Avinesh Chand Maharaj v Amber Aero Engineering Pty Ltd
[2023] FWCFB 57
•15 MARCH 2023
| [2023] FWCFB 57 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Avinesh Chand Maharaj
v
Amber Aero Engineering Pty Ltd
(C2022/7996)
| VICE PRESIDENT CATANZARITI | SYDNEY, 15 MARCH 2023 |
Appeal against decision [2022] FWC 2746 and order PR748091 of Commissioner Wilson at Melbourne on 18 November 2022 in C2022/2974 – appeal dismissed.
Mr Avinesh Chand Maharaj (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (Decision) of Commissioner Wilson issued on 18 November 2022, for which permission to appeal is required. The Decision concerned an application brought by the Appellant for the Commission to deal with a stand down dispute pursuant to the provisions of Part 3-5 of the Fair Work Act 2009 (FW Act). The Appellant says that he was stood down from his employment by his employer, Amber Aero Engineering Pty Ltd (the Respondent).
The application was listed for permission to appeal and the merits of the appeal. On 20 December 2022, directions were issued for the filing of material and the matter was listed for hearing on 15 February 2023. The Appellant filed submissions on 10 January 2022. The Respondent did not file any submissions in accordance with the directions but appeared at the hearing.
Decision under appeal
The Appellant made his application to the Commission on 17 May 2022.
The Respondent is one of a number of entities within the Amber Aviation Group (the Group). It provides aircraft maintenance services according to standards set by the Civil Aviation Safety Authority (CASA). One requirement of the CASA regulatory regime is that the Respondent have a Chief Engineer who is responsible for implementation of the CASA Civil Air Regulations.
The Appellant was offered employment with the Respondent on 30 April 2018 “in the position of Licensed Aircraft Maintenance Engineer (LAME) progressing towards Chief Engineer.”[2] The Appellant commenced employment on 1 June 2018 and in October 2019 he resigned his position and went to work elsewhere. In July 2020 the Appellant was reemployed as a LAME and in January 2021, on resignation of the then incumbent, the Appellant was promoted to the position of Chief Engineer.
During 2021 the Respondent experienced trading difficulties arising from the consequences of the COVID-19 pandemic. As a result, the Respondent gave consideration to the stand down of various staff. Commencing in May 2021, 12 employees of the Group were stood down. The Appellant, along with other employees working in maintenance and engineering, was not stood down and continued working.[3]
The Appellant says that on 29 November 2021 he was advised that, due to the pandemic and subsequent economic downturn, his position was made redundant. Mr Naidu of the Respondent said that the discussion was that the Appellant had accrued extensive leave and time off in lieu and had applied for leave so it would assist the business if the Appellant “could use up his entire leave commitments and any remaining time of (sic) in lieu.”[4]
On 30 November 2021 the Appellant lodged a leave application with the Respondent taking leave from the working day after 19 December 2021 and returning on 10 January 2023.
On 8 December 2021 the Appellant enquired as to his annual leave accrual and requested payment of 7 weeks redundancy pay. He requested this be paid on 15 December 2021 as he was going to buy a vehicle. The Appellant also wrote to Mr Naidu that day and said that it had been “a pleasure to be part of the Amber Family as Chief Engineer,” that his “employment redundancy on Monday 29 November, 2021 came up with a big shock…and was given a final date to depart” of 20 December 2021.[5]
The Appellant submitted before the Commissioner that on 10 December 2022 the Respondent replied to his request with an offer of 7-8 weeks work as an independent contractor in lieu of a redundancy payment. Mr Naidu of the Respondent submitted that he had a discussion with the Appellant in the second week of December 2021 where he told the Appellant that “he was on standdown using up his annual leave and toil and wasn’t made redundant.”[6] Muhammad Arsalan, an employee of the Group, gave an unsworn statement in the proceedings in which he said he had been present at a meeting between Mr Naidu and the Appellant where the impact of COVID-19 on the business was discussed. The Appellant was asked to “avail all his accrued leave” and, after the leave, join the company on a “Part-time/Contractor basis”[7] which the Appellant declined.
On 13 December 2021 the Appellant told Mr Naidu he would not accept the offer of 7-8 weeks work as a contractor and made further enquiries about his redundancy.
On 14 December 2021 the Appellant again emailed Mr Naidu and said he “was very confident” that he had been made redundant and that there had been no discussion of a standdown.
Mr Naidu responded to the Appellant that day and advised that there was no redundancy but that the Appellant was stood down “due to the adverse commercial position of the business” caused by the pandemic. The stand down would commence at the end of the Appellant’s leave.[8]
On 25 March 2022 the Appellant sent an email to Mr Naidu of the Respondent which dealt with a number of matters and concluded “[a]s of today, I’m not Amber Aero Engineering’s chief engineer”. Mr Naidu responded to this stating that “this would be received as [the Appellant’s] resignation”.[9]
In submissions before the Commissioner the Appellant said that, in standing him down, the Respondent had reneged on its agreement that his departure from the Respondent would be treated as a redundancy.
Mr Naidu for the Respondent made submissions as to consultation with employees and others to minimise the collateral effects of the various lockdowns. He also made submissions as to employees who had accepted the stand downs and said that the Appellant, for his own reasons, decided to demand redundancy.
In consideration of the matter the Commissioner said:
“[7] An application for the Commission to deal with a stand-down dispute under Part 3 – 5 of the Act requires the Commission to be satisfied of several matters. In particular a dispute that a stand-down is authorised by s.524(1)(c) since an employee cannot be usefully employed because of “a stoppage of work for any cause for which the employer cannot be usefully employed” requires application of the following reasoning set by the Full Bench in The Peninsula School t/a Peninsula Grammar School v Independent Education Union of Australia [2021] FWCFB 844:
“[31] In order for a stand down of an employee to be authorised by s 524(1), two conditions must be satisfied:
(1) the employee cannot be usefully employed during the period of the stand down; and
(2) this must be because of one of the circumstances in paragraphs (a), (b) or (c) of s 524(1).
[32] Where s 524(1)(c) is the relevant circumstance relied upon, two elements must be satisfied:
(a)there must have been a stoppage of work; and
(b)the employer cannot reasonably be held responsible for the stoppage.
[33] We agree with the School that, in an assessment of whether a particular employee may be stood down pursuant to s 524(1), the logical process of analysis is to begin with the question of whether the employee can usefully be employed over the relevant period. If the employee can be usefully employed, the stand down will not be authorised by s 524(1) and no further inquiry as to causation is needed.” (underlining added)
[8] In this matter the evidence does not lead me to a conclusion that Mr Maharaj could not be usefully employed over the period between 14 December 2021 and 25 March 2022. My lack of a positive finding of the subject is not that I find the evidence before me to be unpersuasive or not to be credible; rather the situation arises because of a lack of evidence in one direction or another. The evidence which is before me indicates the following:
· Amber Aero Engineering and its Group had trading difficulties from at least March 2021. It responded to those difficulties in several ways, including standing down non- essential staff from July 2021.
· Mr Maharaj was stood down in December 2021 and at the time he was the company’s Chief Engineer.
· The Respondent’s regulatory obligations required it to have a Chief Engineer at all times. It is unclear who performed those duties after Mr Maharaj was stood down in December 2021. Likely it was either or both Mr Tadgell and Mr Wallace, however the evidence is not decisive on that point.
[9] Beyond these matters there is no cogent evidence before me addressing the question that Mr Maharaj could not be usefully employed during the standdown period.
[10] Instead, the material before the Commission simply shows that a stand-down took place and that there was a dispute over its terms. While it may well be the case that Mr Maharaj could not be usefully employed during the stand-down period, such is not established.
[11] While that is so, Mr Maharaj’s application is not able to proceed to a determination by me for a different reason; namely that since he was not an Amber Aero Engineering employee at 17 May 2022, being the date on which he commenced his application for the Commission to deal with a stand-down dispute he was not eligible to make such an application. He also seeks through this application “to be compensated for my losses and entitlements”. [footnote omitted]
In reaching his conclusion the Commissioner had regard to the decision of Deputy President Colman in Adam Richards v Automotive Brands Group Pty Ltd.[10] In that decision the Deputy President found that:
“[6] …the Commission may deal with a dispute ‘only on application by any of the following’. Section 526(3)(a) then refers to ‘an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1))’. I understand Mr Richards to contend that he is a person described in s 526(3)(a). The other provisions in s 526(3) are clearly not relevant, as they relate to applications by unions, inspectors, and employees who have requested to take leave to avoid being stood down.
[7] Mr Richards lodged his application on 4 June 2020. His employment with the company ended on 15 May 2020. At the time he lodged his application, Mr Richards was not ‘an employee who has been stood down under s 524(1)’. He was a former employee who had been stood down in the past during his employment with his former employer. Mr Richards is therefore not a person who was able to make an application under s 526 and the Commission cannot deal with the application.
The Commissioner found that it was not necessary for him to determine if the Appellant had resigned or was dismissed from his employment with the Respondent, concluding that “it is evident from the material before me that irrespective of the reason, [the Appellant] is no longer an employee of Amber Aero Engineering and has not been since 25 March 2022.”[11]
The Appellant’s application was therefore dismissed.
Grounds of appeal
The Appellant provides one ground of appeal:
“I was unlawfully stood down and I never formally resigned from Amber Aero Engineering Pty Ltd. When I was stood down from my position engineering work was going on normal and other staff was still work.” (sic)
As to why the grant of permission to appeal would be in the public interest, the Appellant says that he “was still employed on 17 May 2022 and was stood down. I never resigned from the company.”
The Appellant’s submissions in support of his appeal are brief:
“I am Appealing my case on the grounds that I never resigned my employment. My words on the email “I am taking my name of the chief engineer since the company stood my employment and was not paying for my position but keep me on the books to keep its Maintenance Approvals”. I did write back to my CEO that this is not my resignation. CEO tried pushing all the boundaries to avoid paying the entitlements, by simply stating that I resigned. The fact is, I never resigned my employment. There was no formal resignation and I dispute Commissioner Wilson’s ruling on my case as dismissal. I was stood down while the work was going normal.”
Principles on appeal
An appeal under s 604 of the FW 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.[12] There is no right to appeal and an appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission grant permission to appeal if it is satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[14] 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…”[15]
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.[16] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[17]
Consideration
The standdown provisions are found at ss.524-526 of the FW Act. Section 526 relates to the Commission dealing with disputes and at s.526(3) specifies who may make an application for the Commission to deal with a dispute. Section 526 states:
526 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part.
(2) The FWC may deal with the dispute by arbitration.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute only on application by any of the following:
(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));
(b) an employee in relation to whom the following requirements are satisfied:
(i)the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));
(ii)the employee’s employer has authorised the leave;
(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);
(d) an inspector.
(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.
It is abundantly clear from s.526(3) that the Commission can deal with a dispute on application by “an employee who has been, or is going to be, stood down…” or “an employee [who] has made a request to take leave to avoid being stood down” and where the employer has authorised the leave or a relevant employee organisation. For the Applicant to have made a competent application in relation to a stand down dispute he must have been an employee at the time he made the application.
In the hearing before the Commission at first instance, the following exchanges took place between the Appellant and the Commissioner:
“THE COMMISSIONER: All right, so what I read and from this is that you say your employment ended in December, so far as you were concerned.
Mr MAHARAJ: Yes.”[18]
Shortly thereafter, the following exchange occurred:
“THE COMMISSIONER: Are you still employed by Amber Aero?
Mr MAHARAJ: No.
THE COMMISSIONER: When did that end?
MR MAHARAJ: I believe that ended on the day that Mahendra [Naidu] said I resigned, and it became a constructive dismissal to me.”[19]
While the first exchange may relate to the Appellant’s claimed redundancy date, in the second exchange the Appellant was clear that his employment with the Respondent ended in March 2022 either by resignation or dismissal. The Commissioner drew his conclusion as to the Appellant’s employment status at the time he made his application on 17 May 2022 based on the statements of the Appellant. On the Appellant’s own statements, he was no longer employed by the Respondent from 25 March 2022, around two months before he made his application.
Having reached the conclusion he did as to the Appellant’s employment status at the time the application was made, the Commissioner correctly dismissed the application having regard to the limitations on who may apply to the Commission in relation to a stand down dispute. The Appellant was no longer employed by the Respondent when he made his application and hence could not be an “employee” as used in s.526(3) of the FW Act.
That the Appellant says he did not resign does not help him – he agreed that he was no longer employed by the Respondent by the end of March 2022. He was therefore not an employee and was therefore not eligible to make the application he did in May 2022. There is no arguable appealable error in the decision of the Commissioner to dismiss the application.
The Appellant’s ground of appeal is devoid of merit and his claim that he said in correspondence to the Respondent “I am taking my name of the chief engineer since the company stood my employment and was not paying for my position but keep me on the books to keep its Maintenance Approvals” is not supported by the material submitted by the parties prior to the hearing before the Commissioner or in the material the Appellant provided to the Commissioner, at the request of the Commissioner, post the hearing of his application. The evidence is that the Appellant did say, in an email to the Respondent on 25 March that he was no longer the Respondent’s Chief Engineer. That was his job, and if he was no longer the Chief Engineer he no longer had a position with the Respondent. If he disputed the reply from Mr Naidu that this was accepted as his resignation, the Appellant provided no evidence of this.
Conclusion
Having found no appealable error in the Decision, permission to appeal is refused.
The appeal is therefore dismissed.
VICE PRESIDENT
Appearances:
A Maharaj, Applicant.
M Naidu for the Respondent.
Hearing details:
2023.
Microsoft Teams (Video).
15 February.
[1] Maharaj v Amber Aero Engineering Pty Ltd [2022] FWC 2746.
[2] Ibid, [2](2)(a).
[3] Ibid, [2](2)(h).
[4] Ibid, [2](2)(i).
[5] Ibid, [2](2)(k).
[6] Ibid, [2](2)(l).
[7] Ibid.
[8] Ibid, [2](2)(n).
[9] Ibid, [2](2)(o).
[10] [2020] FWC 4168.
[11] [2022] FWC 2746, [13].
[12] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
[13] O’Sullivan v Farrer and Another (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177.
[14] see: GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177; New South Wales Bar Association v Brett McAuliffe (2014) 241 IR 177.
[15] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
[16] Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
[17] 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] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
[18] Transcript 20 October 2022, PN80-81.
[19] Transcript 20 October 2022, PN86-89.
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