Erwin Wibowo v Equifax Australasia Group Services Pty Limited
[2024] FWCFB 383
•25 SEPTEMBER 2024
| [2024] FWCFB 383 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Erwin Wibowo
v
Equifax Australasia Group Services Pty Limited
(C2024/4563)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 25 SEPTEMBER 2024 |
Appeal against decision [2024] FWC 1591 and Order PR776155 of Commissioner Yilmaz at Melbourne on 18 June 2024 in matter number U2024/684 – permission to appeal refused.
Mr Erwin Wibowo has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Yilmaz issued on 18 June 2024. The Commissioner dismissed Mr Wibowo’s application for an unfair dismissal remedy against Equifax Australasia Group Services Pty Limited (Equifax).
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Decision under appeal
Mr Wibowo was employed by Equifax as a Data Engineer. In the decision, the Commissioner relevantly determined that Mr Wibowo was employed pursuant to a maximum term or an outer limit contract of employment with an agreed end date of 31 December 2023. The Commissioner found that Mr Wibowo’s employment terminated upon the expiry of the outer limit date on 31 December 2023.
The Commissioner concluded that Mr Wibowo was not dismissed at the initiative of Equifax pursuant to s 386(1) of the Act. Rather, the Commissioner determined that consistent with the decision of the Full Bench of the Commission[3] and, subsequently, the Federal Court in Alouani-Roby v National Rugby League Ltd,[4] and the Full Bench of the Commission in Khayam v Navitas English Pty Ltd (Navitas)[5] that s 386(2)(a) of the Act applied to Mr Wibowo’s maximum term or outer limit contract.
Section 386(2)(a) provides that a person has not been dismissed if:[6]
…the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season.
The Commissioner considered and applied the principles set out in Navitas to the interpretation and the application of s 386(1)(a) to the relevant factual matters involving Mr Wibowo’s employment.[7]
The Commissioner was satisfied that there was no evidence that Equifax had offered or suggested to Mr Wibowo that his employment would be ongoing. Nor was the Commissioner persuaded that Equifax had taken any action to bring Mr Wibowo’s employment to an end. While Equifax sent correspondence to Mr Wibowo on 30 November 2023 prior to his employment cessation, the Commissioner was satisfied that this correspondence served as a reminder that the contract would end due to the effluxion of time on 31 December 2023 and could not be “construed as termination at the initiative of the employer.”
Further, the Commissioner was satisfied that the use of outer limit contracts by Equifax to engage information technology professionals such as Mr Wibowo was subject to budgetary restraints and for the purpose of supporting technical projects and was not unreasonable. The Commissioner did not accept that a substantial purpose was to avoid Equifax’s obligations under the unfair dismissal provisions in Part 2-3 of the Act, contrary to s 386(3).
Grounds of appeal
Mr Wibowo advances five grounds of appeal in his Notice of Appeal. Mr Wibowo also filed written submissions containing six appeal grounds. To the extent that the matters raised in the written submissions reflect the matters in Mr Wibowo’s Notice of Appeal, they do not do so in corresponding numerical order. Taking into account both Mr Wibowo’s Notice of Appeal and his oral and written submissions before us, we discern that the appeal grounds are as follows.
The Commissioner relied upon a false oral statement by Ms Askew that another employee did not receive a termination payment when his employment ceased upon the end of his fixed term contract.
The Commissioner erred in asserting that Mr Wibowo’s first maximum term contract was extended verbally prior to the signing of the formal extension document. Further, the Commissioner did not take into account that Mr Wibowo was pressured to sign the contract urgently to avoid being locked out of the system.
The Commissioner failed to consider whether Mr Wibowo’s inclusion in the Boulder List constitutes a termination at the initiative of the employer.
The Commissioner failed to consider the second annual leave reduction promotion email.
The Commissioner erroneously interpreted the decision of the Full Bench of the Commission in Navitas.
The Commissioner acted upon a wrong principle that the purpose to avoid the employer’s obligations under the unfair dismissal provisions as stated in s 386(3) has to be “the substantial purpose” rather than “a substantial purpose.”
Mr Wibowo submits that it is in the public interest that permission to appeal be granted, including because the correct interpretation of s 386(2)(a) requires re-examination. Further, Mr Wibowo contends that there is a diversity of decisions on whether outer limit contracts should be included in the meaning of s 386(2), with reference to the decision of Justice Raper of the Federal Court in Alouani-Roby v National Rugby League Ltd.[8] Mr Wibowo also submits that the principles applied with respect to s 386(3) appear disharmonious, and the decision warrants reconsideration.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[9]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] The public interest is not satisfied simply by the identification of error or a preference for a different result.[11] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[12]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[13] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
We do not consider that the grounds of appeal demonstrate an arguable case of appealable error. Regarding ground (1), the decision does not appear to support Mr Wibowo’s contention that the Commissioner relied upon false evidence given by the respondent about the circumstances of his colleague, Mr Kunmar. Shortly prior to the conclusion of the hearing, Mr Wibowo asked the Commissioner whether she required a witness statement from Mr Kunmar if his circumstances were “material information needed by the Commission.” This was declined by the Commissioner. In the decision, the Commissioner did not make findings about the circumstances of Mr Wibowo’s colleague, because it was not necessary for her to do so in her assessment of whether Mr Wibowo was employed pursuant to an outer limit contract.[14] While we acknowledge that Mr Wibowo considers that Equifax treated him differently than his colleague, an arguable case of appealable error in the decision has not been demonstrated.
Noting the evidence of Mr Lo, there appears to be evidentiary support for the finding that Mr Wibowo’s first maximum term contract was “extended verbally” and thereafter committed to writing.[15] As to the contention in ground (2) that Mr Wibowo was pressured to sign the contract, the Commissioner was not persuaded that there were any “vitiating factors,” and found that the contract reflected “a genuine agreement” and there was no evidence to conclude otherwise.[16] No arguable case of appealable error arises in relation to these findings.
Grounds (3) and (4) contend that the Commissioner failed to consider relevant material. These contentions are not arguable:
(a)Mr Wibowo’s arguments about both the “broadcast” and “targeted” leave reduction programs were recorded at [7] of the decision.[17] In his closing submissions, Mr Wibowo asked the Commissioner to consider whether the wording of the “targeted” email amounted to a personal invitation to him. The Commissioner addressed this argument at [9] of the decision and rejected that these emails demonstrated that Mr Wibowo was a permanent employee. We regard the Commissioner’s conclusion that “it was a wide broadcast and not a direct invitation to Mr Wibowo” to be responsive to Mr Wibowo’s argument that the targeted email was a direct invitation to him. It therefore does not appear to be arguable that the Commissioner did not consider the targeted email.
(b)The argument that Mr Wibowo’s inclusion in the Boulder List was a termination at Equifax’s initiative was considered and rejected at [16] of the decision, the Commissioner being satisfied that the evidence “demonstrates selection for extension of fixed term contracts based on project needs.”
While we acknowledge that paragraphs [9] and [16] of the decision appear under a heading summarising the parties’ submissions, it is apparent that these factual findings underpin the Commissioner’s dispositive reasoning at [24] and [26]; that is, that there was no evidence of an ongoing employment relationship, and there were no factual circumstances “where the termination can be construed at the initiative of the employer.”
As to ground (5), the Commissioner does appear to suggest that both the Full Bench of the Commission in Navitas and in Alouani-Roby v National Rugby League found that maximum term or outer limit contracts which allow for an unqualified right to terminate with notice are captured by s 386(2)(a) of the Act. That is not correct. In Navitas, the Full Bench determined that the exclusion did not apply in such circumstances.[18] The Full Bench decision in Alouani-Roby v National Rugby League did not depart from that approach. Further, in her Honour’s primary consideration of Alouani-Roby v National Rugby League upon judicial review, Justice Raper was satisfied that the Full Bench had not erred. Notwithstanding, the Commissioner correctly applied the principles in Navitas to her consideration of s 386(1)(a) in the matter and no arguable appealable error arises.
Further, we consider the Commissioner’s decision to be consistent with the additional considerations of Justice Raper in Alouani-Roby v National Rugby League Ltd.[19] As Mr Wibowo’s written and oral submissions appear to acknowledge, Justice Raper relevantly revisited the meaning of a contract “for a specified period of time” within the meaning of
s 386(2)(a), as discussed in Navitas. Her Honour concluded that the alternative argument raised by the respondent in that matter to the effect that s 386(2)(a) of the Act applies to outer limit contracts even where they allow for early termination, but only where the employment has been terminated at the end of the specified period, was correct.[20] Accordingly, no arguable case of error arises in relation to the Commissioner’s approach.
As to ground (6), we do not accept that the Commissioner erroneously applied
s 386(3) of the Act. The Commissioner did not accept that the outer limit contract was an attempt by Equifax to evade the unfair dismissal provisions in the Act and gave consideration to why the respondent’s use of time limited contracts was appropriate. There was an evidentiary foundation for the Commissioner’s conclusion and no arguable basis has been advanced to disturb it. In these circumstances, the Commissioner’s use of the term “the purpose” rather than “a substantial purpose” at [29] of the decision does not demonstrate an arguable appealable error.
For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
E Wibowo for himself.
C Brown of KHQ Lawyers for the respondent.
Hearing details:
2024.
Melbourne (by video):
September 12.
[1] [2024] FWC 1591
[2] PR776155
[3] [2022] FWCFB 171
[4] [2024] FCA 12; 328 IR 226
[5] [2017] FWCFB 5162; 273 IR 44
[6] Fair Work Act 2009 (Cth), s 386(2)(a)
[7] Decision at [23]-[28]
[8] [2024] FCA 12; 328 IR 226
[9] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[10] O’Sullivan v Farrer (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 at [44]-[46]
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[13] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[14] At paragraph [24] as contended, or otherwise
[15] Revised appeal book 148 at [6]
[16] Decision at [27]-[28]
[17] As the evidentiary references at footnote 2 at paragraph [7] records
[18] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162; 273 IR 44 at [96]
[19] [2024] FCA 12; 328 IR 226 at [89]-[101]
[20] Ibid at [97]
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