Endless Solar Operations Pty Ltd v Mr Christopher Cole
[2016] FWCFB 8130
•18 NOVEMBER 2016
| [2016] FWCFB 8130 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Christopher Cole
(C2016/6155)
VICE PRESIDENT CATANZARITI | SYDNEY, 18 NOVEMBER 2016 |
Appeal against decision [[2016] FWC 6663] of Deputy President Gostencnik at Melbourne on 3 October 2016 in matter number U2016/2875.
[1] Endless Solar Operations Pty Ltd (Endless Solar) has applied for permission to appeal and appealed against a decision 1 issued by Deputy President Gostencnik on 3 October 2016 (Decision). In that Decision the Deputy President found that Mr Christopher Cole is a person protected from unfair dismissal. The Deputy President made an order2 dismissing the jurisdictional objection raised by Endless Solar related to the minimum employment period.
[2] The matter was listed for hearing of Endless Solar’s application for permission to appeal on 9 November 2016. At that time Mr Cole appeared for himself and Mr D. Craig and Ms C. Lin appeared for Endless Solar.
The Decision
[3] The principal findings made by Deputy President Gostencnik in his Decision were as follows:
(a) Mr Cole was employed by Endless Solar as a casual employee in the period from 30 March 2015 to 12 July 2015. He then commenced full-time employment (on 13 July 2015) with Endless Solar in the position of IT and Operations Manager. The finding of casual employment was contrary to Endless Solar’s contention that Mr Cole was engaged as an independent contractor during this earlier period;
(b) Mr Cole’s employment as a casual employee was on a regular and systematic basis, and during his engagement as a casual employee he had a reasonable expectation of continuing employment by Endless Solar on a regular and systematic basis. Accordingly, Mr Cole’s period of service as a casual employee counted towards his period of employment with Endless Solar; and
(c) Because Mr Cole’s period of employment prior to his dismissal on 27 May 2016 exceeded the minimum employment period (which was one year, given Endless Solar was a small business employer at the relevant time), Mr Cole was a person protected from unfair dismissal at the time of his dismissal.
Permission to appeal principles
[4] This appeal is one to which s.400 of the Fair Work Act 2009 (FW Act) applies. 3 Section 400 provides:
“(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.”
[5] In the Federal Court Full Court decision 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 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. 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.” 6
[6] 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. 7 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.8
Grounds of Appeal
[7] One of the principal grounds of appeal relied on by Endless Solar relates to its assertion that the Deputy President did “not respect the formal employment contract agreed and signed by Endless Solar Operations Pty Ltd and Mr Cole dated on 13th July 2015.” 9 Endless Solar points to the following matters in support of that contention:10
(a) “Mr Cole’s employment with Endless Solar Operations Pty Ltd formally started on 13th July 2015;
(b) Mr Cole confirmed his probation period of the first six months as a NEW employee by signing his employment contract;
(c) Pursuant to Mr Cole’s employment contract, his main duty was to act as a solar system salesman. Also, to assist in operation management. He agreed and confirmed by his email dated 9 July 2015;
(d) Mr Cole’s remuneration package was linked to sale of products; and
(e) Mr Cole’s job was directed by the Board of the parent company not by Ms Lin.”
[8] Regardless of the terms of Mr Cole’s contract of employment dated 13 July 2015 or the other matters to which Endless Solar points, the question of whether Mr Cole was in fact employed by Endless Solar in the period from 30 March 2015 to 12 July 2015 and, if so, whether during that period he had a reasonable expectation of continuing employment by Endless Solar on a regular and systematic basis, had to be determined in accordance with the relevant provisions of the FW Act. The Deputy President applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.
[9] Many of the appeal grounds and submissions relied on by Endless Solar relate to the Deputy President’s credibility findings, which were relevant to the conclusion that Mr Cole was engaged as a casual employee, rather than an independent contractor, in the period from 30 March 2015 to 12 July 2015. We are not satisfied that there is an arguable case of error in relation to those credibility findings or in relation to the conclusion that Mr Cole was engaged as a casual employee in the relevant period.
[10] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.
[11] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required in an appeal of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[12] 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. Accordingly, we dismiss the appeal.
VICE PRESIDENT
Appearances:
Mr D. Craig and Ms C. Lin appeared for Endless Solar;
Mr C. Cole appeared on his own behalf.
Hearing details:
2016.
Sydney:
November, 9.
1 [2016] FWC 6663
2 Ibid at [41]
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] -[46]
6 [2010] FWAFB 5343 at [27], 197 IR 266
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 288, 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 Endless Solar’s written submissions filed on 31 October 2016 at [4]
10 Ibid
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