[2020] FWCFB 5131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Colin McKerlie
v
RateIt Australia Pty Ltd t/a RateIt
(C2020/4086 and C2020/5851)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ANDERSON
COMMISSIONER JOHNS

SYDNEY, 24 SEPTEMBER 2020

Appeals against decisions of Deputy President Boyce at Sydney in matter number U2020/1211.

Introduction

[1] Mr Colin McKerlie has lodged two appeals, for which permission to appeal is required, against various decisions made by Deputy President Boyce in connection with an unfair dismissal application lodged by Mr McKerlie relating to the termination of his engagement with RateIt Australia Pty Ltd (RateIt). The first appeal filed on 29 May 2020 in matter C2020/4086 (first appeal) relates to a number of decisions interlocutory and procedural decisions (or purported decisions) made by the Deputy President, which are characterised by Mr McKerlie as follows:

• the decision not to take any action in regard to Mr McKerlie’s complaint that the respondent’s solicitors had committed extortion by sending a letter to Mr McKerlie demanding the performance of various demands before the respondent company would pay him monies already owed to him (decision 1);

• the decision not to take any action in regard to Mr McKerlie’s complaint that the respondent and/ or the respondent’s solicitors had committed conspiracy to defeat justice in order to put before the Commission a document that had been obtained by fraud (decision 2);

• the decision not to take any action in regard to Mr McKerlie’s complaint that the respondent’s solicitors had sought to mislead the Commission by submitting a document purporting to be Mr McKerlie’s resume, constituted a “representation” by Mr McKerlie to the respondent relevant to the proceedings before the Commission (decision 3);

• the decision to give the respondent permission to have legal representation in the proceedings (decision 4);

• the decision to allow MKI Legal to represent the respondent in the proceedings (decision 5);

• the decision that the issue of “genuine redundancy” is a “jurisdictional objection” (decision 6);

• the decision to refuse to grant Mr McKerlie an adjournment to prepare submissions and evidence in regard to the issue of “genuine redundancy” (decision 7);

• the decision of the Deputy President on 12 May 2020 not to allow Mr McKerlie to file a statement and annexures relevant to his submissions regarding the issue of “genuine redundancy” (decision 8); and

• the decision of the Deputy President on 14 May 2020 to compel Mr McKerlie to prepare and file submissions on the issue of his application that the Deputy President recuse himself from further proceedings on the basis of his not being fit to hold judicial office, his demonstration of active prejudice and the apprehension of bias against Mr McKerlie both as a member of a class of persons, unrepresented workers, and personally (decision 9).

[2] The second appeal, filed on 28 July 2020 in matter C2020/5851 (second appeal), relates to a decision issued by the Deputy President on 15 July 2020 1 (recusal decision) in which he dismissed Mr McKerlie’s application for the Deputy President to recuse or otherwise disqualify himself from further involvement in the proceedings.

Reasons for the grant of legal representation in the appeal

[3] At the commencement of the hearing of the appeals on 4 September 2020 and over the opposition of Mr McKerlie, we granted permission for RateIt to be legally represented in the proceedings and indicated we would give our reasons in the final decision. We considered that legal representation of RateIt would permit the matter to be dealt with more efficiently, having regard to the complexity of the matter, such as to satisfy the jurisdictional prerequisite for the grant of permission in s 596(2)(a). Mr McKerlie’s unfair dismissal application has been the subject of a significant degree of procedural complexity, as our summary of the procedural history below illustrates, and we formed the view that the legal representation of RateIt would assist in ensuring that we properly understood the relevant aspects of that procedural history. We also considered that the appeals raised a number of legal issues of some complexity relating to procedural fairness and the principles applying to applications for recusal, and the second appeal also raised the novel proposition that the Commission has the power to determine the fitness to hold office of its own members. On that basis, we formed the view that we would not be assisted by RateIt’s submissions on these issues unless these were made by a lawyer. We determined to exercise our discretion to grant permission for legal representation largely on the same basis. Mr McKerlie raised a number of matters concerning the conduct of MKI Legal, the lawyers who represented RateIt at first instance and who would represent it in the appeals if permission were granted. These issues are discussed in somewhat greater detail below and, for the reasons given later, we consider that they are without substance. But in any event, the requirement for permission for legal representation in s 596 is not concerned with the selection by the Commission of the legal team to represent a party. 2

Factual background and procedural history

[4] It is necessary to set out the factual background to and the procedural history of Mr McKerlie’s unfair dismissal application in some detail. Mr McKerlie was engaged to perform work by the respondent, RateIt, on 19 November 2018. There is a dispute about whether he was engaged in the capacity of employee or independent contractor. The engagement was terminated effective from 31 January 2020. Mr McKerlie filed an unfair dismissal application in respect of the termination pursuant to s 394 of the Fair Work Act 2009 (FW Act) on 5 February 2020. Under r 19 of the Fair Work Commission Rules 2013 (FW Rules), RateIt was required to file a Form F3 response to the application within seven calendar days of being served with the application. RateIt did not file any Form F3 within the prescribed time period.

[5] Mr McKerlie’s application was initially allocated to one of the Commission’s staff conciliators on 7 February 2020, and the matter was listed for a telephone conciliation to be held on 6 March 2020. However, on 21 February 2020, Mr McKerlie wrote to the Commission alleging that he had received an “extortionate letter” from lawyers acting for RateIt, MKI Legal. He requested that a hearing be organised so that he could seek orders including that MKI Legal be barred from further participation in the proceedings and that the Commission appoint lawyers to act on RateIt’s behalf. In response to an inquiry from the Commission, Mr McKerlie confirmed on 25 February 2020 that he wished to have the conciliation conference vacated and his matter referred to arbitration. Consequently the listed conciliation conference was cancelled and the matter was referred to the Deputy President for arbitration on 27 February 2020.

[6] On 28 February 2020, the Commission received an email from RateIt’s lawyers, MKI Legal, stating that they acted for the respondent and intended to lodge a Form F3 response to Mr McKerlie’s unfair dismissal application. On 2 March 2020, the Deputy President’s chambers responded to this email, in which it was noted that RateIt’s lawyers had not filed a Form F53 notice that they were commencing to act for RateIt and that it was not for a party to determine when a document (namely the Form F3 employer response) was to be filed. The email went on to state that the conduct of RateIt’s legal representatives had “flouted, without reason, a clear direction made by the Commission ... could undermine the respondent’s application to be legal[ly] represented...”. RateIt was directed to file its Form F3 by 4 March 2020. The same day, the matter was listed for a mention and directions hearing, by telephone, to be conducted on 6 March 2020.

[7] RateIt filed its Form F3 on 4 March 2020 in accordance with the Deputy President’s earlier direction. Section 2 of Form F3, as prescribed by the FW Rules, is headed “Jurisdictional objections”. Paragraph 2.1 asks: “Does the employer have any jurisdictional or other objections to the application?”. RateIt marked the box for the answer “Yes”. Paragraph 2.2 then asks: “If you answered yes to question 2.1 – On what basis does the employer object? If the employer objects on multiple grounds you can select more than one on the list below:”. RateIt marked two of the listed grounds for objection: first, “The Applicant was not an employee” and, second, “The dismissal was a case of genuine redundancy”. RateIt then set out the grounds for these objections in the box provided in the form.

[8] Also on 4 March 2020, Mr McKerlie filed a submission with a number of accompanying documents in which he alleged that MKI Legal had engaged in conduct which was “misleading and deceptive” and which “amounted to an attempt to extort the Applicant’s compliance with demands made by the Respondent’s solicitors and an act of contempt of the jurisdiction of the Commission”. Mr McKerlie went on to say in his submission:

“The Applicant seeks orders to redress the conduct of the Respondent's solicitors including but not limited to an order that the Respondent instruct new solicitors drawn from a list provided by the Fair Work Commission and subject to the ongoing monitoring of the Commission in their communications with the Applicant.”

[9] The Deputy President conducted the directions hearing on 6 March 2020. This hearing was not recorded. Following the hearing, the Deputy President’s chambers issued directions which, for relevant purposes, included the following:

“[1] By 4.00pm AEDT on Friday, 27 March 2020, the Respondent must file with the Commission and serve on the Applicant an Outline of Submissions, witness statements, and any documents in support of the jurisdictional objections raised.

[2] By 4.00pm AEDT on Friday, 27 March 2020, the Respondent must file with the Commission and serve on the Applicant an Outline of Submissions in support of its application to be legally represented in this matter (noting that the Applicant has already filed and served submissions regarding same).

[3] By 4.00pm AEST on Friday, 17 April 2020, the Applicant must file in the Commission and serve on the Respondent an Outline of Submissions, witness statements, and any documents in opposition to the jurisdictional objections raised.

[4] By 4.00pm AEST on Friday, 17 April 2020, the Applicant must file with the Commission and serve on the Respondent submissions in reply to the Respondent’s submissions regarding the Respondent’s application to be legally represented in this matter.

[5] By 4.00pm AEDT on Friday, 24 April 2020, the Respondent must file in the Commission and serve on the Applicant submissions, witness statements, and any documents in reply to the Applicant’s submissions regarding the jurisdictional objections raised.

[6] The matter is listed for Hearing regarding the jurisdictional objections at 10:30am AEST in Sydney (with videolink to Melbourne and Perth) on Friday, 8 May 2020...”

[10] It may be noted that directions [2] and [4] indicate that permission for legal representation was not granted, at least on an ongoing basis, at the directions hearing on 6 March 2020. The next thing that occurred was that on 16 March 2020, at the request of the parties, the matter was listed for a conciliation conference before a different member of the Commission to occur on 25 March 2020. This conference was not successful in resolving the matter, which was then allocated back to the Deputy President. On 27 and 30 March 2020, RateIt filed the following documents in two separate emails:

• “Submissions as to Jurisdictional Objection”, which contained submissions concerning RateIt’s contentions that Mr McKerlie was a contractor and not an employee and, in the alternative that, if he was an employee, his dismissal was a case of genuine redundancy, and also addressed further in the alternative how his application could be disposed of having regard to s 387 if his dismissal was found not to be a case of genuine redundancy;

• “Submissions for Legal Representation”, which contained RateIt’s submissions in support of its application to be granted permission to be represented by MKI Legal pursuant to s 596(2) of the FW Act, and also a response to Mr McKerlie’s submissions of 3 March 2020;

• witness statements by three employees of RateIt, which addressed the issues of the basis of Mr McKerlie’s engagement, whether his dismissal was a genuine redundancy and the circumstances attending his dismissal, and legal representation in the proceedings; and

• various primary documents referred to in the witness statements.

[11] On 30 March 2020, Mr McKerlie sent an email to the Associate to the Deputy President which, omitting formal parts, stated:

“I write to request clarification of the issues which are to be the subject of the hearing on 8 May.

The matter was escalated to a hearing without conciliation on my request for consideration of the conduct of the Respondent's solicitors in the matter.

I can understand that this would translate to a hearing on the Respondent's request for legal representation but I am unsure of the ambit of the hearing regarding jurisdiction.

Is this hearing intended to be solely in regard to those two issues or is it intended that all issues between the parties are to be determined in this hearing?

I understand that the jurisdictional issue may be determinative, but I am not sure if it is intended to address the substantive issues between the parties if it is decided the Applicant has jurisdiction.

Could you please advise by return, thank you”

[12] The Deputy President’s Associate sent the following reply that afternoon (omitting formal parts):

“I refer to your email below.

The matter is programmed for a hearing on the jurisdictional objections only. The hearing is not intended to address the “substantive issues” between the parties.”

[13] On 8 April 2020, Mr McKerlie filed an application for an order for the production of documents. The same day, RateIt sent the Commission an email indicating that it opposed the order sought and wished to make submissions about it. On 9 April 2020, directions were issued by the Deputy President’s chambers for the parties to file outlines of submissions about the issue, and it was listed for an interlocutory telephone hearing to be held on 21 April 2020.

[14] On 17 April 2020, Mr McKerlie filed a document entitled “Applicant’s Amended Outline of Submissions on Legal Representation”, which addressed at length Mr McKerlie’s contention that RateIt ought not be permitted to be represented by MKI Legal in the proceedings, and which contained allegations of a serious nature against RateIt, two of RateIt’s managers, and MKI Legal. He also filed a witness statement made by himself, which was entitled “Applicant’s Statement Regarding the Issues of Representation, Jurisdiction and Notice for Production of Documents”. This statement addressed the issue of the basis of Mr McKerlie’s engagement by RateIt (i.e. whether he was an employee or independent contractor) and set out in some detail Mr McKerlie’s perspective of the history of his engagement up until January 2020, but did not deal with the circumstances of the termination of his engagement or the issue of whether he had genuinely been made redundant. The statement also briefly dealt with the issues of legal representation and the production of documents.

[15] At the interlocutory hearing on 21 April 2020, Mr Marouchak, a solicitor employed by MKI Legal, appeared for RateIt. The transcript of the hearing shows that Mr Marouchak neither sought nor was granted permission to appear for RateIt, albeit no objection to Mr Marouchak’s appearance was made by Mr McKerlie. Mr McKerlie eventually withdrew his application for an order for production pending the determination of what he referred to as the issue of “jurisdiction”, since the documents he sought were not relevant to the issue of jurisdiction. 3 However, there was no clarification of what the issue(s) of jurisdiction was or were during this hearing.

[16] On 24 April 2020, RateIt filed two further witness statements, in response to Mr McKerlie’s submissions, which dealt with the basis of his engagement and the question of whether he was covered by an award. Thereafter, no further events of relevance occurred prior to the listed hearing on 8 May 2020. There was no communication from the Deputy President’s chambers to suggest that RateIt had been granted permission for legal representation pursuant to s 596(2) of the FW Act.

[17] At the commencement of the 8 May hearing, the following exchange transpired between the Deputy President and the parties in respect of RateIt’s request for permission to be legally represented in the proceedings:

“THE DEPUTY PRESIDENT: Yes, Mr Marouchak, you're appearing for the respondent?

MR MAROUCHAK: Yes, Deputy President.

THE DEPUTY PRESIDENT: Okay. I note permission has already been granted for Mr Marouchak to appear today as the legal representative for the respondent. So I've got the materials, the court book, as well as statements and the submissions.

So Mr McKerlie, how do you propose to proceed?

MR McKERLIE: Well, Deputy President, a couple of preliminary matters, I suppose. This hearing was initiated by my initial complaint to the Commission regarding the conduct of the respondent's solicitors. The Commission then, apparently, made the decision to proceed with that complaint in the nature of a hearing with regard to the general question of permission to have legal representation and to list the issue of jurisdiction for hearing, at the same time.

My submission would be that it would be appropriate to determine the issue with regard to my complaint regarding the conduct of the respondent's solicitors and my application for an order that they be removed from the proceedings, prior to consideration of the general question of legal representation. And that question, I would submit, should be decided prior to the consideration of the matter of jurisdiction.

THE DEPUTY PRESIDENT: Well, I've already granted them permission to appear. So I'm not going to re-traverse that issue. We're just here to deal with the jurisdictional issues.

What is the complaint about the solicitors?

MR McKERLIE: Well, Deputy President, it's made out extensively in my submissions and my amended submissions with regard to legal representation.

THE DEPUTY PRESIDENT: I don't understand. We've already dealt with that previously at an interlocutory stage. I'm not going to have - - -

MR McKERLIE: Well, Deputy President, I was never given an opportunity to make submissions with regard to that, as far as I'm aware.

THE DEPUTY PRESIDENT: Well, you put on written submissions, didn't you?

MR McKERLIE: Yes, Deputy President.

THE DEPUTY PRESIDENT: Yes. So it's been determined…

….

THE DEPUTY PRESIDENT: ...Well, Mr McKerlie, having heard all that, none of it gives rise to issues that are required for me to determine. If there's any complaints or issues with the solicitors it's not for the Fair Work Commission to resolve.

Nor is it for the Commission to resolve, you know, various disputes that have occurred witness the parties - - -

MR McKERLIE: Well - - -

THE DEPUTY PRESIDENT: - - - prior to this matter coming on. All I have to deal with is jurisdictional objections today.

And as I've said, I've already determined under section 596 of the Act, that it would be more efficient, given the complexity of some of the arguments and issues being raised, to go to jurisdictional questions for the respondent to be represented. And I note that they have some evidence in their evidence that was already filed going to the capacity for the respondent to represent itself.

. . . .

MR McKERLIE: Very well, Mr Deputy President. What I'd suggest then is, given that what you're saying is that the issue of representation and my submissions with regard to the particularities of the respondent's solicitors representation either have been dealt with or aren't going to be dealt with, then it's over to the respondent to argue their case with regard to jurisdiction.

THE DEPUTY PRESIDENT: Well, all I can say is that I'm required to determine whether permission to appear is granted to the respondent's lawyers.

I do so on the basis of the nature of the case before me. I'm certainly not aware of any conduct in the respondent's solicitor's interactions with the Commission that would lead me to make a finding or to re-traverse my decision or to withdraw permission, in these proceedings.

So the focus of 596 is what are the issues, and they have complexity, will the proceedings be conducted more efficiently and will there be any disadvantage? Along fairness grounds as to the respondent being entitled to represent or be represented by a legal representative and as I've said, I've made a decision on that.” 4

[18] The Deputy President refused to entertain Mr McKerlie’s submissions directed to the conduct of MKI Legal, confirmed that he had previously made a decision to grant RateIt permission for legal representation, and then said:

“Today's set down for a hearing on jurisdictional questions which really - whilst matters of law, very much are determined according to the relevant facts that underlie those objections.

So I'd like to proceed with the jurisdictional objections and I note that there's two. One is that the applicant is not an employee and therefore, the Commission has no jurisdiction because however the relationship between the parties ceased, the applicant wasn't an employee.

And then secondly, the respondent says in the alternative, even if that issue's found against them, that there was a redundancy which was a genuine redundancy within the meaning of section 389 of the Fair Work Act...” 5

[19] Mr McKerlie then protested that he was not aware that the issue of genuine redundancy was the subject of the hearing, and the following exchanges occurred:

“MR McKERLIE: I sought your associate's advice with regard to the ambit of this hearing and my understanding was that it was that it was solely with regard to the jurisdictional issue and as such, consideration of the genuineness or otherwise of the redundancy wasn't going to be heard today.

THE DEPUTY PRESIDENT: Well, that is a jurisdictional issue, the redundancy.

MR McKERLIE: Well, in my submission, it's not. It's an issue that arises subsequent to the determination of jurisdiction.

THE DEPUTY PRESIDENT: Well, it's part of the jurisdiction. So for a genuine redundancy I've got no jurisdiction to hear the claim.

MR McKERLIE: Well, in my submission, Deputy President, it's not an issue with regard to jurisdiction. It's an issue with regard to the genuineness of the redundancy. It's a separate issue.

THE DEPUTY PRESIDENT: Well, the respondent's Form F3 has ticked its jurisdictional objections and one of those - I'll just go to it now, it's: ... The applicant was not an employee and secondly, the dismissal is a case of genuine redundancy.

. . . .

THE DEPUTY PRESIDENT: No. Well, it is. It's a jurisdictional issue. So what are you saying? You're not prepared for it?

MR McKERLIE: No. As I said, I sought specific advice from your associate as to whether all matters were to be determined.

. . . .

THE DEPUTY PRESIDENT: Well, they're both jurisdictional questions and you'll see

that in the legislation, under section 385(d) so: The person isn't unfairly dismissed or has not been unfairly dismissed.

MR McKERLIE: Well, so that's exactly the point, Deputy President.

THE DEPUTY PRESIDENT: So I mean, what do you say about - - -

MR McKERLIE: I mean, if I can make this point? Well, I'll just make this point. Section 385 is headed: What is an unfair dismissal?

Now, the issue of whether or not a dismissal is fair or unfair only arises after the Commission has made the determination that the applicant has jurisdiction...

So the consideration of jurisdiction is a completely separate issue to the question of whether or not the dismissal of an employee was unfair.

THE DEPUTY PRESIDENT: Well, they're different issues but they're both jurisdictional issues.” 6

[20] Mr McKerlie went on to say that the witness statement which he had prepared did not address the genuine redundancy issue. 7 There were further exchanges between the Deputy President and Mr McKerlie concerning the directions issued on 6 March 2020 and Mr McKerlie’s email exchange with the Deputy President’s Associate on 30 March 2020, and whether the issue of genuine redundancy was a “jurisdictional issue”. Eventually Mr McKerlie said:

“MR McKERLIE: Well, Deputy President, all I can say is my understanding was that the issue of the genuineness of the redundancy was not going to be dealt with today. I have not submitted a statement with regard to that, after having gone out of my way to try and determine whether or not that issue was going to be determined.

So I suppose what I need to do is ask for adjournment so that I can amend my statement, according to your interpretation of the Act.” 8

[21] The reference to “your interpretation of the Act” prompted a series of further exchanges between the Deputy President and Mr McKerlie concerning whether the genuine redundancy issue was “jurisdictional” in nature, and Mr McKerlie finally ended this by saying:

“MR McKERLIE: Well, Deputy President, as I said, I don't know what utility there is in me making this submission again and again and again. I have not prepared the materials that are currently before the Commission in anticipation of the question of genuine redundancy being argued and determined today.

Therefore, I seek an adjourn to amend my statement accordingly.” 9

[22] The Deputy President then sought RateIt’s views on this adjournment application, and Mr Marouchak submitted that there should have been no confusion as to what the issues to be determined were, that Mr McKerlie should not have been confused, that an adjournment would cause cost and inconvenience to RateIt, and that Mr McKerlie was in a position to cross-examine the witnesses about the genuine redundancy issue. There were then, yet again, a series of exchanges between the Deputy President and Mr McKerlie about whether the genuine redundancy issue was a jurisdictional one and the nature of the advice Mr McKerlie had received from the Deputy President’s Associate. Finally, the Deputy President ruled as follows:

“So look, the way I'm going to propose to deal with it is, the hearing will go ahead, you can cross-examine the respondent's witnesses as to the issue of genuine redundancy.

You can also give evidence and be cross-examined on that evidence as well. And I'll give you a further opportunity to put on any submission you wish make seven days after the hearing, in writing, in relation to the redundancy issue.” 10

[23] The Deputy President also (in conjunction with a technical issue which required resolution) allowed Mr McKerlie a 40-minute adjournment “to do any further preparation or collect your thoughts in relation to the issue of genuine redundancy...”. 11

[24] The hearing them proceeded, with RateIt going first in presenting its case. RateIt called its witnesses, and they were cross-examined by Mr McKerlie. After RateIt had completed its evidentiary case, the Deputy President admitted into evidence Mr McKerlie’s witness statement and, over the objection of RateIt but subject to relevance, a statutory declaration which Mr McKerlie had made on 6 February 2020 about various matters. There was then insufficient time for Mr Marouchak to undertake his cross-examination of Mr McKerlie, so the matter was set down for further hearing at 2.00pm on 15 May 2020.

[25] On 12 May 2020, Mr McKerlie filed written submissions on the issue of genuine redundancy and, in addition, a further witness statement made by himself with a number of annexed documents in relation to that issue. Upon being copied into this material when it was filed by email, RateIt immediately sent an email to the Deputy President’s chambers which, omitting formal parts, stated:

“The respondent opposes the tendering of the additional statement as the applicant has already finished his examination in chief and therefore cannot tender new statements.

Could the Commission advise whether this statement will be accepted as that will increase our time to prepare for cross-examination on Friday.”

[26] The Deputy President’s chambers sent the following email (omitting formal parts) to Mr McKerlie later the same day:

“I refer to the matter above, and the Applicant’s email below (and the attachments therein).

Leave has neither been requested nor granted for the Applicant to tender (or otherwise rely upon) further evidence in these proceedings.

Leave has only been granted to the Applicant for him to make further submissions on the jurisdictional issue of genuine redundancy. I note that he has filed those submissions.

In view of the foregoing, the Deputy President advises that the parties should proceed on the basis of the evidence filed as at the 8 May 2020 (i.e. the time that the Respondent’s evidentiary case in these proceedings closed).”

[27] In response to this email, Mr McKerlie sent an email in reply stating that he would seek leave to tender the evidence he had filed when the hearing of the matter resumed.

[28] On 13 May 2020, Mr McKerlie sent a complaint to the President of the Commission, Ross J, about the Deputy President’s conduct. In this complaint, Mr McKerlie contended that the Deputy President was unfit to hold judicial office, had displayed incompetence, ignorance and disinterest in the conduct of his case, and was personally biased against him. He requested that the President intervene in the matter to vacate the hearing listed for 15 May 2020, declare the proceedings in the case to date null and void, and allow the matter to be relitigated from the point that RateIt filed its Form F3. Mr McKerlie sent a complaint raising similar matters to the Commonwealth Attorney-General on 14 May 2020.

[29] At 6.16pm on 14 May 2020, Mr McKerlie sent an email to the Deputy President’s chambers giving notice that, at the commencement of the hearing on 15 May 2020, he would make an application for the Deputy President to recuse himself from further involvement in the proceedings and that, should the Deputy President decline to recuse himself, he would seek an adjournment to enable him to file an appeal against that decision. At 7.41pm that evening, the Deputy President’s chambers issued directions requiring Mr McKerlie and RateIt to file any written submissions and evidence in respect of the recusal application by 11.30am on 15 May 2020 (i.e. the following day). The parties were notified in the same email that at the conclusion of the hearing, the matter would be adjourned for a date to be fixed after any decision and written reasons in relation to the recusal application had been issued. Neither party filed submissions in response to these directions. Mr McKerlie sent an email that simply outlined the matters he intended to raise at the hearing, and RateIt declined to file any submissions at all.

[30] At the hearing on 15 May 2020, Mr McKerlie re-agitated the matters he raised in his complaint to the President and the Attorney-General, and handed up copies of both complaints. At the conclusion of the hearing, the Deputy President reserved his decision. On 25 June 2020, the Deputy President invited submissions concerning whether s 16 of the Parliamentary Privileges Act 1987 (Cth) applied such as to preclude the admission into evidence of Mr McKerlie’s complaints to the President and the Attorney-General and, if so, whether there was any utility in determining the issue of the alleged apprehension of bias. Mr McKerlie (on 30 June 2020) filed a submission in which he rejected the proposition that the Parliamentary Privileges Act applied, denied that he had tendered into evidence the two complaints, and said it was not necessary for him to prove facts which were within the personal knowledge of the Deputy President.

[31] On 26 May 2020, Mr McKerlie filed an application in the Federal Court of Australia (Court), seeking that the following relief:

(1) A writ of prohibition prohibiting the Deputy President from further involvement in Mr McKerlie’s unfair dismissal application.

(2) A declaration that the Deputy President is not a fit and proper person to hold judicial office, particularly the office of Deputy President of the Commission.

(3) An order that Mr McKerlie’s unfair dismissal application be transferred to the Federal Court to be heard together with other matters arising.

(4) An interlocutory injunction against the Deputy President from taking any further action or having any further involvement in Mr McKerlie’s unfair dismissal application pending the determination of Mr McKerlie’s application before the Court.

[32] Mr McKerlie lodged the first appeal on 29 May 2020. His notice of appeal included an application for a stay pursuant to s 606 of the FW Act. The presiding member of this Full Bench heard and dismissed Mr McKerlie’s stay application on 2 June 2020. 12

[33] Following the stay decision, Mr McKerlie wrote to the presiding member’s chambers on 3 June 2020 inquiring as to the procedure for the determination of whether RateIt has permission to be legally represented at the appeal hearing. The presiding member’s chambers responded stating that when the matter is listed and directions are issued, the parties will be directed to file and serve submissions should they wish to seek permission to be legally represented at the appeal hearing and that it is at the discretion of the Full Bench when the issue of permission to be legally represented is to be determined. Mr McKerlie was informed that he would be given an opportunity to respond prior to any such determination being made.

[34] On 9 and 26 June 2020, Mr McKerlie filed two further applications in the Court. The application filed on 9 June 2020 sought, among other things, an injunction preventing the Commission from further proceeding in any manner in respect of the unfair dismissal application or the first appeal. The application filed on 26 June 2020 sought an order that RateIt’s lawyers be restrained from acting in respect of that application, the unfair dismissal application and any other legal proceedings in which Mr McKerlie is a party.

[35] On 3 July 2020, the Deputy President issued a document entitled “Decision” 13 which set out the Deputy President’s reasons for a decision which was said to have been earlier made by him granting RateIt permission to be legally represented in the proceedings (representation reasons). In the representation reasons, the Deputy President stated that the recusal application would be determined in due course.14

[36] On 6 and 8 July 2020, Mr McKerlie filed two more applications in the Court. The application filed on 6 July 2020 sought an order restraining the Commission from taking any further action in respect of the unfair dismissal application and the first appeal until further order. The application filed on 8 July 2020 sought a suppression order prohibiting the publication or disclosure of the identity of Mr McKerlie in respect of that proceeding and any proceedings currently before the Commission.

[37] On 15 July 2020, the Deputy President issued the recusal decision, in which he dismissed Mr McKerlie’s recusal application. Mr McKerlie’s unfair dismissal application was then listed for mention/ directions on 16 July 2020, and also listed for a further jurisdictional hearing on 3 August 2020 before the Deputy President. RateIt filed an application for costs on 24 July 2020.

[38] On 28 July 2020, Mr McKerlie lodged the second appeal and sought a stay of the whole of the proceedings before the Deputy President, specifically before the hearing of the unfair dismissal application which was to resume on 3 August 2020. That same day, the Deputy President’s chambers sent an email to the parties noting the multiple appeal proceedings pending before the Commission and the application for interlocutory relief pending before the Court. The email advised that the listing in that matter was vacated to a date to be fixed, being a date subsequent to the resolution of the appeals before the Full Bench of the Commission and the matter before the Court.

[39] On 5 August 2020, the Court dismissed Mr McKerlie’s various applications for interlocutory relief. 15 The same day, the presiding member of the Full Bench issued directions and both appeals were listed for hearing on 4 September 2020.

The representation reasons

[40] In the representation reasons, the Deputy President began by noting that he had reserved his decision on Mr McKerlie’s recusal application, and said that “[t]his decision concerns only my reasons for having determined that permission be granted to the Respondent to be legally represented in these proceedings pursuant to s.596 of the Act”. 16 He then noted that RateIt had raised two “jurisdictional objections” to Mr McKerlie’s unfair dismissal application: first, that he was a contractor and not an employee and, second, if he was an employee, his dismissal was a case of genuine redundancy within the meaning of s 389 of the FW Act and that “[o]n this basis, the Commission lacks the jurisdiction to hear and determine Mr McKerlie’s claim alleging unfair dismissal”.17 The Deputy President then described the procedural background concerning the issue of legal representation in the following way (footnotes omitted):

“[9] On 4 March 2020, Mr McKerlie filed submissions opposing the Respondent’s application to be represented by MKI Legal.

[10] On 6 March 2020, I issued directions, whereby parties were to file materials regarding the Jurisdictional Objections, and the issue of the Respondent’s request for permission to be legally represented.

[11] Both Mr McKerlie, and the Respondent, prior to the hearing on 8 May 2020, filed extensive written submissions on the question of whether the Respondent ought to be granted permission to be legally represented in these proceedings. I considered and had regard to all of those submissions and evidence in making my determination to grant the Respondent permission to be legally represented in these proceedings. I was also able to consider and have regard to all of the written submissions and evidence filed by the parties on the Jurisdictional Objections, given that all such written submissions and evidence had been filed and served by the end of April 2020.

[12] On 8 May 2020, I held a hearing (by telephone) regarding the Jurisdictional Objections raised by the Respondent. Mr McKerlie appeared for himself. Mr Marouchak (Solicitor, MKI Legal) appeared for the Respondent.

[13] I made it clear to Mr McKerlie, at the commencement of the hearing, that I had already determined that I would be granting the Respondent permission to be legally represented in these proceedings. Despite this determination, Mr McKerlie made further oral submissions opposing the grant of permission.”

[41] The Deputy President then referred to what he described at the “ordinary approach” to the determination of a permission to appear request, namely that the issue would be decided prior to the commencement of a hearing. 18 The Deputy President then said (footnote omitted):

“[18] Whilst, in the discretion of a Commission Member, the ordinary approach may be departed from, I did not consider any departure from same necessary or appropriate in these proceedings. In this regard, in relation to permission to appear, Mr McKerlie filed a two page submission (with 16 separate attachments) on 3 March 2020. He also filed a further 16 page submission (with 17 separate attachments) on 17 April 2020, in response to the Respondent’s five page submissions (with one attachment) dated 27 March 2020.

[19] Having regard to the nature of the factual and legal disputes between the parties (as identified in the Forms F2 and F3), and the written submissions and evidence filed by both parties, in the exercise of my discretion, I determined that I did not need to hear any further argument from the parties as to whether or not I ought to grant the Respondent permission to be legally represented, and that I could determine the resolution of the issue on the material already before me (i.e. prior to the hearing).”

[42] The Deputy President then said that he had determined, pursuant to s 595(2)(a) that the complexity of the issues in the matter weighed in favour of the grant of legal representation, 19 and identified complexities in relation to the “jurisdictional” issues he had identified. He then said, in relation to s 596(2)(b), that he did not consider that RateIt was in a position to have one of its directors, officers or employees represent it in the proceedings, and that he had relied on RateIt’s submissions going to this issue, as supported by the evidence of RateIt’s witnesses. In relation to s 596(2)(c), the Deputy President said that it was necessary for him to “actively consider whether it would be unfair not to allow a party to be represented, taking into account fairness between the person (Party A) and other persons (Party B etc) in the same matter”.20 In this connection, the Deputy President had regard to the fact that Mr McKerlie had previously been a practising lawyer until he was struck off by reason of a criminal conviction, and described in detail the circumstances of that conviction. He also had regard to identified instances of Mr McKerlie’s “post-employment conduct” which he considered rendered it not “efficient, effective, fair or reasonable to have an employee representative of the Respondent (as an advocate) engage directly with Mr McKerlie at a hearing”.21 Finally, the Deputy President referred to Mr McKerlie’s submissions concerning the alleged conduct of MKI Legal, and said that “what legal representative appears on behalf of the Respondent is simply not a choice for Mr McKerlie to make”, and that he should take up his complaints with the relevant Law Society.22 The Deputy President concluded by saying:

“[51] As part of his Recusal Application, Mr McKerlie alleges that my decision to grant permission to the Respondent to be legally represented is infected by actual bias. I will be dealing with this bias allegation as part of my decision (to be made in due course) on the Recusal Application.”

The recusal decision

[43] In the recusal decision, the Deputy President identified McKerlie’s grounds for his recusal application as being: first, that he had exhibited actual bias in granting RateIt permission to be legally represented; second, that he was biased (on an actual and/or apprehended basis) because of a predisposition to making certain types of errors identified in two Full Bench decisions; and, third, that on the basis of Google searches undertaken by Mr McKerlie, there were media reports about his conduct that gave rise to an apprehension of bias such that he would be unable to bring an impartial mind to the determination of Mr McKerlie’s unfair dismissal claim (including the “jurisdictional objections”). 23 After describing in some detail with the procedural history of the recusal application and hearing, the Deputy President dealt with each of these grounds in turn. In relation to the first ground, the Deputy President simply concluded that the words used by him recorded on the transcript (for 8 May 2020) do not demonstrate that he had pre-judged the issue of legal representation or he had not taken into Mr McKerlie’s submissions about the conduct of MKI Legal. The Deputy President also concluded that there was no basis to Mr McKerlie’s allegations that he was so committed to a particular outcome (in favour of RateIt) that he would not alter his determination in respect of that outcome no matter what evidence or submissions were put before him.24

[44] In relation to the second ground, the Deputy President traversed at length the relevant legal principles and the application of the Parliamentary Privileges Act in respect of various allegations about his conduct that had been aired in parliamentary proceedings. The Deputy President ultimately concluded that the “evidence” upon which Mr McKerlie relied had as its source parliamentary proceedings protected by the Parliamentary Privileges Act and was accordingly inadmissible. As to the third ground, the Deputy President said that a case based upon the results of a Google search was one based on inadmissible, inaccurate, incomplete and unreliable hearsay and opinion, and there was no rational basis for concluding that the hypothetical fair-minded and informed lay observer, acting reasonably, could apprehend (or infer) some form of relevant disposition as to prejudgement on his part in the proceedings. The Deputy President also rejected as a matter not capable of determination by him Mr McKerlie’s suggestion that the Deputy President should be removed from office.

Appeal grounds and submissions - first appeal

[45] The grounds for Mr McKerlie’s first appeal as stated in his notice of appeal were as follows:

“1. Deputy President Boyce was under an obligation to regulate the conduct of the parties and their legal representatives.

2. Deputy President Boyce was under an obligation to enforce the relevant laws regulating the conduct of the parties and their legal representatives.

3. Deputy President Boyce was under an obligation to provide reasons for each of his decisions, which he has failed to do in regard to each of the decisions the subject of this appeal other than his decision regarding the issue of whether "genuine redundancy" is a "jurisdictional objection".

4. Deputy President Boyce erred in finding that the issue of "genuine redundancy" is a "jurisdictional objection" and erred in relying on a secondary source, The Fair Work Commission "benchbook" in making that finding rather than having reference to the primary source, The Fair Work Act 2009.

5. Deputy President Boyce erred in refusing to grant the Appellant an adjournment to prepare submissions and evidence in regard to the issue of "genuine redundancy" as he erred in his finding with regard to the issue being a "jurisdictional objection".

6. Deputy President Boyce erred in refusing to allow the Appellant to file a statement and evidence in support of this submissions on the issue of "genuine redundancy" as the necessary corollary to his decision to grant leave to the Appellant to file submissions on this issue was that the Appellant be granted leave to file evidence in support of those submissions.

7. Deputy President Boyce erred in failing to disqualify himself from further involvement in the proceedings when his fitness for office had been put into question on grounds and supported by precedent which established beyond argument that he is unfit to hold judicial office.

8. Deputy President Boyce erred in failing to disqualify himself from further involvement in the proceedings when his blatant prejudice against the Appellant had been submitted to him on the basis of his conduct towards the Appellant the subject of this appeal.

9. Deputy President Boyce erred in failing to take reasonable steps to ensure that the Appellant could rely on his further conduct of the proceedings being undertaken with a reasonable regard to the situation of the Appellant as an unrepresented worker operating under conditions of pandemic lockdown and without even the resources normally available to an unrepresented worker in the conduct of proceedings.

10. Deputy President Boyce erred in each of the actions the subject of this appeal in failing to give the Appellant a "fair go" as required by the Fair Work Act.”

[46] In relation to grounds 1-3 of the appeal, Mr McKerlie submitted that Commission members had the right and duty to supervise the conduct of legal practitioners engaged by a litigant in any matter being decided by a member, and that the Deputy President had abnegated that responsibility. It was necessary, it was submitted, for the Commission to use its powers under s 590 to ensure that employer parties being able to afford legal representation did not result in unfairness in proceedings towards unrepresented applicants. Because legal representation before the Commission was a privilege, it was the responsibility that this privilege was not abused by unethical conduct. Mr McKerlie alleged in his submissions that MKI Legal had made misleading representations to him in the course of the litigation, had a made a misleading submission to the Commission by referring to an inapplicable case authority and had sent him a Calderbank offer letter which amounted to extortion, and provided particulars of these allegations, and that the Deputy President had failed to discharge his duty to take action in respect of this conduct. This was a matter which, Mr McKerlie submitted, attracted the public interest in the proper administration of justice. Specifically in relation to the third ground of appeal, Mr McKerlie submitted that the failure of the Deputy President to give reasons at the time he made his decision in relation to legal representation demonstrated contempt for the Full Bench decision in Hungry Jack’s 25 and thereby acted contrary to the interests of justice. Mr McKerlie further submitted that the representation reasons, issued some two months after the decision, had no real relationship to the reasons for the decision supposedly made before 8 May 2020 and showed no indication that the Deputy President had considered or even read Mr McKerlie’s submissions.

[47] In relation to grounds 4, 5 and 6, it was submitted that:

• a contention that a dismissal was a case of genuine redundancy was not a “jurisdictional objection” but a matter to be determined in the process of deciding whether there was an unfair dismissal, and the Deputy President erred in proceeding otherwise;

• this error was conducive of unfairness because it created the impression that there can be a meaningful hearing of the facts surrounding an assertion that a dismissal was a genuine redundancy without there being a hearing of all the facts;

• when Mr McKerlie sought clarification of the issues from Deputy President Boyce to be determined at the hearing of 8 May 2020, having received documentation from RateIt which included material about the substantive genuine redundancy issue, he was advised that the hearing was not concerned with the substantive issues, and he acted on that basis;

• there was no legitimate reason for the refusal of Mr McKerlie’s request for an adjournment, and the refusal to allow him to submit evidence on the genuine redundancy question was irrational and prejudicial; and

• the inference to be drawn was that the Deputy President and MKI Legal were aware prior to the hearing that Mr McKerlie did not appreciate that the hearing on 8 May 2020 would include the issue of genuine redundancy and allowed Mr McKerlie to proceed on that basis in order to ambush him.

[48] Mr McKerlie said that grounds 7, 8 and 9 of the first appeal “were essentially anticipatory” of the recusal decision, which since the first appeal was filed had been handed down. Mr McKerlie therefore proceeded on the basis that the issues raised by these grounds were properly addressed by the second appeal, which challenged the recusal decision. In relation to ground 10, it was submitted that Commission members had a duty to conduct matters in a manner consistent with the requirement for a “fair go” in s 381(2).

[49] RateIt’s written and oral appeal submissions were brief and only addressed two matters. First, it submitted that MKI Legal was at all times simply acting on instructions received from RateIt when communicating with Mr McKerlie. Second, it submitted that it was the usual practice of the Commission to state a ruling on the question of permission for legal representation at the start of a hearing and then issue reasons for that ruling at a later time.

Consideration – first appeal

[50] For the reasons which follow, we consider that permission to appeal should be granted and the appeal upheld insofar as it challenges decision 5 and decision 8 and in respect of grounds 3, 6 and 10 of the appeal.

[51] In relation to decision 5, we consider that the Deputy President erred in allowing RateIt to be represented at by MKI Legal at the hearings on 21 April, 8 May and 15 May 2020 without ever having made a decision prior to or at those hearings to grant RateIt permission for legal representation pursuant to s 596 of the FW Act. The transcript for the hearing on 21 April 2020 does not indicate, as we have earlier stated, that any application for permission for legal representation was granted at that hearing. The passages we have quoted in paragraph [17] above from the transcript for the hearing on 8 May 2020 demonstrate that the Deputy President asserted on a number of occasions that, at some time prior to the hearing that day, he had made a decision to grant RateIt permission for legal representation. If so, then logically such a decision must have been communicated to the parties after 17 April 2020, when the last written submissions on the question of legal representation had been filed pursuant to the directions issued on 6 March 2020, and before the commencement of the hearing on 8 May 2020. However, on a close perusal of the file, we can discern no evidence that any such decision was ever communicated to the parties. On enquiry at the appeal hearing, neither party was able to identify when or how any such decision was ever made. The Deputy President’s representation reasons, which confirm (at paragraphs [11] and [13]) that the purported decision was said to have been made prior to the hearing on 8 May 2020, do not identify when the decision was made or how it was delivered.

[52] It may be accepted that decisions as to whether to grant permission pursuant to s 596 may be communicated in a fairly informal way. It is a common practice, for example, for members of the Commission to send an email to parties prior to the commencement of a hearing stating, in response to an application for permission for legal representation, whether permission has been granted and, if so, which of the three prerequisites in s 596(2) is considered to have been satisfied. Sometimes it is indicated that more complete reasons will be given at a later time. This is a sensible practice since it allows parties to prepare for a hearing with advance knowledge of whether their legal representatives will be permitted to appear. However, the Deputy President did not send any communication of this nature to the parties prior to the hearing on 8 May 2020.

[53] It could not of course be the case that a decision could be said to have been made without it being communicated to the parties. The ordinary meaning of a “decision” in judicial or administrative proceedings is “an announced or published ruling or adjudication” 26 (underlining added). For a court or tribunal to proceed on the basis that a certain decision had been made that affected the rights and interests of the parties without having informed the parties of that purported decision would constitute a failure to act judicially and a denial of procedural fairness.27

[54] Accordingly what happened in the proceedings was that the Deputy President permitted RateIt to be represented in the proceedings by MKI Legal on 21 April, 8 May and 15 May 2020 without ever having issued a decision to grant permission for such representation. This occurred in circumstances where Mr McKerlie had strongly opposed the grant of legal representation (at least insofar as representation by MKI Legal was concerned) and was not allowed by the Deputy President on 8 May 2020 to be further heard on the issue. This constituted a contravention of s 596(1). This was not a mere procedural failure, but one which had the capacity to “fundamentally change the dynamics and manner in which a hearing is conducted”. 28 For the reasons stated, it also constituted a denial of procedural fairness.

[55] The position was not rectified by the representation reasons issued on 3 July 2020. Although the document published bore the heading “Decision”, it did not as a matter of substance purport to be a decision to grant permission for legal representation (retrospectively or otherwise), but was (as earlier stated) said to be reasons for a decision issued prior to the hearing on 8 May 2020. In reality, these were reasons for a decision that was never made.

[56] In relation to decision 8, it is readily apparent from the procedural history and the transcript that, as at the commencement of the hearing on 8 May 2020, Mr McKerlie genuinely did not understand that the Deputy President intended to deal with the issue of whether his termination was a genuine redundancy at that hearing. In our view, Mr McKerlie’s misunderstanding was not unreasonable. The directions and listing issued on 6 March 2020 only identified the matters to be dealt with at the hearing on 8 May 2020 as the “jurisdictional objections”. We consider that there is substance in Mr McKerlie’s submission that a contention by a respondent to an unfair dismissal application that the dismissal was a case of genuine redundancy is not a matter which goes to the jurisdiction of the Commission to hear and determine the application. It is important in this context to understand the distinction between the concepts of jurisdiction and power. As Toohey J said in Harris v Caladine:

“The distinction between jurisdiction and power is often blurred, particularly in the context of ‘inherent jurisdiction’. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred’.” 29

[57] The Commission certainly has the jurisdiction to entertain and determine an unfair dismissal application if the application has been made in accordance with s 394 and the applicant is a person protected from unfair dismissal as defined in s 382. The substantive determinative functions of the Commission in respect of an application that is within jurisdiction are to decide whether the dismissal the subject of the application was unfair and, if so, what if any remedy should be granted. As s 385 makes clear, the substantive elements of an unfair dismissal (apart from the fact of the dismissal itself) about which the Commission must be satisfied are threefold: (1) the dismissal must be harsh, unjust or unreasonable; (2) the dismissal must not be consistent with the Small Business Fair Dismissal Code; and (3) the dismissal must not be a case of genuine redundancy. The power to grant a remedy cannot be exercised absent the Commission reaching the requisite state of satisfaction about these three matters.

[58] Section 396, which is located within Division 5, Procedural matters, of Part 3-2 of the FW Act, requires that certain matters, including whether the dismissal was a case of genuine redundancy, be determined before “considering the merits of the application”. This meaning of the italicised expression is not pellucidly clear, but it presumably refers to the question of whether the dismissal is harsh, unjust or unreasonable and perhaps also to the question of remedy. However this requirement to decide issues in a certain order of priority does not mean they need to be the subject of a separate, preliminary hearing and, because the facts relevant to whether a dismissal is a case of genuine redundancy will usually be interwoven with those concerning whether the dismissal is harsh, unjust or unreasonable, it will not generally be a convenient and efficient course of action to hold a preliminary hearing concerning the question of genuine redundancy. Not all the “initial matters” identified in s 396 are jurisdictional matters. Determining whether a dismissal is a genuine redundancy (as defined) precedes and may obviate the need to determine other questions (“merits”). In that sense it is commonly referred to as a “preliminary matter”. Nonetheless, it is a matter to be decided by exercising arbitral power on an application that is otherwise within jurisdiction.

[59] The standard Form F3 for an employer’s response to an unfair dismissal application at paragraph 2.1 asks, as earlier explained, whether the employer has “any jurisdictional or other objections to the application” (underlining added), and objections identified under this part of the form have as a matter of usage often been referred to as “jurisdictional objections”. This is no doubt what the Deputy President had in mind when the directions of 6 March 2020 were issued. However it is clear that Mr McKerlie, a former lawyer, did not have the same understanding as to what constituted a “jurisdictional objection”. The position was further confused when RateIt’s lawyers filed submissions which dealt not only with the questions of whether Mr McKerlie was an employee or contractor and, if he was an employee, whether his dismissal was a case of genuine redundancy but also went further and discussed the appropriate disposition of the application even if the dismissal was not a case of genuine redundancy. Mr McKerlie then, properly, sought clarification of what matters would be the subject of the 8 May 2020 hearing, but the response from the Deputy President’s chambers of 30 March 2020 did not clearly identify the matters that were to be considered but merely reiterated that the hearing would deal with the “jurisdictional objections” and not substantive matters. That this merely reinforced Mr McKerlie’s existing understanding is shown by the fact that when Mr McKerlie filed his evidence and submissions on 17 April 2020, they did not touch upon the question of genuine redundancy.

[60] Soon after the commencement of the hearing on 8 May 2020, it quickly became apparent that Mr McKerlie and the Deputy President (and RateIt) were at cross-purposes as to the matters that were to be the subject of the hearing, as the exchanges set out in paragraphs [18]-[19] demonstrate. The situation called for a sensible accommodation to allow Mr McKerlie to be given a fair opportunity to present his case in respect of the genuine redundancy issue whilst taking into account that RateIt appears to have been operating on the same premise as the Deputy President concerning the issues that were before the Commission that day. Mr McKerlie applied for an adjournment, which was not allowed. Instead the Deputy President, as set out in paragraph [22] above, determined that the hearing should proceed, that Mr McKerlie should cross-examine RateIt’s witnesses and, importantly, that Mr McKerlie would then be allowed to give evidence on the issue and be cross-examined by RateIt on that evidence. He would also be allowed to file further written submissions on the genuine redundancy issue within seven days after the hearing. This appears to us to have been a reasonable approach in the circumstances, since it balanced the need for Mr McKerlie to be afforded a fair opportunity to give evidence and make submissions about the genuine redundancy issue without throwing away the day’s hearing for which RateIt had prepared and made available its witnesses.

[61] As it turned out, by the end of the hearing there remained insufficient time for Mr McKerlie to give his evidence in chief concerning the redundancy issue and be cross-examined on this as well as in relation to the other issue of his employment status. As earlier explained the matter was stood over for further hearing on 15 May 2020. Mr McKerlie then filed, on 12 May 2020, his written submissions on the question of genuine redundancy which the Deputy President had permitted him to do and, in addition, a witness statement setting out the evidence which he wished to give in relation to that issue (plus associated documents). It seems to us that, given the Deputy President had determined to give Mr McKerlie an opportunity to give evidence concerning the genuine redundancy issue and that there had proved to be insufficient time for Mr McKerlie to give such evidence orally on 8 May 2020, it was a convenient course for Mr McKerlie to reduce the evidence he wished to give to the form of a written witness statement prior to the resumption of the hearing on 15 May 2020.

[62] However, as earlier recited, RateIt objected to the filing or admission of this witness statement and the Deputy President, without giving Mr McKerlie an opportunity to be heard about this objection, effectively upheld it. That by itself constituted a denial of procedural fairness. Further, in upholding the objection, the Deputy President determined that no further evidence would be admitted in relation to the genuine redundancy issue in that the parties were required to proceed on the basis of the evidence filed as at 8 May 2020. This was contrary to the accommodation which the Deputy President had allowed during that hearing when the misunderstanding concerning the issues which were to be dealt with had emerged, which included permitting Mr McKerlie to give evidence.

[63] The definition of genuine redundancy in s 389 is primarily fact-based. In determining whether a dismissal was a case of genuine redundancy, the Commission must make findings of fact, or fact-based evaluative judgments, about whether the employer no longer wanted the applicant’s job to be performed by anyone because of changes in operational requirements in the enterprise, whether the employer consulted with the applicant in accordance with any consultation requirements in an applicable award or enterprise agreement, and whether redeployment of the applicant would have been reasonable in all the circumstances. It is obviously necessary therefore as a matter of procedural fairness for an applicant in an unfair dismissal case to be given a proper opportunity to give evidence in relation to these matters.

[64] Because of the uncertainty in the expression “jurisdictional objections” used in the Deputy President’s directions of 6 March 2020, the repetition in the use of this expression by the Deputy President’s chambers on 30 March 2020 when Mr McKerlie sought clarification of the issues that were to be determined at the 8 May 2020 hearing, the genuine misunderstanding which resulted from this and, ultimately, the Deputy President’s ruling on 12 May 2020 that Mr McKerlie would not be permitted to give evidence about the genuine redundancy issue, we consider that Mr McKerlie was denied procedural fairness.

[65] The two errors we have identified - namely allowing RateIt to be represented by MKI Legal without having decided to grant permission for legal representation pursuant to s 596, and denying Mr McKerlie procedural fairness in relation to the genuine redundancy issue – are significant matters. At least the latter, and arguably the former, constitutes jurisdictional error, and both involve manifest injustice to Mr McKerlie. In the circumstances, we consider that it would be in the public interest to grant permission to appeal in respect of the first appeal. We grant permission to appeal and, to the extent identified, we uphold the first appeal.

[66] We consider that the appropriate course, having regard to the history of this litigation, is to remit Mr McKerlie’s unfair dismissal application to a member of this Full Bench for further consideration (including the determination of any application for permission for legal representation) on the basis of the evidence admitted to date and such further evidence as the member may decide to admit.

[67] It is not necessary in the circumstances to deal with the other matters raised by the first appeal. In relation to the various allegations made against MKI Legal, it is sufficient to say that we are not satisfied that MKI Legal did anything other than to act bona fide on the basis of the instructions provided by its client, RateIt. Mr McKerlie largely conceded at the appeal hearing that he could not provide evidence of any deliberate malfeasance on the part of MKI Legal. Certainly the record of the proceedings before the Deputy President does not provide any indication to us that MKI Legal has acted in any improper way.

Second appeal

[68] The grounds for Mr McKerlie’s second appeal, including the grounds for the grant of permission to appeal, were as follows:

“1. Deputy President Boyce is unfit to hold judicial office.

2. Deputy President Boyce has demonstrated egregious and deliberate bias against the Applicant in the conduct of the proceedings to date including in his decision on the application for disqualification.

3. It is contrary to the obligation of the members of the Fair Work Commission to allow Deputy President Boyce to continue to preside over these proceedings or any other proceedings as his widely publicised conduct since his appointment to the Fair Work Commission is calculated to diminish public confidence in the Fair Work Commission.”

[69] The first ground is not reasonably arguable. The Commission is not invested with power to rule on the fitness for office of its own members. In relation to the second and third grounds, the relief which Mr McKerlie could expect to obtain if he is granted permission to appeal and his second appeal is upheld is that his matter is remitted for further consideration by a different member of the Commission. Having regard to our disposition of the first appeal, there would be no utility in us considering the second and third grounds of the second appeal. For these reasons, we refuse permission to appeal in relation to the second appeal.

Orders

[70] In relation to the appeal in matter C2020/4086:

(1) Permission to appeal is granted.

(2) The appeal is upheld to the extent identified in the above reasons.

(3) The application in matter U2020/1211 is remitted to Commissioner Johns for further consideration (including the determination of any application for permission for legal representation) on the basis of the evidence admitted to date and such further evidence as the Commissioner may decide to admit.

[71] In relation to the appeal in matter C2020/5851, permission to appeal is refused.

al of the Fair Work Commission with Member's signature.