Dangan Pty Ltd T/A the Grounds Cairns v Ryan Murray
[2021] FWCFB 5558
•7 SEPTEMBER 2021
| [2021] FWCFB 5558 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dangan Pty Ltd T/A The Grounds Cairns
v
Ryan Murray
(C2021/3974)
VICE PRESIDENT CATANZARITI | SYDNEY, 7 SEPTEMBER 2021 |
Appeal against decision [2021] FWC 3872 of Deputy President Lake at Brisbane on 5 July in matter number U2021/1554 - permission to appeal granted - appeal upheld - matter remitted.
INTRODUCTION
[1] Dangan Pty Ltd T/A The Grounds Cairns (the Appellant/Dangan/Employer) lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a Decision 1 (the Decision) by Deputy President Lake made on 5 July 2021, for which permission to appeal is required.
[2] The Decision relates to an application made by Mr Ryan Murray (the Respondent) under s.394 of the Act, for an unfair dismissal remedy. This Decision concerned the determination of the two jurisdictional objections raised by the Appellant.The Employer argued that it met the ‘small business employer’ definition, and that Mr Murry had not met the associated minimum employment period of 12 months. 2 The jurisdictional determination required a consideration of whether there were associated entities,3 pursuant to s.23(3) of the Act. Mr Murray argued that other businesses were associated entities of Dangan and that their employee numbers should be included in the total employment count. The Employer opposed these contentions and the counting of sessional referees and hobby coaches in the total employee count.
[3] This matter was listed for both permission to appeal and the substantive appeal. Directions were set by Vice President Catanzariti for the filing of material by the parties in relation to permission to appeal and the merits of the appeal. The Appellant filed an appeal book and written submissions in accordance with those directions. On 11 August 2021, Mr Murray contacted the Chambers of Vice President Catanzariti via telephone and inquired whether or not he was required to file submissions. The Vice President’s Chambers confirmed that, as per the directions, Mr Murray was required to file his submissions by 20 August 2021. Mr Murray did not file any submissions by the required deadline. Prior to the hearing, the Appellant indicated it consented to the matter being determined on the papers without the need for a formal hearing. Mr Murray did not indicate whether he consented or opposed the matter being determined on the papers. Accordingly, on the basis that Mr Murray has not filed any submissions, nor has he objected to the Appellant’s request that the matter be heard on the papers, the Full Bench will determine this matter on the papers.
The Decision under appeal
[4] Mr Murray commenced employment with Dangan on 6 July 2020. The Employer’s business operates a sporting facility in Cairns. Mr Murray was employed as a tournament co-ordinator and sports coach for Dangan. Mr Murray’s employment came to an end on 6th of February 2021. The Employer alleged that Mr Murray was dismissed due to a range of concerns regarding his conduct. Mr Murray refuted this and considered that the dismissal was harsh, unjust and unfair.
[5] The Employer raised two jurisdictional objections to the s.394 application; those being that Dangan was a small business employer, and that Mr Murray had not met the associated minimum employment period. Mr Murray argued that if the other businesses were determined to be ‘associated entities’, the Employer would not constitute a small business employer and he had met the minimum employment period.
[6] Correspondence was sent by Deputy President Lake, for the filing of material (on the jurisdictional issues). This Directions email also set out that:
“Once this information is received, the Deputy President will proceed to determine the matters on the papers, without a formal hearing. If the parties wish to have a hearing before the Deputy President, they should inform Chambers in writing prior to 4pm AEST, Friday 30 April 2021. In the absence of submissions, the matter will be determined at the discretion of the Deputy President.
[7] Further directions were issued, listing the matter for two Mention/Directions conferences by telephone, and advising the parties that a jurisdictional and merits hearing would be listed. The listings were subsequently cancelled, and further email correspondence was issued redirecting the Employer to provide further submissions on the jurisdictional issue.
[8] Neither party sought a hearing, and the Deputy President determined the jurisdictional matters on the papers, issuing a written decision. In his written decision, the Deputy President dismissed the jurisdictional objections, finding that the Appellant was not a small business employer, and that Mr Murray had met the minimum employment period.
[9] In his decision, the Deputy President dealt with the two jurisdictional objections, primarily undertaking an assessment as to whether the Employer had associated entities, and whether certain employees were relevant to the calculation of the employee number, in order to determine whether they constituted a small business employer.
[10] The decision examined the tests in relation to an assessment of what constitutes associated entities in accordance with section 50AAA of the Corporations Act 2001, ultimately determining that Dangan had associated entities, and therefore that they did not qualify as a small business employer for the purposes of section 23 of the Act. On this basis, the Deputy President found that Mr Murray met the minimum employment period.
Principles of Appeal
[11] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that 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. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[12] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 4
[13] 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. 5 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
Contested facts
[14] In this matter there were contested facts between the parties as to whether the Employer met the small business employer definition, given the opposing submissions on the associated entities, and the inclusion of some particular employees, as employees relevant to the total employee numbers. The decision on the jurisdictional matters had a bearing on whether Mr Murray met the applicable minimal employment period, and also, the Employer argued, the future operation of their business and employment decisions.
[15] Section 397 of the Act requires that the Fair Work Commission (FWC) must conduct a conference or hold a hearing in relation to a matter arising under the Part (Part 3 – 2 Unfair Dismissal) if, and to the extent that, the matter involves facts, the existence of which are in dispute.
[16] The requirements of s.397 were further reinforced in the decision of Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland) (Liquorland), 6where the Full Bench stated:
“The fact that neither party had requested a conference or hearing, and that neither party sought to cross-examine any of the witnesses, is not the point. The requirements of s.397 are clear and the statutory obligations upon the FWC cannot be abrogated by the consent or acquiescence of the parties. a conference or hearing would also have provided the FWC with an opportunity to ask questions of the witnesses and to assess the credibility of their evidence.” 7
PUBLIC INTEREST
[17] In summary terms, the employer provided a public interest argument that the ruling provided an unfair precedent with regard to the determination of a small business entity. The Employer argued that clarity was required on the classification of the business in terms of the associated entities test, and the definition of employees to be included. The Employer argued that it was a small, family run business. The Employer submitted that they required a clear determination for the operation of their business regarding the inclusion of 12 teenage sports referees and hobby coaches that did not work systematic hours but ‘opt in’ and ‘opt out’ of engagement, and there was no expectation of future employment. The Employer argued that resolution of this matter was in the public interest as they contended it was inconsistent with section 23(3)(b) of the Act, which does not count casual employees in the calculation of employee numbers for a Small Business Employer, unless employed by the employer on a regular and systematic basis.
CONCLUSION
[18] In the current matter, in circumstances where there were disputed facts between the parties, in terms of the number of employees employed by Dangan, (relevant to the small business test) and whether there were associated entities, section 397 of the Act necessitates that the matter be subject of a hearing or conference. The failure to undertake a hearing in these circumstances, gives rise to an appealable error. As set out by the Full Bench in Liquorland, the fact that the parties did not object to the matter being determined on the papers, did not negate the statutory obligation to conduct a conference or hearing (as set out in s.397 of the Act).
[19] We are satisfied that the grant of permission to appeal would be in the public interest because it is apparent that the Deputy President’s decision to determine the matter on the papers, in circumstances where there were disputed facts between the parties, constituted an appealable error and raises issues of general application.
[20] For the reasons as set out, permission to appeal is granted. The appealable error identified warrants the hearing of the matter.
[21] We Order that:
[22] Permission to appeal is granted
[23] The appeal is upheld.
[24] The Decision of Deputy President Lake ([2021] FWC 3872) is quashed.
[25] The matter will be remitted to the Region 1 Regional Coordinator for reallocation.
VICE PRESIDENT
Final written submissions:
Appellant’s written submissions dated 6 August 2021.
Printed by authority of the Commonwealth Government Printer
<PR733601>
1 Murray v Dangan Pty Ltd [2021] FWC 3872.
2 Section 383 of the Fair Work Act 2009 (Cth).
3 In accordance with s.50AAA of the Corporations Act 2001 (Cth).
4 (2010) 197 IR 266 at [27].
5 Wan v AIRC (2001) 116 FCR 481 at [30].
6 [2015] FWCFB 1257.
7 Ibid, at [20].
0
4
0