Esler Family Trust t/a Commodore Motor Inn v Colleen Worthington
[2016] FWCFB 8739
•22 DECEMBER 2016
| [2016] FWCFB 8739 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Colleen Worthington
(C2016/6835)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decisions [2016] FWC 5740 and [2016] FWC 7773 of Commissioner Harper-Greenwell at Melbourne 16 August 2016 and on 4 November 2016 respectively matter number U2016/64.
Introduction and background
[1] The Esler Family Trust trading as the Commodore Motor Inn (Esler) has applied for permission to appeal and appealed against a decision made by Commissioner Harper-Greenwell in matter U2016/64, which concerned an unfair dismissal remedy application lodged by Ms Colleen Worthington pursuant to s.394 of the Fair Work Act 2009 (FW Act) in respect of her dismissal by Esler on 29 December 2015. The Commissioner in fact made two decisions in the matter. In the first, issued on 16 August 2016 1 (First Decision), the Commissioner found that Ms Worthington had been a regular and systematic casual since 2006, that her service with the previous owner of the Commodore Motor Inn transferred to Esler when Esler purchased the business in November 2015, that Ms Worthington was therefore a person protected from unfair dismissal, and that her dismissal was harsh, unjust and unreasonable. In the second decision issued on 4 November 20162 (Second Decision), the Commissioner determined that Esler should pay Ms Worthington the amount of $2,577.96 taxed according to law, plus superannuation to be paid into a fund nominated by Ms Worthington, as compensation for her unfair dismissal. A separate order3 (Order) was issued to give effect to the Second Decision.
[2] Esler’s notice of appeal did not identify with precision which decision was the subject of its appeal. The decision was described in the notice of appeal as “Unfair dismissal - on grounds that employee was a systematic casual”, and the two grounds of appeal concerned the finding in the First Decision that Ms Worthington had been employed from 2006 as a regular and systematic casual in the business prior to Esler taking control of the business on 20 November 2015. However the matters advanced in support of the application for permission to appeal in the notice of appeal appears to challenge the calculation of the compensation amount, and make reference to findings made in the Second Decision. Accordingly we will proceed on the basis that the appeal seeks to challenge aspects of both the First Decision and the Second Decision.
[3] In the First Decision, the Commissioner made the following findings concerning Ms Worthington being a regular and systematic casual employees since 2006:
“[34] Mr Esler concedes Mrs Worthington was engaged to work regular days and hours by the previous employer since 2006. It was Mr Esler’s evidence he had agreed to continue Mrs Worthington’s employment with the Esler Family Trust on those same days and hours without giving consideration to whether or not Mrs Worthington was engaged on a regular and systematic basis. I am satisfied Mrs Worthington’s employment as a casual was on a regular and systematic basis. Mr Esler continued to engage Mrs Worthington in the same role, days and hours for the period when he commenced his management and operation of the Commodore Motor Inn to the date of her dismissal. Further, Mr Esler advised Mrs Worthington he saw no reason to be making changes to staffing arrangements. I am therefore satisfied Mrs Worthington had a reasonable expectation of continuing employment with the Esler Family Trust.”
[4] In relation to whether Ms Worthington was a transferring employee such that her service with the previous owner of the Commodore Motor Inn counted as service with Esler, the Commissioner found that Ms Worthington satisfied the criteria for a transferring employee in s.311(1) of the FW Act. 4 The Commissioner further found that the exclusion from continuity of service in s.384(2)(b) did not apply as follows:
“[36] Mr Esler’s oral evidence was he did not inform Mrs Worthington either in writing or orally that her previous service with the Commodore Motor Inn would not be recognised because he believed she was a casual employee. Mr Esler’s oral submission was he had agreed to take on the previous employees once the business had transferred to the Esler Family Trust. Mr Esler submits the employees continued on in their employment under the new ownership.”
[5] The Commissioner then concluded that Ms Worthington was protected from unfair dismissal:
“[40] Given my findings above, I am satisfied Mrs Worthington is a transferring employee in relation to the transfer of business to the Esler Family Trust. I am satisfied that Mrs Worthington’s prior service with the Commodore Motor Inn can be counted towards her employment with the Esler Family Trust. The total period of employment therefore exceeds the requisite minimum employment period and accordingly, Mrs Worthington is protected from unfair dismissal.”
[6] It is apparent that the Commissioner’s findings were made on the basis of evidence given by Ms Worthington, and by Mr Leigh Esler, the principal of Esler.
[7] In the Second Decision, the Commissioner calculated the compensation amount on the basis that Ms Worthington lost four weeks’ pay as a result of her unfair dismissal, that being the period before she was able to obtain alternative employment. The Commissioner calculated a week’s pay on the basis of a submission from Ms Worthington that she had worked 24 hours per week, with six of those hours attracting a penalty rate of 50% under the Hospitality Industry (General) Award 2010. 5 The Commissioner noted that Esler had failed to file any written submissions concerning compensation pursuant to directions which she had made6, and also declined to make any oral submission at the telephone hearing concerning remedy beyond a contention that any compensation amount might affect its viability.7
[8] Esler’s grounds of appeal contended that it had employed Ms Worthington on a casual basis for ten shifts from 20 November 2015 to 29 December 2015, and that there was no evidence of Ms Worthington being employed in the business for any amount of time prior to 20 November 2015 or that she was employed on a systematic casual basis. In support of its application for permission to appeal, the notice of appeal contended in addition that Ms Worthington had only worked 24 hours per week for two weeks of her employment with Esler, that six hours of this had attracted a 50% loading for only one week of this, there was no evidence of the hours worked, and the “the decision was not based on evidence provided and was unfair”.
[9] As an appellant, Esler was required under rules 56(3) and 52 of the Fair Work Commission Rules 2013 to file an appeal book within seven days of lodging its notice of appeal. It did not do so either within the prescribed limit or at all, nor did it seek a waiver of this requirement.
[10] On 23 November 2016 the Commission issued a notice of listing for the hearing of the matter in relation to the question of permission to appeal, which informed the parties that the matter would be heard before the Full Bench on 14 December 2016 in Melbourne, with a video-link to Sydney. Directions were issued together with this notice of listing which, among other things, required Esler to file and serve an outline of submissions not exceeding three pages in length addressing the requirement for permission to appeal by 5.00pm on 6 December 2016.
[11] Esler did not file an outline of submissions, either within the time limit prescribed in the directions or at all. It did not seek any waiver of the direction or an extension of time, nor did it provide any explanation for its non-compliance. Nor did it attend the hearing on 14 December 2016. Attempts to contact Esler by telephone by the Commission’s staff on 14 December 2016 to inquire as to its non-attendance were unsuccessful.
[12] Upon Esler’s non-attendance at the hearing, the Full Bench directed that Esler provide, by 5.00pm on 15 December 2016, an explanation for its non-attendance. This direction was communicated to Esler by email, and warned Esler that in the absence of any such explanation, the Full Bench would decide the application for permission to appeal on the basis of the materials previously provided to it, which was limited to the notice of appeal. No explanation was forthcoming from Esler in response to this direction.
[13] Accordingly Esler’s application for permission to appeal will be determined on the basis of the matters stated in its notice of appeal.
Consideration
[14] An appeal under s.604 of the FW 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. 8 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[15] This appeal is one to which s.400 of the FW Act applies. 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.
[16] 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”. 9 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment10. 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.” 11
[17] 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. 12 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.13
[18] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 14
[19] In this matter, we do not consider that Esler’s notice of appeal discloses any appealable error in the First Decision or the Second Decision. It is patently incorrect to say that the Commissioner’s findings concerning Ms Worthington service at the Commodore Motor Inn prior to 20 November 2015 were made on the basis of no evidence. The transcript of the hearing before the Commissioner discloses that both Ms Worthington and Mr Esler gave evidence before her concerning the matters the subject of these findings. For example, Ms Worthington gave evidence that “I believe that I was regular and systematic in my employment as I worked the same three shifts for almost ten years with no changes”. 15 Mr Esler, as noted in the First Decision, also made critical admissions concerning the facts of Ms Worthington’s prior employment. In relation to the Second Decision, Ms Worthington made submissions about her hours of employment which were not contradicted by Esler either in writing or orally. The Commissioner was entitled to rely upon these uncontested submissions.16
[20] The notice of appeal does not otherwise raise any issue of general application or importance.
[21] For these reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s.400(1), permission to appeal must be refused.
VICE PRESIDENT
Appearances:
No appearance for the appellant.
C Worthington on her own behalf.
Hearing details:
2016.
Melbourne:
14 December.
1 [2016] FWC 5740
2 [2016] FWC 7773
3 PR587255
4 First Decision at [37]-[39]
5 Second Decision at [23]-[26]
6 Second Decision at [3]-[4]
7 Second Decision at [13]
8 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
9 (2011) 192 FCR 78 at [43]
10 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]
11 [2010] FWAFB 5343, 197 IR 266 at [27]
12 Wan v AIRC (2001) 116 FCR 481 at [30]
13 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]
14 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
15 Transcript 25 May 2016 PN 39
16 R v The Commonwealth Conciliation and Arbitration Commission and Others; Ex Parte The Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 243 per Barwick CJ and 252 per Menzies J
Printed by authority of the Commonwealth Government Printer
<Price code A, PR588243>
1
10
0