Chad Edwards v Bamboo 61 Pty Ltd
[2023] FWCFB 189
•18 OCTOBER 2023
| [2023] FWCFB 189 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Chad Edwards
v
Bamboo 61 Pty Ltd
(C2023/2621)
| VICE PRESIDENT ASBURY | BRISBANE, 18 OCTOBER 2023 |
Appeal against decision [[2023] FWC 865] of Deputy President Beaumont at Perth on 20 April 2023 in matter number U2022/12327 - permission to appeal refused.
Introduction
Chad Edwards (the Appellant) has applied for permission to appeal, and if granted seeks to appeal, against a decision made by Deputy President Beaumont on 20 April 2023 (the Decision)[1] in which the Deputy President found that the Appellant was not a person protected from unfair dismissal because he had not completed the minimum employment period prescribed by s.383 of the Fair Work Act 2009 (Cth) (the Act).
The Appellant was employed by Bamboo 61 Pty Ltd (the Respondent) as a Software Engineer. The Appellant’s employment began on 4 April 2022, and he was given notice of his dismissal with immediate effect on 7 December 2022. The Appellant’s period of continuous service with the Respondent was just over 8 months and his annual salary was $180,000.00. The Respondent contended the Appellant was not a person protected from unfair dismissal on two bases. First, the Respondent was a small business employer (i.e. an employer with fewer than 15 employees on 7 December 2022), and the Appellant’s period of continuous service was less than a year. Second, the Appellant earned more than the high-income threshold and was not covered by a modern award or enterprise agreement. The Deputy President determined the Respondent was a small business employer and that the Appellant had not completed the required minimum employment period. In the circumstances the Deputy President considered it unnecessary to deal with the second basis the Respondent advanced.
In so doing, the Deputy President considered the corporate structure within which the Respondent lay. The Respondent had an associated entity called Bamboo 1 Ltd (listed in the USA), which in turn was an operational subsidiary of Bamboo Holdings Limited. The Respondent produced payroll summaries, showing there were 6 employees employed within this corporate structure on 7 December 2022 – namely 5 employed by the Respondent and one employed by the associated entity, with the holding entity having no employees. The Deputy President had regard to the Respondent’s acknowledgement that around 7 December 2022, it had been engaging a number of entities and individuals for ‘routine or regular work or services’, together with the Respondent’s evidence about the various contractual relationships and the names of particular individuals it had engaged to perform work.
The Deputy President relevantly recounted the Appellant’s contentions that several workers he named in his witness statement were employees and to the extent possible on the evidence, the Deputy President attempted to discern whether any were employees of the Respondent or an associated entity at the time of the Appellant’s dismissal.
The Deputy President set out how the existence of employment (a contract for services) may be identified (at [30]). At [31] the Deputy President made what amounts to a credit finding, noting that Mr Blake Cassidy, the Respondent’s Chief Executive Officer and witness in the proceeding “clearly elucidates who was working for the Respondent at the time of the [Appellant’s] notification of his dismissal” and that the witness “provided a forthright and honest account of the relationships the Respondent held with its workers and when those relationships had ended”. The Deputy President made findings, on the available evidence, about each person the Appellant had contended was an employee (at [33]-[38]). Ultimately, based on her findings, the Deputy President was satisfied the Respondent had 8 employees at the time the Appellant was dismissed, the Respondent was a small business employer, and that the Appellant’s period of employment was less than a year (at [39]-[40]).
Having determined the Appellant was not protected from unfair dismissal when his employment was terminated, the Deputy President ordered the Appellant’s unfair dismissal application be dismissed.[2]
Appeal grounds and submissions
The grounds of appeal in the Appellant’s notice of appeal are outlined in the form of submissions which disclose the following general grounds of appeal:
1) The Deputy President erred by concluding that the Respondent was a small business employer when the Applicant was dismissed with immediate effect on 7 December 2022;
2) The Deputy President erred by failing to decide that the Applicant was covered by the Professional Employees Award 2020; and
3) The Deputy President denied the Appellant procedural fairness by refusing a request from him that he be permitted to read aloud his witness statement under oath.
The Appellant contends the Deputy President erred by concluding the Respondent was a small business employer, submitting it had 18 employees at the time of his dismissal. While the Appellant noted the Deputy President had concluded the Respondent had 8 employees, he asserted that there were a further 10 individuals who were employees at the time of his dismissal.
The Appellant divided the 10 individuals, into two groupings. The first comprised Nicholas Baxter and Craig Jackson, about whom the Appellant submitted:
It was not open to the Deputy President to accept Mr Cassidy’s evidence in relation to Nicholas Baxter and Craig Jackson because Mr Cassidy’s evidence regarding Ken Alorro and Alyssa Gascon had not been accepted;[3] and
It was not open to the Deputy President to rely upon the tax invoices submitted by Nicholas Baxter and Craig Jackson[4] because other than an expectation of remuneration for hours worked and a clarification that no GST was applicable, the invoices did not contain particulars regarding the rights or responsibilities of either party, nor did they appear to provide any function beyond being an employee timesheet.
The second grouping comprised Bohdana Muzyka, Olha Maksymets, Oleksandr Horobets, Viktor Kis, Anton Nazarenko, Anastasia Kompaniiets, and Anna Bilokur-Demchenko, together with Volodomyr Danylko, The Appellant submitted it was not open to the Deputy President to conclude these individuals were not employees on the basis that they were provided to the Respondent by TechMagic LLP (TechMagic), having regard to the following:
While the Deputy President referred to a “Detailed Time Report at page 260 of the Digital Hearing Book” (Detailed Time Report),[5] this document did not include the name TechMagic, nor did it contain any information regarding the rights or responsibilities of these workers with the Respondent;
The Detailed Time Report did not specify the nature of the relationship between TechMagic and the Respondent or these workers and the Respondent and further, it did not state that the workers were provided by TechMagic;
Even if it was accepted that these workers were provided or recruited by TechMagic, the Detailed Time Report did not suggest that these workers were engaged pursuant to the terms of the consulting agreement between Bamboo Holdings Limited and TechMagic;[6]
The Detailed Time Report contained no references to projects or project specific work; and
Mr Cassidy, upon whose evidence the Deputy President relied, was not working for the Respondent when the consulting agreement between Bamboo Holdings Limited and TechMagic was signed.
The Appellant also submitted that the circumstances relating to the 10 workers he asserts were employees is to be contrasted with his own. He proffered that while a common law contract of employment between the Respondent and himself was provided,[7] no contracts of employment were provided for any of the other workers. This contention may be immediately dismissed because it is illogical. It is hardly surprising that in respect of persons said not to be employees, the Respondent did not produce an employment contract. Moreover, it was open to the Appellant during cross-examination of Mr Cassidy, to have asked Mr Cassidy whether such contracts existed or to have earlier applied to the Deputy President for an order for production. None of this was done. As things stand, there was no evidence before the Deputy President that such contracts existed, which is entirely consistent with her finding that these 10 workers were not employees.
In support of his second appeal ground, the Appellant submitted that although the Deputy President did not determine whether he was covered by a modern award, there was strong evidence to suggest he would have been.
As to the third ground of appeal, the Appellant submitted he was denied the opportunity to read his witness statement aloud under oath despite making it clear that he wished to do this, and the Deputy President erred by not allowing him to do so.
The Appellant also submitted:
While reference had been made to Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[8] and ZG Operations Australia Pty Ltd v Jamsek,[9] which he understood had established “that the rights and responsibilities of an employee and employer are to be viewed as specified by any existing documents between the parties”, no such documents had been produced relating to the TechMagic team;
The contract between the Respondent and TechMagic did not refer to any of the current staff by name and predated the employment of both Mr Cassidy and members of the offshore team;
There was no evidence to suggest that the contract related to the workers in question, and with the Respondent having failed to present an invoice which may have shown a connection between the Respondent and TechMagic, the inference should be drawn that none existed;
The documents presented in relation to Nicholas Baxter and Craig Jackson did not outline rights or responsibilities of the relationship;
The Deputy President denied the Appellant the opportunity to read out his statement on two occasions and he was interrupted when he attempted to use it as a guide for the questions he wished to put in cross examination;
While the Appellant understood that he had the opportunity to make final oral submissions, he did not know what to do because he had been prohibited from reading his prepared material aloud on three occasions.
The Appellant submitted the absence of contracts between the disputed workers and TechMagic weighed against a finding that they were employees of TechMagic. The Appellant submitted the disputed workers attended daily meetings for the Respondent, were named on organisational charts and had been provided with tools. The Appellant proffered that these factors, together with work reports and spreadsheets indicating they had performed work for the Respondent, were suggestive of them being employees of the Respondent.
As to whether permission to appeal should be granted, the Appellant contended it is in the public interest to do so because:
The appeal raises important issues relating to workplace bullying and customer privacy;
There has been a significant financial impact on him;
Strategic company structuring that allows unethical practices should not continue; and
Employees require protection from the power imbalance in employment relationships.
Applicable appeal principles
An appeal under s.604 of the Act is 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.[10] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies which 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.
The test under s.400 is “a stringent one”.[11] Assessing whether the public interest test for the grant of permission to appeal involves a broad value judgment.[12] GlaxoSmithKline Australia Pty Ltd v Makin non-exhaustively identified that 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.[13]
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.[14] 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.[15]
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.[16] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error. Here of course, we have had the benefit of receiving arguments both as to permission to appeal and the merits of the appeal.
Consideration
We are not persuaded the Deputy President erred by concluding that the Respondent was a small business employer at the material time. This appeal ground contests, inter alia, the Deputy President’s findings which were based on the testimony of Mr Cassidy. As earlier noted, the Deputy President considered that Mr Cassidy had given a forthright and honest account in relation to the relationships the Respondent held with its workers and the point at which those relationships had ended.[17]
In Fox v Percy[18] Gleeson CJ, Gummow and Kirby JJ said:
“[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.”[19] (footnotes omitted)
In Robinson Helicopter v McDermott (Robinson Helicopter)[20] the High Court, citing Fox v Percy, said:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”[21] (footnotes omitted)
These principles have consistently been applied to appeals in the Commission. On appeal, the factual findings made by a member at first instance should generally stand, unless it can be shown that the member has failed to use the advantage of the hearing of the evidence or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was “glaringly improbable”.[22] An appeal to a Full Bench exists for the correction of error. It is not a hearing de novo. There are natural limitations that apply to the hearing of an appeal by a Full Bench and the member at first instance is usually in a better position than the appeal bench to make findings of fact.[23]
The Appellant has not persuaded us that the Deputy President’s factual findings are affected by any of the deficiencies identified in Fox v Percy and Robinson Helicopter. The Deputy President’s findings in relation to Mr Baxter and Mr Jackson were entirely open based on the evidence from Mr Cassidy. Mr Cassidy’s evidence regarding Mr Baxter and Mr Jackson was not challenged during cross-examination and it is of no moment that the Deputy President had reached the opposite conclusion in relation to Ken Alorro and Alyssa Gascon because the evidence pertaining to them was distinguishable. Moreover, it appears, favourably to the Appellant, the Deputy President approached her analysis of the engagement of Alorra and Gascon from a presumption that the two were employees. So much is evident from the following:
“In respect of Ken Alorro and Alyssa Gascon, there is insufficient evidence before me to arrive at a finding that more likely than not they were contractors rather than employees. Whilst invoices have been provided for their services, one invoice appears on ‘Bamboo’ letterhead and both make references to having provided Ken Alorro and Alyssa Gascon with holiday pay.”[24]
In other words, some of the evidence as to Alorra and Gascon suggested employment, and this was not gainsaid by any evidence pointing the other way. The Appellant points to no evidence of employment by the Respondent or its associated entities relating to the engagement of the other persons he contended were employees.
The Appellant also seeks to impugn the Deputy President’s findings relating to Bohdana Muzyka, Olha Maksymets, Oleksandr Horobets, Viktor Kis, Anton Nazarenko, Anastasia Kompaniiets, Anna Bilokur-Demchenko, and Volodomyr Danylko. These findings rely on Mr Cassidy’s evidence to the effect that the Respondent’s parent company held a contract with TechMagic and that these individuals (except for Volodomyr Danylko) were supplied to perform some work for the Respondent. Some timesheets recording hours worked by these workers during the period covering the date of the Appellant’s dismissal were also in evidence. The Appellant did not point to any evidence which would allow a conclusion that the Deputy President’s findings were wrong or ‘glaringly improbable’ and nor did he point to any evidence establishing that these workers had performed the work as employees of the Respondent. No written contracts were produced below, nor did the Appellant adduce evidence (directly or through cross-examination of Mr Cassidy) establishing the terms of any oral contracts that might have existed between the workers and the Respondent or its associated entities. As to Volodomyr Danylko, Mr Cassidy’s unchallenged evidence was that as of 30 September 2022, that worker had departed the Respondent’s business.[25] Having regard to the material that was before the Commission, there is nothing to suggest the Deputy President’s conclusions, based largely on Mr Cassidy’s evidence, were not open to her. No appealable error is disclosed.
We do not consider the Deputy President erred by failing to determine that the Appellant was covered by the Professional Employees Award 2020. Once the Deputy President had concluded that the Respondent was a small business employer and the Appellant had not completed the required one year minimum employment period, it was not necessary to determine the second basis on which the Respondent contended the Appellant was not protected from unfair dismissal. No appealable error is disclosed.
Finally, the Appellant’s assertion that he was denied procedural fairness is baseless. A review of the recording of the hearing before the Deputy President reveals:
At the commencement of the hearing, the Deputy President advised the parties that if they required a copy of the transcript they were to liaise with her Associate and a fee may be applicable. The Appellant was provided with further information about the process for ordering transcript following the hearing;
The Deputy President accepted into evidence the Appellant’s witness statement and all the annexures on which he relied, some over the objection of the Respondent;
The Deputy President asked the Appellant whether he wished to clarify any aspect of his testimony;
On the one occasion the Appellant proposed that he read out his witness statement, the Deputy President advised him that this would not be necessary as she would read it herself;
The Appellant was given the opportunity to cross examine Mr Cassidy and proceeded to do so for approximately 45 minutes;
During this cross examination, the Deputy President’s interventions were minimal and appropriate;
The Appellant was not denied the opportunity to put questions to Mr Cassidy, although the Deputy President queried the relevance of one question and ruled another included too broad a proposition for Mr Cassidy to answer. Other interventions by the Deputy President were to clarify questions and particular documents to which reference was being made;
The Appellant concluded his cross examination with the statement, “that’s all I have to ask”;
The Appellant was afforded the opportunity to make final oral submissions and oral submissions in reply; and
10)When the Appellant indicated a desire to obtain further evidence, the Deputy President’s refusal was accompanied by the explanation that Directions had previously been made giving the parties the opportunity to file any material upon which they intended to rely.
The Appellant’s chief complaint that he was not permitted to read aloud his witness statement stems from a lack of understanding of the purpose and effect of a witness statement when received in evidence in a matter before the Commission. It is a common procedural practice for the Commission to require the parties to a matter to file and exchange their respective cases in advance of a hearing. This gives each party notice of the case to be advanced by the other and a provides a fair opportunity to respond. Usually when a witness statement is received in evidence, that is the totality of the evidence in chief that the witness gives. Sometimes supplementary evidence will be permitted to be adduced from (or given by) a witness. But here, the Appellant was not asking to supplement his evidence, he wanted to read it out aloud. Such a course will usually not be permitted. It is not necessary. The Appellant’s witness statement had been supplied in advance. It was admitted into evidence, and the Deputy President assured the Appellant she would read the statement. Allowing a statement to be read aloud in these circumstances only serves the interests of repetition and inefficiency, it does not serve the interests of justice. The Deputy President’s ruling was perfectly proper in the circumstances and no appealable error is disclosed.
We do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds are reasonably arguable. No injustice or counter intuitive result is manifest. The Deputy President’s findings and conclusion were open to her on the evidence, and the Appellant was afforded procedural fairness throughout the hearing.
Conclusion
An appeal exists for the correction of error. While the Appellant is aggrieved by the Decision, he simply seeks to re-argue through this appeal matters, which the Deputy President appropriately considered and weighed, in search of a different result. The Appellant has failed to advance any matter disclosing appealable error in the Decision and there is no basis to conclude he was denied procedural fairness. Absent any identified appealable error, the Appellant’s public interest arguments do not persuade us that it is in the public interest for permission to appeal to be granted. As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s.400(1) of the Act.
Order
We order that permission to appeal is refused.
VICE PRESIDENT
Appearances:
C Edwards on his own behalf
R Greig for the Respondent
Hearing details:
2023.
By Microsoft Teams:
18 July.
[1] [2023] FWC 865.
[2] PR761182
[3] [2023] FWC 865 at [37].
[4] Attachments R7 and R10 to the witness statement of Blake Cassidy – see Amended Appeal Book at p.247 and p.250.
[5] Attachment R12 to the witness statement of Blake Cassidy – see Amended Appeal Book at p.260.
[6] Attachment R11 to the witness statement of Blake Cassidy – see Amended Appeal Book at p.226 (paragraph 39) and p.251.
[7] Attachment R13 to the witness statement of Blake Cassidy – see Amended Appeal Book at p.268.
[8] (2022) 96 ALJR 89
[9] (20220 96 ALJR 144
[10] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[11] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[12] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[13] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[14] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[15] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[17] [2023] FWC 865 at [31].
[18] [2003] HCA 22; 214 CLR 118
[19] Ibid at [23]
[20] [2016] HCA 22; 331 ALR 550
[21] Ibid at [43]
[22] See Blagojevic v AGL Macquarie Pty Ltd[2018] FWCFB 4174 at [48] and the decisions at footnote 45 and Australian Education Union v Bendigo Kangan Institute of TAFE[2021] FWCFB 2152 at [38].
[23] Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 2152 at [38]
[24] [2023] FWC 865 at [39]
[25] [2023] FWC 865 at [22](b).
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