Bronze Hospitality Pty Ltd v Janell Hansson
[2019] FWCFB 5991
•29 AUGUST 2019
| [2019] FWCFB 5991 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Bronze Hospitality Pty Ltd
v
Janell Hansson
(C2019/4326)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 29 AUGUST 2019 |
Permission to appeal sought against decision [2019] FWC 4362 of Commissioner Wilson at Melbourne on 3 July 2019 in U2018/6613.
Introduction
[1] Bronze Hospitality Pty Ltd (the Appellant) has applied for permission to appeal a decision of Commissioner Wilson issued on 3 July 2019 1 (the Decision) dealing with whether it was a small business employer at the time the employment of Ms Janell Hansson came to an end and accordingly whether Ms Hansson had served the minimum employment period for the purposes of s.383 of the Fair Work Act 2009 (the Act).
[2] The three grounds of appeal are as follows:
1. The Commissioner erred in fact in finding that:
a. the Applicant had “put forward” evidence that “indicates that she was engaged … with the expectation that if things worked out she would be offered ongoing employment at a later time”; and
b. “The evidence of Ms Hansson was that she was engaged to work as a casual with the prospect of being converted to full time employment if the relationship progressed positively.”
2. The Commissioner erred in fact in finding that the Appellant had submitted that:
a. “the duration of shifts, days worked and start and finish times all varied and was not regular and systematic employment and did not allow Ms Hansson to have a reasonable expectation of continuing employment on a regular and systematic basis”;
b. “a period of seven weeks employment was incapable of being considered as regular and systematic”; and
c. “Ms Hansson’s casual employment should be disregarded by the Commission because it was not long enough for any view to be formed that it was regular and systematic”.
3. The Commissioner erred in law in failing to give consideration to the point in time at which:
a. Ms Hansson’s employment became regular and systematic; and
b. Ms Hansson had developed a reasonable expectation of continuing employment.
Approach on permission to appeal
[3] An appeal under s.604 of the 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. There is no right to appeal and an appeal may only be made with the permission of the Commission.
[4] Section 400 of the Act applies to this appeal and provides that the Commission must not grant permission to appeal from a decision in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision on a question of fact can only be made on the ground that the decision involved a significant error of fact.
[5] In Coal & Allied Mining Services Pty Ltd v Lawler and others, 2 the test under s.400 was characterised as “a stringent one”.3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 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…” 6
[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, because an appeal cannot succeed in the absence of appealable error. 7 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.8
[7] 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. 9
Consideration
[8] Ms Hansson claims to have been dismissed on 7 June 2018 and she applied for an unfair dismissal remedy on 27 June 2018. The Appellant objected to the application on jurisdictional grounds, including that it was a small business employer at the time of dismissal.
[9] On 18 September 2018, Commissioner Wilson decided that Ms Hansson was employed on a regular and systematic basis, during which she had a reasonable expectation of ongoing employment, and that because the Appellant was not a small business employer Ms Hansson had completed the minimum employment period of six months (the First Decision). 10
[10] On 20 February 2019, a Full Bench of the Commission quashed the First Decision insofar as it determined that the Appellant was not a small business employer and the minimum employment period was six months, but otherwise confirmed the First Decision. The questions of whether the Appellant was a small business employer and whether Ms Hansson had served the minimum employment period of one year were remitted to Commissioner Wilson for redetermination (the First Appeal Decision). 11
[11] On 1 May 2019, Commissioner Wilson dismissed an application that he recuse himself from dealing with the matter further on the grounds of apprehended bias (the Second Decision). 12 The Second Decision was quashed on appeal, resulting in a rehearing of the application for apprehended bias by the Full Bench, which dismissed the application (the Second Appeal Decision).13
[12] On 3 July 2019, Commissioner Wilson issued the Decision now under appeal.
[13] In considering whether it is in the public interest that permission to appeal be granted, it is convenient to discuss the third ground of appeal first.
Ground 3 - alleged errors of law in relation to whether the employment was regular and systematic and whether there was reasonable expectation of continuing employment
[14] The Appellant complains that the Commissioner erred in law in failing to consider both when Ms Hansson’s employment became regular and systematic and when she developed a reasonable expectation of continuing employment.
[15] It appears to us that these matters have already been determined by the First Appeal Decision, in which the Full Bench:
1. Made some observations about the construction of s.384(2)(a)(ii) of the Act, dealing with the period of service of a casual employee that counts toward the minimum employment period, including in relation to the point in time at which an employee need hold a reasonable expectation of continuing employment on a regular and systematic basis (at paragraph [29]);
2. Rejected the Appellant’s earlier contention that it was not possible for a casual employee to work on a regular and systematic basis or to have or develop a reasonable expectation of continuing employment after eight weeks of casual work (at paragraph [32]);
3. Found that there was an ample evidentiary basis supporting the Commissioner’s conclusion that Ms Hansson’s period of employment was on a regular and systematic basis (at paragraph [37]);
4. Agreed that there was no evidence from Ms Hansson that at the time she was engaged to work as a casual, there was a prospect of her being converted to full time employment (at paragraph [41]);
5. Found sufficient evidentiary basis to conclude that Ms Hansson had a reasonable expectation of ongoing employment as a casual employee, including her uncontradicted evidence that she was told she would receive regular work, she expected to receive it, and she did in fact receive it (at paragraph [43]);
6. Confirmed the Commissioners’ finding that Ms Hansson had a reasonable expectation of ongoing employment for the purposes of s.384(2)(a)(ii) (at paragraph [43]): and
7. Found that “all of Ms Hansson’s casual employment was regular and systematic, and that she had a reasonable expectation of continuing employment throughout this period” and confirmed the Commissioner’s conclusion that all of her service as a casual employee counted toward her period of employment as “correct” (at paragraph [44]).
[16] Having made the above observations and findings, the Full Bench remitted the matter to the Commissioner on a limited basis. The questions on remittal were whether the Appellant was a small business employer at the time of dismissal and what was the minimum employment period applicable to Ms Hansson.
[17] It is apparent from the Decision that the Commissioner did not limit his findings on remittal to those questions but also dealt again with how much of Ms Hansson’s period of service should count toward the minimum employment period. His findings in that respect appear to be the same as those made in the First Decision, in relation to whether Ms Hansson was employed on a regular and systematic basis and whether she had a reasonable expectation of continuing employment. His findings in that regard had by then been corrected, to the extent necessary, and otherwise confirmed on appeal. It was not necessary for such matters to be decided anew.
[18] The detailed Full Bench analysis and reasoning in relation to Ms Hansson’s period of employment considered the Appellant’s same ‘point in time’ arguments that now appear to us to form the basis of the third ground of appeal. The Full Bench rejected arguments that a casual employee could not possibly have worked on a regular and systematic basis or have developed a reasonable expectation of continuing employment after eight weeks of casual work. It held that a reasonable expectation of continuing employment on a regular and systematic basis must arise throughout the course of the employment relationship and that such a state of affairs “can develop over time”. 14
[19] As the matters raised by the third ground of appeal have already been the subject of detailed Full Bench consideration and decision, we are not persuaded that there is an arguable case that the outcome might be different on appeal, and we are not satisfied that there is any public interest in granting permission to appeal on this basis. The Appellant has in any event sought judicial review of the First Appeal Decision in the Federal Court. 15
Grounds 1 and 2 - Alleged errors of fact in findings about the evidence and submissions of the parties
[20] We have earlier set out the limitation on appeals from unfair dismissal decisions in s.400 of the Act to factual questions involving significant error(s) of fact.
[21] We are not persuaded that there is an arguable case that the matters raised by the Appellant in grounds one and two of the appeal involve significant errors of fact.
[22] The first ground of appeal alleges errors in relation to questions that have either already been resolved by a Full Bench or which would be unlikely to result in a different outcome on appeal if corrected. That is so because the First Appeal Decision upheld the Commissioner’s conclusion on the evidence that Ms Hansson had a reasonable expectation of ongoing employment as a casual employee. A similar difficulty arises with the second ground of appeal. The matters identified therein have been the subject of detailed Full Bench consideration and the Appellant’s reasoning in relation to those matters largely rejected.
[23] The real error made by the Commissioner was to decide a question which the Full Bench in the First Appeal Decision concluded he had earlier decided correctly notwithstanding the erroneous factual findings in the First Decision.
[24] In the circumstances, we are not persuaded of any arguable case that grounds one and/or two of the appeal involve significant errors of fact. We consider it unlikely that any different outcome in relation to the jurisdictional objections made by the Appellant would result from a successful appeal on the alleged errors of fact. We also observe that it is an inappropriate use of resources for the same matters to be agitated over and over again, resulting in significant delay in dealing with the substantive application which in this case is more than 14 months.
Conclusion
[25] For the reasons above, we are not satisfied that there is an arguable case that the matters raised in this appeal raise issues of importance and general application or that the Decision manifests an injustice or leads to a counter intuitive result. We are not persuaded of any arguable case that the alleged errors of fact involve significant errors of fact. To the extent that the Decision discloses arguable errors in the reasoning process of the Commissioner, it is apparent on the face of the record that those matters have already been corrected and resolved by a Full Bench.
[26] We also do not consider that it would be in the public interest to grant permission to appeal and accordingly, permission to appeal is refused. The matter will now be referred for conciliation, and if necessary, arbitration on the merits.
DEPUTY PRESIDENT
Appearances:
A Thorpe for the Appellant.
J Hansson, Respondent.
Hearing details:
2019.
Melbourne – Perth – Sydney (by video):
August 8.
Printed by authority of the Commonwealth Government Printer
<PR711782>
1 Hansson v Bronze Hospitality Pty Ltd [2019] FWC 4362
2 (2011) 192 FCR 78
3 (2011) 192 FCR 78 at [43]
4 O’Sullivan v Farrer (1989) 168 CLR 210; Hogan v Hinch (2011) 85 ALJR 398 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
5 [2010] FWAFB 5343
6 Ibid at [27]
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
10 [2018] FWC 5665
11 [2019] FWCFB 1099
12 [2019] FWC 2911
13 [2019] FWCFB 3456
14 [2019] FWCFB 1099 at [29]
15 WAD162/2019
0
12
0