Elaheh Mehrian v Launch Recruitment Pty Ltd
[2020] FWCFB 5406
•15 OCTOBER 2020
| [2020] FWCFB 5406 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Elaheh Mehrian
v
Launch Recruitment Pty Ltd
(C2020/5281)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 15 OCTOBER 2020 |
Appeal against ex tempore decision of Deputy President Lake at Brisbane on 18 June 2020 in matter number C2020/1449.
Introduction
[1] Ms Elaheh Mehrian (Appellant) alleges that the termination of her employment by Launch Recruitment Pty Ltd (Respondent) on 30 January 2020 was adverse action taken by the Respondent against her in contravention of ss.340 and 351 of the Fair Work Act 2009 (Act). She also claims the Respondent dismissed her in contravention of s.358 of the Act.
[2] On 8 March 2020 the Appellant applied under s.365 of the Act for the Fair Work Commission (Commission) to deal with a general protections dismissal related dispute. Such an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period within which an application may be made if satisfied that there are exceptional circumstances taking into account the several matters set out therein.
[3] The question whether the Appellant should be allowed a further period within which to make the application was determined by Deputy President Lake in a decision delivered ex tempore on 18 June 2020 1 (Decision). The Deputy President decided he was not satisfied that there were exceptional circumstances and he refused to allow a further period within which the application might be lodged.2
[4] The Appellant lodged a notice of appeal on 8 July 2020 by which she applies for permission to appeal and appeals against the Decision. This decision is concerned only with whether permission to appeal should be given.
[5] Before considering the question whether permission to appeal should be granted it is necessary to say something about the procedural history of this application for permission to appeal.
[6] As mentioned earlier, the Appellant lodged a notice of appeal on 8 July 2020. On 21 August 2020, Vice President Hatcher issued directions for the conduct of the application for permission to appeal. By these directions the Appellant was required by no later than 5:00 pm on 25 September 2020 to file an outline of submissions addressing the requirement for permission to appeal in s.604 of the Act. The directions also noted the requirement under rules 56(3) and 52 of the Fair Work Commission Rules 2013 (FW Rules) for the Appellant to lodge with the Commission and serve on the Respondent an appeal book.
[7] The application for permission to appeal was listed for hearing before this Full Bench at 10:00 am on 6 October 2020.
[8] On 15 September 2020, Vice President Hatcher’s Associate spoke to the Appellant’s partner, Mr Deane Mildon, by telephone and enquired about the whereabouts of the appeal book. The following day, the Vice President’s Associate wrote to the Appellant by email referring to the appeal proceedings practice note and the requirement that the Appellant lodge an appeal book. The email also reminded the Appellant that submissions were due on 25 September 2020, that the matter was listed for hearing before a Full Bench at 10:00 am on 6 October 2020 as well as notifying the Appellant of the availability of the Commission’s Workplace Advice Service in the event that she should wish to seek some legal advice.
[9] On 17 September 2020, Mr Mildon replied, stating:
“Should've been enough Ella's brother had covid who are you people you should all be sacked”
[10] On 23 September 2020, in the ongoing absence of an appeal book or any request for assistance with its preparation or a waiver of the requirement, the presiding Member’s Associate wrote to the Appellant again stating that the Appellant was required to lodge with the Commission and serve on the Respondent an appeal book in accordance with the FW Rules.
[11] On 24 September 2020, Mr Mildon responded as follows:
“Why the hearing should've happened ella had a family member in hospital in Iran with covid
Who are you people”
[12] On 28 September 2020, Mr Mildon wrote to the chamber’s of Vice President Hatcher and stated:
“I'm waiting for your response to the bias I've claimed by your office and the way ellas case was delt (sic) with as I said she had a brother with covid in Iran in hospital
Remember your (sic) paid by us the the (sic) public and this setup is not good enough for us to be funding your life”
[13] Ultimately, the Appellant failed to file an appeal book despite several requests that she do so. No request was received that the requirement to file an appeal book be waived.
[14] The Appellant did not file an outline of submissions as required by the directions and did not provide any explanation for the failure to do so. She did not seek an extension of time to file an outline. The Respondent filed submissions addressing the grounds in s.596(2) of the Act on 28 September 2020.
[15] As previously mentioned, the matter was listed for hearing before a Full Bench of the Commission on 6 October 2020. The Appellant did not attend. She did not given notice that she would not or could not attend. The presiding Member’s Associate attempted to contact the Appellant by telephone but was unable to do so. When the hearing had commenced, Mr Mildon contacted the presiding Member’s Associate and advised, inter alia, that the Appellant was at work. The Appellant has not advised the Commission of any reason for her failure to appear. She did not, before the hearing commenced, make any application for an adjournment. Mr Tzirtzilakis appeared on behalf of the Respondent but we did not need to hear from him and we indicated we would deal with the application for permission to appeal on the material before us. Since adjourning Mr Mildon has engaged with a series of telephone calls and email communications with the chambers of the presiding Member. In a telephone conversation with the presiding Member’s Associate shortly after the hearing adjourned, Mr Mildon told the Associate, amongst other things, to “go fuck yourself”. The Associate understandably terminated the telephone call. Shortly thereafter, Mr Mildon left a voice mail message on the voice mail of the presiding Member’s chambers, which amounted to a rude and incoherent tirade to the effect that he was denied the opportunity to speak on the Appellant’s behalf.
[16] The presiding Member’s Associate wrote to Mr Mildon and the Appellant indicating that as Mr Mildon had been abusive and used foul language his phone call would not be returned. The Appellant was advised that should she wish to say anything about any matter, she should do so in writing by close of business on 7 October 2020. No response was received from the Appellant. Mr Mildon sent an email in response in the following terms:
“That's not true at all I stated some truth and now you're making things up err (sic) its not abusive to tell the truth I asked to speak to the person who makes the decision which did not happen and it seems you think criticism is abuse which it is not
I also stated very strong reasons why the extension should've been granted to start with this morning
If members of this tribunal are not competent then please relive the tax payer of paying your income
I will call tomorrow to speak to the person responsible
I will also take this to whichever department I can over the descrimination (sic) that took place”
[17] A further email was received from Mr Mildon a short time later stating:
“The secretary who called me took half an hour to call back so I was denied the chance again to speak during the hearing and that's the second time
So again you are not doing a good job
No one called me back or did I get chance to speak
We will be looking into racism discrimination action if the case is not granted an extension
Please try to do a better job as your paid by the public and if you can't leave a government position
I'll expect a call back…”
[18] Almost immediately, Mr Mildon wrote again to the chambers of the presiding Member indicating he was “waiting for a call back still…”.
[19] On 7 October 2020, the Associate of the presiding Member again wrote to Mr Mildon and the Appellant reiterating that should the Appellant wish to say anything about any matter, she should do so in writing by close of business that day. Again, no response was received from the Appellant. In a series of emails sent in short succession, Mr Mildon stated:
“You had time to get me involved in the hearing and avoided this as it made it easier to keep the same ruling without me speaking as airway happened
Err (sic) you would find I made very accurate comments about this setup kangaroo court you have going
…
We will be seeking to have an outside look onto this office circus you're running
It's my rights you call me back I pay your wages thanls… (sic)
…
We will be accusing this setup of racism so get ready if this extension is not granted
…
By the way the way my partner was spoken to in the hearing was like the old south in the USA
Racists and bigots”
[20] We propose to forward Mr Mildon’s disgraceful and ignorant rantings to the General Manager for referral to the Australian Federal Police so that it may consider whether Mr Mildon’s words and conduct constitutes an offence under s.674 of the Act.
Consideration
[21] 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act requires the Commission to grant permission to appeal if 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.4 Granting permission to appeal may be in the public interest if the appeal raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate tribunal is required, or where the decision at first instance manifests an injustice, or the result is counter-intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.5
[22] Permission to appeal may otherwise be granted on discretionary grounds. Except in the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 6
[23] By her notice of appeal, the Appellant alleges by reference to a series of assertions about the conduct of the Deputy President that granting permission to appeal is in the public interest. The assertions in the notice of appeal are that:
• Ellaheh was not treated fairly;
• The public deserves better;
• Ellaheh was treated in a strange way;
• DP Lake is not doing his job well;
• DP Lake did not respect Ella needed Deane to help as her English is not perfect;
• It seemed like bigotry;
• DP Lake showed signs of bigotry; and
• The lawyer (for the Respondent) was ordinary so Lake helped him.
[24] Beyond these assertions the appeal has no content. As we have already noted, the Appellant did not file an appeal book or any written submission and did not attend the hearing scheduled despite being notified and reminded. We have reviewed the transcript of the hearing before the Deputy President and we are not disposed to think that any of the matters alleged above is seriously arguable. Bare allegations do not speak to the public interest in granting permission to appeal. There being no material before us to suggest that permission to appeal should be granted in the public interest, we are not persuaded that we must do so.
[25] We turn then to consider whether permission to appeal should be granted on any discretionary basis. Granting permission to appeal will rarely be appropriate unless an arguable case of appealable error is shown. In the absence of appealable error an appeal cannot succeed. 7 The fact that the Member at first instance has made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[26] These proceedings are restricted to permission to appeal considerations. The Appellant is not required to present a full or developed argument about her appeal grounds. Our task, putting to one side public interest considerations with which we have already dealt, is to consider whether there is another basis on which permission to appeal should be granted. In doing so it is relevant to consider whether an arguable case of appealable error has been made out.
[27] It is unnecessary for us to delve into the minutiae of the appeal grounds although in this case, much like the public interest grounds, the appeal grounds identified by the Appellant in her appeal notice consist largely of complaints about the conduct of the hearing. In this regard the Appellant complains in the notice of appeal that:
• Launch representative was allowed to say anything;
• Any reasonable person can see it was one-sided;
• Ella and Deane registered at start to speak Deane was not allowed by Lake to speak;
• Lake let the lawyer for Lanch (sic) wander! But did not allow Ella/Deane to ask similar questions; and
• The fact Ella is foreign born makes it odd.
[28] Again, we were not assisted by the Appellant’s failure to file an appeal book or submissions and to attend the hearing to make any oral submissions. Without more, none of these matters rise to the level of showing an arguable case of appealable error. Two examples, from the transcript of proceedings, of why this is so will suffice. The first concerns an exchange between the Deputy President and Mr Mildon during cross-examination of the Appellant. The Appellant represented herself before the Deputy President. She was accompanied at the hearing by her partner Mr Mildon as her support person. No application was made by the Appellant that Mr Mildon be permitted to represent the Appellant during the hearing. Instead, Mr Mildon sought to interject himself into the proceedings on several occasions, an instance of which occurred during cross-examination of the Appellant and is set out below:
“THE DEPUTY PRESIDENT: Perhaps we should get your partner in the stand after this, Ms Mehrian, and we can ask him the questions directly. Mr Mildon, if you're there we can't have you in the background. This is her testimony, so if you want to provide testimony you need to step up and under oath provide that testimony, but there's no coaching from the sides. Okay.
MR MILDON: It's not coaching, it's the way that these questions are being asked they're not actually addressing that two weeks payment I mentioned.
THE DEPUTY PRESIDENT: If that's the case then you have got to prosecute or Ms Mehrian has to prosecute the case. You're not represented. It's not a case of trying to correct the question or interpret. It's not an interpretation matter, it's a question - I think Mr Tzirtzilakis is providing very - - -
MR MILDON: You can't pay somebody for a month after you terminate them.
THE DEPUTY PRESIDENT: What's your status in this? You are not providing evidence and you're not providing any advice.
MR MILDON: We've got - - -
THE DEPUTY PRESIDENT: No, you don't have a status in this at the moment. So at the moment you're there as support. You are not there to interpret, you're not there as a representative. The questions have to go to Ms Mehrian and she has to answer them.
MR MILDON: So is that two weeks - excuse me, if that two weeks applied then what are we talking about this for?
THE DEPUTY PRESIDENT: You have to provide some evidence that would suggest to me that I should consider that those two weeks are worked. There are plenty of decisions that say once the employer has made the decision to terminate the employment and everything is handed back then the payment in lieu isn't the period that counts. What counts is the date of termination, which in this case is the 30th. So you need to get over that hurdle, or your partner does - - -
MR MILDON: Whenever I've been terminated from my job - - -
THE DEPUTY PRESIDENT: I am not here to have a debate with yourself because you're not the representative. So if you wanted to get representation you can, but at the moment Ms Mehrian is in the stand and she's answering questions. So she answered the questions and we keep going forwards.” 9
[29] There is nothing improper in the Deputy President asserting control of the proceeding as he does in the exchange above, much less does it come anywhere near appealable error.
[30] The second example concerns the appeal complaint that the Deputy President did not allow the Appellant to “ask similar questions” to those (presumably) asked of the Appellant during cross examination. The Respondent’s only witness was its CEO, Ms Rebecca Wallace. At the conclusion of the examination-in-chief of Ms Wallace, the following exchange took place:
“THE DEPUTY PRESIDENT: Thank you very much, Mr Tzirtzilakis. Now, Ms Mehrian, this is your opportunity to then clarify what has been said by Ms Wallace. The focus is on the delay, and I have given you the five factors, and so you can then ask her to clarify for example the termination date or clarify for example the payroll or something like that, but the focus is just on the delay, not upon the reason Nokia let you go or something else. And you don't have to ask any questions at all, but it's just the opportunity to sort of just clarify what has been said so I can have I guess clear information or evidence to make a decision.
MS MEHRIAN: Yes, all right.
THE DEPUTY PRESIDENT: If you need guidance I am happy to help. So over to yourself to ask Ms Wallace any clarifying questions.” 10
[31] The Appellant thereafter proceeded to ask Ms Wallace a series of questions. 11
[32] As to the contention that the Appellant needed Mr Mildon’s assistance because of language difficulties, we note she did not nominate Mr Mildon as her representative in the application form, nor was any request made during the hearing that Mr Mildon act as her representative. Moreover, the application form also discloses that the Appellant answered “no” to the question whether she required the assistance of an interpreter. No application for such assistance was made during the hearing.
[33] Neither the Decision nor the transcript of the proceedings disclose that there is any sufficient doubt to warrant a reconsideration of the Decision or that substantial injustice may result if leave is refused.
[34] For these reasons we are not persuaded that any arguable case of appealable error is disclosed. That permission to appeal should be granted in the public interest has not been made out and we are not persuaded there is any other discretionary basis upon which permission to appeal might be granted.
Conclusion
[35] In these circumstances, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
No appearance for the Appellant
M Tzirtzilakis on behalf of the Respondent
Hearing details:
2020
Melbourne (via video link)
6 October
Printed by authority of the Commonwealth Government Printer
<PR723453>
1 The decision and reasons therefor are recorded in the transcript of proceedings on 18 June 2020 at PN333-PN349
2 Transcript (18 June 2020) at PN349
3 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
4 GlaxoSmithKline Australia Pty Ltd v Making[2010] FWAFB 5343 at [26]-[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] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, (2010) 197 IR 266 at [27]
6 See CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to the Fair Work Bill 2008 (in respect of what is now s.604) at [2328].
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 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]
9 Transcript (18 June 2020) at PN94-PN104
10 Transcript (18 June 2020) at PN188-PN190
11 Transcript (18 June 2020) at PN191-PN255
0
7
0