Ashok Kumar Duraisamy v Sydney Trains
[2017] FWCFB 5842
•8 NOVEMBER 2017
| [2017] FWCFB 5842 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Sydney Trains
(C2017/5352)
VICE PRESIDENT CATANZARITI | SYDNEY, 8 NOVEMBER 2017 |
Appeal against decision [2017]FWC 4824 of Vice President Hatcher at Sydney on 22 September 2017 in matter number U2017/8480.
[1] Mr Ashok Kumar Duraisamy (Appellant) has applied for permission to appeal against a Decision issued by Vice President Hatcher on 22 September 2017. 1 In that Decision, the Vice President dismissed the Appellant’s application for an unfair dismissal remedy as it had no reasonable prospects of success pursuant to s.587(1)(c) of the Fair Work Act 2009 (Cth) (Act).
[2] We heard the matter on 2 November 2017 and reserved our Decision. The Appellant appeared for himself and Ms E. Raper, of Counsel, sought permission to appear for Sydney Trains (Respondent). In order to ensure the efficient conduct of the matter pursuant to s.596 of the Act and noting the Appellant did not object to the Respondent being legally represented at the hearing, permission was granted to the Respondent to be represented.
The Decision at First Instance
[3] The principal findings made by Vice President in his Decision were as follows:
(a) Pursuant to s.587(1)(c) of the Act, the Appellant’s application had no reasonable prospects of success for two reasons:
1. The Appellant’s employment was terminated because he resigned, not because he was dismissed; and
2. The effect of the Deed, with its release and indemnity in relation to claims associated with the Appellant’s employment and its termination, operated as a complete answer to the Appellant’s unfair dismissal application.
(b) There was no repudiatory conduct on the part of the Respondent;
(c) There was nothing in the Deed which suggested that time was of the essence in relation to the making of the settlement payment or that performance of other obligations in the Deed were conditional upon receipt of the payment at the specified time; and
(d) The Appellant did not purport to revoke the Deed until after he had received the payment.
Permission to Appeal Principles
[4] Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd vLawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 2 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 In GlaxoSmithKline Australia Pty Ltd v Makin 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.’ 4
[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. 5 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.
Grounds of Appeal
[7] The Appellant submitted that he was unfairly dismissed pursuant to s.394 of the Act. The principal grounds of appeal relied on by the Appellant are as follows:
(a) The Deed signed by the Appellant had been duly revoked effective from 13 July 2017 and the reasons for revocation were that:
(i) The Deed was an unconscionable bargain;
(ii) The Deed was entered into under duress; and
(iii) The Respondent failed to pay wages in accordance with the enterprise agreement.
(b) The Deed is ineffective as it contravenes statutory entitlements imposed by the enterprise agreement;
(c) The Deed is against public policy and has no effect; and
(d) The Decision of Vice President Hatcher was based on an invalid and ineffective Deed.
Consideration
[8] The question of whether the Appellant was unfairly dismissed had to be determined in accordance with the relevant provisions of the Act. The Vice President applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.
[9] Many of the appeal grounds and submissions relied upon by the Appellant relate to the Vice President’s findings, which led to the conclusion that the Appellant had no reasonable prospects of success pursuant to s.587(1)(c) of the Act. We are not satisfied that there is an arguable case of error in relation to those findings.
[10] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.
[11] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Vice President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[12] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[13] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
A. Duraisamy for himself.
E. Raper, of Counsel, for the Respondent.
Hearing details:
2017
Melbourne via video link to Sydney:
2 November.
:
1 [2017] FWC 4824.
2 (2011) 192 FCR 78, [43].
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, [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, [44]-[46].
4 (2010) 197 IR 266 [27].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
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