Envirotech Education Consultancy Pty Ltd v Barbara Sharon De Oliveira Da Silva, Angus McDonald Roberts
[2021] FWCFB 6003
•20 SEPTEMBER 2021
| [2021] FWCFB 6003 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Envirotech Education Consultancy Pty Ltd
v
Barbara Sharon De Oliveira Da Silva, Angus McDonald Roberts
(C2021/4172)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 20 SEPTEMBER 2021 |
Appeal against decision [2021] FWC 3802 of Commissioner Simpson at Brisbane on 1 July 2021 in matter number C2021/2137 and C2021/2138.
[1] Envirotech Education Consultancy Pty Ltd (Envirotech) is an Australian Registered Training Organisation providing various education services, including vocational education and training, to domestic and international students. On 15 April 2021, Envirotech applied under s 120 of the Fair Work Act 2009 (FW Act) to vary the redundancy pay entitlements of Angus McDonald Roberts and Barbara Sharon De Oliveira Da Silva (together “the Respondents”) to nil on the grounds that it obtained for each Respondent other acceptable employment and that it cannot pay the amount of the redundancy entitlement.
[2] In a decision published on 1 July 2021 1 Commissioner Simpson rejected both grounds advanced by Envirotech and dismissed each application. Envirotech has applied under s 604 of the FW Act for permission to appeal, and if granted appeals that decision.
[3] The grounds of appeal advanced by Envirotech in its notice of appeal do not disclose any contention of appealable error made by the Commissioner. Instead, the matters advanced in the appeal notice amount to no more than an expression of dissatisfaction with the decision and an attempt to relitigate the matters originally advanced in hope of a different result. The appeal grounds are as follows:
“We are asking the Commission to reduce the redundancy payments up to nil.
The reason:
1. No International students are coming to Australia due to COVID-19, and the Government decisions to restrict the market that the Applicant was dependent upon since inception, namely international students arriving to Australia, the business is left with contractual obligation to service students who are in many cases unable to pay, whilst new students are not able to be recruited as a direct result of the Government directions restricting international students travel to Australia.
2. To allow the Applicant to service the existing international students without making further burden on Government agencies, such as relaying on the TPS levy to relocate its existing students, the Applicant has taken significant debt that is insufficient to carry redundancy payments.
3. There have not been any English students since early 2021 and the Respondents refused to undertake the offers made to many other team members to undergo the necessary further training that would position them in ability to service the VET training operation when no further English students are being enrolled as of 2021 our last English student was graduated.
4. We have no new international students coming to Australia to study English and the ELICOS department remained without any clients due to the Government border closure.
5. English Trainers do not have the qualification to teach other courses in the Vocational Education as they must have at least the Certificate IV in Training and Assessment and the Industry Currency in our other Vocational courses. Unfortunately, we cannot offer the Respondents an alternative teaching position.
6. We offered the Respondents in the beginning of 2021 to do proof-reading for our new Marine courses for High Schools. Also - reviewing our new and current websites. From Mar 29th 2021 we do not have any other jobs to offer to the Respondents.
7. Our business is currently under a massive financial stress like never before due to COVID-19 and no international students’ mobility to Australia.
8. Business reduced employees from 52 in March 2020 to 18 in the end of July 2021.”
[4] As to whether permission to appeal should be granted, apart from a bald assertion that to grant permission is in the public interest, no cogent basis for that assertion is advanced and as already noted, no appealable error is identified which might otherwise find a basis for the granting of permission.
[5] Before dealing with the substance of the appeal grounds, it is necessary to say something about Envirotech’s contention in its written submissions 2 and maintained during the hearing before us, that it has not terminated the employment of the Respondents and continues to employ them.
[6] If this contention was factually correct, we would not grant permission to appeal because although it would disclose appealable error in the decision, the ultimate result – dismissal of the applications – would be the same. We explain briefly why this is so.
[7] Section 120 of the FW Act applies if, relevantly, “an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119”. An employee “is” entitled to be paid redundancy pay under s 119 of the FW Act if, relevantly, the employee's employment “is” terminated at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour.
[8] If the Respondents’ employment has not been terminated by Envirotech as it contends, the precondition in s 119 of the FW Act to an entitlement to redundancy pay has not been met and so s 120 does not apply. If jurisdiction for the applications did not exist at the time the Commissioner made his decision, invariably the applications would fail and would properly be dismissed. In these circumstances there would be no utility in the appeal and permission should be refused on that basis.
[9] But we do not think this is what has occurred.
[10] The Commissioner dealt with the evidence about whether the Respondents’ employment had been terminated as follows:
“Have Respondents been terminated?
[16] Ms Shelly Bengiat, Director of the Applicant, gave evidence that the Applicant had not terminated Ms Da Silva or Mr Roberts, but rather it had stood them down. Ms Bengiat said the Respondents have not received any payments for their accrued entitlements. Ms Bengiat adopted as her evidence being a statement filed on 24 May 2021. The Applicant also provided a letter from its Accountant.
[17] Ms Bengiat’s evidence was unclear on the termination of the Respondents. Ms Bengiat appeared to be of a view at one point that they were stood down and the Applicant was seeking a waiver from having to pay redundancy. Ms Bengiat went on to say however that the Respondents were told by the Applicant that the Respondents could no longer be employed and indicated that the Respondents been told they were terminated. Ms Bengiat then indicated the other accrued entitlements had not been paid out yet pending the outcome of this application. It was put to Ms Bengiat and she accepted that she had engaged the services of a Human Resources consultant and yet she was unsure if the Respondents had been dismissed despite having advice.
[18] Ms Bengiat said the Human Resources adviser had not been involved in a case where an employer had sought a waiver of the requirement to pay redundancy.” 3 [Endnote omitted]
[11] During the hearing before us, Mr Bengiat appearing for Envirotech did not dispute the accuracy of [17] above and specifically that Ms Bengiat’s evidence was that “the Respondents [had] been told they were terminated”. On a fair reading of the paragraphs of the decision extracted above, in the context of the decision as a whole and taking into account the content of the statement of Ms Bengiat to which reference is made at [16] of the decision, we consider the Commissioner accepted Ms Bengiat’s evidence that the Respondents had been told (by Envirotech) that they were terminated and concluded that s 120 of the FW Act applied. Ms Bengiat’s evidence on this point was also not contested by the Respondents.
[12] Moreover, the statement to which the Commissioner referred at [16] contains the following paragraph:
“We hold the highest appreciation for Angus and Barbara and wish the best for them, and highly appreciate their working time with us. We could have only wish that our ways would have parted in less severe circumstances.” 4 [Underlining added]
[13] The underlined sentence is consistent with Ms Bangiat’s evidence. It therefore appears on the material before the Commissioner, that the employment of the Respondents came to an end when Envirotech ceased receiving jobkeeper payments from the Commonwealth government on 29 March 2021. 5
[14] We return to the substance of the appeal grounds.
[15] As is evident from Envirotech’s written submissions, 6 it “does not agree with” the Commissioner’s conclusion that he was “not satisfied on the basis of the evidence before the Commission that the Applicant has obtained other acceptable employment for either Mr Roberts or Ms Da Silva”.7
[16] The Commissioner set out the evidentiary basis for Envirotech’s contention that it had obtained for each Respondent other acceptable employment at [19]-[35] of the decision. At [81] the Commissioner set out his reasoning as follows:
“. . .The Applicant’s case on this point appeared to rest on the two Respondents declining an offer to participate in professional development in the form of a marine conservation certificate course in late 2020 or early 2021 that may have created an opportunity for them to have worked in other departments. It is clear this does not constitute an offer of other employment, let alone other acceptable employment. On that basis the application as it pertains to s.120(1)(b)(i) must fail.” 8
[17] Envirotech does not identify any appealable error in the Commissioner’s conclusion or the reasoning which underpins it. Instead, it simply says it disagrees and regurgitates the same arguments already rejected below. It says:
“The Appellant cannot offer the Respondents any alternative teaching position/duties, unfortunately, as the Respondents do not meet mandatory requirements to become VET Trainers. 9
. . .
. . . the Appellant tried to find an option for the Respondents to become VET Trainers in the future, teaching the Marine course. It was discussed with the Respondents – they were offered to do professional development (at no cost) – to study the Marine course under Scholarship. This offer was declined.” 10
[18] We not persuaded there was any appealable error in this part of the Commissioner’s decision. We consider the conclusion was not just open on the evidence but plainly correct.
[19] To obtain employment for an individual means to procure the making of an offer of employment, which the individual may or may not accept as a matter of his or her choice. 11 On Envirotech’s own case below, it did no such thing. It merely offered the Respondents further training (albeit funded by Envirotech), which might lead to the possibility of an offer of employment being made in the future. No actual offer of employment was made by Envirotech and the Respondents did not reject any offer of employment.
[20] For the reasons given above no arguable case of appealable error is established by this aspect of the notice of appeal and we are not otherwise persuaded that permission to appeal the Commissioner’s conclusion as to whether Envirotech obtained for each Respondent other acceptable employment should be granted in the public interest or otherwise.
[21] Next Envirotech contends that it does not agree with [82]-[84] of the decision about capacity to pay. 12 The Commissioner concluded at [85] of the decision:
“[85]On the basis of the evidence summarised above, whilst I acknowledge the Applicant is experiencing significant challenges given the nature of its business and the impact of border closures on its business model, and is carrying significant debt and facing uncertainty, it has not been established on the evidence that the Applicant cannot pay the amounts owing to Mr Roberts and Ms Da Silva. On that basis the application as it pertains to s.120(1)(b)(ii) must also fail.” 13
[22] The Commissioner set out the evidentiary basis for Envirotech’s contention that it cannot pay the redundancy entitlements of the Respondents at [36]-[80] of the decision. At [82]-[84] the Commissioner reasoned:
“[82] The evidence establishes the Applicant continues to have an income stream, although substantially reduced, and cash flow forecasts predict that it will continue to have income. This is further supported by the evidence that the Applicant continues to make fortnightly wage commitments for in the order of approximately 20 employees despite carrying significant debt and facing financial uncertainty.
[83] Further, the bank statements provided have indicated there has been a capacity to meet significant other expenses throughout the first half of 2021. It also appears from the evidence that the Applicant has employed some staff and engaged contractors in the period that Mr Roberts and Ms Da Silva could no longer be offered work. As was pointed out for the Respondents in closing submissions there is also some inconsistency between the proposition that the Applicant could afford to offer to retrain the two Respondents but could not afford to pay their redundancy entitlements.
[84] I have taken into account the debt burden of the Applicant, but that also needs to be weighed against the relatively small size of the redundancy amounts owed to the two employees as compared to the sums of money flowing in and out of the business whilst the Applicant says it cannot pay the redundancy amounts.” 14
[23] Envirotech complains about [83] of the decision on the basis that new staff that it has employed are not additional staff members but are replacements for trainers who have resigned in order to make good its obligations to students. It also says that all new staff are engaged as contractors and that a few of them have had their contracts terminated. Paragraph [83] cannot be read in isolation. The Commissioner makes two relevant observations at [82]. First, that on the evidence Envirotech continues to have an income stream albeit substantially reduced. This aspect is not challenged. Second, that Envirotech continues to pay “wages” to its remaining employees. The fact that payments are made, whether described as wages or fees for services, to remaining workers is also not challenged. That some of these workers may be engaged as contractors, whether correctly or otherwise, does not alter the fact that remuneration either in the form of wages or fees for services rendered continue to be paid. That this is so was a relevant consideration in assessing Envirotech’s capacity to make the redundancy payments to the Respondents.
[24] In this context the point being made by the Commissioner at [83] is that the bank statements provided by Envirotech disclose a capacity to meet significant other expenses throughout the first half of 2021. This is plainly a relevant consideration in assessing Envirotech’s capacity to make redundancy payments. Furthermore, the Commissioner’s observation that Envirotech has employed some staff and engaged contractors, whether as suggested by Envirotech, as replacement workers or not is also relevant in assessing its capacity to pay the redundancy entitlements of the Respondents. The Commissioner’s repetition and adoption of the Respondents closing submission about the inconsistency of offering retraining at Envirotech’s cost but maintaining an inability to make good redundancy payments was also open to the Commissioner. Rather than countering this observation, Envirotech’s submissions on appeal make good the point. It contends that by offering retraining Envirotech “actually loses money”. 15 The simple point inherent in the observation made by the Commissioner is that if there is financial capacity to lose money by funding retraining how is there not a financial capacity to make good a redundancy entitlement. No error is disclosed in the paragraphs of the decision about which Envirotech complains.
[25] Envirotech also points to a letter from its accountant dated 14 June 2021 16 and sets out the substance of that letter in its written submissions on appeal.17 These same matters are recounted by the Commissioner at [38] of the decision. It seems clear enough to us that the Commissioner took these matters into account. What is also clear from the accountant’s letter is that Envirotech has extended its funding facility with the Commonwealth Bank. That this is so suggests a capacity to pay rather than tending against such a conclusion.
[26] We consider on the evidence before the Commissioner that the conclusion he reached was open to him and nothing advanced by Envirotech on appeal dissuades us from this view. In truth, Envirotech is unhappy with the outcome of its applications and wants to re-agitate the very same matters which have been properly considered and weighed by the Commissioner, to be reassessed by us on appeal. That is not the function of an appeal.
[27] For the reasons given above no arguable case of appealable error is established by this aspect of the notice of appeal.
[28] Permission to appeal must be granted if we are satisfied it is in the public interest to do so. Permission to appeal may also be granted on discretionary grounds. The public interest may be engaged if 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 tribunal 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. 18 No such matter is identified by Envirotech and we are not persuaded that it is in the public interest to grant permission to appeal. The matters raised by the notice of appeal concern no more than disquiet on the part of Envirotech about the outcome of an inter partes proceeding determined on the basis of the evidence before the Commissioner and on conclusions reached which were open on that evidence.
[29] Moreover, we are not persuaded that permission to appeal on discretionary grounds should be granted. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated 19 because an appeal cannot succeed in the absence of appealable error. In this case no arguable appealable error has been identified. In our assessment, having had the benefit of full argument on appeal, both the Commissioner’s conclusions as to alternative employment and capacity to pay were open on the evidence. He was correct to dismiss the applications.
Conclusion
[30] For the reasons given we would refuse permission to appeal.
Order
[31] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
N Bengiat for the Appellant
A Roberts on his own behalf
B Da Silva on her own behalf
Hearing details:
2021
Melbourne (by video)
14 September 2021
Final written submissions:
Appellant, 17 August 2021
Respondents, 7 September 2021
Printed by authority of the Commonwealth Government Printer
<PR733982>
1 Envirotech Education Consultancy Pty Ltd v Barbara Sharon De Oliveira Da Silva and Angus Roberts[2021] FWC 3802.
2 Envirotech’s outline of submissions, [20].
3 Ibid, [16]-[18].
4 Appeal Book, 88.
5 Appeal Book, 86-87.
6 Envirotech’s outline of submissions, [7]
7 Envirotech Education Consultancy Pty Ltd v Barbara Sharon De Oliveira Da Silva and Angus Roberts[2021] FWC 3802, [81]
8 Ibid.
9 Envirotech’s outline of submissions, [9].
10 Ibid, [13].
11 FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90, [18].
12 Envirotech’s outline of submissions, [14].
13 Envirotech Education Consultancy Pty Ltd v Barbara Sharon De Oliveira Da Silva and Angus Roberts[2021] FWC 3802, [85].
14 Ibid, [82]-[84].
15 Envirotech’s outline of submissions, [16].
16 Appeal Book, 114.
17 Envirotech’s outline of submissions, [17].
18 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [27].
19 Wan v AIRC (2001) 116 FCR 481, [30].
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