Adam Felkin v Pathfinders Ltd
[2017] FWCFB 556
•1 FEBRUARY 2017
| [2017] FWCFB 556 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Pathfinders Ltd
(C2016/6958)
VICE PRESIDENT CATANZARITI | SYDNEY, 1 FEBRUARY 2017 |
Appeal against [no decision - settled between the parties] - heard by Senior Deputy President Drake at Sydney on 31 October 2016 in matter number U2015/10964.
[1] Adam Felkin has applied for permission to appeal a finding made by Senior Deputy President Drake on 31 October 2016 that his termination of employment by Pathfinders Ltd was not harsh, unjust or unreasonable. In substance, Mr Felkin’s complaint is that he accepted a settlement negotiated with the assistance of Drake SDP, which he now contends was accepted under extreme pressure and that it cannot be accepted by him, and that her finding was inconsistent with the facts.
[2] Mr Felkin was employed by Pathfinders Ltd at Inverell, New South Wales on a casual basis between September 2014 and July 2015. Pathfinders provides numerous community services in regional New South Wales and, in respect of Mr Felkin’s employment, assisted care services to adolescent males.
[3] Mr Felkin was the subject of a complaint by a client of the employer about his conduct. The complaint was investigated and, as a consequence, Mr Felkin was dismissed on 24 July 2015. He subsequently made an application for an unfair dismissal remedy to the Fair Work Commission, which was received on 13 August 2015. That application was the subject of unsuccessful conciliation and was then allocated to Senior Deputy President Drake for hearing, which took place on 31 October 2016. At the hearing, Mr Felkin represented himself, although he was assisted by his sister as his support person, and Mr Magee, of Counsel, was granted permission to represent Pathfinders.
[4] In these appeal proceedings Mr Felkin was again unrepresented and Mr Hassall, of Counsel, represented Pathfinders.
[5] The submissions in this matter from Pathfinders include that the hearing commenced as scheduled before Drake SDP with Mr Felkin giving evidence and tendering documents. The cross-examination of Mr Felkin was commenced but not concluded when the matter was briefly adjourned. During the adjournment, there were discussions between the parties, assisted by Drake SDP, about the potential for settlement of the matter.
[6] Settlement was achieved shortly afterwards, with agreement between the parties that Mr Felkin’s unfair dismissal application would be ended with a payment by Pathfinders to him in exchange for a commitment that the payment settled all matters arising out of his employment by Pathfinders. In addition, the parties agreed that Pathfinders would continue to tender its evidence in the matter before Drake SDP and her Honour would then make findings based upon that evidence.
[7] Terms of settlement were signed by each party, including Mr Felkin, on the same day, 31 October 2016.
[8] Having received the witness statements submitted by Pathfinders, which were not the subject of any oral evidence, Drake SDP made two findings in the transcript referred to above. Her Honour subsequently issued two written findings, dated 9 November 2016; the first of which advised that she was satisfied that the alleged misconduct by Mr Felkin “did not and could not amount to sexual misconduct”, and the second of which was that the dismissal of Mr Felkin was not harsh, unjust or unreasonable.
PRINCIPLES ON APPEAL
[9] This appeal is one to which section 400 of the Fair Work Act 2009 (the Act) applies. 1 Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under section 400 as “a stringent one”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.3 The Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the instances when the public interest might be attracted:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 4
[11] In order to grant permission to appeal, an arguable case of appealable error should be demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 5 However, an error made by the Member at first instance is not necessarily a sufficient ground for the grant of permission to appeal.6 In an appeal from a decision involving an exercise of discretion, an error in the exercise of discretion must be demonstrated.7
CONSIDERATION
[12] The basis of Mr Felkin’s application for permission to appeal is slight, with him arguing that he “accepted a deal under extreme pressure from the tribunal and my own support person” and that he cannot accept this, even if he was otherwise going to lose.
[13] Because of the circumstances of the matter, this Full Bench is satisfied that the matters he raises do not attract the public interest and that no arguable case of appealable error is disclosed.
[14] We are satisfied that the parties ended their dispute contractually, with part of the contract being that Drake SDP would proceed to make certain findings in the way of private arbitration and limited to the expression of her views about the totality of the evidence, both as had been put to her prior to the conclusion of the settlement agreement and afterwards. The scope of the private arbitration conducted by Drake SDP was to express a view about whether, in all the circumstances, Mr Felkin’s dismissal was harsh, unjust or unreasonable.
[15] There was no contemplation that having made any such determination, whether in Mr Felkin’s favour or not, that any aspect of the agreement made between the parties would be altered or that any other relief would be afforded by the Commission.
[16] Having regard to the circumstances of the matter, it can be said that Drake SDP was acting, from the point that the settlement agreement had been achieved, in accordance with the terms of their contract.
[17] Mr Felkin has brought forward nothing that would suggest that the settlement agreement was the product of extreme pressure or that it was anything other than an agreement entered into freely. He has also not brought forward anything that would suggest that there is an arguable case of appealable error in the expression made by Drake SDP that his dismissal was not harsh, unjust or unreasonable, based on the evidence before Drake SDP in her capacity as a private arbitrator.
[18] After considering all the circumstances in this matter, we are not satisfied that any aspect of the public interest in an appeal has been enlivened.
CONCLUSION
[19] For these reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, and in accordance with section 400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr A Felkin, the Appellant, on his own behalf.
Mr R Hassall, of Counsel, for Pathfinders Ltd
Hearing details:
2017.
Melbourne:
10 January.
1 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]; (2011) 282 ALR 561.
2 [2011] FCAFC 54 at [43]; (2011) 192 FCR 78.
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
4 [2010] FWAFB 5343 at [27], 197 IR 266.
5 Wan v AIRC (2001) 116 FCR 481 at [30].
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28].
7 House v The King (1936) 55 CLR 499 at 505.
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