Fair Work Commission and procedural fairness

This extract from an unfair dismissal case deals with the legal principles of procedural fairness.

“It is accepted that procedural unfairness afforded to a party or parties is an error that warrants correction on appeal and enlivens the public interest.

[30] Members of the Commission are obliged to observe procedural fairness in carrying out their functions under the Act.14 Procedural fairness is a component of natural justice. It requires that the Commission ensure that each party is given a reasonable opportunity to present its case.15 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd, Katzmann and Rangiah JJ explained what is meant by a reasonable opportunity to present a case:

What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise. Procedural fairness requires that the statutory power be exercised fairly: that is, in accordance with procedures that are fair to each party in light of the statutory requirements, the interests of the parties and the interests and purposes, whether public or private, which the statute seeks to advance or permits to be taken into account as legitimate considerations.16

[31] A Full Bench of the Commission in City of Stirling v Emery considered the consequences of a failure to afford procedural fairness, stating:

In Stead v State Government Insurance Commission the High Court stated that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.” The Court noted that it is relevant to consider whether further information that might have come before the Court if natural justice had been afforded would have made any difference. The Court went on to state:

“Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. …It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.”

In our view, these observations are relevant to the approach of a Full Bench of the Commission in considering a contention on appeal that a party has been denied procedural fairness, this being a component of natural justice.17

[32] The Commissioner’s decision dealt squarely with the jurisdictional objection that the Appellant was not dismissed. This is despite the parties having been directed and notified on several occasions that the issue to be determined was whether the minimum employment period had been met. Because of those directions and notifications, the Appellant filed evidence and submissions directed at an issue that was not the subject matter of the Decision. In doing so, he was denied the opportunity to engage with the issue that was ultimately determined by the Commissioner. By proceeding to hear and determine the dismissal question at the hearing on 25 November 2022, before the Appellant had an opportunity to develop his case and file evidence and submissions relevant to that issue, we consider that the Appellant was denied a reasonable opportunity to present his case in support of his argument that he had been dismissed and was therefore protected by the provisions of Part 3-2 of the Act. In this respect, the Appellant was denied natural justice.

[33] In the Decision, the Commissioner made findings of fact in respect of whether the Appellant had been dismissed, which were plainly relevant to whether the Respondent’s jurisdictional objection succeeded. Procedural fairness required that the Appellant be given a reasonable opportunity to address those issues by way of submissions and evidence at a hearing on the dismissal question.

[34] There is, in our view, at least some prospect that the Appellant may have been able to present an arguable case that he had been dismissed, if he had been given the opportunity to file material addressing the dismissal issue. Accordingly, we are not satisfied that the denial of natural justice could have made no difference to the outcome of the question of whether the Appellant was dismissed.

[35] A denial of natural justice is a jurisdictional error.18 The Decision disclosed jurisdictional error in that the Appellant was denied procedural fairness. Given the nature of the error which has been established, we are satisfied that to the extent that it is necessary to do so, we would amend the Appellant’s Notice under s 586 of the Act to include this matter as a ground of appeal. We note that neither party took objection to this course when asked.

5 Conclusion and disposition

[36] For the reasons set out above, we order as follows:

  1. a) Permission to appeal is granted.
  2. b) The appeal is upheld.
  3. c) The Decision and Order of Commissioner Schneider in Pen v Octopus Fishing No.2 Pty Ltd [2023] FWC 2610 and PR767025 are quashed.
  4. d) The application for an unfair dismissal remedy is remitted to Deputy President O’Keeffe for redetermination.

[37] We also direct the parties to let the Associate to Deputy President O’Keeffe know within three days of this decision being published, whether they consent to participating in conciliation before Commission Lim. If both parties consent, Commissioner Lim will conduct a conciliation conference prior to the rehearing before Deputy President O’Keeffe.”

Pen v Octopus Fishing No.2 Pty Ltd (2023) FWCFB 253 delivered 14 December 2023 per Beaumont DP, O’Keeffe DP and Lim C