David Rayner v Little Moreton Pty Ltd T/A H-R Products
[2018] FWCFB 2505
•4 MAY 2018
| [2018] FWCFB 2505 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
David Rayner
v
Little Moreton Pty Ltd T/A H-R Products
(C2018/1691)
VICE PRESIDENT CATANZARITI | SYDNEY, 4 MAY 2018 |
Appeal against decision [2018] FWC 788 of Deputy President Binet on 7 March 2018 in matter no. U2016/10836 – permission to appeal refused.
[1] On 28 March 2018, Mr David Rayner (Appellant) appealed Deputy President Binet’s Decision 1 of 7 March 2018 in matter no. (U2016/10836) to dismiss his application for an unfair dismissal remedy against his former employer, Little Moreton Pty Ltd T/A H-R Products (Respondent).
[2] We issued directions for the filing of written submissions and listed this matter for hearing both in relation to permission to appeal and the merits of the appeal on 1 May 2018. However, on 30 April 2018, the Appellant requested that the hearing be confined to the issue of permission to appeal, on the basis that the Respondent had filed several case authorities on 27 April 2018 that he had not had time to read.
[3] The Appellant appeared in person at the hearing. We granted permission for Mr R Greig, barrister and solicitor, to appear for the Respondent. While we noted that the Appellant objected to permission being granted, we considered that the matter would be dealt with more efficiently with Mr Greig’s assistance. 2 We also took into account the fact that the Respondent had no dedicated legal or human resources staff, and was therefore unlikely to be able to represent itself effectively.3
[4] We granted the Appellant’s request to confine the hearing to the issue of permission to appeal only. In reaching this decision we took into account the Respondent’s objection to this on the grounds that these proceedings have already been protracted, but considered that the Appellant, being self-represented, should be afforded a further opportunity to review the case authorities.
[5] The Appellant advised us at the hearing that he sought to rely on the written submissions he had filed on 16 April 2018. He did not wish to make any further oral submissions, beyond reiterating that he believed it would be in the public interest to grant him permission to appeal. The Respondent also relied on its written submissions and did not wish to make any further oral submissions in response.
Permission to appeal principles
[6] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the FW Act) is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of the FW Act states:
‘Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).’
[7] This appeal is one to which s.400 of the FW Act applies. It provides:
‘400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under [Part 3-2, dealing with unfair dismissal] unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’
[8] In Coal & Allied Mining Services Pty Ltd v Lawler and others 5 the Federal Court characterised the test under s.400 as “stringent”.6 The task of assessing whether the public interest test is met is a discretionary one, involving a broad value judgment.7 In GlaxoSmithKline Australia Pty Ltd v Makin, 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.’ 8
[9] 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. 9 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.10
Consideration
[10] The Appellant’s submissions largely focus on the claim that there was no valid reason for his dismissal, and that on the evidence ‘no Primary Decision Maker could have found that a Valid Reason existed’. 11 He claims the Deputy President’s Decision therefore manifests an injustice.12 However, the Appellant simply asserts several times that the Respondent’s witnesses had lied, that its other evidence was false, and that the findings of fact the Deputy President made in relation to the case before her were incorrect, without providing particulars or explaining why.
[11] We consider that it was open to the Deputy President to make the findings of fact and to reach the conclusion that she did on the evidence before her. The Appellant has not substantiated his assertion that the Deputy President made significant errors of fact. 13 The mere fact that the Appellant disagrees with the Deputy President’s assessment of the evidence is not reason enough to grant permission to appeal.
[12] The Appellant also submits that we should grant permission to appeal because the Respondent had in its possession several relevant documents 14 that were not in evidence before the Deputy President, which he says contradict the evidence that the Respondent did tender. He states, in relation to this, that the Deputy President did not have sufficient regard to ss.590 and 591 of the FW Act, which provide that the Commission may inform itself in such manner as it considers appropriate and is not bound by the rules of evidence and procedure, and therefore that the Respondent ‘exercise[d] a wholly disproportionate power in the proceedings’.15
[13] We do not accept this submission. First, again, the Appellant has not pointed to specific examples of when the Deputy President is said not to have considered ss.590 and 591 of the FW Act.
[14] Second, if the Appellant believed that the Respondent had documents that would assist his case at first instance, the Appellant could have applied to the Deputy President for an order requiring the production of those documents. Indeed, the Appellant indicates in his submissions to us 16 that he is aware that he could have done this and, further, we understand that the Appellant did in fact obtain other documents this way. We understand the Deputy President declined to issue other orders requiring the production of certain documents that the Appellant sought. Perhaps these are the instances in which the Appellant thinks the Deputy President failed to sufficiently consider ss.590 and 591 of the FW Act. However, the matter before us now is not an appeal of the Deputy President’s decision to not issue those orders. It is not in the public interest to grant permission to appeal now so that the Appellant can then seek to re-agitate his request for orders requiring the production of the documents he has listed in his submissions to us. This is not an opportunity for the Appellant to rerun his case.
[15] The Appellant’s ultimate submission on this point seems to be that the Deputy President should have interpreted ss.590 and 591 of the FW Act in such a way that he should not have had to apply to obtain these documents at all, but rather that there should have been ‘mandatory discovery’, 17 which we take to mean either that, the Respondent should just provide documents automatically without a particularised order being issuing first, or that since the Deputy President could have required these documents from the Respondent on her own motion, she should have. We do not accept this submission.
[16] The Appellant further submits that he should be granted permission to appeal because the Deputy President’s Decision to grant the Respondent permission to be legally represented when he was self-represented demonstrates that she erroneously applied s.596 of the FW Act. 18 Again, however, he does not develop this submission. As we have already stated in relation to other of the Appellant’s submissions, the fact that the Deputy President made a decision with which the Appellant did not agree does not mean that decision was erroneous or justifies granting permission to appeal.
[17] The Appellant also submits that he should be granted permission to appeal because the Full Bench should take the opportunity to ‘develop and deliver authority in respect to [how] a mental impairment… should be treated in respect to behaviour accepted as “out of character”’. 19 We do not accept this submission; there is already a significant body of case authorities on how mental impairment or mental illness may impact on the assessment of whether a dismissal is unfair.
[18] Finally, the Appellant submits that granting him permission to appeal would be in the public interest because the Deputy President exhibited bias against him in the conduct of the matter at first instance. 20 However, yet again, he does not really particularise this assertion. Instead, the Appellant makes the very general statement that ‘[p]erusal of the Transcript of the hearing at first instance, the decision of July 2016, and or [sic] the decision of March 2018, reveals a mind so partial to the Respondent employer, so as to render the outcome wholly unsafe and wholly unreliable.’,21 and states that the Deputy President ‘essentially ignored’22 his arguments. As with the other submissions that we have addressed above, the fact that the Deputy President reached conclusions other than the ones the Appellant would have preferred is not of itself enough to justify granting permission to appeal. In the absence of any substantive evidence, we reject the assertion that the Deputy President was not impartial.
[19] Having considered the matters raised by the Appellant, we consider that the basis on which the Deputy President reached her Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The correct legal principles have been applied and no arguable case of error is evident.
[20] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
• there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• the appeal raises issues of importance and/or general application;
• the decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[21] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the FW Act, that it would be in the public interest to grant permission to appeal.
[22] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
D Rayner, the Appellant, in person.
R Greig, barrister and solicitor, with L Olivieri for Little Moreton Pty Ltd T/A H-R Products.
Hearing details:
Sydney with video link to Perth.
2018.
May 1.
Printed by authority of the Commonwealth Government Printer
<PR606813>
1 [2018] FWC 788.
2 Fair Work Act 2009 (Cth) s.596(2)(a).
3 Fair Work Act 2009 (Cth) s.596(2)(b).
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 (2011) 192 FCR 78.
6 Ibid at [43].
7 O’Sullivan v Farrer (1989) 168 CLR 210, 216-7 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch [2011] HCA 4 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 [44]-[46].
8 [2010] FWAFB 5343 [27].
9 Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30].
10 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; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
11 Appellant’s submissions [3.6].
12 Ibid [4].
13 Fair Work Act 2009 (Cth) s.400(2).
14 Appellant’s submissions [3.3a)].
15 Ibid [6.1b)].
16 Ibid [6.1a)].
17 Ibid.
18 Ibid [7.2].
19 Ibid [8.2].
20 Ibid [9.1].
21 Ibid [9.1a)].
22 Ibid [9.1b)].
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