on the basis of the evidence admitted to date and such further evidence as the member may decide to admit.

“It is not necessary in the circumstances to deal with the other matters raised by the first appeal. In relation to the various allegations made against [legal firm], it is sufficient to say that we are not satisfied that [legal firm] did anything other than to act bona fide on the basis of the instructions provided by its client…[the applicant] largely conceded at the appeal hearing that he could not provide evidence of any deliberate malfeasance on the part of [legal firm]. Certainly, the record of the proceedings before the Deputy President does not provide any indication to us that [legal firm] has acted in any improper way”.

With the FB side-stepping the second appeal by:

“The grounds for Mr McKerlie’s second appeal, including the grounds for the grant of permission to appeal, were as follows:

‘1. Deputy President Boyce is unfit to hold judicial office.

  1. Deputy President Boyce has demonstrated egregious and deliberate bias against the Applicant in the conduct of the proceedings to date including in his decision on the application for disqualification.
  2. It is contrary to the obligation of the members of the Fair Work Commission to allow Deputy President Boyce to continue to preside over these proceedings or any other proceedings as his widely publicised conduct since his appointment to the Fair Work Commission is calculated to diminish public confidence in the Fair Work Commission’.

“The first ground is not reasonably arguable. The Commission is not invested with power to rule on the fitness for office of its own members. In relation to the second and third grounds, the relief which [the applicant] could expect to obtain if he is granted permission to appeal and his second appeal is upheld is that his matter is remitted for further consideration by a different member of the Commission. Having regard to our disposition of the first appeal, there would be no utility in us considering the second and third grounds of the second appeal. For these reasons, we refuse permission to appeal in relation to the second appeal”.

After all this effort and expense, the applicant is effectively back to square one: he still needs to provide that he was an employee (not a contractor) and that his redundancy amounted to an unfair dismissal. I suspect the FWC will find that if the applicant had put his energies to finding another job, all the trouble he has gone to is for naught.

Litigation leading up to and including two appeal in the Fair Work Commission

As mentioned earlier, before setting out the list of legal challenges by the applicant, let me summarise that the applicant was not happy with the way the Deputy President addressed his case (calling for “his head”) or the respondent’s lawyers who he also made unflattering observations.

The history of the applicant’s litigations are dot-pointed as follows:

1.       The applicant was engaged to perform work by the respondent on 19 November 2018.

2.       There is a dispute about whether he was engaged in the capacity of employee or independent contractor.

3.       The engagement was terminated effective from 31 January 2020.

4.       The applicant filed an unfair dismissal application 5 February 2020.

5.       The matter was listed for a telephone conciliation to be held on 6 March 2020.

6.       However, on 21 February 2020, the applicant wrote to the Commission alleging that he had received an “extortionate letter” from lawyers acting for the respondent. He requested that a hearing be organised so that he could seek orders including that the respondent’s lawyers be barred from further participation in the proceedings and that the Commission appoint lawyers to act on the respondent’s behalf.

7.       The conciliation conference was cancelled and the matter given over to Deputy President Boyce (the “DP”) for a formal arbitration 27 February 2020.

8.       [By this stage neither the respondent nor its lawyers had submitted the appropriate forms required by the FWC].

9.       2 March 2020 the applicant complains to the DP’s chamber (by email) that the respondent’s legal representatives had “flouted, without reason, a clear direction made by the Commission … could undermine the respondent’s application to be legal[ly] represented…”. The DP responding by ordering that the lawyers provide the appropriate forms within 7 days.

10.   The matter was listed for a mention and directions hearing, by telephone, to be conducted on 6 March 2020.

11.   The respondent’s legal representatives filed the appropriate forms on 4 March 2020, raising two jurisdictional objections, namely:

  • The Applicant was not an employee; and
  • The dismissal was a case of genuine redundancy.

12.   Also on 4 March 2020, the applicant filed a submission with a number of accompanying documents in which he alleged that respondent’s lawyers had engaged in conduct which was “misleading and deceptive” and which “amounted to an attempt to extort the Applicant’s compliance with demands made by the Respondent’s solicitors and an act of contempt of the jurisdiction of the Commission”. The applicant went on to say in his submission:

“The Applicant seeks orders to redress the conduct of the Respondent’s solicitors including but not limited to an order that the Respondent instruct new solicitors drawn from a list provided by the Fair Work Commission”

13.   The DP conducted the directions hearing on 6 March 2020.

14.   16 March 2020, at the request of the parties, the matter was listed for a conciliation conference before a different member of the Commission to occur on 25 March 2020.

15.   This conference was not successful in resolving the matter, which was then allocated back to the DP.

16.   The respondent’s lawyers then raised its jurisdictional objections (by email 27 and 30 March 2020) with the DP’s chambers.

17.   On 30 March 2020, the applicant sent an email to the DP’s chambers:

“I write to request clarification of the issues which are to be the subject of the hearing on 8 May.

The matter was escalated to a hearing without conciliation on my request for consideration of the conduct of the Respondent’s solicitors in the matter.

I can understand that this would translate to a hearing on the Respondent’s request for legal representation but I am unsure of the ambit of the hearing regarding jurisdiction.

Is this hearing intended to be solely in regard to those two issues or is it intended that all issues between the parties are to be determined in this hearing?

I understand that the jurisdictional issue may be determinative, but I am not sure if it is intended to address the substantive issues between the parties if it is decided the Applicant has jurisdiction.

Could you please advise by return, thank you”

18.   The DP’s Associate sent the following reply that afternoon:

“I refer to your email below.

The matter is programmed for a hearing on the jurisdictional objections only. The hearing is not intended to address the “substantive issues” between the parties.”

19.   On 8 April 2020, the applicant filed an application for an order for the production of documents. The same day, the respondent sent the Commission an email indicating that it opposed the order sought and wished to make submissions about it.

20.   On 9 April 2020, directions were issued by the DP’s chambers for the parties to file outlines of submissions about the issue, and it was listed for an interlocutory telephone hearing to be held on 21 April 2020.

21.   On 17 April 2020, the applicant filed a document entitled “Applicant’s Amended Outline of Submissions on Legal Representation”, which addressed at length the applicant’s contention that the respondent ought not be permitted to be represented by its current lawyers. He also filed a witness statement made by himself, which was entitled “Applicant’s Statement Regarding the Issues of Representation, Jurisdiction and Notice for Production of Documents”. This statement addressed the issue of the basis of the applicant’s engagement (whether he was an employee or independent contractor) but did not deal with the circumstances of the termination of his engagement or the issue of whether he had genuinely been made redundant. The statement also briefly dealt with the issues of legal representation and the production of documents.

22.   At the interlocutory hearing on 21 April 2020, a solicitor employed by the respondent’s lawyers, appeared for the respondent. The transcript of the hearing shows that the respondent’s lawyer neither sought nor was granted permission to appear for the respondent, albeit no objection was made by the applicant.

23.   On 24 April 2020, the respondent filed two further witness statements, in response to the applicant’s submissions, which dealt with the basis of his engagement and the question of whether he was covered by an award.

24.   Up until this point, there was no communication from the DP’s chambers to suggest that the respondent had been granted permission for legal representation.

25.   However, at the hearing on 8 May 2020, the DP (mistakenly) stated that: “Okay. I note permission has already been granted for [name] to appear today as the legal representative for the respondent”. The DP pressing:

“And as I’ve said, I’ve already determined under section 596 of the Act, that it would be more efficient, given the complexity of some of the arguments and issues being raised, to go to jurisdictional questions for the respondent to be represented. And I note that they have some evidence in their evidence that was already filed going to the capacity for the respondent to represent itself”.

26.   The DP also (in conjunction with a technical issue which required resolution) allowed the applicant a 40-minute adjournment “to do any further preparation or collect your thoughts in relation to the issue of genuine redundancy…”.

27.   There was insufficient time for the respondent’s lawyer to undertake his cross-examination, so the matter was set down for further on 15 May 2020.

28.   12 May 2020, the applicant filed written submissions on the issue of genuine redundancy and, in addition, a further witness statement made by himself with a number of annexed documents in relation to that issue. Upon being copied into this material when it was filed by email, the respondent immediately sent an email to the Deputy President’s chambers which, omitting formal parts, stated:

“The respondent opposes the tendering of the additional statement as the applicant has already finished his examination in chief and therefore cannot tender new statements.

“Could the Commission advise whether this statement will be accepted as that will increase our time to prepare for cross-examination on Friday.”

29.   The Deputy President’s chambers sent the following email (omitting formal parts) to the applicant later the same day:

“I refer to the matter above, and the Applicant’s email below (and the attachments therein).

Leave has neither been requested nor granted for the Applicant to tender (or otherwise rely upon) further evidence in these proceedings.

Leave has only been granted to the Applicant for him to make further submissions on the jurisdictional issue of genuine redundancy. I note that he has filed those submissions.

In view of the foregoing, the Deputy President advises that the parties should proceed on the basis of the evidence filed as at the 8 May 2020 (i.e. the time that the Respondent’s evidentiary case in these proceedings closed).”

30.   In response to this email, the applicant sent an email in reply stating that he would seek leave to tender the evidence he had filed when the hearing of the matter resumed.

31.   On 13 May 2020 the applicant sent a complaint to the President of the Commission, Ross J, about the Deputy President’s conduct. In this complaint, the applicant contended that the Deputy President was unfit to hold judicial office, had displayed incompetence, ignorance and disinterest in the conduct of his case, and was personally biased against him. He requested that the President intervene in the matter to vacate the hearing listed for 15 May 2020, declare the proceedings in the case to date null and void, and allow the matter to be relitigated. The applicant sent a complaint raising similar matters to the Commonwealth Attorney-General on 14 May 2020.

32.   At 6.16 pm on 14 May 2020, the applicant sent an email to the Deputy President’s chambers giving notice that, at the commencement of the hearing on 15 May 2020, he would make an application for the Deputy President to recuse himself from further involvement in the proceedings and that, should the Deputy President decline to recuse himself, he would seek an adjournment to enable him to file an appeal against that decision.

33.   At 7.41 pm that evening, the Deputy President’s chambers issued directions requiring the applicant and the respondent to file any written submissions and evidence in respect of the recusal application by 11.30 am on 15 May 2020 (i.e. the following day). The parties were notified in the same email that at the conclusion of the hearing, the matter would be adjourned for a date to be fixed after any decision and written reasons in relation to the recusal application had been issued. Neither party filed submissions in response to these directions. the applicant sent an email that simply outlined the matters he intended to raise at the hearing, and the redone declined to file any submissions at all.

34.   At the hearing on 15 May 2020, the applicant re-agitated the matters he raised in his complaint to the President and the Attorney-General and handed up copies of both complaints. At the conclusion of the hearing, the Deputy President reserved his decision.

35.   On 25 June 2020, the Deputy President invited submissions concerning whether s 16 of the Parliamentary Privileges Act 1987 (Cth) applied such as to preclude the admission into evidence of the applicant’s complaints to the President and the Attorney-General and, if so, whether there was any utility in determining the issue of the alleged apprehension of bias. the applicant (on 30 June 2020) filed a submission in which he rejected the proposition that the Parliamentary Privileges Act applied, denied that he had tendered into evidence the two complaints, and said it was not necessary for him to prove facts which were within the personal knowledge of the Deputy President.

36.   On 26 May 2020, the applicant filed an application in the Federal Court of Australia (Court), seeking that the following relief:

(1) A writ of prohibition prohibiting the Deputy President from further involvement in the applicant’s unfair dismissal application.

(2) A declaration that the Deputy President is not a fit and proper person to hold judicial office, particularly the office of Deputy President of the Commission.

(3) An order that the applicant’s unfair dismissal application be transferred to the Federal Court to be heard together with other matters arising.

(4) An interlocutory injunction against the Deputy President from taking any further action or having any further involvement in the applicant’s unfair dismissal application pending the determination of Mr the applicant’s application before the Court.

37.   The applicant lodged the first appeal on 29 May 2020. His notice of appeal included an application for a stay pursuant to s 606 of the FW Act. The presiding member of this Full Bench heard and dismissed the applicant’s stay application on 2 June 2020.

38.   Following the stay decision, the applicant wrote to the presiding member’s chambers on 3 June 2020 inquiring as to the procedure for the determination of whether the respondent has permission to be legally represented at the appeal hearing. The presiding member’s chambers responded stating that when the matter is listed and directions are issued, the parties will be directed to file and serve submissions should they wish to seek permission to be legally represented at the appeal hearing and that it is at the discretion of the Full Bench when the issue of permission to be legally represented is to be determined. The applicant was informed that he would be given an opportunity to respond prior to any such determination being made.

39.   On 9 and 26 June 2020, the applicant filed two further applications in the Federal Court. The application filed on 9 June 2020 sought, among other things, an injunction preventing the Commission from further proceeding in any manner in respect of the unfair dismissal application or the first appeal. The application filed on 26 June 2020 sought an order that the respondent’s lawyers be restrained from acting in respect of that application, the unfair dismissal application and any other legal proceedings in which the applicant is a party.

40.   On 3 July 2020, the Deputy President issued a document entitled “the applicant Decision” which set out the Deputy President’s reasons for a decision which was said to have been earlier made by him granting the respondent’s permission to be legally represented in the proceedings (representation reasons). In the representation reasons, the Deputy President stated that the recusal application would be determined in due course.

41.   On 6 and 8 July 2020, the applicant filed two more applications in the Federal Court. The application filed on 6 July 2020 sought an order restraining the Commission from taking any further action in respect of the unfair dismissal application and the first appeal until further order. The application filed on 8 July 2020 sought a suppression order prohibiting the publication or disclosure of the identity of the applicant in respect of that proceeding and any proceedings currently before the Commission.

42.   On 15 July 2020, the Deputy President issued the recusal decision, in which he dismissed the applicant’s recusal application.

43.   The applicant’s unfair dismissal application was then listed for mention/ directions on 16 July 2020, and also listed for a further jurisdictional hearing on 3 August 2020 before the Deputy President.

44.   The respondent filed an application for costs on 24 July 2020.

45.   On 28 July 2020, the applicant lodged the second appeal and sought a stay of the whole of the proceedings before the Deputy President, specifically before the hearing of the unfair dismissal application which was to resume on 3 August 2020. That same day, the Deputy President’s chambers sent an email to the parties noting the multiple appeal proceedings pending before the Commission and the application for interlocutory relief pending before the Court. The email advised that the listing in that matter was vacated to a date to be fixed, being a date subsequent to the resolution of the appeals before the Full Bench of the Commission and the matter before the Court.

46.   On 5 August 2020, the Court dismissed the applicant various applications for interlocutory relief.

47.   The same day, the presiding member of the Full Bench issued directions and both appeals the applicant has lodged two appeals, application lodged by the applicant relating to the termination of his engagement with the respondent.

48.   The first appeal filed on 29 May 2020 relates to a number of decisions interlocutory and procedural decisions (or purported decisions) made by the Deputy President, which are characterised by the applicant as follows:

  • the decision not to take any action in regard to the applicant’s complaint that the respondent’s solicitors had committed extortion by sending a letter to the applicant demanding the performance of various demands before the respondent company would pay him monies already owed to him;
  • the decision not to take any action in regard to the applicant’s complaint that the respondent and/ or the respondent’s solicitors had committed conspiracy to defeat justice in order to put before the Commission a document that had been obtained by fraud;
  • the decision not to take any action in regard to the applicant’s complaint that the respondent’s solicitors had sought to mislead the Commission by submitting a document purporting to be the applicant’s resume, constituted a “representation” by the applicant to the respondent relevant to the proceedings before the Commission;
  • the decision to give the respondent permission to have legal representation in the proceedings;
  • the decision to allow the respondent’s lawyers to represent the respondent in the proceedings;
  • the decision that the issue of “genuine redundancy” is a “jurisdictional objection”;
  • the decision to refuse to grant the applicant an adjournment to prepare submissions and evidence in regard to the issue of “genuine redundancy”;
  • the decision of the Deputy President on 12 May 2020 not to allow the applicant to file a statement and annexures relevant to his submissions regarding the issue of “genuine redundancy” ; and
  • the decision of the Deputy President on 14 May 2020 to compel the applicant to prepare and file submissions on the issue of his application that the Deputy President recuse himself from further proceedings on the basis of his not being fit to hold judicial office, his demonstration of active prejudice and the apprehension of bias against the applicant both as a member of a class of persons, unrepresented workers, and personally.

49.   The second appeal, filed on 28 July 2020, relates to a decision issued by the Deputy President on 15 July 2020  in which he dismissed the applicant’s application for the Deputy President to recuse or otherwise disqualify himself from further involvement in the proceedings.

50.   At the commencement of the hearing of the appeals on 4 September 2020 and over the opposition of the applicant, the Full Bench granted permission for the respondent to be legally represented in the proceedings for reasons that it was considered that legal representation would permit the matter to be dealt with more efficiently, having regard to the complexity of the matter. The FB (ironically) finding: “…[The applicant’s] unfair dismissal application has been the subject of a significant degree of procedural complexity…”