Creative Every Day Pty Ltd t/as Sameway Magazine v Ms Yin Fun Leung
[2019] FWCFB 5416
•9 AUGUST 2019
| [2019] FWCFB 5416 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
Creative Every Day Pty Ltd t/as Sameway Magazine
v
Ms Yin Fun Leung
(C2019/4259)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 9 AUGUST 2019 |
Appeal against decision [2019] FWC 3402 of Commissioner Wilson at Melbourne on 21 June 2019 in matter number U2019/256 – permission to appeal refused
Background
[1] On 9 January 2019 Leung Yin Fun (Ms Leung) made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against the Rejoice Chinese Christian Community Centre Inc (‘Rejoice’) in relation to an alleged termination of her employment on 21 December 2018. On 23 January 2019, the Form F3 Employer Response filed on behalf of Rejoice raised several jurisdictional objections to the application including that Ms Leung was not an employee; was not dismissed and had not served the minimum employment period.
[2] After a hearing and the filing of further written submissions the Commissioner issued a decision on 3 May 2019 (the May 2019 Decision) 1 determining the various jurisdictional objections. In particular the Commissioner concluded that:
• Ms Leung had been engaged as an employee, not an independent contractor. 2
• Ms Leung was not an employee of ‘Rejoice’ in December 2018 (at the time of her alleged dismissal). 3
• As at 21 December 2018 Ms Leung had completed an aggregate period of continuous service of around 14 months (i.e. greater than the ‘minimum employment period’). The basis of this finding was a subsidiary finding that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day’ and that Ms Leung was a ‘transferring employee’ within the meaning of s 311.
[3] On the basis of the above findings the Commissioner concluded that Ms Leung was a person ‘protected from unfair dismissal’, within the meaning of s 382. The Commissioner also concluded that at the date of the alleged termination of employment Ms Leung was employed by Creative Every Day Pty Ltd (t/as Sameway Magazine) (‘Creative Every Day’) not ‘Rejoice.’ 4 It followed that Ms Leung’s application had stated the incorrect respondent, as it referred to ‘Rejoice’ not ‘Creative Every Day.’ The Commissioner dealt with this issue at [62] – [63] of the 3 May 2019 Decision:
‘[62] On the basis of the material before the Commission I am of the preliminary view that Ms Leung made an honest mistake in the completion of her application form and that s.586(b) of the Act may be used to correct or amend the Respondent’s identification from Rejoice to Creative Everyday. It has been accepted by the Full Bench in Djula v Centurion Transport Co. Pty Ltd 5 that s.586 may provide the power to so amend an application by making a change to the identity of the respondent if the evidence clearly weighs in favour of such an amendment, with the power being a matter of discretion.6 I have formed the view that the evidence is in favour of such a change. The relevant evidence includes that Ms Leung had worked for some time first for one and then another entity; that the entities had a close operating relationship of some kind, if not actually being associated entities; that there had been a transfer of business in relation to her employment, with it not being clearly communicated to her that the identity of her employer had changed; and that she was confused at the time her employment ended as to which entity employed her.
[63] If either party objects to me correcting or amending the Respondent’s identification and wishes to be heard in relation to their objection they are to notify my Chambers within 7 days of the date of this decision after which a hearing date will be advised for the determination of the matter. If neither party objects, then the identification of the Respondent in Ms Leung’s application will be changed to Creative Everyday Pty Ltd, with her application then proceeding to the next stage of the usual process associated with unfair dismissal applications.’
[4] On 2 May 2019 ‘Rejoice’ notified the Commissioner’s chambers that it objected to the correction or amendment of Ms Leung’s unfair dismissal application because Ms Leung had not made any such amendment application and consequently the Commissioner lacked the requisite jurisdiction to amend her unfair dismissal application. 7 The question of whether the identity of the Respondent should be changed was the subject of a hearing on 5 June 2019.
[5] Ms Leung attended the hearing on 5 June 2019 on her own behalf, with the assistance of an interpreter, and Mr Chow appeared for the Respondent.
[6] Mr Chow is the chairman and CEO of ‘Rejoice’ and is one of the two owners of ‘Creative Every Day,’ with the other being Mrs Chow. 8 Mr Chow is also the Director, Publisher and Chief Editor of ‘Creative Every Day.’9
[7] In a decision issued on 21 June 2019 (the June 2019 Decision) 10 the Commissioner dealt with the question of whether he should exercise his discretion under s 586(b) to amend Ms Leung’s unfair dismissal application. In that decision the Commissioner rejected Mr Chow’s submission that Ms Leung had not made an application to amend her unfair dismissal application, at [24] to [25]:
‘[24] Mr Chow contests that Ms Leung has actually made an application to correct or amend the identity of the respondent referred to in her application. While it is the case that Ms Leung has not made an oral application in the course of the hearings before me for there to be a correction or amendment to the identity of the Respondent, her written response to Rejoice’s Objections Submissions cogently identified her intention. Ms Leung’s 27 March 2019 submission stated:
“…
• I thought my employer was Rejoice Chinese Christian Communication Centre, based on my interview with Raymond and Alex at the start of my employment.
• I was never told by Raymond that my employer had changed.
• Despite not being told, based on the “employer response form” provided by Raymond, I understand my employer at the end of my employment was Creative Every Day, and if that is correct, I wish to make my application against that employer.” 11 (underlining added)
[25] I am satisfied that these submissions amount to a request for amendment to her application. For me to consider otherwise would be contrary to the obligations within s.578 and referred to within HDR (extracted above). This is not a circumstance in which there is evidence before the Commission that Ms Leung deliberately chose to pursue her application against Rejoice; instead this is a circumstance in which there is ample evidence that Ms Leung simply did not sufficiently understand the identity of her final employer against whom her unfair dismissal proceedings should be commenced.’
[8] The Commissioner then proceeded to exercise his discretion, under s 586(a), to amend Ms Leung’s unfair dismissal application by changing the name of the respondent to ‘Creative Every Day.’ In exercising his discretion the Commissioner took into account the following matters:
• there was genuine confusion on Ms Leung’s part as to the identity of her employer 12
• Ms Leung’s employment was not the subject of a formal contract of employment and while the employing entity on her payslip changed between ‘Rejoice’ and ‘Sameway’ (the trading name of ‘Creative Every Day’), there is no evidence that Ms Leung understood this to mean that her employer was changing as a result 13
• As soon as Ms Leung became aware that her employer had changed she sought to correct her application 14
• ‘Rejoice’ and ‘Creative Every Day’ did not submit they would suffer any prejudice if the name of the respondent was altered, beyond the prejudice that would accrue to any former employer in having to respond to an unfair dismissal application 15
• ‘Creative Every Day’ have been on notice, through its director Mr Chow, since the application was first filed that Ms Leung alleged her dismissal was unfair 16
• Ms Leung’s understanding of employment law was ‘is likely basic, as is her understanding of English’ and that:
‘[38] … I also take into account in favour of the exercise of my discretion that Ms Leung attempted at the earliest opportunity after she became aware that there was a contest about the identity of the employer to make it plain that she wanted a change the name of the Respondent in her application if that was necessary and that at all times from the commencement of her application against Rejoice Mr Chow, both the Chair of Rejoice and the Director of Creative Every Day has been aware that she seeks to challenge her dismissal. I also take into account as a factor in favour of the exercise of my discretion that Ms Leung’s understanding of employment law is likely basic, as is her understanding of English. At the time she came to make the application it was necessary for her to draw together information she had about her overall employment relationship, including the identity of her employer; endeavour to navigate the Commission’s application form; and then to respond to the objections referred to within the Employer Response Form. Those matters of Ms Leung’s understanding both of her employment relationship as well as of language could, to some extent, have contributed to the error she made at the time she filed her original application. In favour of an exercise of discretion in favour of Ms Leung is that on 27 March 2019 Ms Leung unambiguously stated “I understand my employer at the end of my employment was Creative Every Day, and if that is correct, I wish to make my application against that employer.” 17’
• The need for the Commission to perform its functions and exercise its power in a manner that is quick, informal, avoiding unnecessary technicalities and takes into account equity, good conscience and the merits (see s 577(b) and 578(b)).
[9] In addressing the last matter the Commissioner said (at [40]):
‘[40] … Consideration of those factors causes me to lean towards the exercise of my discretion. In this matter, to accept that a mistake had not been made by Ms Leung or that she should have been aware the identity of her employer was something other than that which she put on her application form, or that she should be denied the opportunity to seek an amendment because she did not say words to that effect that she wished to make an application to change the name of the Respondent in the course of the hearing would be somewhat antithetical to the provisions of ss.577(b) and 578(b). It would be a highly technical outcome as well as lacking in equity and good conscience.’
[10] On 12 July 2019 ‘Creative Every Day’ (the Appellant) lodged a Notice of Appeal. The Appellant has applied for permission to appeal and appeals the June 2019 Decision 18 to amend Ms Leung’s unfair dismissal application by changing the name of the Respondent to ‘Creative Every Day.’ The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
The Appeal
[11] An appeal under s.604 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. 19 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 20 The public interest is not satisfied simply by the identification of error,21 or a preference for a different result.22
[13] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be 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. 23 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.24 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.25
[14] The grounds set out in the Notice of appeal can be distilled into two broad contentions:
(i) The Commissioner had no jurisdiction to amend the unfair dismissal application without an application from Ms Leung and Ms Leung made no such application.
(ii) The Commissioner was in error in finding that there was a transfer of business between Rejoice and the Appellant and, further, those entities did not have an opportunity to respond to that matter before the decision was made.
[15] In relation to the public interest considerations said to be relevant to the issue of permission to appeal the Appellant contends that the change of the name of the respondent was outside the power of the Commission and was unfair and that instead of assisting Ms Leung to identify and explore the option of changing the name of the respondent the Commissioner should have determined the jurisdictional objection.
[16] As to the Appellant’s first contention ((i) at [14] above) we reject the proposition that the Commissioner had no jurisdiction to amend Ms Leung’s unfair dismissal application in the manner in which he did.
[17] The Commissioner amended the application in exercise of the discretion conferred by s. 586(a). The Appellant contends that Ms Leung made no application to amend her unfair dismissal application and on that basis the Commissioner lacked jurisdiction to amend the application. This submission proceeds on the assumption that the Commission can only exercise the power conferred by s. 586(a) on application and not on its own motion. A point to which we shall return shortly.
[18] As we have mentioned, at [29] – [32] of the June 2019 Decision the Commissioner concluded that Ms Leung had made an application to amend her unfair dismissal application. In our view that conclusion was open to the Commissioner, particularly when one has regard to the terms of ss 577 and 578, which state (relevantly):
‘s 577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations. (Emphasis added)
‘s 578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’
(Emphasis added)
[19] In our view the Commissioner’s finding that Ms Leung made an application to amend her unfair dismissal application does not disclose an arguable case of error. That is sufficient to dispose of the Appellant’s first contention; but we wish to add something about whether the power in s 586 can only be exercised on application.
[20] As mentioned earlier, the Appellant’s contention that the Commissioner had no jurisdiction to make the order amending Ms Leung’s unfair dismissal application rests on the proposition that the Commission can only exercise the jurisdiction conferred by s 586 on application by an interested party. We doubt that this is so.
[21] Section 586 does not, in terms, say that the power to amend an application is only exercisable on application. In this regard the section may be contrasted with other provisions of the Act which make it clear that certain powers may only be exercisable on application, for example those which relate to bargaining orders (s 230(1)); majority support determinations (s 237(1)); equal remuneration orders (s 320(3)); dismissing an unfair dismissal application (s 399A(2)); costs orders against lawyers and paid agents (s 401(2)); costs against parties (s 400A(2)) and protection action ballot orders (s 443(1) and (2).
[22] Sometimes the requirement for an application may be inferred. Such is the case with unfair dismissal applications. There is no express requirement for an application before the Commission may order a remedy for unfair dismissal (see s. 390), but such a requirement may be inferred from s.396, which states:
‘Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.’ (Emphasis added)
[23] Other provisions in the Act make it clear that the power conferred may be exercised by the Commission either on its own motion or on application, for example the variation of a modern award to remove ambiguity or uncertainty (s 160(2)) and orders to stop industrial action (s 418(2)). And, relevantly, some provisions are silent as to whether they may be exercised on the Commission’s own motion. Section 586 is such a provision, as are s 603 (varying or revoking decisions) and s 611 (costs).
[24] It is instructive to compare ss 400A and 611. Section 400A states:
‘Costs orders against parties
(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party ) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC's power to order costs under section 611.’
(Emphasis added)
[25] Plainly, the power in s 400A is only exercisable upon application, by ‘the other party.’ This may be contrasted with s 611, which states:
‘Costs
(1) A person must bear the person's own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person ) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).’ (Emphasis added)
[26] Section 611 is silent as to the need for an application. Sections 400A and 611 both provide a source of power to make a costs order in an unfair dismissal case.
[27] The differences in the terms of ss 400A and 611 leads one to conclude that the power to award costs under s 611 may be exercised on the Commission’s own motion. Had Parliament intended the power to only be exercisable on application that intention would have been reflected in the section (as it is in s 400A(2)). Similarly, there appears to be no basis to read into s 586 a limitation such that the power to correct or amend an application may only be exercised on application and not on the Commission’s own motion. Such a construction would also be inimical to the terms of ss 577 and 578.
[28] Of course, as with any exercise of power, the Commission would be obliged to afford the relevant parties procedural fairness before exercising a power of its own motion. But that is not an issue in the matter before us as the Commissioner gave all interested parties an opportunity to be heard on the question of whether he should amend Ms Leung’s unfair dismissal application.
[29] Our decision at [21] above, that the Commissioner’s conclusion that Ms Leung had made an application to amend her unfair dismissal application was open and does not disclose an arguable case of error, is sufficient to dispose of the point and hence it is not necessary for us to express a concluded view on whether the power conferred by s 586 may be exercised on the Commission’s own motion.
[30] We now turn to the second contention advanced by the Appellant, that the Commissioner erred in finding that there was a transfer of business between ‘Rejoice’ and the Appellant. Two observations may be made about this submission. The first is, as mentioned earlier, the Commissioner’s finding that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day,’ and that Ms Leung was a ‘transferring employee’ within the meaning of s 311, was made in the context of the Commissioner’s consideration of whether Ms Leung had completed the requisite minimum period of employment. So much is clear from [49] to [59] of the May 2019 Decision. The Commissioner’s consideration of this issue led to his conclusion that Ms Leung’s aggregate period of continuous service exceeded the minimum period of employment, from which there has been no appeal. The second point to make is that the finding complained of was made in the May 2019 Decision, which is not the subject of the present appeal.
[31] Further, the Appellant does not contend that the Commissioner erred in concluding that ‘Rejoice’ was not Ms Leung’s employer as at the date of her dismissal; nor does it contest the proposition that ‘Creative Every Day’ was Ms Leung’s employer at that time. So much is clear from paragraph 1 of the Appellant’s Outline of Submission. It follows that the Appellant’s contention provides no basis for the grant of permission to appeal in the matter before us.
[32] In the course of oral argument Mr Chow sought to draw a link between the Commissioner’s decision that Ms Leung had completed the requisite minimum period of employment and his decision to amend Ms Leung’s unfair dismissal application. The short point was that had the Commissioner not found that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day’ then he would have dismissed Ms Leung’s unfair dismissal application on the basis that she had not completed the requisite minimum employment period and there would have been no utility in amending the unfair dismissal application. We accept the logic of the argument put; but it ignores the fact that the transfer of employment and minimum employment period issues were determined in the May 2019 Decision and the appeal before us is confined to the June 2019 Decision.
[33] We accept that ‘Creative Every Day’ is aggrieved by the Commissioner’s finding that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day’. Mr Chow, on behalf of Creative Every Day, contends that the Appellant was denied a fair hearing in respect of this issue as it was not a party to the proceedings at the time the transfer of business issue was determined. It is submitted that had ‘Creative Every Day’ been afforded a fair hearing it would have adduced evidence to show that work performed by Ms Leung for ‘Rejoice’ and ‘Creative Every Day’ was not ‘the same or substantially the same’ (within the meaning of s.311(1)) and hence there was no transfer of business between the two entities. Mr Chow informed us that ‘Creative Every Day’ has now filed evidence to this effect in relation to the upcoming hearing on 28-30 August 2019.
[34] While we accept that ‘Creative Every Day’ is aggrieved by the Commissioner’s finding, the present appeal is not the means for addressing that grievance as the present appeal is confined to the June 2019 Decision and, in particular, the Commissioner’s decision to amend Ms Leung’s unfair dismissal application to change the name of the respondent. In the circumstances, ‘Creative Every Day’ would appear to have two options.
[35] First, in the proceedings to be heard on 28-30 August 2019 before Commissioner Wilson ‘Creative Every Day’ may invite the Commissioner to reconsider his finding that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day’ and his decision that Ms Leung had completed the minimum employment period. Under s.603(1) the Commission may vary or revoke a decision (other than a decision referred to in s.603(3)). 26
[36] The second option open to ‘Creative Every Day’ would be to file an appeal in respect of the May 2019 Decision. Such an option is not without difficulty, as the appeal would be outside the 21 day period prescribed for the filing of an appeal and an extension of time would have to be sought. A second appeal may also prolong the current proceedings.
[37] In order to assist both parties in considering their options in relation to future proceedings we will ask the Commission’s Workplace Advice Service to arrange for some pro bono assistance to be provided to both parties. That assistance will be a free one hour consultation with a lawyer on the Commission’s pro bono panel and will not extend to representation in any future proceedings.
[38] We are not persuaded that the Applicant has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that it has established an arguable case of error in relation to the June 2019 Decision or that there are any other considerations that warrant the grant of permission to appeal. Accordingly, permission to appeal is refused.
PRESIDENT
Appearances:
Mr Raymond Chow for the Appellant
Ms Yin Fun Leung on her own behalf
Hearing details:
2019.
6 August
Melbourne
Printed by authority of the Commonwealth Government Printer
<PR711010>
1 [2019] FWC 2981
2 Ibid at [39], also see [14]-[37]
3 Ibid at [40]
4 Ibid at [48]
5 [2015] FWCFB 2371
6 [2015] FWCFB 2371 at [30] – [32]
7 Respondent’s Objections to amendment of application dated 18 March 2019 at [3]-[4]
8 Respondent Reply Submissions, ‘Is it the case that Rejoice determines the work that Creative Every Day either does or does not perform’, dated 1 May 2019, [5].
9 Email from Mr Chow, dated 11 April 2019.
10 [2019] FWC 3402
11 Exhibit A1, Applicant Outline of Arguments Objections, dated 27 March 2019, 6a.
12 [2019] FWC 3402 at [26] and [38]
13 Ibid at [27] and [38]
14 Ibid at [28] and [38]
15 Ibid at [31]
16 Ibid
17 Exhibit A1, 6a.
18 [2019] FWC 3402
19 This is so because on appeal the Commission has 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.
20 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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
21 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
22 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
23 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
24 Wan v AIRC (2001) 116 FCR 481 at [30].
25 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, 241 IR 177 at [28].
26 We note that s.603(3)(e) excludes a decision under Division 3 of Part 2-8 (which deals with a transfer of business) but, properly characterised, the Commissioner’s May 2019 Decision was not under Division 3 of Part 2-8. The Commissioner’s finding in respect of the transfer of business was merely an intermediate finding in the course of determining the minimum employment period issue. In other words, the May 2019 Decision was a decision under Division 2 of Part 3-2.
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