Elite Essential Trades Pty Ltd T/A E-LITE LED SOLUTIONS v Alan Gauntlett-Gilbert
[2018] FWCFB 4637
•14 AUGUST 2018
| [2018] FWCFB 4637 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Elite Essential Trades Pty Ltd T/A E-LITE LED SOLUTIONS
v
Alan Gauntlett-Gilbert
(C2018/3390)
VICE PRESIDENT CATANZARITI | DARWIN, 14 AUGUST 2018 |
Permission to appeal sought against decision [2018] FWC 3221 of Commissioner McKenna at Sydney on 8 June 2018 in matter number U2017/13378.
[1] On 4 December 2017, Mr Alan Gauntlett-Gilbert (Respondent) was dismissed from his employment with Elite Essential Trades Pty Ltd t/a E-LITE LED SOLUTIONS (Appellant). On 15 December 2017, the Respondent filed his unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission).
[2] On 30 April 2018, Commissioner McKenna heard the Respondent’s unfair dismissal application. The Appellant did not attend that hearing.
[3] On 8 June 2018, the Commissioner issued a Decision 1 in which she granted the Respondent’s unfair dismissal application under s.394 of the Act and determined that the Respondent pay the Appellant $12,000 in compensation. The Decision of Commissioner McKenna is now the subject of the appeal.
[4] On 28 June 2018, Senior Deputy President Hamberger refused the Appellant’s application for a stay to the Order for the Appellant to pay the Respondent $12,000.
[5] At 10.18am on 8 August 2018, the Appellant advised the Vice President’s Chambers that he did not intend to attend the permission to appeal hearing that was listed at 11.30am, 8 August 2018. The Appellant did not seek any adjournment of the hearing, and accordingly, the matter proceeded as listed. In the hearing, Mr Justin Peñafiel, sought and was granted, permission to appear for the Respondent.
[6] Given that the Appellant did file written submissions in support of its appeal, we have decided to determine the matter based on the materials filed.
The Decision at first instance
[7] The Commissioner heard the Respondent’s unfair dismissal application by way of a hearing without the Appellant present and accepted the Respondent’s oral and written evidence. The Commissioner’s reasons for proceeding without the Appellant are as follows:
• The Appellant failed to file and serve the Form F3 – Employer’s Response to the Application for an Unfair Dismissal Remedy, which was sent to the contact person identified for the Appellant, Mr Dean Manser, on 15 January 2018;
• The Appellant failed to participate in two telephone conferences on 18 January 2018 and 14 February 2018, despite being aware of the first teleconference, evidenced through the Appellant’s request for an adjournment of the conciliation made on 17 January 2018;
• The Appellant did not respond to, or appear before, the Commissioner in the pre-hearing conference and/or directions proceedings on 12 March 2018, despite evidence that the Appellant was provided with the relevant notice of listing by both email and Australia Post tracked mail, as well as attempts by the Commissioner’s Chambers to contact the Appellant on 12 March 2018;
• Only the Respondent, not the Appellant, complied with the Directions to file and serve material;
• While Mr Manser emailed the Commissioner’s Chambers on the morning of the hearing, 30 August 2018, he failed to appear after arrangements had been made for him to dial into the hearing by telephone, even though Chambers had sent email correspondence to Mr Manser to address any technical difficulties. 2
[8] The Commissioner found that the Respondent was dismissed on 4 December 2017. 3 The Commissioner noted that there was no evidence of a valid reason for dismissal, and that there was no evidence to determine any of the matters set out in paragraphs 387(b)-(g) of the Act.4 In relation to s.387(h), the Commissioner noted that given the limited amount of evidence that was before her, it was “difficult to have a properly-developed view of what occurred, from the Appellant’s perspective, in relation to the dismissal”.5 However, it appeared that the Respondent “was, reasonably and understandably, concerned about non-payment of wages”.6
[9] Having made those findings, the Commissioner concluded that the Respondent’s was unfairly dismissed. 7
[10] On the question of remedy, the Commissioner determined that reinstatement was impracticable and therefore determined that an award of compensation would be appropriate. 8 Having considered the circumstances of the case, statutory criteria and the principles set out in various authorities concerning compensation, the Commissioner found, for the purposes of s.392(2), that $12,000 in compensation was an appropriate unfair dismissal remedy.9
Permission to appeal principles
[11] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is an error on the part of the primary decision maker. 10 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 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.”
[12] Section 400 of the Act provides 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.”
[13] 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”. 11 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.12 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.” 13
[14] 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. 14 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.15
The Appeal
[15] In the Appellant’s notice of appeal dated 20 June 2018, it was stated that the Appellant was not aware of the hearing on 30 April 2018, and when the Appellant became aware of the hearing, was unable to participate due to technical difficulties, despite following Chamber’s instructions.
[16] Further, in the Appellant’s submissions dated 20 July 2018, it was submitted that there were ‘several reasons’ for the Respondent’s dismissal, contained in an email dated 20 March 2018 that was not ‘shown to the Commissioner’. The Appellant also posited that ‘there were grounds for serious misconduct which left the company no other option but ask [the Respondent] to leave the company’.
[17] The Appellant further submitted that its clients complained about the Respondent’s conduct, including his attitude, poor presentation, ‘smelling of alcohol’ and poor workmanship. The Appellant stated that it had also issued a warning to the Respondent on 7 April 2018 in relation to an unexplained absence from the workplace, and that there was evidence the Respondent had breached other workplace policies by smoking in and damaging a company vehicle.
Consideration
[18] The Appellant put submissions that he was denied procedural fairness by the Commission at first instance. We do not agree. The Appellant had multiple opportunities to be heard at first instance and also in relation to this proceeding, but chose not to make use of those opportunities.
[19] There is nothing in these submissions which raise issues of importance or 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.
[20] The submissions were also in part an attempt to persuade us that the Commission at first instance should have reached a different conclusion of the facts, an attempt to in effect run a case at first instance on appeal. On this we would note that a hearing as to whether permission to appeal should be granted is not the place to re-agitate the matters that have been considered at first instance.
Conclusion
[21] We are not persuaded that the Appellant has put anything before the Commission that could be said to enliven the public interest.
[22] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act. The application for permission to appeal is therefore dismissed.
VICE PRESIDENT
Appearances:
Mr J. Peñafiel, solicitor for the Respondent.
Hearing details:
2018.
Sydney:
August 8.
1 [2018] FWC 3221; Order (PR607989).
2 Decision at [2] – [11].
3 Decision at [14].
4 Decision at [18]-[25].
5 Decision at [26].
6 Decision at [26].
7 Decision at [28].
8 Decision at [28].
9 Decision at [28]-[35].
10 Coal and Allied Operations Pty Limited Australian Industrial Relations Commission and others (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
11 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
12 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].
13 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at para. 27, [(2010) 197 IR 266].
14 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
15 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; (2014) 241 IR 177 at [28].
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