Father Rami Subhiyah v Utopia Music Pty Ltd
[2021] FWCFB 4199
•16 JULY 2021
| [2021] FWCFB 4199 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Father Rami Subhiyah
v
Utopia Music Pty Ltd
(C2021/3097)
VICE PRESIDENT CATANZARITI | SYDNEY, 16 JULY 2021 |
Appeal against ex-tempore decision of Commissioner McKenna at Sydney on 11 May 2021 in matter number U2020/13827 - permission to appeal refused.
[1] Father Rami Subhiyah (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a decision (the Decision) of Commissioner Mckenna (the Commissioner) issued ex-tempore on 11 May 2021. The Decision dealt with an application for an unfair dismissal remedy made by the Appellant under s 394 of the Act.
[2] The Appellant alleged that he had been unfairly dismissed by Utopia Music Pty Ltd (the Respondent). The Respondent raised a jurisdictional objection to the Appellant’s application, namely that the Appellant had resigned and thus, there was not a dismissal. In her Decision, the Commissioner found that the Appellant did indeed resign from his employment. Subsequently, an order 1 dismissing the Appellant’s application for an unfair dismissal remedy was issued.
[3] The matter on appeal was listed for permission to appeal only. On 17 June 2021, directions were issued from the chambers of Vice President Catanzariti directing the Appellant to make written submissions regarding the grant of permission to appeal. The Appellant did not comply with those directions. He did not file an appeal book or written submissions. Notwithstanding this, the Appellant was invited to give oral submissions and he took the opportunity to do so. The Appellant appeared on his own behalf. Mr Jacob Nicastri, owner of the Respondent company, appeared for the Respondent.
[4] For the reasons that follow, permission to appeal is refused.
The Decision under appeal
[5] The Appellant was employed as a music teacher or music tutor from around July 2015 until the termination of his employment on or about 10 October 2020. As aforementioned, the Respondent raised a jurisdictional objection to the Appellant’s application for an unfair dismissal remedy on the basis that the Appellant resigned from his employment of his own volition. The Appellant submitted that he was forced to resign due to a number of issues related to payment and dissatisfaction with aspects of his employment. In essence, the Appellant contended that he had been constructively dismissed.
[6] There were many contested facts between the parties and both sides raised issues that were beyond the remit of the Commissioner. In any event, the Commissioner’s determination turned on documentary evidence rather than matters of contested fact. The Commissioner found that a text sent from the Appellant to Mr Nicastri at 10.21pm on 10 October squarely constituted a resignation. We will not reproduce the text here but in effect, it communicates that the Appellant felt he was no longer mentally fit to teach and requested that Mr Nicastri no longer contact him.
[7] Further to the text message of 10 October, the Appellant sent a lengthy email to the Respondent which ventilated many of the Appellant’s grievances with the Respondent. The letter demanded compensation from the Respondent and indicated that if that compensation was not forthcoming the Appellant would commence legal proceedings. The Commissioner paid particular attention to the email because the Appellant contended his text message of 10 October was sent in distress and in the heat of the moment. The Commissioner found that the further email, following so soon after the text message provides insight into matters that are something other than distress. Reading the material hand-in-hand, the Commissioner was satisfied that the Appellant resigned and resigned on his own volition.
[8] Having found that the Appellant resigned from his employment, the Commissioner found that there was no dismissal within the meaning of the Act. Accordingly, there was no course to further consider the matter in relation to the question of whether the alleged dismissal was harsh, unjust or unreasonable. Subsequently, the Appellant’s application for an unfair dismissal remedy was dismissed.
Principles of Appeal
[9] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[10] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 2
Consideration
[11] As aforementioned, the Appellant did not provide any written submissions regarding the issue of permission to appeal. The Appellant’s oral submissions also did not go to the issue of permission to appeal. At the hearing of the appeal, the Appellant detailed his frustrations with how the Respondent business was run. The Appellant also ventilated many personal matters between himself and Mr Nicastri which are beyond our remit and we will not deal with them in this decision.
[12] The Appellant has failed to identify any public interest grounds upon which permission to appeal should be granted. We are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required 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 Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[13] For the above reasons, we are not satisfied, for the purpose of s 400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[14] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Father R Subhiyah on his own behalf.
Mr J Nicastri for the Respondent.
Hearing details:
2021.
Telephone hearing.
6 July.
Printed by authority of the Commonwealth Government Printer
<PR731764>
1 PR729714
2 (2010) 197 IR 266 at [27].
0
1
0