Chung Yin Lai v Lynkz Pty Ltd
[2021] FWCFB 452
•1 FEBRUARY 2021
| [2021] FWCFB 452 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604–Appeal against decision
Chung Yin Lai
v
Lynkz Pty Ltd
(C2020/8722)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 1 FEBRUARY 2021 |
Appeal against decision [2020] FWC 5933 of Commissioner Bissett at Melbourne on 10 November 2020 in matter number C2020/5294 – no arguable case of error – no other circumstances which enliven the public interest – permission to appeal refused
[1] Mr Chung Yin Lai (the Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Bissett made on 10 November 2020 (the Decision) 1 in which the Commissioner dismissed the Appellant’s application under s.526 of the Fair Work Act 2009 (FW Act).
[2] The background facts may be briefly stated.
[3] The Appellant was employed by Lynkz Pty Ltd T/A Lynkz (the Respondent) until he resigned from his employment, effective 10 July 2020.
[4] On 27 March 2020 the Appellant (along with some other employees of the Respondent) was given notice that he was stood down from his employment with the Respondent until 27 August 2020.
[5] The Appellant subsequently notified a dispute to the Commission pursuant to s.526 of the FW Act in which he contended that the stand down was not authorised by the FW Act and that it was not fair.
[6] Section 524 of the FW Act deals with stand downs, it states:
524 Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a) industrial action (other than industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(2) However, an employer may not stand down an employee under subsection (a) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:
(a) an enterprise agreement, or a contract of employment, applies to the
employer and the employee; and
(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee under subsection (a), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.
Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).
(3) If an employer stands down an employee during a period under subsection (a),
the employer is not required to make payments to the employee for that period.
[7] An employer may only stand down employees ‘during a period in which the employee cannot usefully be employed’ because of one of the three circumstances set out in s.524(1)(a), (b) and (c). Although the section does not explicitly say so, it is clear from the prefactory words in s.524(1) that the employer would have to at least believe that there was no useful work for employees to perform.
[8] Section 526 of the FW Act allows the Commission to deal with a dispute in relation to such matters. Section 526 is as follows:
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));
…
(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.
[9] The Appellant’s application was made on 8 July 2020. At that time the Appellant was an employee of the Respondent (as his resignation did not take effect until 10 July 2020) and hence was an employee who had been stood down and had the requisite standing to make the application (s.526(3)(a)).
[10] At first instance the Appellant acknowledged that there had been a downturn in work at the Respondent’s business but contended that there had not been a ‘stoppage of work’ as required by s.524(1)(c). The Appellant also submitted that if the Commission found that there was a ‘stoppage of work’ then the Respondent was responsible for that stoppage.
[11] In essence the case put by the Appellant at first instance was that at the time he was stood down he was working on the SMT camera project; that there was a ‘huge pipeline’ of work for that project; and, in any event, there were other projects he could have been working on if there was no work available on the SMT camera project.
[12] Relevantly, the Commissioner found that:
1. The Appellant was, at the time of his stand down, working on the Matrix project. The Commissioner explicitly rejected the Appellant’s contention that the SMT camera project was a separate project; finding that it was part of the Matrix project.
2. Each project of the Respondent is a defined and stand alone part of the business:
‘The Matrix project was therefore a defined part of the business and the decision of Matrix to suspend the project meant that this work, as required, ceased. That is, the activity of the business in relation to this distinct project, stopped.’ 2
3. A number of the Respondent’s clients, including Matrix, had sought to defer or stop work on their projects.
[13] The Commissioner was satisfied that there was a stoppage of work for which the Respondent could not reasonably be held responsible:
‘I am satisfied on the basis of the evidence before me that the Respondent was not responsible for the stoppage of work. The work in question stopped because the client chose to suspend the work that was being done on the Matrix project by the Respondent. The client reacted to a downturn in demand for its product resulting from decisions of the Victorian Government in response to COVID-19 to close schools and require employees to work from home wherever possible.
I accept that Matrix was not the only client that decided to defer a project being undertaken by the Respondent. To the extent the Applicant said that the Respondent chose to stop the work – suggesting it was not a decision of the client – the evidence does not allow me to draw that conclusion. Further, such an action by the Respondent makes no sense. In an environment where many employers were searching for work to keep their business afloat it beggars belief that an employer would decide, for no apparent reason, to cease work on a project that was delivering income to the business.
Given that the work on the Matrix project ended because the client deferred further work on the project I am satisfied that the reason for the stoppage was not one for which the Respondent could reasonably be held responsible.’ 3
[14] As to whether the Appellant could have been usefully employed during the period that he was stood down the Commissioner found as follows:
‘The Respondent did gain new project work and determined that Dimitri should be returned to work prior to the end of his (and the Applicant’s) stand down period to work on that project. I accept that by the time the project commenced the Applicant had resigned from his employment with the Respondent and was working out (to the extent this has meaning during a stand down) his notice period.
The question to be answered is not if it was more or less convenient for the Respondent to return the Applicant to the new project for the eight days prior to the end of his employment but rather whether the Applicant could have been usefully employed. Based on the evidence of Mr Voigt it was intended, was it not for his resignation, to move the Applicant onto the new project, along with Dimitri. For this reason it must be concluded that the Applicant could have been usefully employed for the eight working days from 1 July - 10 July 2020.’ 4
[15] Despite finding that the Appellant could have been usefully employed during the eight days prior to the cessation of his employment the Commissioner declined to grant a remedy and dismissed the application for the reasons set out at [68] to [72]:
‘In resolving a dispute in relation to the operation of s.524 of the FW Act the Commission is required to take into account fairness between the parties concerned.
In this case I am satisfied that, given the Applicant could only have completed eight working days on the new project on which Dimitri worked if he returned and that the Respondent would then have had to replace him, and in circumstances where the Respondent knew at that time the new project commenced that the Applicant was to finish his employment on 10 July 2020, fairness tilts the resolution of this matter in the favour of the Respondent.
I consider it would have been onerous for the Respondent, knowing that the Applicant was about to finish his employment, to have returned the Applicant to work. It was known that the Applicant would, almost immediately on his return, have to be replaced. The Applicant would have barely come up to speed on the new project in such a short period of time. The burden imposed on the Respondent in such circumstances cannot be ignored.
I am mindful that issues of fairness also should be considered for the Applicant in this case. He was stood down and was without income from his employer for a lengthy period of time and the effect of the stand down on him should also be taken into account.
I have carefully balanced the effect of the stand down on the Applicant against the burden that would be imposed on the Respondent in bringing the Applicant back to work for eight working days. In circumstances where the Commission’s power extends to determining if the stand down occurred in accordance with the FW Act and where the Commission’s power does not extend to ordering any payments, I consider that, in all of the circumstances, issues of fairness tell against the granting of the application.’
The Appeal
[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. 5 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 to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
[17] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement. 6 The public interest test is not satisfied simply by the identification of error, or a preference for a different result.7 In GlaxoSmithKline Australia PtyLtd v Makin a Full Bench of Fair Work Australia identified some of the considerations thatmay 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...’ 8
[18] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 9
[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. 10 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.11
[20] Mr Lai’s Notice of Appeal was lodged through the Commission’s electronic lodgement portal, at 12.03 AM on 2 December 2020, slightly outside of the 21 day time limit prescribed by the Rules, which expired the day before on 1 December 2020. He argued that the late lodgement was because of problems he experienced with the Commission’s online lodgement system:
‘the web form went blank on a few different occasions after I hit “continue”, and I had no choice but to start over after waiting for a few minutes each time it went blank and refused to load.’ 12
[21] Rule 56(2) provides as follows in relation to appeals against decisions of the Commission:
(2) The notice of appeal must be lodged:
(a) within 21 calendar days after the date of the decision being appealed against; or
(b) if the decision was issued in the form of an order—within 21 calendar days after the date of the order; or
(c) within such further time allowed by the Commission on application by the appellant.
Note: Subsection 598(4) of the Act provides that a decision may be made as an order.
[22] A Full Bench of this Commission held the following in relation to the predecessor to Rule 56: 13
‘[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities 14 indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 12.3(b):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.
[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.’ 15
[23] We accept that Mr Lai has advanced a satisfactory reason for the delay in lodging his appeal; he endeavoured to file it within time however was unable to do so because of the problem he experienced with the Commission’s online lodgement system. The length of the delay is minor. The likelihood of success of Mr Lai’s grounds of appeal is low, as is discussed below. No prejudice to the Respondent is argued, and none is discernible to us.
[24] In the circumstances we are satisfised, on balance, that the interests of justice favour an extension of the time within which to lodge the appeal. We will grant an extension of time.
[25] The Appellant contends, in essence, that the Commissioner erred in deciding that:
1. there was a valid stoppage of work;
2. the Respondent could not reasonably be held responsible for the cause of stoppage; and
3. the Appellant could have only been usefully employed for eight working days prior to his resignation.
[26] Mr Lai’s appeal submissions and Notice of Appeal identified nine discrete grounds of appeal which may be conveniently grouped into four broad categories:
A. Reliance on irrelevant factors
1. The Commissioner considered an irrelevant factor, “which was the downturn in demand for products and services provided by Matrix, one of [the] Respondent’s clients”. 16
2. Further it was irrelevant for the Commissioner to consider if Lynkz “required” the work to be done, with that consideration being counterintuitive to “the possibility that work can exist and be made available but not “required” to be done”.17
B. Mistaken facts
3. A finding that Mr Lai did not refute Lynkz’s submission that he attended only one meeting with his employer after the stand down, when he claims he stated he attended multiple meetings. 18
4. It was argued the Commissioner was mistaken in finding that work on the SMT Camera project had been suspended, with it being the case that the Trinity part of the Matrix project had been suspended and not the SMT Camera part. 19
5. The Commissioner was mistaken in finding Matrix was a Victorian business affected by the extended Victorian lockdown, when it is a company based in Queensland and not required to shut-down, with it also being the case that it provides services to customers in countries other than Australia, including New Zealand and the United Kingdom. 20
C. Failure to consider material considerations
6. The Commissioner failed to consider Lynkz had “conceded that the stand down was issued due to a downturn in work in the initial stand down notice”. 21
7. There was a failure to consider additional information provided in Mr Lai’s final submissions. That information included evidence to support there was either no stoppage of work or if there was, Lynkz was responsible for the stoppage and Mr Lai could have been usefully employed. 22
D. An unreasonable or plainly unjust decision
8. For reason of the terms of the contract between Lynkz and Matrix, and that “the extent that a client might be able to put any further work on hold is a function of the contract between the Respondent and its clients” 23 it was unreasonable and unjust for the finding to be made that “[g]iven that the work on the Matrix project ended because the client deferred further work on the project I am satisfied that the reason for the stoppage was not one for which the Respondent could reasonably be held responsible”.24
9. The finding “that each project of the Respondent is a defined and stand-alone part of the business” 25 was unreasonable and unjust, especially since Mr Lai was a permanent employee. The Commissioner’s finding narrowed the possibility of redeployment of Mr Lai into other parts of the business.26
[27] We have had regard to the submissions put by the Appellant as to why the Commissioner erred in reaching her Decision, but we find them unpersuasive. We are not persuaded that the Commissioner was guided by irrelevant factors, nor are we persuaded that she was mistaken as to any of the facts which were central to her core findings or that she failed to take some material consideration into account.
[28] In the proceedings at first instance both the Appellant and a Mr Braden Voight (CEO of the Respondent) gave evidence. The Appellant was given an opportunity to provide further evidence as to the availability of work; but did not avail himself of the opportunity. As is clear from the Decision, the Commissioner based her findings on Mr Voight’s evidence. It is also apparent that where the Appellant’s evidence conflicted with Mr Voight’s evidence the Commissioner preferred the evidence of Mr Voight, as she was entitled to do.
[29] The Commissioner’s decision to decline to grant a remedy in respect of the eight days during which the Appellant could have been usefully employed was a discretionary decision and the Commissioner took into account fairness between the parties concerned, as required by s.526(4). Contrary to the Appellant’s contention, the Commissioner’s discretion did not miscarry; the decision was not unreasonable, nor was it plainly unjust.
[30] The Appellant has not established an arguable case that the Commissioner erred and there are no other circumstances which enliven the public interest.
[31] For the reasons given, we refuse the Appellant’s application for permission to appeal the Decision.
PRESIDENT
Hearing details
2021.
20 January.
Melbourne.
Appearances
Chung Yin Lai, Appellant.
Braden Voight for the Respondent.
Printed by authority of the Commonwealth Government Printer
<PR726526>
1 [2020] FWC 5933.
2 [2020] FWC 5933 at [56].
3 [2020] FWC 5933 at [59] – [61].
4 Ibid at [63] – [64].
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44]-[46].
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFC 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], (2010) 202 IR 388, affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFB 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
8 [2010] FWAFB 5343 at [27]; (2010) 197 IR 266.
9 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
10 Wan v AIRC (2001) 116 FCR 481 at [30].
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], (2010) 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], (2010) 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe[2014] FWCFB 1663 at [28].
12 Ibid at [2].
13 Tokoda v Westpac Banking Corporation[2012] FWAFB 3995.
14 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338.
15 Tokoda v Westpac Banking Corporation[2012] FWAFB 3995, affirmed in Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited and AMIEU v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited[2015] FWCFB 7090 at [50]. Affirmed in Snyder v Helena College Council, Inc. t/a Helena College[2019] FWCFB 3992.
16 Appellant’s Outline of Submissions, 8 January 2021 at [7].
17 Ibid at [8].
18 Ibid at [9].
19 Ibid at [10].
20 Ibid at [11].
21 Ibid at [12].
22 Ibid at [13].
23 [2020] FWC 5933 at [52].
24 [2020] FWC 5933 at [61]; Appellant’s Outline of Submissions, 8 January 2021 at [14].
25 [2020] FWC 5933 at [56].
26 Appellant’s Outline of Submissions, 8 January 2021 at [15].
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