Codebots Pty. Ltd. v Diana Tansey
[2021] FWCFB 5511
•3 SEPTEMBER 2021
| [2021] FWCFB 5511 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Codebots Pty. Ltd.
v
Diana Tansey
(C2021/4194)
VICE PRESIDENT CATANZARITI | SYDNEY, 3 SEPTEMBER 2021 |
Appeal against decision [2021] FWC 4076 of Deputy President Lake at Brisbane on 12 July 2021 in matter number U2021/1424 - whether there was a dismissal at initiative of the employer - permission to appeal granted - decision at first instance quashed and remitted for hearing or conference and redetermination.
[1] Codebots Pty Ltd (Appellant) has applied for permission to appeal to appeal a decision 1 by Deputy President Lake issued on 12 July 2021 (Decision). The Decision dealt with an application brought by Ms Diana Tansey (Respondent) under section 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.
[2] The Appellant also seeks to adduce further evidence pursuant to section 607(2) of the Act. Section 607(2) provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence. The evidence that the Appellant seeks to adduce on appeal is a YouTube video of the Respondent allegedly announcing her departure from employment with the Appellant, published on or around 20 December 2020 and the Respondent’s alleged registration of a business name, on or around 10 December 2020.
[3] The matter was subject to a telephone hearing on 31 August 2021 (Hearing). The Full Bench granted both parties permission to be legally represented pursuant to section 596(2)(a) of the Act. Mr T Spence of Counsel appeared for the Appellant and Ms S Ticehurst appeared for the Respondent.
[4] For the reasons that follow, we grant permission to appeal the Decision. We:
(a) uphold the appeal;
(b) quash the Decision; and
(c) remit to the matter to the Deputy President for redetermination following a hearing or conference.
The Decision
[5] In the matter at first instance, the Appellant raised two jurisdictional objections to the Respondent’s application. The first jurisdictional objection was on the basis that the Respondent was not protected from unfair dismissal as she was not dismissed. The second jurisdictional objection was that even if the Respondent was dismissed, the application was lodged out of time. Both parties were legally represented, and each filed written submissions as to the jurisdictional objections. The Respondent also filed a witness statement. The Decision records that it was agreed by the parties that the jurisdictional objections could be determined on the papers prior to any hearing of the merits of the application. The Deputy President stated that he considered this “an appropriate course, particularly given each party had the benefit of representation.” 2 The Deputy President found that the Respondent had been dismissed within the meaning of section 386(1)(a) of the Act and further, that her application was made within time.
Appeal grounds
[6] In its Notice of Appeal the Appellant submits that the Deputy President erred in fact and law in deciding that the Respondent was dismissed at the initiative of the Appellant pursuant to section 386(1)(a) of the Act. 3
Appellant submissions
[7] The Appellant submits that for a dismissal to be found to be at the initiative of the employer, the Commission must be satisfied that there was a critical action taken by the employer that, had it not been taken, the employee would have remained in the employment relationship. 4 The Appellant relies upon the decisions of Grout v Gunnedah Shire Council,5 APESMA v David Graphics Pty Ltd6and Weaver v Ipswich City Council.7
[8] It submits that in the Decision, the Deputy President:
(a) accepted that it was the Respondent who indicted that she wished to leave the employ of the Appellant, that is, that it was the Respondent who initiated the termination; and
(b) accepted that it was the Respondent who nominated the date of termination. 8
[9] Accordingly, the Appellant submits, it cannot be said that the Respondent would have remained in the employ of the Appellant but for the act of the Appellant and the Deputy President erred in so finding. 9
[10] Further, it submits that the Deputy President’s finding that the Respondent’s resignation was “conditional” is at odds with Annexure E to the Respondent’s witness statement 10 and is confirmed by Annexure G to the Respondent’s witness statement.11 It submits that the Deputy President also erred in finding that this was a “separation agreement gone awry”. The Appellant submits that this is clear from a consideration of Annexure E and G to the Respondent’s witness statement. 12 Finally, it submits that it cannot be said that the Appellant took actions that were a principal contributing factor to the termination of the Respondent’s employment because the Appellant was unable to accede to the Respondent’s request to relax clauses in the shareholders deed.13 It submits this is confirmed at Annexure P to the Respondent’s witness statement.14
Respondent’s submissions
[11] In light of our conclusions below it is not necessary that the Respondent’s submissions are set out in full. It is sufficient for present purposes to note that, in summary, the Respondent submits that:
(a) the Appellant has raised no appealable errors of law or fact on the part of the Deputy President at first instance;
(b) the decision reached by the Deputy President was not against the weight of the evidence and the findings made by the Deputy President were reasonably open to him on the evidence;
(c) the Decision is consistent with prior decisions of the Commission with similar facts and raises no new issues with regard to the meaning and operation of section 386(1)(a) of the Act; and
(d) the Decision is not counterintuitive nor does it manifest any injustice. 15
Public interest
[12] The Appellant submits that it is in the public interest to grant permission to appeal because the appeal involves an important question of law as to the meaning and operation of section 386(1)(a). Further, it contends that the Decision is attended with sufficient doubt to warrant consideration, manifests an injustice and is counterintuitive. 16
[13] The Respondent contends that the public interest is not enlivened such that permission to appeal ought be granted. 17
Permission to appeal
[14] An appeal under section 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. 18 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[15] The decision was made under Part 3-2 (unfair dismissal) of the Act. Accordingly, section 400 of the Act applies. Permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. 19 Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact.20
[16] The test under section 400 has been characterised as “a stringent one.” 21 The task of assessing whether the public interest test is met is discretionary and involves a broad value judgment.22
[17] In GlaxoSmithKline Australia Pty Ltd v Makin 23 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…” 24
[18] 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. 25 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.26
Consideration
[19] The matter at first instance was determined on the papers with consent from the parties. However, the Act indicates that, in certain circumstances, a hearing or conference is required. The relevant provision in this regard is section 397 of the Act, which states:
“The FWC must conduct a conference or hold a hearing in relation to a matter arising under this part if, and to the extent that, the matter involves facts the existence of which is in dispute.”
[20] It is apparent from the terms of section 397 that where a matter arising under Part 3-2 of the Act involves contested facts, the Commission mustconduct a conference or hold a hearing in relation to those contested facts. The Commission is not required to hold a hearing in respect of every matter arising under Part 3-2 of the Act. The Commission is only required to hold a hearing “as provided by [the] Act”. 27 In this regard, section 397 is one of the statutory exceptions to this general proposition.28 The Commission may determine a matter arising under Part 3-2 of the Act on the papers without having to conduct a conference or hold a hearing, provided that the matter does not involve “facts the existence of which is in dispute”.29
[21] This matter is clearly one that involved contested facts. The materials filed by both parties at first instance are relevant to questions of fact surrounding the matters relating to whether the Respondent was dismissed, as that term is defined in the Act. The Respondent says that her employment was terminated at the initiative of the Appellant, the Appellant says it was not. This is clearly a contested fact.
[22] The fact that the parties consented to having the matter determined on the papers is irrelevant. The requirements of section 397 are clear and the statutory obligation upon the Commission cannot be abrogated by the consent or acquiescence of the parties. Moreover, previous Full Bench decisions have indicated it is not appropriate for matters involving contested facts to be determined on the papers 30 and there is no reason to depart from such decisions. We also note a conference or hearing would have also provided the Deputy President with an opportunity to examine the Respondent and assess the credibility of her evidence.
[23] As is clear from paragraphs [7] – [10] above, the failure to comply with section 397 is not a ground of appeal advanced by the Appellant. At the Hearing the Full Bench identified for the parties that it considered that the matter involved contested facts, section 397 was therefore applicable and had not been complied with and that this amounted to appealable error. Oral submissions were sought from the parties as to these matters. Neither party contended that the matter did not involve contested fact, that section 397 did not apply nor that the failure to comply with section 397 did not amount to appealable error.
[24] In this matter, the relevant contested facts are a critical issue in the proceedings. The failure to comply with section 397 of the Act where the relevant contested facts were a critical issue in the proceedings enlivens the public interest, and on that basis we are satisfied that it is in the public interest to grant permission to appeal. Permission is so granted. The failure to comply with section 397 in this context is an error that warrants correction on appeal. Therefore, we must uphold the appeal and quash the Decision. We remit the matter to the Deputy President to conduct a conference or hold a hearing to determine the contested factual matters.
[25] For the above reasons, it is not necessary that we consider the grounds of appeal advanced by the Appellant nor whether the Appellant may adduce further evidence pursuant to section 607(2) of the Act.
Disposition
[26] Permission to appeal is granted.
[27] The appeal is upheld.
[28] The Decision is quashed.
[29] The matter is remitted to Deputy President Lake to redetermine following the conduct of a conference or a hearing.
VICE PRESIDENT
Appearances:
Mr T Spence of Counsel for the Appellant
Ms S Ticehurst for the Respondent
Hearing details:
31 August 2021
Telephone hearing
<PR733542>
Printed by authority of the Commonwealth Government Printer
1 [2021] FWC 4076
2 Ibid at [5]
3 Notice of Appeal at Q 2.1; Appellant’s Outline of Submissions at [3]
4 Appellant’s Outline of Submissions at [9]
5 (1994) 1 IRCR 143
6 NI 94/0174, 12 July 1995
7 [2021] QIRC 234
8 Appellant’s Outline of Submissions at [10]
9 Ibid at [11]
10 Ibid at [15]-[17]
11 Ibid at [18]
12 Ibid at [19]
13 Ibid at [21]
14 Ibid at [22]
15 Respondent’s Outline of Submissions at [25]
16 Appellant’s Outline of Submissions at [5]
17 Respondent’s Outline of Submissions at [3]
18 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
19 Fair Work Act 2009 s 400(1)
20 Ibid s 400(2)
21 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43]
22 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44]-[46].
23 [2010] FWAFB 5343
24 [2010] FWAFB 5343 at [27], 197 IR 266
25 Wan v AIRC (2001) 116 FCR 481 at [30]
26 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 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
27 Fair Work Act 2009 s 593(1)
28 Also see Fair Work Act 2009 s 607(1) in relation to appeals and the obligation to provide procedural fairness, this may require the FWC to conduct a hearing in certain circumstances
29 Fair Work Act 2009 s 397
30 See for example Bronwyn Shields v The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd[2015] FWCFB 2945; Joseph Costelloe v Origin Energy Resources Limited T/A Origin Energy[2017] FWCFB 1405; Mades Efemo v SouthLink Pty Ltd[2019] FWCFB 5291
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