Creative Every Day Pty Ltd v Yin Leung
[2019] FWCFB 8514
•20 DECEMBER 2019
| [2019] FWCFB 8514 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Creative Every Day Pty Ltd
v
Yin Leung
(C2019/6749)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 20 DECEMBER 2019 |
Appeal against decisions [2019] FWC 2981 and [2019] FWC 3402 of Commissioner Wilson at Melbourne on 3 May 2019 and 21 June 2019 in matter number U2019/256.
[1] By a notice of appeal dated 4 November 2019, Creative Every Day Pty Ltd (Creative) applies pursuant to s.604(1) of the Fair Work Act 2009 (Act) for permission to appeal and, if granted, appeals the decisions of Commissioner Wilson delivered on 3 May 2019 1 and 21 June 2019.2 The first decision dealt with various jurisdictional objections and the second decision dealt with Commissioner Wilson’s refusal to vary or revoke findings made in the first decision.
Background
[2] Commissioner Wilson’s decision of 21 June 2019 was the subject of an earlier appeal 3 (the first Appeal) which was heard on 6 August 2019. The first Appeal decision was delivered on 9 August 2019. That decision provided the background in this matter as detailed below:
“[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) determining the various jurisdictional objections. In particular the Commissioner concluded that:
• Ms Leung had been engaged as an employee, not an independent contractor.
• Ms Leung was not an employee of ‘Rejoice’ in December 2018 (at the time of her alleged dismissal).
• 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.’ 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 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. 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. 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. Mr Chow is also the Director, Publisher and Chief Editor of ‘Creative Every Day.’
[7] In a decision issued on 21 June 2019 (the June 2019 Decision) 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.” (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
• 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
• As soon as Ms Leung became aware that her employer had changed she sought to correct her application
• 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
• 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
• 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.”’
• 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 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.” (citations omitted)
[3] Whilst permission in the first appeal was refused, the Full Bench informed Creative that the appeal was not the means for addressing the grievance and in the circumstances Creative appeared to have two options. The first was to invite Commissioner Wilson to reconsider his finding that a transfer of business had occurred, the second was for Creative to file an appeal in respect of the 3 May 2019 decision noting that the appeal would be out of time and an extension of time would need to be sought. The Commission also facilitated the parties access to pro-bono legal advice via the Workplace Advice Service.
[4] After the first Appeal decision, Creative applied to Commissioner Wilson to vary or revoke his decision. This was refused on 20 September 2019. Creative then lodged this appeal.
[5] Creative has also been in discussion with Ms Leung (with the assistance of Deputy President Young) and has reached agreement (including the execution of a Terms of Settlement) on the resolution of the substantive matter just prior to the appeal hearing. The Terms of Settlement were provided and appear to extinguish Ms Leung’s unfair dismissal claim. The Terms of Settlement expressly allow Creative to continue with this appeal.
[6] This appeal was heard on 10 December 2019. Mr Chow represented Creative, Ms Leung represented herself with the assistance of an interpreter.
Extension of Time
[7] A notice of appeal must be lodged within 21 days after the date of the decision being appealed against, or within such further time allowed by the Commission on application by the Appellant. 4 The decision being appealed was made, as already noted, on 3 May 2019 and Creative lodged this notice of appeal on 4 November 2019. The notice of appeal was therefore lodged outside of the time prescribed by Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) and thus can only be pursued if an extension of time is granted.
Appeal grounds and submissions
[8] The notice of appeal contains the grounds of appeal. Creative filed written submissions on 22 November 2019 pursuant to the directions made by the Presiding Member.
[9] The grounds are summarised as follows:
• In the substantive matter there was a contest as to whether Ms Leung had completed her minimum employment period;
• Creative take issue with Commissioner Wilson’s determination that there had been a transfer of business between ‘Rejoice’ and Creative which resulted in the periods of service being concatenated such that the minimum employment period was met, submitting that Commissioner Wilson made a significant error of fact in rejecting Ms Leung’s evidence that there had not been a transfer of employment;
• Creative contend that it would suffer a substantial injustice if required to defend Ms Leung’s unfair dismissal claim, and this injustice offends the public interest; and finally that
• Commissioner Wilson’s decision offends the notion that employers are protected by the Fair Work Act 2009.
Consideration
[10] An appeal under s.604 of the 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.
[11] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so.
[12] Except in unfair dismissal related appeals, the Commission is not confined to granting permission to appeal only if it is in the public interest to do so.
[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 The public interest is not satisfied simply by the identification of error, 7 or a preference for a different result.8 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.” 9
[14] 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 by sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 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
[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. 12 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[16] The utility of any appeal is a factor that is relevant in assessing whether permission to appeal should be granted. There is rarely any public interest in allowing an appeal from a decision to proceed which has no utility to the parties affected or more broadly.
[17] However, before considering the question whether permission to appeal is to be granted it is first necessary to determine whether to allow further time within which the notice of appeal may be lodged.
[18] As is frequently noted and most recently by a Full Bench of the Commission in Snyder v Helena College Council, Inc. t/as Helena College, 13 time limits of the kind in Rule 56 of the FWC Rules 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.
[19] The following matters are relevant in considering whether to exercise the Commission’s discretion to allow a further period under Rule 56(2)(c): 14
(1) whether there is a satisfactory reason for the delay;
(2) the length of the delay;
(3) the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
(4) any prejudice to the Respondents if time were extended.
[20] Taking these matters into account, the exercise of the discretion will be guided by a consideration whether, in all the circumstances, the interests of justice favour Creative being granted an extension of the time within which to lodge its notice of appeal. 15
[21] Creative’s notice of appeal was lodged just over 5 months after the time within which the FWC Rules allow. Creative contended that it first became aware of Ms Leung’s unfair dismissal claim on 24 June 2019. Creative appealed the decision made by Commissioner Wilson on 21 June, not realising the making of an earlier decision on 3 May 2019.
[22] Ms Leung did not make any submission as to the extension of time issue or challenge Creative’s submissions.
[23] In terms of the explanation of the delay, we accept that Creative is self-represented and has limited experience in this jurisdiction. We accept that Creative did not become aware of the decision under appeal until 24 June 2019 and that the first Appeal decision of 9 August 2019 provided new information and options which were pursued by Creative. Creative have explained the period of delay between the decision at first instance on 3 May 2019 and the time at which pro-bono legal advice was obtained. This weighs in favour of allowing a further period.
[24] The length of the period of delay is considerable and of itself does not weigh in favour of a further period being allowed.
[25] Ms Leung did not contend that she would suffer prejudice if a further period were allowed. The absence of prejudice in the circumstances is a neutral factor.
[26] In relation to the merits of the appeal. In assessing whether to allow Creative a further period within which to lodge the appeal, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended. This will, in this case, necessarily include an assessment as to the utility of the appeal. Without a grant of permission to appeal, the appeal grounds cannot succeed. Permission to appeal is not likely to be granted if there is no utility in the appeal. We are in a position in this application for an extension of time to give consideration to these matters having the benefit of written submissions about the merits of the appeal grounds and knowledge that the substantive unfair dismissal application to which this appeal relates has been settled and will not, whatever be the outcome of this appeal, proceed to hearing, and thus, to make an assessment as to the utility of the appeal.
[27] In the days prior to the hearing of this appeal, Ms Leung and Creative have entered into a binding settlement agreement resolving the substantive application. The Agreement includes a mutual release in respect of current and future actions (excluding this appeal) concerning Ms Leung’s employment and any matter arising from it. Any further agitation of matters in respect of Ms Leung’s employment would be barred by the release. If permission to appeal is granted and the appeal itself is successful, the Terms of Settlement would act as a bar to Ms Leung pursuing her claim. On that basis, we do not consider there is any utility in the appeal. As a result it is unlikely that permission to appeal would be granted. That there is no utility in the application for permission to appeal or in the substantive appeal is a matter that weighs significantly against allowing a further period within which to lodge the appeal.
[28] Ultimately Creative is in a position where it is bound by the Terms of Settlement and will not be required to defend Ms Leung’s unfair dismissal application. This position would not change even if permission were granted and the appeal succeeded. The first decision sought to be appealed stands for no more than the Commission had jurisdiction to consider Ms Leung’s unfair dismissal application. By reason of the Terms of Settlement that jurisdiction can no longer be invoked. In all the circumstances, the interests of justice do not favour Creative being granted an extension of the time within which to lodge the notice of appeal.
[29] Even if we were minded to allow a further period for the lodgement of the notice of appeal, for the reasons stated in our assessment of the merits and utility of the appeal above, we would not grant permission to appeal.
Conclusion
[30] We decline to allow a further period within which the notice of appeal may be lodged. As the notice of appeal was not lodged within the time prescribed by Rule 56 of the FWC Rules, the application for permission to appeal is dismissed.
DEPUTY PRESIDENT
Appearances:
R Chow on behalf of the Appellant.
Y Leung on her own behalf.
Hearing details:
2019.
Melbourne and Adelaide (by video):
December 10.
Printed by authority of the Commonwealth Government Printer
<PR715341>
1 [2019] FWC 2981
2 [2019] FWC 3402
3 [2019] FWCFB 5416
4 Fair Work Commission Rules 2013, r.56(2)
5 This is so because on appeal, the Commission has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 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]
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
8 Ibid 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]
9 [2010] FWAFB 5343, 197 IR 266 at [24]–[27]
10 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
11 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]
12 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
13 [2019] FWCFB 815; See also Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFB 3995 at [3]
14 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis[2018] FWCFB 3815
15 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
14
0