Daniel Tracey v Diamond Protection Pty Ltd
[2021] FWCFB 271
•20 JANUARY 2021
| [2021] FWCFB 271 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Daniel Tracey
v
Diamond Protection Pty Ltd
(C2020/8406)
VICE PRESIDENT CATANZARITI | SYDNEY, 20 JANUARY 2021 |
Permission to appeal sought against decision [2020] FWC 5438 of Deputy President Millhouse at Melbourne on 27 October 2020 in U2020/12510 – permission to appeal refused
[1] On 17 November 2020, Mr Daniel Tracey (Appellant) lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision issued by Deputy President Millhouse on 27 October 2020 (Decision), for which permission to appeal is required.
[2] On 17 September 2020, the Appellant filed his unfair dismissal application. In his application, he alleged that he was unfairly dismissed from his employment, noting that while he was dismissed on 21 August 2020 it did not take effect until 31 August 2020. Section 394 (2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Fair Work Commission (Commission) is satisfied that exceptional circumstances exist.
[3] The Decision concerned an application by the Appellant under s 394 of the Act for an unfair dismissal remedy in respect of his employment with Diamond Protection Pty Ltd (Respondent). In her decision, the Deputy President was satisfied that the reasons for the Appellant’s delay in filing his application within time were not exceptional circumstances within the meaning of s 394(3) of the Act. Accordingly, the Deputy President concluded that the Commission’s jurisdiction was not enlivened, and the Appellant’s application was dismissed.
[4] In his notice of appeal lodged 17 November 2020 (Notice of Appeal), the Appellant contends that the Decision was in error in a number of respects and that it would be in the public interest to grant permission to appeal the Decision.
[5] The matter on appeal was subject to a telephone hearing on 18 January 2021. The Respondent sought permission to be legally represented. The Full Bench refused the Respondent permission to be represented in the hearing, pursuant to s 596(2)(a) of the Act. In refusing the Respondent permission to be represented, the Full Bench had regard to the fact that the matter was listed for permission to appeal only.
Legislative Provisions and Permission to Appeal Principles
[6] There is no right to appeal a decision of the Fair Work Commission (Commission) and for an appeal to proceed s.604(1) of the Act requires the Commission to grant permission.
[7] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. Rather, the task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. 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 an error on the part of the primary decision maker. 1
[8] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is “in the public interest to do so”. In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issue 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 …” 2
[9] 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. 3
[10] Appeals against an unfair dismissal decision, such as this appeal, are also subject to s 400(1) of the Act which provides that permission to appeal is only available where the Commission considers that it is in the public interest to grant permission and further where an error of fact is alleged it must be a significant error, pursuant to s 400(2) of the Act. In the Full Court of the Federal Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the Act as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 The public interest is not satisfied simply by the identification of error, or a preference for a different result.6
[11] 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. 7 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.8
Background and Decision
[12] The Appellant was previously employed by the Respondent in the role of Contract Manager from 2 July 2018.
[13] There was dispute between the parties as to when the Appellant was dismissed from his employment.
[14] The Appellant contended that he only became aware of his dismissal on 31 August 2020 when he received the termination letter by post. The Respondent contended that the Appellant became aware of his dismissal or had a reasonable opportunity to became aware from 21 August 2020 via the termination letter sent to his personal and work email addresses. If the Appellant’s contention was accepted, then his application was made within the statutory time frame and if the Respondent’s contention was accepted, the application was made six days out of the statutory time frame.
[15] The Deputy President was ultimately satisfied that the Appellant had a reasonable opportunity to become aware of his dismissal on 21 August 2020. 9 Accordingly, the Deputy President found that the 21-day period for the Appellant to lodge his unfair dismissal application ran from 21 August 2020.10 As the Application was lodged on 17 September 2020, the Deputy President found that the Application was lodged 6 days outside the 21-day timeframe for lodgement prescribed by s 394(2)(a) of the Act.11
[16] The Deputy President then gave consideration to each of the matters she was required to take into account under s 394(3) of the Act. Given that none of the matters advanced in the Notice of Appeal appear to relate to the exercise of discretion under s 394(3), we need not set out these matters in any detail.
Appeal Grounds and submissions
[17] The Appellant filed a Notice of Appeal and short written submissions in support of his case.
[18] The grounds of appeal set out in the Notice of Appeal can be broadly summarised as follows:
(1) at paragraph [28] of the Decision, the Deputy President erroneously accepted that the screenshots of the Appellant’s work email account serve as evidence that the termination letter was received at 1:45pm on 21 August 2020 and that they were opened from this email account after 1:45pm when in fact “There are no dates, timestamps or other indications that the emails were received or opened, indeed the screenshots have clearly been supplied by someone with access to my account and thus should not be relied upon”;
(2) the Deputy President erroneously concluded that the Appellant had an opportunity to become aware of his termination via the emails sent to his personal and work email accounts;
(3) at paragraph [34] of the Decision, the Deputy President erroneously concluded that the Appellant’s contract of employment did not restrict notice of termination to being communicated via post, in person or facsimile;
(4) the Deputy President failed to consider the Appellant’s evidence that he was instructed by the Respondent’s chairman not to attend work from 10 August 2020 onwards;
(5) the Deputy President erroneously concluded that the uncertainty in the Appellant’s response in relation to the work performed from 22 August to 31 August made his evidence not “compelling” when it was “due to the fact that I had no indication I would be required to provide evidence of work I had performed and thus had no information prepared”; and
(6) the Appellant raised concerns that, given the Respondent being granted permission, “In hindsight I would have requested that I be given the opportunity to avail myself of representation and given that I am a ‘layperson’ unfamiliar with the (highly stressful) proceedings I would have expected that opportunity would have been offered to me at that time by the deputy president”.
[19] The Appellant’s written submissions contended:
• It is in the public interest to grant permission to appeal because the Deputy President’s failure to identify that the method used by the Respondent to communicate the Appellant’s dismissal was unreasonable and manifests an injustice.
• The Decision contains a significant error of fact as a result of the failure of the Deputy President to identify that the Respondent did not follow their own procedures in terminating the Appellant’s employment. Furthermore, “documents supplied by Diamond Protection that do not meet the minimum standard of evidence were taken as fact by the Deputy President, contributing to the decision and resultant injustice.” 12
Consideration
[20] The Appellant contends the Decision contains errors. For an appealable error, there must be three elements: it must not be apparent how the Deputy President reached her decision, an error is discoverable and the result on the facts is unreasonable or plainly unjust. Having all three elements would result in the decision being “wholly outside the range of outcomes reasonably available to the first instance decision maker”. 13
[21] In respect of appeal grounds one and two, it is apparent that both grounds of appeal address issues concerning the merits of the appeal. Accordingly, appeal grounds one and two are therefore rejected on the basis that we are tasked only with resolving the question of permission to appeal. The Deputy President’s reasoning discloses an orthodox approach to the determination of when the Appellant’s dismissal took effect. We are not satisfied that there is an arguable case of error or other basis of principle warranting the grant of permission to 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. 14
[22] With respect to the third ground of appeal relating to paragraph [34] of the Decision, we observe no error in the Deputy President’s interpretation of clause 17 of the Appellant’s contract. It was reasonably open for the Deputy President to observe that if this interpretation of the contact was incorrect, it is a well-established principle that actions which are insufficient to end an employment contract may nonetheless be effective to end the employment relationship.
[23] In relation to the Appellant’s fourth ground of appeal, which contended that the Deputy President did not make reference to his evidence regarding an instruction from the Respondent’s chairman to not attend work in the Decision, we note that it was not incumbent on the Deputy President to set out every submission and piece of evidence relied on by the parties in her decision. We do not consider that the Decision illustrates an error by the Deputy President in failing to consider this evidence in reaching her decision. Furthermore, that the Appellant does not agree with the Deputy President’s characterisation of his evidence and has sought to offer his own view on the nature of this evidence does not identify an appealable error.
[24] The fifth ground of appeal relating to representation is not fully developed but appears to be alleging, in essence, that the Deputy President should have offered the Appellant the opportunity to seek a lawyer or paid agent once she granted the Respondent permission to be represented. The Appellant was on notice from 7 October 2020 that the Respondent would be seeking to be represented at the hearing by a lawyer or paid agent. It is not incumbent on the Deputy President, or any Member of the Commission, to direct parties to obtain representation for a proceeding nor does it constitute appealable error.
[25] In respect of the written submissions aforementioned at [19] above, both submissions also seek to address the merits of the matter before us. The Appellant’s contentions amount to no more than an attempt to re-run the case at first instance. The public interest is not enlivened where an Appellant expresses a preference for a different result, and we reject the proposition that the Decision manifests an injustice.
[26] Having considered the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. We do not consider the Deputy President’s conclusion was outside of the outcomes reasonably open to her, nor that she did not consider the material before her, or that there was error of principle or fact.
Conclusion
[27] For the reasons above, we are not satisfied that the matters set out in the grounds for appeal raise an arguable case of material error in relation to the decision or that the conclusion reached by the Deputy President raises doubt so as to warrant reconsideration. We do not consider a grant of permission to appeal to be in the public interest.
[28] Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr D Tracey, on his own behalf
Mr A Kliger, for the Respondent
Hearing details:
2021
Telephone hearing
18 January.
Printed by authority of the Commonwealth Government Printer
<PR726294>
1 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.
2 [2010] FWAFB 5343 at [24]-[27].
3 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
4 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
5 O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46].
6 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 388, 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].
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 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].
9 Decision [30].
10 Ibid [35].
11 Ibid [35].
12 Appellant’s submissions, paragraphs [a]-[b].
13 King v Catholic Education Office[2014] FWCFB 2194 at [41].
14 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82], citing Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46; 108 ACSR 445 at [9]–[10] (Flick J).
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