This section of an unfair dismissal decision of the Fair Work Commission deals with the rather esoteric processes of the Commission’s contested cases resolution.
“[32] There can be no doubt that the Commissioner considered the effect of any order for compensation on Gonva’s business. The Commissioner expressly considered each of the matters in s 392(2) including the effect of the order on the viability of the enterprise in s 392(a).16 The Commissioner recorded that there was no evidence with respect to the viability of the business other than an assertion by Mr Gonzalez that he could not afford any compensation although the Commissioner took into account that Gonva is a small business and that the fact it was considering removing Ms Ramirez’s Monday shifts was “indicative of a concern about revenue and profitability.”17 Given the state of the evidence, the Commissioner indicated she was unable to discount any compensation awarded on the basis of the effect on the viability of Gonva’s business. That conclusion was open to the Commissioner. There is no arguable case for appealable error on the basis that the Commissioner failed to take into account the effect of the amount of compensation on the viability of Gonva’s business.
[33] Mr Gonzalez’s true complaint appears to be that the Commissioner did not make further inquiries in relation to the state of Gonva’s business. We do not consider that this complaint gives rise to an arguable case of appealable error in the circumstances of this matter. Administrative decision-makers are not generally obliged to conduct further inquiries to supplement material provided to them. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI), for example, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in relation to what was then the Refugee Review Tribunal:18
In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.
[34] Similarly, in Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16), Kiefel CJ, Bell, Keane, Gordon and Edelman JJ observed:19
As Griffiths J correctly held in the Full Court, there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law. However, the power in s 473DC is still subject to the usual implication that it must be exercised within the bounds of legal reasonableness. Hence, this Court has held that a decision can be invalid if it is made in circumstances which exceed the high threshold of legal unreasonableness for the Authority’s failure to exercise the power in s 473DC to get new information
[35] Nor, as a general rule, does procedural fairness require a decision-maker to direct the attention of a person to apparent omissions in their case.20
[36] It is possible that, in some circumstances, the failure of an administrative decision- maker to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could constitute a failure to undertake the review required by the applicable statute or cause the decision to exceed the threshold of legal unreasonableness.21 The cases in which
failure to conduct an inquiry have invalidated a decision have been generally been regarded as “rare” or “exceptional”.22 The test of unreasonableness presents a “high threshold” and the fact that it might have been reasonable to make an inquiry does not mean that a failure to do so constitutes error.23
[37] The distinction between inquisitorial and adversarial proceedings is not always neat. Although the Commission is able to inform itself in such manner as it considers appropriate,24 most proceedings before the Commission are conducted in an adversarial manner and the Commission relies upon such evidence as is presented by the parties. It may be that some functions of the Commission are more akin to an inquisitorial process. In that situation at least, it is possible that a failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, might result in error.25
[38] The procedures adopted in proceedings arising from the dismissal of an employee, including unfair dismissal proceedings, have traditionally been understood to be adversarial rather than inquisitorial in nature.26 The current procedures adopted by the Commission reflect that unfair dismissal proceedings are conducted in an adversarial manner. The Fair Work Commission Rules 2024 (Cth) require that an application for an unfair dismissal remedy be served on the former employer and that a respondent lodge a response to the application, together with any supporting documents, within 7 days of being served with the application.27 The Commission customarily makes directions in advance of conducting a hearing or determinative conference requiring the parties to file evidence and submissions in advance to enable the Commissioner’s function to be undertaken efficiently and fairly.28
[39] In unfair dismissal proceedings, the Commission is required, by s 387, to take into account a series of matters when considering whether a dismissal is harsh, unjust or unreasonable. It is required, by ss 391(4) and 392(2), to take into account other factors in determining the amount of any order with respect to remuneration lost or compensation in lieu of reinstatement. That does not mean that, in each case, the Commission is required to conduct its own independent inquiry into each of those factors. The Commission will ordinarily consider those matters on the basis of the material presented by the parties.
[40] In this matter, we do not consider there is an arguable case that the Commissioner erred by not making further inquiries in relation to the financial position of Gonva’s business. Mr Gonzalez appeared at the hearing and presented the case on behalf of Gonva. Submissions and evidence were filed in advance of the hearing. The proceedings were conducted in an adversarial manner. It would have been open to the Commissioner to request additional material to be produced in relation to a wide range of issues potentially relevant to whether the dismissal was unfair and what relief, if any, should be granted. There is no reason to suggest, however, that the Commissioner was required to conduct further inquiries. Beyond a bare assertion that Mr Gonzalez could not afford to pay compensation, there does not appear to have been any material before the Commissioner suggesting that the financial state of Gonva’s business was such that a compensation order would threaten its viability. The bald assertion made by Mr Gonzalez did not require the Commissioner to conduct any other inquiry. The Commissioner was entitled to rely on the material presented. It is not relevant that the Commissioner did request that Gonva provide payslips for Ms Ramirez.
[41] With respect to ground 2, the decision at first instance demonstrates that the Commissioner considered the evidence presented by the parties concerning Gonva’s allegations of serious misconduct in considerable detail. The Commissioner found that the allegations concerning Ms Ramirez’s queries regarding her employment, recording of calls and use of her phone in the workplace “did not occur as alleged.”29 The Commissioner’s careful and thorough consideration of the evidence was informed by the benefit she had of seeing and hearing the evidence being given.30 The relevant inquiry in relation to the Small Business Fair Dismissal Code was whether Mr Gonzalez’s belief that Ms Ramirez’s conduct was sufficiently serious to justify her immediate dismissal was based on reasonable grounds. Gonva’s submissions on appeal do no more than assert the truth of allegations found by the Commissioner to be unsubstantiated. There is no reasonably arguable case that there were errors in the factual findings of the Commissioner. It is, in any event, not in the public interests for permission to appeal to be granted in order for the Full Bench to revisit those findings.
[42] With respect to ground 3, the Full Bench understands that proceedings in a court or tribunal may well be intimidating and a new experience for self-represented litigants. The same was true for both parties in these proceedings. The assertion that the Commissioner was prejudiced because of the gender, language or cultural background of Mr Gonzalez appears to be made solely on the basis that the Commissioner accepted Ms Ramirez’s evidence and generalised assertions as to the interactions between the Commissioner and Ms Ramirez during the hearing. The submission has no merit. As we have said, the Commissioner’s findings were based on a careful consideration of the evidence. The reference in the decision to the evidence given by Ms Ramirez concerning the “cultural issues” she believed were influential in the events leading to her dismissal was open to the Commissioner and, in any event, the Commissioner indicated that any cultural considerations could not affect the disposition of the application.31 The alleged error in the Commissioner not having regard to a witness statement that was filed, but not admitted into evidence, is difficult to follow and of no substance. No arguable case of appealable error is raised by that submission.
Conclusion
[43] For the reasons outlined above, the Full Bench orders that permission to appeal is refused.”
Gonva Group Pty Ltd v Ramirez [2025] FWCFB 4 delivered 13 January 2025 per Gibian VP, Dean DP and Wright DP