Antony Course v DoubleIQ Pty Ltd
[2020] FWCFB 5440
•12 OCTOBER 2020
| [2020] FWCFB 5440 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Antony Course
v
DoubleIQ Pty Ltd
(C2020/6419)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 12 OCTOBER 2020 |
Appeal against decision [2020] FWC 4004 of Commissioner Bissett at Melbourne on 7 August 2020 in matter number U2020/9588 – permission to appeal refused.
[1] Antony Course has applied for permission to appeal a decision of Commissioner Bissett issued on 22 September 2020 1 (the Decision) refusing an extension of time to apply for an unfair dismissal remedy.
[2] Mr Course says that the decision is affected by two errors in relation to the effective date of dismissal. Firstly, Mr Course submits that the decision did not take into account Double IQ’s failure to make payment of amounts due on termination, including payment in lieu of notice under s. 117 of the Fair Work Act 2009 before terminating his employment, which meant that his dismissal did not take effect at least until the end of the notice period. Secondly, he submits that there was a lack of due regard given to the actions of the parties in determining the effective date of dismissal.
[3] For the reasons that follow, we have decided to refuse permission to appeal.
The nature of unfair dismissal appeals
[4] An appeal under s. 604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[5] This appeal is one to which s. 400 of the Act applies. Under s. 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
[6] The test under s. 400 has been characterised as “stringent”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin5 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... 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.”
[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 6 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7
[8] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 8
Consideration
[9] The findings of the Commissioner at issue are set out at paragraphs [7] to [10] of the Decision, as follows:
“[7] The Applicant’s submissions in this respect are misplaced. The decision in Ayub does not say that the date of dismissal for the purposes of an unfair dismissal application is extended if the required notice is not paid. This is confirmed by a consideration of the decision in Siagian v Sanel Pty Limited (Siagian) referenced in the paragraph relied upon by the Applicant. Siagian considered, in part, the effect and meaning of “pay in lieu of notice” on the date of termination and what cause of action might be open to a person receiving (or not) pay in lieu of notice. In this case the Applicant has not received any pay in lieu of notice. Further, the Applicant accepts that his employment was terminated on 2 June 2020.
[8] The Full Bench in Metropolitan Fire and Emergency Services Board v Garth Duggan explained the distinction between date of dismissal and notice requirements as follows:
[21] The word “dismissed” is defined in s.386 of the Act. It includes a person’s employment being “terminated on the employer’s initiative”. The expression “termination on the employer’s initiative” is concerned with the termination of the employment relationship, not the employment contract. The employment contract and the employment relationship are related but distinct.
[22] A notice, whether oral or in writing, which is ineffective to terminate the employment contract may nonetheless be effective to terminate the employment relationship. For example, a wrongful dismissal of an employee by an employer, or a unilateral resignation by an employee other than in accordance with the terms of the contract, is effective to bring the employment relationship to an end, but it does not automatically discharge the contract of employment. [footnotes omitted]
[9] The Full Bench went on to consider the decision in Ayub relied on by the Applicant. It said:
[29] The Full Bench in Ayub did not consider the relationship, if any, between the notice requirements in section 117(1) and a notice of dismissal in accordance with s.383(a)(i) of the Act. The Full Bench did, however, draw on common law principles to determine when a dismissal with notice would take effect. There is no suggestion in the reasons of the Full Bench in Ayub that a dismissal with notice would not take effect unless the notice, or payment in lieu thereof, complied with s.117 of the Act. [footnotes omitted]
[10] The date of dismissal, or date of termination at the initiative of the employer – as used in Part 3-2 of the FW Act – for these reasons was not 23 June 2020 but was 2 June 2020 when the Applicant received an email that said, in part, the “by this email and effective immediately, we are ending our business relationship with you” (further considered below).”
Effect of section 117 on termination of employment
[10] This ground of appeal deals with the interaction between notice of termination of employment and s. 117 of the Act, which prohibits an employer from terminating an employee’s employment unless notice has been given or payment in lieu of notice of termination has been made.
[11] Mr Course submits that for the purposes of s. 394(2) of the Act, the effective date of dismissal is the date an employer makes termination payments, rather than the date that notice of termination is given. He submits that Double IQ did not make termination payments including payments in lieu of notice of termination as required by s. 117 and that the Commissioner did not take this into account in deciding the effective date of dismissal of 2 June 2020 in his case.
[12] Mr Course does not dispute that he was given notice of termination on 2 June 2020. According to its terms, the notice took effect “immediately”. Mr Course submits that Double IQ’s failure to pay him three weeks’ wages in lieu of notice as required by s. 117 meant his dismissal only took effect three weeks’ later (coinciding with the expiry of the statutory notice period). Mr Course also argues that termination of employment can only be effective once payment of amounts due on termination – including payments for notice not given – have been made. While Mr Course was paid an amount on 2 June 2020 in asserted satisfaction of “employee benefits”, it does not appear to be in dispute that no payment in lieu of notice was ever made. On Mr Course’s argument, this would mean that there was no effective termination of his employment at all.
[13] Having regard to paragraph [7] of the Decision extracted above, it is not reasonably arguable that the Commissioner failed to take into account Double IQ’s failure to make payment in lieu of notice under s. 117 in determining his effective date of dismissal.
[14] In any event, Mr Course’s argument about the significance of a failure to comply with s. 117 is wrong and does not raise an arguable case of appealable error. In Metropolitan Fire and Emergency Services Board v Duggan 9, a Full Bench considered whether an employee could be dismissed if the employer had not complied with s. 117 of the Act. The Full Bench held as follows:
“[32] In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.
[33] Accordingly, a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute “notice of the dismissal” within the meaning of s.383(a)(i) of the Act. Construing the Act in this way is consistent with the purpose of the relevant provisions, as set out above.”
[15] The Decision appears to us to be consistent with the analysis set out in Duggan. We do not consider there to be an arguable case that this analysis, or its application by the Commissioner, is erroneous. To the extent that different outcomes were achieved in the authorities relied upon by Mr Course, these appear to us to be distinguishable both on the facts and relevant law. There is simply no support in principle or authority for Mr Course’s contention that termination of employment can only be effective if and when an employee’s entitlements on termination are paid to them in full.
Actions of the parties in the period after 2 June 2020
[16] The second ground of appeal asserts that the Commissioner paid insufficient regard to the actions of the parties in the period after 2 June 2020 in determining the effective date of dismissal.
[17] Mr Course submits that the parties’ participation in mediation between 2 June 2020 and 23 June 2020 supports a conclusion that DoubleIQ did not intend to act on its termination of the relationship on 2 June 2020. He submits that none of the “normal things that happen on termination” happened in his case – using the examples of not having been provided with a statement of his final pay and not being required to return company property immediately after it had been requested on 2 June 2020. However, it is not unusual for parties engaged in active dispute resolution to put their demands on hold for a time to see if a mutual outcome can be achieved. Ultimately, it does not appear to be in dispute that no agreement was reached.
[18] We are prepared to accept for present purposes that one of the matters dealt with in mediation was the nature of the parties’ future relationship, including the basis upon which Mr Course would make himself available for work and would be remunerated. Plainly, Mr Course hoped that DoubleIQ would change its position in relation to the termination of their relationship. However, we do not discern an arguable case that by entering into the discussion, the parties had agreed to undo what had already been done.
[19] The factual history recounted in the Decision from paragraphs [23] to [30] and [35] to [40] tells against the proposition that these matters were not given due regard by the Commissioner at first instance. The Commissioner did not draw the conclusions Mr Course would have preferred from the evidence, but that is not a sufficient basis to establish arguable error on appeal.
Conclusion and disposition
[20] The matters raised by Mr Course do not persuade us that there is an arguable case of appealable error on the face of the Decision.
[21] As to the public interest, Mr Course submits that the Decision will encourage non-compliance with s. 117 to the detriment of employees. We do not see why that would be the case. The Decision appears to be consistent with the established case law and s. 117, together with the compliance and enforcement provisions in Part 4-1 of the Act, stand on their own as mechanisms to encourage compliance with the legislative framework.
[22] We are not satisfied that the matter raises issues of importance and general application. It turns on its own facts and circumstances. While the Decision was not in Mr Course’s favour, the Commissioner’s decision does not present an arguable case of any error, nor is there any apparent manifestation of injustice or counter intuitive result.
[23] As set out earlier, s. 400(1) of the Act provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. For the reasons given we are not satisfied that it is in the public interest to grant permission to appeal.
[24] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Applicant on his own behalf
R. Millar of counsel for the Respondent
Hearing details:
2020.
Melbourne (via video):
October 6.
Printed by authority of the Commonwealth Government Printer
<PR723495>
1 Course v DoubleIQ Pty Ltd [2020] FWC 4004
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to section 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 Coal & Allied Mining Services Pty Ltd v Lawler and others (Buchanan, Marshall and Cowdroy JJ) (2011) 192 FCR 78 at [43]
4 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]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 [2017] FWCFB 4878
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