FEDERAL COURT OF AUSTRALIA Wan v Australian Industrial Relations Commission [2001] FCA 1803 INDUSTRIAL - termination of employment - application to Australian Industrial Relations Commission for relief - application dismissed by Commissioner - application for leave to appeal refused by a Full Bench of the Commission - approach taken by Full Bench - considerations relevant to grant of leave to appeal ADMINISTRATIVE LAW - prerogative writs - application for writs of mandamus, certiorari and prohibition Statutes Workplace Relations Act 1996 ss 45; 170CE; 170CFA; 170CG(3); 170JF(2); 170CL; 170MW, 415 Cases Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Applied Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 Applied Construction, Forestry, Mining and Energy Union v Guidice (1998) 159 ALR 1 Referred to Miller v Australian Industrial Relations Commission [2001] FCA 486; (2001) 104 IR 415 Applied ALICE WAN v AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND AUSTRALIAN BROADCASTING CORPORATION Q 37 OF 2001 SPENDER, KIEFEL, DOWSETT JJ BRISBANE 17 DECEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 37 OF 2001 BETWEEN: ALICE WAN APPLICANT AND: AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT AUSTRALIAN BROADCASTING CORPORATION SECOND RESPONDENT JUDGES: SPENDER, KIEFEL, DOWSETT JJ DATE OF ORDER: 17 DECEMBER 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The applicationis dismissed. 2. The applicant pay the second respondent's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 37 OF 2001 BETWEEN: ALICE WAN APPLICANT AND: AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT AUSTRALIAN BROADCASTING CORPORATION SECOND RESPONDENT JUDGES: SPENDER, KIEFEL, DOWSETT JJ DATE: 17 DECEMBER 2001 PLACE: BRISBANE REASONS FOR JUDGMENT THE COURT: 1 On 11 September 1998 the applicant's employment with the second respondent was terminated on the grounds of redundancy. The applicant applied to the Australian Industrial Relations Commission for relief pursuant to s 170CE of the Workplace Relations Act 1996 ("the Act") on the ground that the termination was "harsh, unjust or unreasonable". The matter was determined by arbitration following an election made pursuant to s 170CFA(1). On 9 December 1999 Senior Deputy President Harrison dismissed the application. On 2 June 2000 a Full Bench of the Commission refused an application for leave to appeal. The applicant then sought orders for writs of mandamus, certiorari and prohibition directed to the Full Bench from the High Court of Australia. The proceedings were remitted to this Court by consent of the parties. The Commission members against whom the orders are sought include the President. Section 415(1) of the Act requires that the matter be determined by a Full Court of this Court. 2 The essential submission made on behalf of the applicant is that the Full Bench was itself required to address the question posed by the Act (s 170CG(3)(a)) as to whether there was a valid reason for the termination of the applicant's employment. It was not sufficient, it is submitted, for it to consider only whether the findings of fact and conclusions reached by the Senior Deputy President were open on the evidence. the decision of the Senior Deputy President 3 Section 170CG(3) of the Act requires: In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and (e) any other matters that the Commission considers relevant." 4 The focus of the applicant's submissions is upon on the enquiry in (a). 5 The applicant's case was that she had been employed as a systems accountant in a team within the second respondent which dealt with financial management information systems. The applicant's case referred to a decision having been made to install a new system and relocate the systems administration staff. As a result all members of the team became potentially excess to requirements. This occurred in 1997. 6 The applicant applied for various positions from about late 1997. She wished to remain working within the organisation of the second respondent. She was unsuccessful in obtaining the position of Information Technology Co-ordinator and was unhappy with the assessment report on her application. At the same meeting, in April 1998, where her application was discussed, her status as an employee was also discussed. It was agreed that she resubmit her application for the position, which she did. In the meantime she received a letter dated 23 April 1998 advising of her status as "potentially excess" and that she had four weeks to consider whether to elect immediate redundancy or take a redeployment and redundancy option. The applicant was given an extension of time within which to elect and she chose redeployment. Redeployment was to occur over a sixteen week period. On 15 May 1998 the applicant was told that she had been unsuccessful in her second application for the abovementioned position. 7 The applicant sent a number of memos or emails regarding the provision to her of assistance or training. Her communication with some of those people, including a Mr Clancy, who was the Human Resources Manager for New South Wales, appeared to upset her and she became frustrated with the progress she was making in the preparation of a re-deployment and redundancy action plan. Mr Clancy explained to her the level of priority that her training had, and she attended one course. The applicant was unsuccessful in other positions for which she applied. 8 In her evidence before the Senior Deputy President the applicant said that she concentrated her efforts on becoming re-employed within the second respondent; and there were some changes of position she was prepared to make. She did not participate in a program which was available to her, but considered that she was not given any assistance in retraining and redeployment. 9 The grounds upon which the applicant relied were summarised by the Senior Deputy President as follows: · "Ms Wan had difficulty working with her case manager Mr Peter Clancy. She did not want him to be her case manager. · She had never been counselled about poor performance during her employment with the ABC. · She did not believe that her employment was terminated on account of the operational requirements of the ABC. She said no detailed reasons were even given to her. · She believed the ABC doubted the authenticity of a medical certificate supporting a period of sick leave that she took during her redeployment period. · She believed she was dismissed because the CPSU requested the ABC to extend her period of redeployment and retraining for an additional period of ten weeks. She believed Mr Palmer who made the decision to dismiss her relied upon a report that related to her application for a job as a Producer's Assistant. She had not been given a chance to read the report at the time Mr Palmer had decided to terminate her services. The report relates to comments that were made by a selection committee. · The ABC breached its obligations or did not honour its commitments that it had under the Enterprise Agreement. In this respect she referred to most of the clauses of that agreement. In addition she referred to the Employment Agreement and referred to many clauses in that agreement which she asserted the ABC had not observed. · She received no training or job placement during the 16 week redeployment period. · She believed her dismissal was discriminatory. She did not complain about this at the time but she now believed it was discriminatory. The nature of the discrimination was on account of her being female. She was dealt with differently to male members in the finance area and she believed that her missing out on an Information Technology Co-ordinator position in Brisbane may also have been because she was female. · During her redeployment period the ABC attempted to take away or deprive her of the use of her personal computer." The Senior Deputy President's consideration of the evidence may be summarised as follows for the purposes of this appeal: · In relation to the second respondent's reason for terminating her employment, and its operational requirements, the applicant initially referred to all the members of her team becoming potentially excess but her evidence in this respect changed. She said that she considered that her position was still required. The applicant had however applied for other positions on the basis that she was potentially excess to requirements. The applicant agreed that she had been told that her chances of redeployment were higher in areas closer to her direct field of expertise. There were a number of positions which became available and for which she was suitable but she did not apply. She did not meet the criteria for other positions for which she had applied, including a Senior Executive position as Financial Accountant, Business Services and Enterprises, which involved a promotion, and Production Assistant, for which she could require considerable training. · There was other evidence from the second respondent. Mr Clancy's duties included case management of employees who were declared potentially excess to the second respondent's operational requirements. Ms Wan had commenced employment on 4 March 1996 as a Systems Accountant in the Business Support Review Team. He later agreed, when questioned by the applicant, that she had been employed in the area of financial management information systems before she was moved to the team. He said the team had been set up for a limited period to implement changes to the finance and human resources management systems at the second respondent. In about August 1997 there was no longer any need for her duties to be performed within it. She then worked in an acting capacity in corporate accounting. On 17 February 1998 she was advised that her employment would cease pursuant to clause 9.15 of the Employment Agreement. On 7 April 1998 her substantive position was abolished. There was also considerable evidence about the efforts made to retrain or relocate her into another position. · In cross-examination Mr Clancy denied the applicant's assertions that her previous position still existed, and disagreed that male employees had been treated more favourably. Mr Palmer was the head of the unit which oversaw a program involving redundancies from about mid-1996. Over 700 positions were reduced through voluntary or involuntary redundancy. He was first informed that the applicant's position was likely to be excess to requirements in January 1998. She and her union were notified accordingly. He agreed that consultants had been engaged to do some work, after she had left, but he could not say what their role was. 10 The Senior Deputy President based her findings upon the evidence of Mr Clancy and Mr Palmer. She accepted their accounts. In relation to the applicant's evidence, she did not accept that she was the only person in her team whose position became redundant; that her sex played a part in her redundancy; that she was unfairly or inappropriately treated by Mr Clancy; or that Mr Clancy or Mr Palmer had been motivated by considerations pertaining to her having taken sick leave, or because her union represented her. 11 The Senior Deputy President then went on to find, in connexion with s 170CG(3)(a) that the second respondent had a valid reason to terminate the applicant's employment: "I turn now to consider s 170CG(3) of the Act. Based on the evidence I find that the ABC had a valid reason to terminate Ms Wan's employment which reason was based on its operational requirements. Ms Wan's position as a systems accountant was excess to the operational requirements of the ABC. Ms Wan was aware that her position (and other positions) in FMIS and BIS would not continue. She knew all of these positions would be affected by the decision to reduce staff numbers. No challenge was made by her at that time about this decision or the particular impact it would have on her. Nor did she assert at that time or later her job in BIS was still in existence. These assertions seem only to have arisen shortly before the end of her redeployment period and during this arbitration. I find they are not supported by the evidence. She also knew she would have no ongoing position in BSR. On that basis she took on temporary assignments and made an application for substitution into the IT Co-ordinator position. I also note that in a letter dated 9 December 1997 (contained in exhibit A2) Ms Wan said 'my current position - Systems Accountant P309982 is scheduled to be made redundant …'" and, with respect to the allegations of discriminatory conduct, found that: "There is no evidence that Ms Wan's employment was terminated on the ground of her sex, race or stature. There is no evidence her employment was terminated because of a period of sick leave taken by her in July and August 1998. There is no evidence that her employment was terminated because of any action taken on her behalf by the CPSU." 12 The Senior Deputy President also found that paras (b), (c), (d) and (e) of the subsection were either inapplicable or did not avail the applicant. The second respondent had complied with its obligations under the Employment and Enterprise Agreements and had attempted to accommodate the applicant. the DECISION OF the full bench 13 Section 45(1) of the Act provides that an appeal lies to a Full Bench of the Commission only with its leave. Section 45(2) requires that it grant leave to appeal if it forms the opinion that the matter is of such importance that leave should be granted in the public interest. Section 170JF(2) limits the grounds for appeal to error in the Commission's decision at first instance. 14 On the application for leave to appeal the applicant put forward a number of grounds for an appeal, some eighteen in all. Some were very general and some apparently peripheral. The Full Bench dealt with them by grouping them under headings: "The Summonses", which referred to allegations that the Senior Deputy President had not called witnesses; "The Statements in Reply", which referred to an alleged exclusion of evidence; "Alleged Breaches of the Act and the Agreements"; the central contention "Was the appellant redundant?"; "The Producer's Assistant Position" and "The Information Technology Coordinator Position"; "Rulings on Evidence and Inferences"; "The Triple J Position"; and "The Litigant in Person", which dealt with the applicant's allegations concerning the lack of assistance and explanation that had been provided to her by the Senior Deputy President. 15 The firstmentioned complaint, relating to procedural fairness, concerned the alleged failure, on the part of the Senior Deputy President, to issue a summons to each of two people. The Full Bench reviewed the events at the hearing and concluded that the applicant had not pressed for them, after having been told that she could do so. A similar view was expressed with respect to the ground that the applicant's statements in reply were not received in evidence. Additionally their probative value for the applicant's case was not apparent. One factual error, identified in this material, was dealt with specifically by the Full Bench. Mr Palmer had been in error concerning the date of a meeting. Documentary evidence disclosed that the date nominated by the applicant was more likely to be accurate. The witness's error was not however considered to be of significance. It did not, in the view of the Full Bench, provide a basis for disregarding his evidence on substantial topics. 16 In relation to alleged breaches of the Act, the Full Bench considered that there was evidence, which the Senior Deputy President could properly accept, that the requisite notice under s 170CL had been served. The contention that the provision in the Employment Agreement, for consultation and the implementation of an action plan where redeployment and retraining opportunities are preferred by a potentially excess employee, had been breached was also rejected. The Full Bench held that the evidence disclosed compliance, and that it was open to the Senior Deputy President to accept the evidence of Mr Clancy on this topic. The evidence also disclosed no basis for disturbing other findings relating to alleged breaches of the Employment Agreement. 17 The applicant sought to challenge the finding concerning her position becoming redundant. The Full Bench dealt with that as follows: "The ground in paragraph (g) alleges that the appellant was never really redundant. The department in which she was permanently employed was called the Business Support Review team which was set up for a limited duration to implement changes to the finance and human resources management systems at the ABC. The appellant joined the team when she commenced with the ABC on 4 March, 1996. Mr Clancy testified that in August 1997 the department determined that it no longer required anyone to do the duties then being performed by the appellant and that she was subsequently declared excess to requirements pursuant to cl. 9.20 of the Employment Agreement on 23 April, 1998. Mr Palmer testified that the appellant had never questioned the fact of her redundancy prior to the initiation of her application. While the appellant asked us to disregard this evidence we think it was open to the Senior Deputy President to conclude from it that the appellant was in all relevant ways redundant and that by implication there was a valid reason for her dismissal…." 18 Another aspect of the evidence also reinforced the Full Bench in its view that there was no substance in the ground. It had been argued by the applicant that the second respondent's failure to call a person, Mr Crook, who was the Senior Human Resources Manager in New South Wales, enabled adverse inferences to be drawn against it. The difficulty in the way of that argument, the Full Bench identified, was that Mr Clancy was clearly a person able to give evidence about the events in question and he was called. He was the Human Resources Manager for New South Wales. No inference could therefore be drawn by the Senior Deputy President against the second respondent for failure to call Mr Crook. 19 A difficulty in the applicant's general conduct of the appeal, identified by the Full Bench, was her inability to accept that any assertion made by her required a basis in fact. The applicant equated allegations with evidence. This was reflected in a number of the proposed grounds raised before the Full Bench. 20 The applicant also contended that she was prevented from calling some evidence which would have shown that the selection process for the position of Information Technology Co-ordinator in Brisbane was unfairly biased against her. There was a considerable amount of evidence about her application for this position. It did show that a disagreement developed and that she complained about the other candidate's success, although it would seem that candidate had more relevant experience. She also made complaints that the second respondent and Mr Clancy had discriminated against her on grounds of race, gender and stature, but there was no evidence to support them. The need for the Senior Deputy President to be alert to the existence of some other available evidence, which might show discrimination, did not arise. It was not raised by the applicant. 21 Further under the heading relating to rulings and evidence, the applicant had alleged that the Senior Deputy President wrongly ruled as inadmissible part of the applicant's witness statement which dealt with circumstantial evidence of discrimination by the second respondent. The Full Bench held that the parts in question could not have advanced the applicant's case. Although excessively detailed, they appeared largely irrelevant and in some cases argumentative. 22 Insofar as the applicant alleged, or implied, some unfairness on the part of the Senior Deputy President, the Full Bench observed, in some detail, the lengths to which the Senior Deputy President had gone so as to ensure that the applicant understood what was required in her statement and the steps she had taken to ensure that the evidence was in a proper state for the hearing. The same care and diligence had been applied by the Senior Deputy President throughout the conduct of the proceedings. Allegations of unfairness in rulings, or that insufficient weight was given to the applicant's inexperience and ignorance of procedural matters, were also rejected. The evidence which was excluded was of only marginal relevance. The large number of rulings simply reflected the nature of the applicant's material. There was nothing which persuaded the Full Bench that any further evidence would have affected the outcome. 23 The Full Bench concluded: "We have carefully examined all of the grounds advanced by the appellant. We are unable to detect any error of law or material fact in the Senior Deputy President's decision. We decline to grant leave to appeal." THE APPLICATION FOR PREROGATIVE RELIEF 24 The applicant's grounds, in her amended application, fall into two categories. The first two relate to the "central issue" before the Senior Deputy President, namely whether there was a valid reason for the termination of employment having regard to the operational requirements of the second respondent. As earlier mentioned, the principal ground is that the Full Bench did not consider this question itself. The second is that the Full Bench also reversed the onus of proof, effectively requiring the applicant to disprove the matter. 25 The other two grounds relate to alleged breaches of natural justice both on the part of the Senior Deputy President and the Full Bench. They are unparticularised. Counsel acting pro bono for the applicant did not seek to put forward submissions in support of them. The applicant herself produced a substantial quantity of material which she put forward separately as her submissions on the grounds. 26 The conventional considerations for the granting of leave apply to s 45(1) (Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200, 220), namely, whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice would result if leave were refused. It was not suggested that this case fell into the latter category. The decision of the Full Court in that case also holds that the requirement, in s 45(2), that leave be granted in cases of public interest, does not prescribe the test for leave under s 45(1) (see also Construction, Forestry, Mining and Energy Union v Guidice (1998) 159 ALR 1 at 20). 27 In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, the High Court held that the nature of an appeal pursuant to s 45(1) did not vary according to the nature of the decision under appeal. In all cases, an appellant could only be successful if appealable error was demonstrated. However the Court pointed out that where the appeal was from a decision of a discretionary nature, the nature of that discretion might affect the ease with which error is shown. Some discretions are relatively narrow, involving little more than the formation of an opinion based on facts. Other discretions are relatively wide, involving decisions almost of a "policy" nature. The narrower the discretion, the easier it will be to demonstrate error. 28 In the present case the applicant argued that the Full Bench fell into error by limiting its inquiry to the question of whether the decision under appeal was supportable on the evidence. The applicant submitted that it ought to have examined the issue afresh to determine whether it agreed with the decision below. This "error" was said to have been caused by a failure to identify the relevant discretion exercised at first instance as being relatively "narrow". 29 It is likely that this submission reflects a misunderstanding of the decision in Coal and Allied Operations. We do not understand the High Court to have established a dichotomy between narrow and broad discretions and to have prescribed separate bases of appeal in each case. Rather the High Court held that there was only one basis of appeal, namely demonstrated appealable error. The relative breadth or narrowness of the discretion might affect the capacity to demonstrate such error. It is not necessary, however, to consider this question further because, in our view, the Full Bench addressed only the question of leave to appeal. Relief in the present proceedings is therefore dependent upon demonstrating an entitlement to it in connection with the refusal of leave to appeal. 30 Section 45 does not specify grounds for granting leave to appeal other than in the special case referred to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have included considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. These "grounds" should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error. 31 At its highest, the applicant's case appears to be that the exercise by the Full Bench of its discretion as to leave to appeal miscarried because it proceeded upon the basis that any subsequent appeal could be disposed of by determining whether the decision reached by the Senior Deputy President was "open" on the evidence. The applicant asserts that it ought to have proceeded upon the basis that in any such appeal, it would itself consider the matters raised to see whether it agreed with the decision at first instance. This approach appears to be inconsistent with the High Court's decision in Coal and Allied Operations that an appeal pursuant to s 45(1) depends upon demonstrated appealable error. It is true that in Miller v Australian Industrial Relations Commission [2001] FCA 486 at [50] (see also (2001) 104 IR 415 at 436) a Full Court of this Court held that a Full Bench could not discharge its function pursuant to s 45(1) by finding that a particular outcome was open on the evidence, at least where the appeal is from a discretion which is relatively "narrow". The Court appears to have had in mind the situation in which the ultimate decision is based upon intermediate decisions which may simply be wrong. An outcome based upon those errors would involve appealable error even if the ultimate decision were open on the evidence. However, in the present case the Full Bench has demonstrated that there was no such intermediate error. In those circumstances, the refusal of leave to appeal involved no error of jurisdiction. 32 The applicant herself put forward written submissions on the question whether she was accorded procedural fairness. That fact and the Full Bench's consideration of the extensive allegations made to it by the applicant, have been mentioned earlier in these reasons. We have perused the written submissions, which refer variously to aspects of the process undertaken by the Senior Deputy President and the second respondent. They do not identify any error in the Full Bench's reasons. Those reasons are not addressed. They do not show that the Full Bench in some way misunderstood the nature of its jurisdiction. 33 The application should be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Kiefel and Dowsett. Associate: Dated: 17 December 2001 Counsel for the Applicant: Mr D O'Gorman Counsel for the Second Respondent: Mr A Hornemann-Wren Solicitor for the Second Respondent: Blake Dawson Waldron Date of Hearing: 11 October 2001 Date of Judgment: 17 December 2001