Dru Candappa v Inedit Holdings Pty Ltd T/A Belle Property
[2020] FWCFB 2133
•27 APRIL 2020
| [2020] FWCFB 2133 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dru Candappa
v
Inedit Holdings Pty Ltd T/A Belle Property
(C2020/986)
VICE PRESIDENT CATANZARITI | SYDNEY, 27 APRIL 2020 |
Appeal against decision [2020] FWC 468 of Deputy President Asbury at Brisbane on 30 January 2020 in matter number U2019/7783.
[1] Mr Dru Candappa has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 by Deputy President Asbury made on 30 January 2020 (Decision), for which permission to appeal is required.
[2] The Decision concerned an application by Mr Candappa under s.394 of the Act for an unfair dismissal remedy in respect of his employment with Inedit Holdings Pty Ltd T/A Belle Property (the Respondent).
[3] In his Form F7 - Notice of Appeal, Mr Candappa contends that the Decision of the Deputy President was in error in a number of respects, and that it would be in the public interest to grant permission to appeal the Decision.
[4] There is no right to appeal a decision of the Commission and for an appeal to proceed s.604(1) of the Act requires the Commission to grant permission. Appeals against an unfair dismissal decision 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.
[5] On 4 March 2020, Directions were issued which required Mr Candappa to file submissions on whether permission to appeal should be granted by 23 March 2020.
[6] The parties were advised on 19 March 2020 that in light of the COVID-19 pandemic it was proposed that the matter be dealt with by telephone hearing or on the basis of the written submissions filed. The matter was determined on the papers.
[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.
Background and Decision
[8] The Respondent is a real-estate franchise of Belle Property operating in the Sunshine Coast in Queensland. At the time of the dismissal Mr Candappa was employed by the Respondent as a Residential Sales Consultant. Mr Candappa was dismissed as a result of concerns over his sales performance.
[9] The Deputy President summarised the evidence in paragraphs [9] to [33] of her Decision and the submissions at paragraphs [34] to [36].
[10] In determining the factual matrix (which was the subject of a contest), the Deputy President at [42] advised “Generally, I preferred the evidence of Mr Stamp and Mr Radcliff over that of Mr Candappa.”
[11] The Deputy President concluded at paragraph [40] that there was a valid reason for the dismissal in that:
“… the Applicant was dismissed on the basis that he lacked the capacity to perform the duties he was employed to perform – in short the Respondent concluded that the Applicant lacked the capacity to sell real estate and that it could no longer sustain his employment on the basis that he was not bringing sufficient sales revenue into the business to offset his salary to the extent required by the Respondent.”
[12] At paragraphs [45] to [56], the Deputy President found that:
• Mr Candappa was not advised of the reason for the dismissal in the required manner;
• Mr Candappa was not given an opportunity to respond;
• there was no denial of access to a support person;
• Mr Candappa was warned about his unsatisfactory performance before the dismissal;
• the size of the employer’s enterprise was not a significant factor which could offset any unfairness to a significant degree;
• the Respondent did not have dedicated human resource management specialist or expertise, but this was not a factor that weighs heavily in the balance in the case; and
• there were no other relevant factors including there was no basis for a finding of unfairness on the basis of differential treatment.
[13] At paragraph [7] of the Decision the Deputy President explains why she allowed the Respondent to file additional material outside the deadlines. This was because the material was relevant to the issues in dispute and responsive to Mr Candappa’s case.
[14] At paragraph [56] of the Decision the Deputy President discussed Mr Candappa’s submission of ex-parte correspondence seeking to advance further arguments after the conclusion of the hearing, that she had not had regard to it and that it appeared to be at odds with the evidence given by Mr Candappa at the substantive hearing.
Appeal Grounds
[15] Mr Candappa’s appeal grounds are stated under question 2.1 ‘What are the grounds for your appeal?’ of the form F7 in the following manner:
• He was not allowed to file material after the Commission’s deadline.
• The Deputy President was biased against him.
• He was employed as a Sales Associate for the majority of his employment.
• The Respondent made a false jurisdictional objection with was subsequently withdrawn.
[16] Mr Candappa’s written submissions largely restated these grounds and included extracts from the substantive decision and contended that the Deputy President had made a significant error of fact.
[17] Mr Candappa contended that there was public interest in that the substantive decision raised matters of importance and general application. It was submitted that there was a diversity of decisions and thus guidance was required, and that the Decision manifested an injustice, is counterintuitive and/or the legal principles were disharmonious with other recent decisions. It was put that it is in the public interest for decisions to be accurate and factual, and an independent panel of members should determine the facts for the public record. No detailed submissions as to the basis for these propositions was provided.
[18] No submissions were filed by the Respondent.
Appeal considerations
[19] 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.2 As stated above, there is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] This appeal, being one challenging an unfair dismissal decision, is subject to the tests set out at s.400 of the Act which have been described by the Federal Court as ‘stringent’.3 These tests are set out at ss.400(1) and (2) of the Act as follows:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part 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.”
[21] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 The Full Bench 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.”5
[22] As an appeal cannot succeed in the absence of appealable error, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.6 The fact that the Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7
[23] Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits.
Consideration
Public Interest
[24] We have considered the submissions advanced by Mr Candappa and have been unable to identify any sustainable public interest grounds. Mr Candappa has not satisfied us that the Decision raises any issues of importance or of general application, nor has Mr Candappa identified any decisions of a similar nature to allege a diversity or disharmony with other decided cases.
[25] To the extent that the submissions raise any contention of appealable error, we do not consider them to be seriously arguable. The Deputy President’s findings appear consistent with the facts before her.
[26] We also do not consider that the Deputy President’s conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded that the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on any question.
[27] In addition to the public interest requirements of s.400(1) of the Act, an appeal relating to an unfair dismissal must, if alleging errors of fact, be on the ground that any error of fact involved a significant error of fact as per s.400(2) of the Act.
[28] In this appeal, it appears that that Mr Candappa seeks to persuade us that the Deputy President should have considered and dealt with the evidence that was before her in a different way, and that she should have reached a different conclusion on the facts. It is noteworthy to mention that an appeal is not the place to re-agitate the matters that have been considered at first instance. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 8 The fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[29] Having considered Mr Candappa’s submissions, we are not persuaded that he has made an arguable case that the Deputy President made a significant error of fact by not considering the fact that he was a ‘a Sales Associate and not subject to the same KPI / performance as a Sales Agent’ (sic). The Deputy President stated that she had ‘no doubt that the purpose of the Applicant’s employment was to sell property regardless of the Applicant’s job title’ 9. In stating that there were valid reasons for Mr Candappa’s dismissal, the Deputy President noted that the Applicant’s sales performance was extremely poor, and that the Respondent could not have reasonably been required to retain in employment a sales person with such performance. The fact that, in coming to her conclusion, the Deputy President preferred the evidence of Mr Stamp and Mr Radcliff over that of Mr Candappa, is not evidence of bias or a significant error of fact. The determination of the factual matrix will often involve competing accounts and considering whether discrepancies exist within the evidence.
[30] Furthermore, Mr Candappa alleges bias on the part of the Deputy President as ‘she allowed the Respondent to file material after the commission’s deadline’ (sic). The Deputy President allowed the Respondent to tender this material, notwithstanding that it was filed late, as the material was relevant to the issues in dispute and it was filed before the hearing. Furthermore, the Deputy President did not have regard to ex parte correspondence sent by Mr Candappa that sought to advance his arguments, as the hearing of the application was adjourned, and the decision was reserved. There is no reason to suggest that the Deputy President’s approach was inappropriate and constitutive of appealable error.
[31] Finally, whilst there was a jurisdictional objection initially raised by the Respondent, which was subsequently withdrawn, the jurisdictional issue was not a consideration after its withdrawal and does not appear to have had any bearing on the Deputy President’s Decision. It is not uncommon for jurisdictional objections to be withdrawn.
[32] On the material before us, and for the reasons stated above, we are not persuaded that the matters set out in the grounds of appeal raise any arguable case of material error in the exercise of the Commission’s discretion of the kind discussed in House v King10 or as otherwise required by s.400(2) of the Act. The Deputy President considered all the issues raised by Mr Candappa and the conclusions in the Decision were reasonably open to be made by the Deputy President.
[33] We are not satisfied that an arguable case of appealable error has been established. The Decision of the Commission is not one attended by sufficient doubt to warrant its reconsideration, nor are we persuaded that substantial injustice will result if permission to appeal is refused.
[34] We do not consider the grant of permission to be in the public interest, nor do we consider there is any other basis upon which permission to appeal should be given. Permission to appeal is therefore refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Printed by authority of the Commonwealth Government Printer
<PR718521>
1 [2019] FWC 8597.
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2) of the Act; see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 The Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) at (43).
4 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].
5 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
6 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
7 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].
8 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
9 Decision [56].
10 (1936) 55 CLR 499 at 505.
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