A Kamboj v Polyseal Waterproofing (Victoria) Pty Ltd T/A Polyseal - Victoria
[2015] FWCFB 935
•9 APRIL 2015
| [2015] FWCFB 935 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Polyseal Waterproofing (Victoria) Pty Ltd T/A Polyseal – Victoria
(C2014/6646)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 9 APRIL 2015 |
Appeal against decision [[2014] FWC 6479] of Deputy President Kovacic at Melbourne on 16 September 2014 in matter number U2013/17721 – permission to appeal refused – appeal dismissed.
[1] This is an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act), by Mr A Kamboj (the Appellant) against a decision by Deputy President Kovacic on 16 September 2014. In the decision, 1 the Deputy President dismissed an application by the Appellant under s.394 of the Act, for relief in respect of the termination of his employment by Polyseal Waterproofing (Victoria) Pty Ltd T/A Polyseal – Victoria (the Respondent), on the basis that the Appellant was not dismissed at the Respondent’s initiative, having “resigned from his employment voluntarily”.2 An order was made dismissing the application for want of jurisdiction.3
[2] The Appellant resigned from his employment, but felt that he was forced to do so. The Appellant resigned his employment by way of a 9 May 2013 text message to his supervisor 4 (Mr B Ilic, Operations Manager for the Respondent). He then confirmed the resignation in an email to Mr L Perri (the Victorian State Manager of the Respondent), sent later on 9 May 2013, in which he stated that he was left with no choice but to resign due to threatening and bullying behaviour of work colleagues.5
[3] It is relevant to note that a letter sent to the Appellant after a meeting on 14 May 2013, by Ms Liao (Contract Administrator/Estimator for the Respondent) confirmed that the Appellant’s employment had been “terminated”, “due to the shortage of work”. 6
Determination of the Appeal
[4] The appeal was initially listed for hearing on 15 January 2015 through a Notice of Listing of 16 October 2014, subject to directions which included the filing of written submissions by each party.
[5] On 31 October 2014, the Respondent sought an adjournment, to which the Appellant consented to on 3 November 2014. The appeal was relisted for hearing on 13 February 2015.
[6] On 12 February 2015 the Appellant advised by email received at 10.09 p.m. that he was unable to attend the hearing on 13 January 2015 due to a medical condition, attaching a medical certificate. On 13 February 2015, Senior Deputy President Watson wrote to the parties on behalf of the Full Bench, seeking the consent to the hearing and determination of the appeal without a hearing, in accordance with s.607(1) of the Act, proposing to determine the appeal on the basis of the written submissions filed. On 16 February 2015 the Respondent consented to the determination of the appeal on the papers. Also on 16 February 2015, the Appellant advised that he did not consent to the determination of the appeal without a hearing.
[7] Given the terms of s.607(1) of the Act, and the absence of the consent of the Appellant to the appeal being conducted without a hearing, the appeal was relisted for hearing on 9 April 2015, subject to a note that the Respondent was not required to attend but would be given an opportunity to put written submissions in reply to oral submissions of the Appellant on 9 April 2015, should the Full Bench be inclined, after hearing those submissions, to determine the appeal against the interests of the Respondent.
[8] On 19 February 2015, the Respondent’s solicitors advised that they were at that time instructed to attend any future hearing and withdrew the 16 February 2015 letter on behalf of the Respondent.
[9] Neither the Appellant nor the Respondent (or its representative) attended the Fair Work Commission (the Commission) for the hearing on 9 April 2015. An attempt to contact the Appellant on the telephone number provided to the Commission for contact was unsuccessful because the telephone number had been disconnected.
[10] We are satisfied that the Appellant was afforded the opportunity to put submissions in person to the Full Bench hearing on 9 April 2015. In the circumstances, we have proceeded to determine the appeal on the basis of the written submissions filed by the Appellant and by the Respondent, consistent with our view, expressed in the 13 February 2015 correspondence seeking the consent of the parties to the appeal being conducted without a hearing, that the appeal could be adequately determined without persons making oral submissions. That view was reached having regard to the appeal grounds raised and the written submissions of the parties which substantively addressed the appeal grounds.
[11] Our decision, reached on that basis and in that context, follows.
Statutory considerations
[12] The relevant statutory provisions considered and applied by Deputy President Kovacic are found in ss.385 and 386 of the Act:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
The Decision of Deputy President Kovacic
[13] In assessing whether the Appellant was dismissed, Deputy President Kovacic cited and applied the approach in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 7 (Mohazab) and ABB Engineering Construction Pty Limited v Doumit8 (ABB). He noted the position stated in Mohazab:
“When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative.”
[14] Deputy President Kovacicfound that:
• the Appellant “resigned on 9 May 2013 and that prior to his resignation email to Mr Perri he had not raised any concerns with either Mr Ilic or Mr Perri regarding bullying, harassment or threats of violence against him”; 9 and
• the issues – bullying, harassment or threats of violence – were not raised by or on behalf of the Appellant with the Respondent and whilst accepting that the Appellant “was genuinely concerned for his safety, in the absence of alerting Polyseal to the threatening behaviour, he has not been able to establish that Polyseal’s conduct was ‘a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal’ to draw on the language of the AIRC Full Bench in ABB”. 10
[15] Deputy President Kovacic also addressed the issue of the termination letter provided to the Appellant by Ms Liao, in respect of which the Appellant relied on a finding by Commissioner Cribb, in respect of an extension of time decision in relation to the Appellant’s late application, that the termination letter given to the Appellant was neither “incorrect nor unauthorised”. 11 In respect of that finding Deputy President Kovacic noted that Commissioner Cribb acknowledged in her decision12 that she did not have the benefit of evidence from Ms Liao in the proceedings before her, but Ms Liao did give evidence in the proceedings before him. He accepted Ms Liao’s evidence and found that “she was not authorised to prepare or sign the termination letter” given to the Appellant.13 Deputy President Kovacic also dealt in this context with disputed evidence as to whether the Appellant’s resignation had been accepted by the Respondent, finding that there was no evidence to suggest that the Respondent wanted to dismiss the Appellant which supported his finding that the “termination letter was a mistake by Ms Liao”.14
[16] Taking these findings together, Deputy President Kovacic found that the Appellant “resigned voluntarily”. 15
Approach to the Appeal
[17] Section 604(1) of the Act provides for an appeal against a decision by a Member of the Commission which is conditioned by permission to appeal. Section 604(2) of the Act provides that “[w]ithout limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so”.
[18] However, in relation to an appeal against a decision arising under Part 3–2—Unfair dismissal of the Act, the right to appeal a decision, with permission, under s.604, is modified by s.400,such thatpermission to appeal will only be granted if the Commission considers that it is in the public interest to grant permission and appeals concerning a question of fact can only be made on the ground that the decision appealed involved a significant error of fact.
[19] It is clear from s.604, in respect of termination of employment matters, and s.400 of the Act that the appeal process in the Act does not provide an opportunity for a party to re-argue a case, and have it determined by an Appeal Bench afresh, as if the decision of the single member at first instance had not been made. An Appeal Bench will only reconsider and determine an application itself, if satisfied that permission to appeal ought to be granted because it is in the public interest to do so and the decision appealed reflects error and, in relation to an appeal in respect of a termination of employment matter, a significant error of fact where the appeal concerns a question of fact.
Appeal Grounds
[20] In his Notice of Appeal, the Appellant raised four appeal grounds. He contended that the combined effect of errors in respect to each ground founded Deputy President Kovacic’s decision that the Appellant was not dismissed at the Respondent’s initiative, having resigned from his employment voluntarily. The Appellant submitted that, as a result, the Deputy President’s decision reflected error. The grounds were as follows:
“1. I was informed about a new witness (Mr Ilic) coming to the hearing who was described as ‘an important witness’ by respondent’s representative only after 4:30 PM via email on 7th August. By the time I realised I had this email it was nearly 8:30 PM and the hearing took place on 8th August 10:00 AM. I was deliberately given no opportunity/time to prepare for this newly added witness. [Appeal Ground 1]
2. It was raised by the respondents’ representative only at the start of the hearing that we would be discussing the reinstatement/reference agreement issue. Without any prior knowledge I did not bring the email evidence with me which was crucial and based on which Commissioner Cribb found the issue in my favour (exceptional circumstance) and granted extension of time (Application was late by 207 days). [Appeal Ground 2]
3. Initially, the notice of listing for the hearing on 8th Aug mentioned three days for the hearing which was later amended and was changed to only one hearing day being 8th August 2014. I was cross examined about the issues which happened more than a year ago (in May 2013). The respondent’s representative relied on my memory. I could have answered all the questions raised by the representative if I had at least a second hearing day. [sic] [Appeal Ground 3]
4. At the hearing on 8th August I to some extent relied on Commissioner [C]ribb’s findings. It was my mistake. Being unrepresented I did not know. This will not be repeated [i]f granted permission to appeal. [Appeal Ground 4]”
[21] The Notice of Appeal raised as public interest grounds the following:
“● exploitation of employees
● breaches of legally binding EBA
● false evidences and submissions given to the FWC by the respondent
● breaches of Australian laws
● putting employee’s lives at risk to save money
● denying [the Appellant his] legal rights. [Public Interest Grounds]”
[22] In his written submissions in the Appeal, the Appellant:
• identified as errors of fact:
- “
- the EBA breaches by the respondent were relevant to the case although they were not mentioned in the resignation email.
- the resignation email was sent several hours after the actual resignation had occurred. [Together Errors of Fact]”
● and raised two additional appeal grounds:
“4. A request was made by the respondent’s lawyer to the FWC issuing me an order to demonstrate at the hearing my efforts to mitigate loss. The request was refused by the Deputy President and was called unfair as it was made less than 48 hours before the hearing. [Appeal Ground 5]
5. The application was described as ‘complex’ by both Commissioner Lee and Commissioner Cribb. The application had two components – forced resignation and termination by employer, went through two lodgements, two conciliations and two extension of time hearings. By the time arbitration hearing came 15 months had gone. Deciding the case with this level of complexity in just one hearing was in itself unfair to me as many things came unexpected and provided I was self represented and the respondent was represented by qualified lawyers. [Appeal Ground 6]”
Consideration
[23] We are not persuaded that the Appellant has established any error on the part of Deputy President Kovacic in his decision, and has not established a significant error of fact.
[24] Appeal Ground 1 has no basis. The additional witness statement of the Respondent was admitted into evidence without objection by the Appellant. Deputy President Kovacic provided the Appellant with an opportunity to object to the statement, given it was provided late 16 and the Appellant raised no objection, stating “that’s fine”.17 Deputy President Kovacic did not err in admitting the evidence in those circumstances.
[25] Appeal Ground 2 has no basis. In the hearing, the Respondent sought clarification of whether a second application in respect to the termination of the Appellant’s employment would be in issue. This related to a contention by the Appellant that he had been reinstated in November 2013 and then dismissed again. 18 The Appellant indicated that both applications were in contention19 and the hearing proceeded on that basis. In those circumstances, the Appellant cannot argue on appeal that he was not aware that the second dismissal would arise and did not have an opportunity to bring relevant evidence. No error by Deputy President Kovacic arises.
[26] Appeal Ground 3 has no basis. The fact that the hearing was ultimately listed for a single day, on the basis of an assessment of the materials filed, rather than for several days as earlier suggested by the parties and was heard and determined within that single day does not provide a basis for appeal. The Appellant had an opportunity to give and bring whatever evidence was relevant within the hearing. No error by Deputy President Kovacic arises.
[27] Appeal Ground 4 has no basis. It is an argument that the Appellant did not run his best case before Deputy President Kovacic and would run a better case if permission to appeal were granted and he was afforded an opportunity to reargue his case. Parties often regret the way their case has been run, whether in relation to calling or not calling particular evidence or in taking or not taking particular points. The appeal process “is not intended to provide an avenue for an unsuccessful party to rerun their case, absent error on the part of the primary decision maker”. 20
[28] Appeal Ground 5 has no basis. The fact that the Respondent sought an order to produce documents going to remedy less than 48 hours before the hearing does not suggest, let alone substantiate, error on the part of Deputy President Kovacic. In fact, Deputy President Kovacic refused the Respondent’s last minute application for an order requiring the Appellant to produce documents in relation to mitigation. The Appellant’s complaint is against the Respondent’s conduct, not the decision of Deputy President Kovacic.
[29] Appeal Ground 6 has no basis. It is no more than a plea for permission to appeal to be granted in order that the Appellant can have a second opportunity to argue his case. That submission completely misunderstands and, if accepted, would seriously undermine the role of an appeal under the Act.
[30] The “Errors of Fact” relied upon by the Appellant do not disclose error, including a significant error of fact. The relevance of EBA breaches by the Respondent, if substantiated, was not established and Deputy President Kovacic did not make, nor was he required to make, findings in relation to the breaches. In respect of the two communications in relation to the Appellant’s resignation, there is no material difference between “later in the day” 21 and “several hours” and no significant error of fact has been made out in that respect. We note, in any case, that the specific timing of the communications had no bearing on the ultimate findings and decision of Deputy President Kovacic.
[31] The Public Interest Grounds advanced by the Appellant were a collection of allegations about the conduct of the Respondent, together with a proposition that the Appellant had been denied his legal rights. There is no basis in the proposition that the Appellant was denied legal rights and the allegations about the conduct of the Respondent, even if they were substantiated, do not provide a basis for permission to appeal in the public interest.
[32] The Appellant’s case is, in substance, directed at securing for himself, an opportunity to re-agitate his case. The grant of permission to appeal for that purpose is contrary to the public interest.
[33] We refuse permission to appeal and dismiss the appeal.
SENIOR DEPUTY PRESIDENT
1 [2014] FWC 6479.
2 [2014] FWC 6479, at para 41.
3 PR555537.
4 Exhibit H1, at Annexure LP–4 in matter U2013/17721 before Kovacic DP.
5 Exhibit H1, at Annexure LP–1 in matter U2013/17721 before Kovacic DP.
6 Exhibit H1, at Annexure LP–2 in matter U2013/17721 before Kovacic DP.
7 (1995) 62 IR 200 at 206.
8 Print N6999.
9 [2014] FWC 6479, at para 35.
10 [2014] FWC 6479, at para 36.
11 [2014] FWC 2910, at para 56.
12 [2014] FWC 2910, at para 55.
13 [2014] FWC 6479, at para 37.
14 [2014] FWC 6479, at para 38.
15 [2014] FWC 6479, at para 39.
16 Transcript, at para 547 in matter U2013/17721 before Kovacic DP.
17 Transcript, at paras 548–550 in matter U2013/17721 before Kovacic DP.
18 Transcript, at paras 552–553 and 555 in matter U2013/17721 before Kovacic DP.
19 Transcript, at paras 557 and 559 in matter U2013/17721 before Kovacic DP.
20 [2015] FWCFB 522, at para 11.
21 [2014] FWC 6479, at para 7.
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