This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here.

The full decision can be found here.


When the decisions did not go in his favour, this applicant set out to blame the umpire…and failed, five times.


Initial application

The applicant is aggrieved by a series of decisions of the Fair Work Commission. The applicant was employed by the respondent as a line haul driver for less than two months until his dismissal. He then made application for an unfair dismissal in the FWC. His former employer objected on the grounds that the application was made outside of the 21-day time limit. The FWC declined to extend the applicant’s time.

However, the applicant wished the matter to heard in person (did not specifically object to his ex-employer using legal representation). Due to the tyranny of geographical distance between the parties, the telephone conference prevailed.

Appeal to the Full Bench

Undeterred, the applicant lodged an appeal to the Full Bench of the FWC. This too failed. In lodging the appeal on the grounds that:

  • Granting the request for legal representation was contrary to the Fair Work Act, apparently on the basis that the Commissioner had allegedly ignored the fact that the ex-employer had been legally represented for two weeks beforehand;
  • That he had not been allowed to appear in person; and
  • The Commissioner made his decision without giving the applicant the opportunity to be heard on his ex-employer’s application for leave to be represented by a lawyer.

The applicant then went on to claim that it would be in the public interest for the Commission to grant permission to appeal for two reasons:  first, that it would be unjust and unfair for a large corporation like his ex-employer to be represented by a large law firm; and second, that it was his “unalienable right” to appear in person.

Whilst dismissing the first two grounds for appeal, the Full Bench ruled in favour on the third point and quashed the initial decision and reallocated it to another Commissioner.

The second hearing

The “new” Commissioner called for written submissions from the parties, with the applicant complaining that the ex-employer’s lawyers had prepared the submission and had not sought permission to appear. It was subsequently found that the lawyer was an employee of the applicant’s ex-employee and therefore fully entitled to appear of the ex-employers behalf.

Whilst the “new” Commissioner accepted the applicant’s explanation that he was unaware of the time limit, he was not satisfied that there were exceptional circumstances. The matter was dismissed.

The second appeal

This time the applicant appealed the second outcome on the following grounds:

  • The Commissioner ought not to have heard the matter as he was a member of the Full Bench that ruled against the Appellant on grounds 1 and 2 of the appeal.
  • The Decision is contrary to the facts and against the evidence with the usual art of lawyer sophistry in convoluting the facts.
  • The Commissioner’s discretion has miscarried and has not been exercised judicially in accordance with the rules of reason and justice. The Commissioner’s Decision is arbitrary and capricious. It was made in accordance with the Commissioner’s private opinion. Further, the Decision was unjust given that s.366(2)(b)(c)(d) and (e) were found in the Appellant’s favour or otherwise given neutral weight.
  • Employers ought not to be allowed to misuse s.596 of the Act by using “shadow” lawyers to represent them without permission in the lead up to the hearing.

In his submissions to the Second Full Bench, the applicant noted that he had strongly objected to his ex-employer’s representation by lawyers, including “shadow lawyers”. He pointed out that, at the hearing, he reiterated his objection and that, although the Commissioner said he would deal with the matter, he never did.

The applicant argued that it was in the public interest that his appeal be allowed on the grounds:

He had been dismissed without a lawful reason and he ought not to be denied the overriding intentions of the Act to deliver justice by at least hearing the case.

The Respondent ought not to be allowed to “get away” with not supplying employment documents to their employees as has been [accepted] by Commissioner Johns at paragraph [19] of the Decision.

Contrary to s.596 and the intention of the Act, the Respondent enjoyed the benefit of legal representation and having its written submissions prepared by lawyers. It was only 1 day prior to the hearing that its lawyers ceased to act. These circumstances are “far more than” what is described as “shadow lawyers” in Fitzgerald v Woolworths.

Pre-empting the second Full Bench’s decision

Even before the second Full Bench had time to hand down its decision, the applicant filed further submissions alleging apprehended bias on the part of members of the Full Bench based on the positions they held before they were appointed to the Commission. But no application was made for the Full Bench to recuse itself.

This did not help. The second Full Bench dismissed both his appeal and supplementary accusation of apprehended bias.

The Federal Court of Australia

Despite this “setback”, the applicant then took his case to the Federal Court of Australia challenging the decision of the Full Bench.

The applicant sought the following relief:

  • A declaration that the decision of the Full Bench was made in jurisdictional error;
  • An order quashing the decision;
  • An order remitting the decision to the Commission for determination according to law; and
  • An order for costs.

The relief was sought on the following three grounds:

  • In considering his application for an extension of time, the Commission failed to give weight to subs 366(2) and its “intentions” and “misused s 366 to deny [his] claim for pedantic reasons”, that is, the applicant’s “well founded continued criticism” of the Commission;
  • The Commission erroneously allowed the ex-employer to be legally represented without permission; and
  • The Commission failed to abide by its own code of conduct.

The Judicial Review

The FC found that the applicant argued his case as an appeal of the second Full Bench’s decision.

“But this is not an appeal. The case comes before the Court in its original jurisdiction. A person who is aggrieved by a decision of the Commission has no right of appeal to this Court. Nor is it a merits review. Rather, it is a judicial review. In such a review, no matter what the Court may think of the decision under review, it cannot inquire into the merits.  The jurisdiction of the Court is a limited one…In the absence of error of law on the face of the record, the Court may only grant relief for jurisdictional error, and the onus is on the applicant to establish that the decision under challenge is affected by jurisdictional error…This proceeding is not a vehicle for reviewing the decision of Commissioner Johns or any of the antecedent decisions”. [Emphasis added]

The FC explained:

“A failure to accord procedural fairness will vitiate an administrative decision…Thus, a decision may be quashed for actual or apprehended bias…Jurisdictional error will also arise if the Full Bench misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question it was required to answer, or misunderstood the nature of the opinion it was to form…A mistake of law, however, even as to the proper construction of a statute, does not necessarily give rise to jurisdictional error…”

The Federal Court concluding

“None of the grounds of review has been made out. [The applicant] was not denied procedural fairness. Nor did the Second Full Bench misunderstand the nature of its jurisdiction, misconceive its duty, fail to apply itself to the question it was required to answer, or misunderstand the nature of the opinion it was required to form. Although [the applicant] is understandably disappointed by its decision, the decision of the Second Full Bench is not affected by any jurisdictional error.

“[The applicant] maintained that it was in the public interest to grant permission to appeal and that he was the victim of a grave injustice. He argued that the appeal raised issues of importance and/or of general application, that the decision of the Commissioner was manifestly unjust, and that the legal principle applied by the Commissioner was disharmonious with other decisions on similar matters. All these arguments go to the merits, not the legality, of the decision. It is not for this Court to decide whether it is in fact in the public interest to grant permission to appeal…’


Will the applicant appeal to the Full Bench of the Federal Court (he will lose) and then the High Court? He must have deep pockets and plenty of time on his hands.