Unfair dismissal cases and questions of law

The Fair Work Commission is empowered by the Fair Work Act to refer questions of law for determination to the Federal Court of Australia, but rarely does so as this extract from a such a case demonstrates.

“It is clear that a significant question arising in Ms Giggs’ unfair dismissal application is whether St John’s requirement that Ms Giggs comply with the Policy constituted a lawful and reasonable employment direction, such that her refusal to comply gave rise to a valid reason for dismissal within the meaning of s 387(a) of the FW Act. That is not of itself a question of law; it requires the application of a legal standard to the facts of the particular case, and is therefore a mixed question of fact and law. Whether a direction is lawful and reasonable cannot be determined in vacuo but only by reference to the subject matter and context. Accordingly, no determination can be made as to whether a particular direction is lawful and reasonable until the relevant factual findings have been made. 6

In my view, the “questions of law” which Ms Giggs seeks to be referred for the opinion of the Federal Court are better characterised as tendentious propositions, masquerading as questions, raised in support of her case that she could not lawfully and reasonably be directed to comply with the Policy. None of them arises independently as a question of law which necessarily requires determination in the proceeding before the Commissioner. And, because they are (at best) simply facets of the larger question as to whether St John’s direction for Ms Giggs to comply with the Policy was lawful and reasonable, the “questions” are not, either individually or collectively, necessarily determinative of that significant question. Nor, for the same reason, can the questions be determined without findings being made as to the facts bearing on the lawfulness and reasonableness of the direction to comply with the Policy.

Indeed, as submitted by St John, a number of the “questions” are clearly founded on disputed factual premises or require factual findings. For example, question 1 (which Ms Giggs characterised as the primary question) is premised upon “the absence of an underlying statutory requirement” as to vaccination. That is clearly contested by St John, which contends that the Policy was issued as a direct response to the vaccination requirement imposed on persons (including Ms Giggs) entering residential aged care premises by the Chief Health Officer of Western Australia. In relation to question 4, the question is conditioned on the identification of “these circumstances” (i.e. the circumstances of the case), and Ms Giggs’ own submissions contend that its consideration “will turn on the effectiveness and utility of the influenza vaccination”.

Referral of the “questions” would undoubtedly lead to considerable delay in the determination of Ms Giggs’ unfair dismissal application. As earlier stated, the answers to the questions will not necessary be determinative of the question of whether the direction to comply with the Policy was lawful and reasonable. Further, the questions do not bear upon a number of other important questions which will arise in the matter, including whether Ms Giggs was capable of discharging the inherent requirements of her position, whether she was denied procedural fairness, and whether her dismissal was harsh in all the circumstances. Accordingly, this is not a case where the referral of the questions would aid the substantive determination of the proceedings. Additionally, I note that Ms Giggs seeks the remedy of reinstatement. Even if Ms Giggs ultimately succeeds in demonstrating that her dismissal was unfair, the award of reinstatement will from a practical perspective become more difficult with the passage of time. Ms Giggs has already lost an early hearing date on 8 October 2021 because of her referral application, and the grant of the application would undoubtedly cause the hearing of her substantive application to be further delayed until well into 2022.

In summary, I am not satisfied that any of the six “questions” constitutes a question of law arising in Ms Giggs’ unfair dismissal application. That of itself means that the referral application cannot be granted. In any event, even if the discretion to grant the referral application was available, I would not exercise it. There have been no findings of fact as to the matters upon which the questions are premised or relate, the answers to the questions would not be determinative of Ms Giggs’ unfair dismissal application or even substantially aid its determination, and the referral sought would cause unnecessary delay in the proceedings.

Accordingly, I decline to refer any of the six questions for the opinion of the Federal Court.”

Giggs v St John Ambulance Western Australia Ltd (2021) FWC 59991 delivered 27 September 2021 per Hatcher VP