Visscher v Australian Industrial Relations Commission [2005] FCAFC 252 (2 December 2005)

Last Updated: 2 December 2005

FEDERAL COURT OF AUSTRALIA

Visscher v Australian Industrial Relations Commission [2005] FCAFC 252

WORKPLACE RELATIONS – Employment – Claim of harsh, unjust or unreasonable termination of employment – Application for prerogative relief in relation to decisions of Australian Industrial Relations Commission – Issue about applicant’s medical fitness for work as a ‘seafarer’ – Whether a certificate of medical fitness issued pursuant to Part 9 of Marine Orders under Navigation Act should have been regarded as conclusive of this question – Whether there was jurisdictional error in respect of rejection of evidence.





Workplace Relations Act 1996 (Cth) ss 45(6), 170CE(1)
Navigation Act 1912 (Cth) ss 123, 124, 425(1AA)
Marine Orders Part 9
















TIMOTHY VISSCHER v THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and BHP PETROLEUM PTY LTD

NSD 1727 of 2004


WILCOX, SPENDER and GRAHAM JJ
2 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1727 of 2004

BETWEEN:	TIMOTHY VISSCHER APPLICANT
AND:	THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENTS BHP PETROLEUM PTY LTD SECOND RESPONDENT
JUDGES:	WILCOX, SPENDER and GRAHAM JJ
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. An order nisi be granted.
2. The application for prerogative orders be refused.
3. The proceeding be dismissed.









Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1727 of 2004

BETWEEN:	TIMOTHY VISSCHER APPLICANT
AND:	THE HONOURABLE JUSTICE MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN, COMMISSIONER ROBERTS AND COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENTS BHP PETROLEUM PTY LTD SECOND RESPONDENT

JUDGES:	WILCOX, SPENDER and GRAHAM JJ
DATE:	2 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an application for prerogative relief (certiorari and mandamus) in relation to decisions of Commissioner Raffaelli of the Australian Industrial Relations Commission (‘the Commission’) and three members of a Full Bench of the Commission (Justice Munro, Senior Deputy President Duncan and Commissioner Roberts) who heard an appeal against the decision of Commissioner Raffaelli.

2 The application was filed in the High Court of Australia on 1 December 2003. On 14 September 2004, Gummow J remitted it to this Court, pursuant to s 44 of the Judiciary Act 1903 (Cth), without first having made an order nisi. Since remittal, the matter has proceeded on the basis, usual in this Court, that the Court would consider the possible making of an order nisi in the context of full argument about the merits of the application.

3 The applicant is Timothy Visscher, a former employee of BHP Petroleum Pty Limited (‘BHP-P’), the second respondent. The first respondents are the Commission members who have been concerned with the case. In accordance with usual practice, they filed a submitting appearance and took no part in the argument before us.

Background facts

4 Mr Visscher is a merchant naval officer, possessing a certificate of competency as Master Class 1. Commissioner Raffaelli found that:

‘He was at all material times employed on vessels as (in layperson’s language) a mate on a ship. That is, he was one of the senior ship’s officers but not the captain.’

5 Mr Visscher commenced employment with BHP-P on 1 March 1993. In December 1993, he was transferred to the Griffin Venture, a floating production storage and offloading facility (‘FPSO’). The vessel was under the command of a Master (or Captain) and had one First Mate and three Second Mates, one of whom was the applicant.

6 On 29 May 1994, there was an incident on the Griffin Venture after which Mr Visscher made allegations, both within BHP-P and to relevant outside authorities, about safety issues. His allegations reflected on the conduct of the vessel’s Master and led to the applicant being subjected to the displeasure of many of his colleagues.

7 In July 1994, Mr Visscher was transferred to another of BHP-P’s FPSOs. However, in November 1994, the applicant injured his leg. Thereafter, Mr Visscher did not again perform sea duties for BHP-P. It appears he performed some shore-based duties for BHP-P during much of the time until his termination of employment, but he also spent time in meetings and correspondence about the Griffin Venture incident and his general safety concerns.

8 On 20 October 1998, Michael Herrett, Vice-President, Human Resources for BHP-P, terminated Mr Visscher’s employment. In a letter of that date to Mr Visscher, Mr Herrett gave two reasons: ‘that you are medically unfit to work on an offshore facility and that you have engaged in conduct which has undermined the relationship of mutual trust and confidence between BHP Petroleum and yourself.’

9 Promptly after his termination, on 10 November 1998, Mr Visscher lodged with the Commission an application under s 170CE(1) of the Workplace Relations Act 1996 (Cth) (‘the Act’) alleging that his termination was harsh, unjust or unreasonable.

10 After a number of delays, the case came before Commissioner Raffaelli. Mr Visscher appeared in person throughout a lengthy hearing. BHP-P was represented by counsel. During the course of that hearing, Commissioner Raffaelli excluded from evidence portions of the written statement tendered by Mr Visscher. Ultimately, on 20 May 2003, the Commissioner handed down a decision in which he rejected Mr Visscher’s claim that his termination was harsh, unjust or unreasonable. The Commissioner concluded that, under all the circumstances, ‘Mr Herrett had a basis for taking the view that Mr Visscher was medically unfit to work on an off-shore facility’. The Commissioner said: ‘BHP-P’s termination of Mr Visscher was for the valid reason of medical unfitness’. Commissioner Raffaelli rejected the second ground of termination that had been stated by Mr Herrett.

The issues

11 On 5 July 2005, after remittal of the matter from the High Court, the filed application was extensively amended so as to raise only two issues for determination in this Court:

(i) Whether Commissioner Raffaelli and/or the Full Bench of the Commission committed jurisdictional error in failing to treat as conclusive evidence of Mr Visscher’s fitness a certificate issued to him pursuant to Part 9 of Marine Orders made pursuant to s 425(1AA) of the Navigation Act 1912 (Cth).
(ii) Whether Commissioner Raffaelli fell into jurisdictional error in his rejection of portions of Mr Visscher’s evidence and/or whether the Full Bench committed jurisdictional error in failing to uphold that aspect of Mr Visscher’s appeal.

The certificate of medical fitness

12 Part II of the Navigation Act includes ss 123 and 124.

13 Section 123 empowers the Australian Maritime Safety Authority (‘the Authority’) to appoint a qualified medical practitioner to be a Medical Inspector of Seamen.

14 Section 124 provides:

‘(1) The regulations may make provision for or in relation to the medical examination of, and the issue of certificates of fitness to, masters, seamen and persons proposing to engage in employment as masters or seamen.

(2) The regulations made by virtue of subsection (1) may include provisions prohibiting the engagement of a person as a master or seaman unless that person is the holder of a certificate issued under those regulations.’

15 The term ‘seaman’ is defined by s 6 of the Navigation Act as ‘a person employed or engaged in any capacity on board a ship on the business of the ship’, with some presently immaterial exceptions. It is common ground that Mr Visscher fell within this definition.

16 Section 425(1AA) of the Navigation Act provided: ‘The Authority may make orders with respect to any matter in Part II ... for or in relation to which provision may be made by the regulations’, other than in relation to imposition of penalties. The Authority made the Marine Orders pursuant to this provision. The case has been conducted by both parties on the basis that the Authority had power to do this.

17 Section 3 of Part 9 of the Marine Orders prohibits a person serving on a ship as a ‘seafarer’ (which term includes a seaman) unless that person is the holder of a valid certificate of medical fitness.

18 Clause 4.1.1 of Part 9 of the Marine Orders provides:

‘A Medical Inspector of Seamen, being satisfied after conducting such examinations, tests and interviews and making such enquiries in relation to a person as appear appropriate, that the person is medically fit to serve on a ship or undertake duties as a coastal pilot on a ship, shall, having regard to the intended duties of the person, issue to the person a certificate of medical fitness.’

19 Section 5 of Part 9 deals with applications for certificates of fitness. It includes the following provisions:

‘5.1.1 A person requiring a certificate of medical fitness, or an owner or master of a ship on a seafarer’s behalf, may apply to a proper authority.

...


5.1.2 A person who is refused a certificate of medical fitness, or an owner or master of a ship on a seafarer’s behalf, may make a second application.

...

5.2.1 A seafarer who is the holder of a valid certificate of medical fitness may at any time be required by the owner or master of a ship, or by a proper authority, to obtain a new certificate where as a result of illness, injury or other cause it is believed the seafarer may no longer meet the standards specified by 4.1.4.’ (headings and notes omitted)

20 A certificate of medical fitness is usually valid for two years from the date of issue: see cl. 6.1. However, the certificate is deemed to be cancelled, amongst other situations, ‘when the person to whom it is issued ... is required in accordance with 5.2 to obtain a further certificate of medical fitness’: see cl 6.5.

21 It appears that, at all material times, Mr Visscher held a certificate of medical fitness. He apparently argued before Commissioner Raffaelli that the certificate concluded the issue of medical fitness in his favour. Commissioner Raffaelli did not agree; he determined the issue of medical fitness for himself and on the basis of the evidence, including expert evidence, given before him.

22 The Full Bench held that Commissioner Raffaelli was entitled to take that course. At [39] the Full Bench said:

‘It was claimed that the statutory provisions determined the medical issue. The respondent submitted that the statutory provisions were confined to licensing matters, did not allow for psychological fitness and were not determinative on the employer/employee relationship. We agree.’

23 In argument before us, counsel for Mr Visscher (Mr P Kite SC and Mr A Rogers) were unable to identify any provision in the Navigation Act, or in regulations or Marine Orders made pursuant to that Act, purporting to give conclusive force to a certificate of medical fitness. Neither were counsel able to cite a relevant judicial decision. Nonetheless, they argued that an intention of conclusiveness is to be discerned from the scheme of Part 9 of the Marine Orders; in particular, cl 5.2.1 permitting an employer to require a seafarer to obtain a new certificate whenever, as a result of illness, injury or other cause, it is believed the seafarer may no longer meet the specified standard of fitness. Counsel pointed out that the employer’s mere requirement of a new certificate causes the immediate cancellation of the existing certificate (cl. 6.1); so it is open to an employer who has doubts about the seafarer’s fitness immediately to bring to an end the seafarer’s ability to engage in employment on a ship. This provision having been made, counsel argued, it must be inferred the Authority intended that an uncancelled certificate would be regarded as conclusively establishing that the person was medically fit for service on a ship.

24 A decision that a certificate of medical fitness is to be regarded as conclusive, regardless of all other relevant evidence, would have potentially far-reaching effects. Take the case of a person who was injured in an accident that was caused by the sudden collapse of a helmsman who was known to suffer from the medical condition that caused the collapse. On counsel’s argument, the injured person could not rely on the shipowner’s knowledge of the helmsman’s condition to support a claim of negligence.

25 Counsel for BHP-P, Mr C Gunst QC and Mr B D Lawrence, submitted:

‘The Orders are made by the Australian Maritime Safety Authority pursuant to power granted by Section 425(1AA) of the Navigation Act 1912. Provision 2.1 of Part 9 of the Orders refers to the purposes of that Part. It is for the purpose of giving effect to provisions in s.15(2), s.124 and s.134 of the Navigation Act. One of the principal purposes of the Navigation Act is to ensure the safety of ships and crew in Australian waters. A purposive approach to the interpretation of the Navigation Act would not be served by a construction which placed artificiality over reality, especially where fitness to control ships at sea was concerned.

In relevant respects, the regulatory scheme that is established by the Act and the Orders is a licensing system of a familiar generic sort, of which the issuing of medical certificates is part. It does not, either expressly or impliedly, deal with the contractual relationship between employers and employees. There is nothing to suggest that that [sic] Parliament intended a certificate would be conclusively determinative of the issue of medical fitness and could not be questioned in litigation (that was not concerned with the enforcement of the licensing requirements of the regulatory regime).’ (footnotes omitted)

26 We agree. Commissioner Raffaelli did not err in considering, for himself, the issue of Mr Visscher’s medical fitness. The Full Bench did not err in rejecting the submission that the certificate was conclusive.

Rejection of evidence

27 There are several difficulties about Mr Visscher’s reliance on Commissioner Raffaelli’s rejection of evidence as a basis for the granting of prerogative relief. In the first place, it would be inappropriate for this Court to base any order for prerogative relief directly upon any incorrect evidentiary ruling by Commissioner Raffaelli. Commissioner Raffaelli’s decision went on appeal to the Full Bench which had jurisdiction to admit further evidence or to direct a member of the Commission to provide a report in relation to a specified matter: see s 45(6) of the Act. So any claim of jurisdictional error really has to be made about the Full Bench’s failure to take either of those steps.

28 This leads to the second difficulty: it is clear the Full Bench was never asked to take either of the courses mentioned in s 45(6). Mr Visscher, who represented himself before the Full Bench, complained about Commissioner Raffaelli’s rejection of some of his evidence, but he did so in the context of an allegation of bias. That allegation was considered in detail by the Full Bench but rejected. Mr Visscher did not argue the rejection of the evidence constituted a failure to take into account a relevant consideration.

29 Thirdly, and perhaps more importantly, rejection of evidence will not usually constitute a jurisdictional error within the meaning of authorities such as Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323. Counsel for BHP-P referred in submissions to what was said by Wilcox and Madgwick JJ in Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union [1999] FCA 847; (1999) 164 ALR 73 at [69]:

‘... what are the circumstances in which an error of law leading to an erroneous finding or mistaken conclusion will open the way to prerogative relief? Mere error is not enough. Lord Reid gave examples of what he meant: bad faith, lack of power, failure to accord natural justice, mistake as to the nature of the tribunal’s jurisdiction, failure to take into account a relevant matter, reliance on an extraneous consideration. These are all defects in the inquiry process, as distinct from erroneous conclusions.’

30 In order to constitute a jurisdictional error grounding the grant of prerogative relief, the rejection of evidence would have to be so significant as to constitute a failure to take into account a particular subject which the decision-maker was bound to take into account, not merely an incorrect ruling as to the relevance to that subject of particular evidentiary material.

31 It was not argued, in the present case, that Commissioner Raffaelli failed to take into account the case put before him by Mr Visscher: that Mr Herrett terminated Mr Visscher’s employment on the ground of medical unfitness when his true reason was to get rid of a whistle-blower, a perceived trouble-maker. That being so, it seems to us that any error by Commissioner Raffaelli in rejecting particular evidence was an error within jurisdiction, an incorrect ruling of law, rather than a failure to consider a particular subject.

32 The argument before us was that it was necessary, in considering Mr Visscher’s case, for Commissioner Raffaelli to receive evidence as to the facts of the Griffin Venture incident and to determine whether Mr Visscher’s safety allegations were well-founded. We do not agree. Commissioner Raffaelli explained his position in an exchange with Mr Visscher during the hearing, on 17 May 2001:

‘Mr Visscher, if you say that essentially you were terminated because of your persistent complaints about the safety of the company, either at the Griffin Venture episode, or generally, and that was the reason why you were terminated, well, you need deal – the only matters of real relevance is whether or not that was the reason for the company taking its actions and then, if that is the case, we then go into whether or not that is appropriate in the circumstances. But we really don’t need to know about the breaches of safety, do we? ... It is whether the breaches of safety occurred, or didn’t occur is irrelevant. What is relevant is what is in the mind of the employer. It does not matter whether the thing was going to blow up or not. The fact is what is at issue and from your point of view is, whether or not the company decided to terminate you because you kept on complaining’

33 We agree with this analysis. Mr Visscher contended that his termination was harsh, unjust and unreasonable, that the reason given by Mr Herrett on behalf of BHP-P was spurious and designed to disguise an indefensible true reason: that Mr Visscher had complained about safety standards in Griffin Venture, and more generally in BHP-P’s off-shore operations. BHP-P denied this contention. The parties’ positions created the issue Commissioner Raffaelli had to determine. However, an inquiry as to the circumstances surrounding the Griffin Venture incident of 29 May 1994 could not have resolved that issue. There is no logical connection between the question whether there was really a safety problem in BHP-P’s operations and the reason for Mr Visscher’s termination. It would have been theoretically possible for Mr Visscher to have been terminated on the indefensible ground even though a diligent subsequent inquiry established that, in truth, there was no real safety problem in the operations. Equally, a finding that there was a real safety problem would not dispose of BHP-P’s claim that Mr Herrett had terminated Mr Visscher’s employment in the genuine belief that he was medically unfit.

34 Finally, we have examined the material about whose rejection Mr Visscher complains. This material may fairly be described as a litany of complaints by Mr Visscher about the actions and inactions of various people. The material seems not to provide any hard evidence that would have enabled Commissioner Raffaelli to reach a conclusion about the safety issue.

35 For all the above reasons, the Court must reject Mr Visscher’s second ground of challenge to the Commission’s decision.

Disposition

36 It is appropriate to grant an order nisi. However, the proceeding must be dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 2 December 2005

Counsel for the Applicant:	Mr P M Kite SC with Mr A Rogers
Solicitors for the Applicant:	Turnbull Hill Lawyers
The First Respondents filed a submitting appearance.
Counsel for the Second Respondent:	Mr C Gunst QC with Mr B D Lawrence
Solicitors for the Second Respondent:	Holding Redlich
Date of Hearing:	11 November 2005
Date of Judgment:	2 December 2005