Dr Clare Anne McGrory v Australian Digital Health Agency, HiTech Group Australia Limited
[2024] FWCFB 430
•14 NOVEMBER 2024
| [2024] FWCFB 430 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Dr Clare Anne McGrory
v
Australian Digital Health Agency, HiTech Group Australia Limited
(C2024/6972)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 NOVEMBER 2024 |
Appeal against decision [2024] FWC 2593 of Deputy President Dobson at Brisbane on 19 September 2024 in matter number C2024/4931 – permission to appeal refused.
Dr Clare Anne McGrory has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Deputy President Dobson issued on 19 September 2024. In the decision, the Deputy President dismissed Dr McGrory’s application under s 773 of the Act for an unlawful termination remedy as she was satisfied that Dr McGrory’s application was filed out of time and there were no exceptional circumstances for the grant of an extension.
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Context
Dr McGrory was engaged to provide services to the first respondent, Australian Digital Health Agency, for a nine-day period between 6 November and 15 November 2023 through an arrangement whereby:
(a)the first respondent entered into a contract with the second respondent, HiTech Group Australia, for the provision of services;
(b)the second respondent engaged Dr McGrory as a contractor to provide those services, causing Dr McGrory to be placed with the first respondent; and
(c)no contract or employment relationship existed between the first respondent and Dr McGrory.
On 15 November 2023, the first respondent advised the second respondent that it wished to terminate the work order for the placement of Dr McGrory with the first respondent.
On 24 May 2024, the Commission dismissed an application made by Dr McGrory pursuant to s 365 of the Act, in which Dr McGrory alleged that she had been dismissed by the first respondent.[1] The Commission determined that Dr McGrory was not an employee of the first respondent and had not been dismissed by it. Dr McGrory’s application for permission to appeal this decision was refused by a Full Bench.[2]
Decision under appeal
On 24 July 2024, Dr McGrory commenced the present application under s 773 of the Act. The Deputy President relevantly determined as follows:
(a)having regard to the agreed statement of facts before her, and the findings in the Commission decisions referred to at [5] above, Dr McGrory was not an employee of the first respondent;[3]
(b)the Commission had previously determined that Dr McGrory performed work for the second respondent under a contract for services;[4] and
(c)Dr McGrory was not an employee of the first respondent or the second respondent and therefore could not have been dismissed, such that the application was not validly made and must be dismissed.[5]
The Deputy President further held that if she was wrong in finding that the application had not been validly made, the application was made out of time. In considering whether there were exceptional circumstances that warranted an extension of time the Deputy President found the delay in making the application arose from Dr McGrory choosing to make the s 365 application referred to at [5] above;[6] the contention that Dr McGrory was misled by the Commission’s website as to the most appropriate application was rejected;[7] the first respondent would suffer prejudice if an extension of time were granted;[8] the application was without merit, even on the most generous view,[9] and there were no relevant issues of fairness arising as between Dr McGrory and other persons in a similar position.[10]
Despite acknowledging that the application had been made within a short period of the determination of Dr McGrory’s application for permission to appeal, the Deputy President was satisfied that there were no exceptional circumstances and therefore no basis for the Commission to allow an extension of time. The application was therefore dismissed.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is 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.[11] The public interest is not satisfied simply by the identification of error or a preference for a different result.[12] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[13]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[14] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal and public interest
Dr McGrory advances four grounds of appeal. First, it is contended that the decision in Poulton v Rail Infrastructure Corporation[15] (Poulton) supports the proposition that an extension of time should have been granted to Dr McGrory where there was uncertainty about the type of application to have been initially made, or an incorrect application was first lodged. Second, the Commission’s website misled Dr McGrory into believing she had filed the correct type of application when she lodged her initial s 365 application. Third, it is an exceptional circumstance that Dr McGrory filed this application out of time when she first pursued a s 365 application which did not succeed. Fourth, the decision in Poulton is based on factual circumstances similar to Dr McGrory’s.
Dr McGrory contends that it is in the public interest to grant permission to appeal having regard to the “grey areas” of the law concerning contractor’s rights and the need to ensure access to justice. Further, Dr McGrory submits that there is a public interest in ensuring open justice in cases involving the prevention and detection of crime and fraud, and freedom of expression including political communication.
Dr McGrory elaborates on these matters in her written outline of submissions, which Dr McGrory supplemented by way of oral submissions at the permission to appeal hearing before us.
Consideration
For the reasons that follow, we do not consider it appropriate to grant permission to appeal. First, of significance, the Deputy President made factual findings which informed her conclusion that the application had not been validly made. This includes finding that Dr McGrory was not an employee of either the first respondent or the second respondent such that neither could have terminated her employment. The Deputy President therefore determined that Dr McGrory’s unlawful termination application “must be dismissed.” Dr McGrory has not challenged these findings in the appeal.
Second, notwithstanding the Deputy President’s primary view that the application was not validly made, Dr McGrory’s application was also assessed, to her advantage, against the considerations in s 774(2) of the Act. Dr McGrory’s appeal grounds only seek to challenge this aspect of the decision. While a decision to extend time under s 774(2) involves a broad discretion,[16] Dr McGrory’s grounds do not demonstrate any arguable errors in the exercise of the Deputy President’s discretion. Rather, the first, third and fourth appeal grounds (and related submissions) broadly contend that the Deputy President should have reached different conclusions or attributed weight to other matters. Far from demonstrating arguable error, these contentions simply seek a different result and do not provide a basis for appellate review. Nor are we persuaded that the second appeal ground is arguable. While we reject the contention that the Commission’s website contains misleading information, the Deputy President took Dr McGrory’s submissions about this matter into account when considering the reasons for the delay. The Deputy President declined to accept that this supported a finding of exceptional circumstances. It is clear that this conclusion was reasonably available on the material before the Deputy President.
Third, notwithstanding Dr McGrory’s contention that her circumstances fall within a “grey area” of the law, Dr McGrory’s application was determined on the basis of its own particular facts and does not manifest any injustice. Nor does the appeal raise any issue of law or principle that might have a wider application for the purposes of s 604(2) of the Act.
Order and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
C McGrory on her own behalf.
B Edghill of Sparke Helmore Lawyers for the Australian Digital Health Agency.
E Hazouri for HiTech Group Australia Limited.
Hearing details:
2024.
Melbourne (by video):
November 6.
[1] Dr Clare Anne McGrory v Australian Digital Health Agency; HiTech Group Australia Limited[2024] FWC 1366
[2] Dr Clare Anne McGrory v Australian Digital Health Agency; HiTech Group Australia Limited[2024] FWCFB 311
[3] Decision at [24]
[4] Ibid
[5] Decision at [25]
[6] Decision at [41]
[7] Decision at [38]-[40], [53(a)]
[8] Decision at [44]-[46], [53(c)]
[9] Decision at [50], [53(d)]
[10] Decision at [52], [53(e)]
[11] O’Sullivan v Farrer (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 at [44]-[46]
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[14] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[15] PR966972 (AIRCFB, Watson SDP, Hamberger C, Richards C, 22 December 2005)
[16] See, House v The King [1936] HCA 40, 55 CLR 499
Printed by authority of the Commonwealth Government Printer
<PR781253>
0
0
0