Christopher Chambers v CA Investigations Pty Ltd
[2020] FWCFB 6224
•20 NOVEMBER 2020
| [2020] FWCFB 6224 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Christopher Chambers
v
CA Investigations Pty Ltd
(C2020/6957)
VICE PRESIDENT HATCHER | SYDNEY, 20 NOVEMBER 2020 |
Appeal against decision [2020] FWC 4704 of Commissioner Simpson at Brisbane on 3 September 2020 in matter number U2020/6449.
Introduction and background
[1] Mr Christopher Chambers has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Commissioner Simpson on 3 September 2020 1 (decision). The decision concerned an application made by Mr Chambers for an unfair dismissal remedy in respect of the termination of his employment with CA Investigations Pty Ltd (company). The Commissioner determined that a binding settlement agreement was reached and accordingly dismissed the application pursuant to s 587(1)(c) of the FW Act on the basis that it had no reasonable prospects of success.
[2] By his notice of appeal, we understand that Mr Chambers contends that the decision was affected by a significant error of fact in that no settlement was reached. Details of the appeal ground(s) follow in this decision.
[3] Mr Gaffney of Unfair Dismissal Experts Pty Ltd (as Mr Chambers’ then representative) lodged the unfair dismissal remedy application on 8 May 2020. The matter was listed for initial conciliation but did not resolve and accordingly it was allocated to Commissioner Simpson.
[4] On 16 July 2020, Mr Chambers’ then representative made an application to vacate a conference which was to take place before the Commissioner later that day on the basis that agreement had been reached to settle the matter. The company’s representative consented to the adjournment and the conference was vacated. Subsequently, on 6 August 2020, Mr Chambers emailed the Commissioner’s chambers to the effect that the settlement was rejected and he intended to pursue the matter further. On 12 August 2020, Unfair Dismissal Experts Pty Ltd informed the Commission that it no longer acted for Mr Chambers and confirmed that Mr Chambers had agreed to a settlement but subsequently rejected it because he did not realise the amount would be subject to tax. The company’s representative opposed Mr Chambers’ purported rejection of the settlement agreement and produced email records regarding the offer to resolve the matter and the acceptance of that offer by Mr Chambers’ then representative.
[5] On 20 August 2020, the matter was listed for mention/hearing before the Commissioner. Mr Chambers represented himself and was given a further opportunity to make submissions by 28 August 2020 as to why the emails produced by the company did not indicate a settlement had been reached. Mr Chambers did not file submissions.
The decision
[6] In determining that a binding settlement agreement had been reached, the Commissioner found:
“[22] The email correspondence relied on by the Respondent indicates that the parties negotiated and agreed on a resolution to the Applicant’s application. It appears an offer was made in writing by the Respondent, which was accepted in writing by the Applicant’s representative.
[23] This finding is further supported by the conduct of the respective parties, including that the Applicant’s representative requested that the conference on 16 August 2020 be vacated.
[24] I have had regard to the Applicant’s assertion that he did not agree to the settlement amount in the Respondent’s offer dated 15 July 2020. In the absence of any submissions or evidence from the Applicant, I am not satisfied that he did not accept the offer. The email from Mr Gaffney dated 16 July clearly refers to the offer from the Respondent made on 15 July and accepts that offer. There is no evidence before me to suggest that Mr Gaffney did not act in accordance with his client’s instructions.
[25] The fact that the Applicant has not filed a notice of discontinuance does not necessarily assist in demonstrating that his application has reasonable prospects of success in the circumstances.”
[7] The Commissioner concluded that Mr Chambers’ unfair dismissal remedy application should be dismissed pursuant to s 587(1)(c) of the FW Act on the basis it had no reasonable prospects of success:
“[26] Where there is a binding settlement agreement, the Commission does have the power under s.587(1)(c) of the Act to dismiss an unfair dismissal application as the settlement agreement extinguishes the pre-existing cause of action and it is plain that further pursuit of the matter would have no reasonable prospects of success.
[27] I am satisfied that a binding settlement agreement was reached between the Applicant and Respondent. For the above reasons, I have determined that the application should be dismissed on the basis that it has no reasonable prospects of success. I order accordingly.”
The appeal
[8] Mr Chambers’ notice of appeal identified the grounds of appeal and the grounds upon which it is contended that permission to appeal should be granted in brief terms, as follows:
• “I have not received any money from Craig Adams in a settlement”.
• “I have not agreed to any other amount than 5x full weeks wages” (sic.).
[9] In describing the decision the subject of his appeal, Mr Chambers also said: “I’m appealing that a settlement was reached as I haven’t agreed to one or signed anything. I agreed to 5x full weeks wages with Craig Adams. As heard by Nicole Anson on speaker phone. Nicole will testify to this. Any other offer of settlement has been refused as this is the bare minimum I will accept. The FWC has not been helpful whatsoever.”The notice of appeal also indicated that Mr Chambers sought a stay order.
[10] Mr Chambers contends in his notice of appeal that the grant of permission to appeal would be in the public interest because, as a person with a disability, the public are astonished by the way he was mistreated at work, under-represented and ripped off by a solicitor and the Commission has done nothing to help and has not given him a support person.
[11] On 23 September 2020, the parties were sent a notice of listing which set out the details of the appeal hearing. It included directions for the filing of materials at specified dates prior to the hearing in relation to the matters of permission to appeal, the merits of the appeal and any opposition to the company’s application for permission to be represented by a lawyer. The parties were granted liberty to apply for variation of the directions and provided contact details for any inquiries. Mr Chambers did not file any submissions pursuant to the directions or request a variation to the directions, nor did he participate in the hearing, which was conducted by videoconference at 2.00pm on 5 November 2020. The circumstances in which this occurred are set out as follows:
(a) On 16 September 2020, the presiding member’s chambers wrote to Mr Chambers to confirm there was nothing to stay and therefore it was not necessary or appropriate to seek a stay order. That email included links to guidance material on the Commission’s website with more information on the appeals process in plain language. Mr Chambers responded by email that day which said nothing more than: “I don’t understand what any of this means”. On 17 September 2020, the presiding member’s associate telephoned Mr Chambers in response to his email and explained the process. Mr Chambers indicated he had no support person. He also said that he would prefer a telephone hearing but, when asked to put this request in writing, he refused.
(b) On 23 September, 8 October and 27 October 2020, the Commission communicated with Mr Chambers to inform him of what he was required to in relation to his appeal and to offer assistance when he did not comply with directions. Mr Chambers was encouraged to telephone the presiding member’s chambers with any questions. On each occasion, Mr Chambers responded by email on the same day and in brief terms to the effect that he did not understand what was required of him. For example, Mr Chambers responded to the notice of listing and directions on 23 September 2020 by email which said nothing more than: “What does this mean?”. He did not telephone chambers for assistance.
(c) On 29 October 2020, the Commission emailed Mr Chambers to provide assistance with the videoconference technology in preparation for the hearing. Mr Chambers responded by email on the same day in which he said: “What does this email mean? I’m not available to do anything next week as I start my course on Monday.”
(d) On 30 October 2020, the company’s application for permission to be represented by a lawyer at the hearing (which Mr Chambers had not opposed) was granted by email from the presiding member’s chambers. Mr Chambers responded by email that same day in which he said: “I don’t understand what any of this means”. Later that day, he also wrote: “I keep on telling you that I don’t understand any of these emails and no one is helping me.”
(e) At 2.02pm on 5 November 2020, immediately prior to the commencement of the hearing, the presiding member’s chambers contacted Mr Chambers on his nominated telephone number. Mr Chambers answered the telephone call and the associate confirmed that he would be dialled into the hearing shortly. Immediately after that telephone call, the presiding member’s chambers attempted to contact Mr Chambers to dial him in to the hearing but he failed to respond. At 2.14pm, Mr Chambers was sent an email with instructions to ensure he was dialled in to the hearing and was informed that the hearing would proceed in his absence if he did not attend. A further telephone call was made, which Mr Chambers answered, and the associate explained the email and that Mr Chambers would need to answer the next call to join the hearing. Mr Chambers was then dialled in to the hearing and said that he did not understand what was happening. The associate explained to Mr Chambers that he had joined the hearing of his appeal and confirmed that the Full Bench was about to be joined to the hearing. Mr Chambers then disconnected the call. At 2.22pm, Mr Chambers was sent a further email in which it was noted that he had hung up and therefore disconnected from the hearing, that the hearing would commence at 2.25pm and otherwise proceed in his absence. Mr Chambers was then dialled in to the hearing again, the associate again explained that he was in the hearing of his appeal and that the Full Bench was about to join and asked Mr Chambers to stay on the line. Mr Chambers again disconnected the call. Accordingly, the hearing proceeded in the absence of Mr Chambers.
(f) After the hearing concluded on 5 November 2020, Mr Chambers sent a series of emails to the presiding member’s chambers in which he wrote: “What does this mean? I’m scared what’s going on?”; “What have I done wrong?”; “I’m begging for help and no one is helping me”; “The legal aid people will call you and me at 4pm”; “Did the legal aid people call you. You said you’d call me at 4pm and you didn’t” and, lastly, “When is this thing at 4pm?” which attached the notice of listing for the hearing before Commissioner Simpson on 20 August 2020. On 6 November 2020, the presiding member’s associate wrote to Mr Chambers and confirmed that the hearing had proceeded in his absence, as he had been informed it would (the email was attached again for his reference), that a decision would issue in due course and be sent to him by email. Mr Chambers was assured that he was not now required to do anything. That same day, Mr Chambers sent a further series of short emails as follows: “You kept hanging up on me? Why did you do that? When can I have my say?”; “You need to call me”; “Why are you bullying me?”; and “You didn’t call my support person either!”.
[12] We make some observations and conclusions about the circumstances described above.
[13] First, we acknowledge that in responding to the question in the notice of appeal about whether an interpreter other than a friend or family member was required Mr Chambers said: “simplified English for people with disabilities”. No further detail, explanation or evidence was provided by Mr Chambers in respect of any disability or condition that might require additional support or assistance in his appeal. Whilst on their face Mr Chambers’ emails indicate that he may have experienced some difficulty in comprehending what was required, we observe that the presiding member’s chambers offered reasonable assistance and support which Mr Chambers chose not to receive. Throughout the proceedings, Mr Chambers was provided with explanations of what was required, directed to guidance materials on the Commission’s website and encouraged to contact the Commission by telephone for assistance or with any questions. Mr Chambers plainly was able to communicate by telephone but did not telephone the Commission with any questions, to seek assistance, or to ask for more time to prepare his materials. He did not make reasonable efforts to follow up or understand what was required of him in a timely manner. Mr Chambers was entitled to have a support person at the hearing and to ask questions or seek reasonable assistance of the Full Bench at the hearing but did not attend and as such denied himself that assistance.
[14] Further, we are wholly satisfied that Mr Chambers was not only available at the time of the hearing but also able to access and to answer telephone calls such that he was able to be joined to the hearing. He deliberately chose not to participate in the hearing of his appeal. To the extent that Mr Chambers has subsequently alleged that the Commission disconnected him from the hearing, we consider that claim to be entirely disingenuous in the circumstances.
[15] Mr Chambers has been given a fair opportunity and all reasonable assistance to make written and oral submissions concerning whether permission to appeal should be granted and in respect of the merits of his appeal. He has not made use of that opportunity or reasonable assistance. Procedural fairness requires the Commission to give a party a reasonable opportunity to present their case, not to ensure that a party takes the best advantage of that opportunity. 2 Accordingly, we will determine the matter on the basis of the contents of Mr Chambers’ notice of appeal.
Consideration
[16] 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.3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[17] This appeal is one to which s 400 of the FW Act applies. Section 400 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.
[18] In the Full Federal Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 4Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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
[19] 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.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
[20] 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 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[21] Mr Chambers’ appeal discloses no reasonably arguable contention of appealable error, nor does it raise any issue of law, principle or general application which would warrant the grant of permission to appeal in the public interest. We do not consider the matters raised in the appeal to involve reasonably arguable contentions of appealable error on the part of the Commissioner in determining that a binding settlement agreement was reached and accordingly that Mr Chambers’ unfair dismissal remedy application should be dismissed pursuant to s 587(1)(c) on the basis of no reasonable prospects of success.
[22] There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest. Accordingly, as required by s 400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
No appearances for the appellant.
Mr M Curran on behalf of the respondent.
Hearing details:
2020.
Sydney (via video-link):
5 November.
Printed by authority of the Commonwealth Government Printer
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1 [2020] FWC 4704
2 Re Coldham and Others; Ex parte Municipal Officers Association of Australiaand Others [1989] HCA 13, 84 ALR 208, 27 IR 278 at 220 per Gaudron J; Sullivan v Department of Transport [1978] FCA 48, 20 ALR 323 at 343 per Deane J; Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45]; Soames v Secretary, Department of Social Services [2014] FCA 295 at [41]
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
5 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 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]
6 [2010] FWAFB 5343, 197 IR 266 at [27]
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
8 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]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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