Green Castle Renmark Pty Ltd T/A Renmark Country Club v Alexandra Mercuri
[2019] FWCFB 3444
•17 JUNE 2019
| [2019] FWCFB 3444 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Green Castle Renmark Pty Ltd T/A Renmark Country Club
v
Alexandra Mercuri
(C2019/2074) (C2019/2384)
VICE PRESIDENT CATANZARITI | SYDNEY, 17 JUNE 2019 |
Appeal against decision [2019] FWC 1834 of Commissioner Platt at Adelaide on 25 March 2019 in matter number U2018/12151.
[1] On 25 March 2019, Commissioner Platt issued a Decision 1 which found that Alexandra Mercuri (Mercuri) was unfairly dismissed from her employment with Green Castle Renmark Pty Ltd T/A Renmark Country Club (Green Castle). The Commissioner issued an Order2 that Green Castle pay to Mercuri compensation in the sum of $4,020.00 gross, with the deduction of tax as required.
[2] On 29 March 2019, Green Castle lodged an appeal against the Decision and Order of Commissioner Platt (assigned matter C2019/2074). In its Notice of Appeal, Green Castle sought a stay of the whole Decision and Order. On 5 April 2019, Senior Deputy President Hamberger issued an Order 3, by consent of the parties, staying the whole of the Decision and Order of Commissioner Platt pending the hearing and determination of this appeal.
[3] On 11 April 2019, Mercuri also lodged an appeal against the Decision and Order of Commissioner Platt (assigned matter C2019/2384). Having received Mercuri’s application, the Fair Work Commission (Commission) issued directions in both matters (amended directions in matter C2019/2074) on 15 April 2019 and the matter was listed for hearing before the Full Bench.
[4] At the Full Bench hearing on 15 May 2019, the parties were heard on permission to appeal and appeal. Mr A Wright sought permission to appear on behalf of Mercuri. Green Castle did not object to Mercuri being represented at the hearing and we granted permission to appear. 4 Green Castle appeared unrepresented.
[5] To assist in understanding the life of the matter before Commissioner Platt, we provide the following summary:
• 2 January 2019 - the matter was allocated to Commissioner Platt.
• 10 January 2019 – the matter was listed for ‘Mentions and/or Directions’ via telephone before Commissioner Platt.
• 30 January 2019 – the matter was listed for ‘Mentions and/or Directions’ via telephone before Commissioner Platt (Directions Hearing) 5. At the conclusion of the Directions Hearing, the parties agreed to participate in a Member Assisted Conciliation (MAC).
• 30 January 2019 – The parties participated in a MAC. The matter was allocated to Commissioner Hampton, who convened the MAC. The matter was not settled during the MAC and it was allocated back to Commissioner Platt.
• 12 February 2019 – the matter was heard, by way of a ‘Determinative Conference’, in person before Commissioner Platt (Determinative Conference).
• 25 March 2019 – Commissioner Platt issued the Decision and Order.
Decision
[6] After providing a brief background to the life of the matter in the Commission, the Commissioner identified the key issues to be decided as follows 6:
• Was Mercuri’s casual employment regular and systematic with a reasonable expectation of continuing on a regular and systematic basis such that she was protected from dismissal pursuant to s 382 of the Act?
• Was there a dismissal within the meaning of s 386 of the Act?
• If Mercuri was protected from dismissal and there was a dismissal, was the dismissal unfair considering the criteria in s 387 of the Act?
[7] The Commissioner found that Mercuri was protected from dismissal pursuant to s 382 of the Act. Mercuri was found to be a transferring employee, following a change of ownership on 3 September 2018, with her service exceeding 12 months, and her hours regular and systematic. 7
[8] Further, the Commissioner found that Mercuri was dismissed within the meaning of s 386 of the Act on 21 November 2018. On this date, Mercuri received a response from Green Castle, whom she had emailed seeking confirmation as to the status of her employment. The last sentence of this email read “Also, as a casual employee, we are not required to provide you with notice regarding the limitation/termination of your casual employment”. 8 Mercuri understood from this email that she had been dismissed and, based on the evidence before the Commissioner, she was not rostered to work after the email was sent. The Commissioner rejected Green Castle’s characterisation of the last sentence of the email as “a statement of fact…not intended as a dismissal letter”.9
[9] In determining whether the dismissal was unfair, the Commissioner gave separate consideration to each matter required to be taken into account under s 387 of the Act. 10 The Commissioner found that Mercuri’s dismissal was harsh, unjust and unreasonable, and hence unfair.11
[10] The Commissioner dealt with remedy in paragraphs [56] – [80] of the Decision. The Commissioner, in accepting that the working relationship had broken down and in considering the health impacts on Mercuri, concluded that reinstatement was not appropriate. 12 The Commissioner then gave separate consideration to each matter required to be taken into account under s 392 of the Act and concluded that the award of $4,020.00 gross compensation was appropriate.13
Submissions
Green Castle Renmark’s Appeal
[11] Given Green Castle was unrepresented, the written submissions filed the day prior to the hearing did not specify individual grounds of appeal. We understand Green Castle to primarily submit a failure of the Commissioner to afford procedural fairness to Green Castle during the life of the matter.
[12] We summarise Green Castle’s written submissions as follows.
• The Commissioner acted in an aggressive and bullying matter towards Green Castle, including individuals who provided witness statements and gave sworn evidence.
• The Commissioner demonstrated bias towards Mercuri, evident from the nature of his treatment of Green Castle throughout the life of the matter before him.
• The Commissioner, prior to the Determinative Conference, had already formed a view as to the outcome in the matter. This is apparent from the Directions Hearing and the views expressed by the Commissioner throughout it.
[13] Green Castle’s written submissions also made reference to 42 paragraph numbers in the transcript of the Determinative Conference on 12 February 2019. With respect to each paragraph number, Green Castle submits concerns, including in relation to accuracy and the conduct of the Commissioner.
Mercuri’s Appeal
[14] Mercuri’s appeal is concerned with remedy and that, following a finding by the Commissioner that Mercuri was unfairly dismissed from her employment with Green Castle, Mercuri should not be prejudiced in any way with respect to remedy.
[15] Mercuri’s written submissions make detailed references to the Decision and the Determinative Conference transcript in support of the alleged significant errors of fact. By way of summary, such errors of fact include:
• As there was found to be no valid reason for Mercuri’s dismissal, the Commissioner did not need to consider whether the reason to terminate was ‘harsh, unjust or unreasonable’.
• The Commissioner could only rely on Mercuri suffering anxiety attacks as the basis for the employment contract coming to an end and erred with his reasoning here. The anxiety attacks were not the fault of Mercuri and it was not put to Mercuri that her anxiety attacks would be taken into account for the purposes of remedy.
• The working relationships difficulties were found not to be the fault of Mercuri and accordingly she should not be prejudiced in remedy. It was not put to Mercuri that such difficulties would be taken into account for the purposes of remedy.
• The Commissioner erred in concluding that Mercuri, dismissed without valid reason, would only have worked another four weeks. There was no “cogent evidence” 14 before the Commissioner in support of this conclusion.
• The Commissioner accepted that Green Castle had a proper basis to have discussions with Mercuri regarding her work performance, however the parties were not invited to make submissions in relation to the result of any discussions that might have been warranted and the Commissioner does not appear to have considered that Mercuri may have satisfactorily addressed the concerns of Green Castle.
• In awarding compensation, the Commissioner did not “believe it is (was) appropriate to make any deductions for misconduct” 15, however there was no misconduct, no performance management and no opportunity for Mercuri to improve her performance, which in any event was not found to be an issue by the Commissioner.
[16] Mercuri also submitted error with respect to quantum, in that the Decision and Order do not make clear how the amount of compensation awarded reflects 6 weeks’ work and included a calculation of compensation based on something other than the applicable award.
[17] In oral submissions, Mercuri said that reinstatement was not adequately considered by the Commissioner and that the award of compensation ordered by the Commissioner was manifestly inadequate, given the reasons surrounding termination and the period of time that had passed between dismissal and the hearing of the matter 16.
Additional submissions
[18] Following the appeal hearing, we requested that the Directions Hearing on 30 January 2019 be transcribed. Upon review of this transcript (the Transcript), we formed the view that it was appropriate to provide the parties with a copy and invite them to file further written submissions in relation to the Transcript.
[19] Green Castle submitted that the Transcript reveals the Commissioner’s pre-determination of the matter. It was therefore not appropriate for the Commissioner to hear further proceedings in the matter. Accordingly, the Decision should be quashed.
[20] Mercuri addressed the issues that were required to be determined at the trial and submitted that:
• there was no pre-determination of issues by the Commissioner at the Directions Hearing; or in the alternative
• any pre-determination of issues had no effect on the Commissioner’s decision in relation to whether or not the dismissal took effect or was without a valid reason; or in the further alternative
• any pre-determination of issues was limited to remedy which is the subject of Mercuri’s appeal.
[21] Further, on 3 June 2019, the Commission received a signed statement from Mercuri noting that, to the date of the statement, she has been applying for work every week since her dismissal and is still without employment.
Permission to Appeal
[22] An appeal under s.604 of the 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. 17 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[23] Section 400 of the Act applies to this appeal. It 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.”
[24] 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 of the Act as “a stringent one”. 18 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.19 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.” 20
[25] 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. 21
[26] In relation to permission to appeal, Green Castle submits that it is in the public interest to grant permission to appeal as the Fair Work Commission should “be just that” and, as at the heart of the appeal, the parties’ positions in proceedings should be properly and fairly considered by Members.
[27] In relation to Mercuri’s appeal, Mercuri’s submits that it is in the public interest to grant permission to appeal as the Commissioner’s award of compensation, being a low amount, is at odds with the finding that there was no valid reason for termination. Mercuri submits that the guidelines provided for in relevant caselaw 22 may have been correctly applied, however the compensation awarded was inadequate.
Consideration
[28] For the reasons which follow, we have decided to grant permission to appeal to and uphold the appeal of Green Castle. Green Castle’s appeal challenges the fairness of the process afforded to it by the Commissioner and we consider it in the public interest to allow appellate intervention for review of the process. Further, we are of the view that Green Castle’s appeal raises issues of importance and general application with respect to the Commission’s obligation to provide fair hearings, where all parties have the opportunity to put their case and have that case determined impartially and according to law.
[29] Accordingly, we have decided that the appeal by Mercuri, relating to the remedy provided for in the Decision and Order, need not be considered here. Remittance of matter U2018/12151 (the matter) to a Member of the Commission affords Mercuri the opportunity to advance submissions and agitate concerns regarding remedy. For these reasons, we have not determined the question of whether permission to appeal should be granted to Mercuri nor considered the merits of Mercuri’s appeal.
[30] The Full Bench in Viavattene v Health Care Australia (Viavattene)articulated the principle of apprehension of bias in the context of the Commission:
“[21] The impartiality of the Commission is central to a fair hearing. Bias, whether actual or apprehended, connotes the absence of impartiality. Applied to Commission members the governing principle is that a member is disqualified if a fair minded observer might reasonably apprehend that the member might not bring an impartial mind to the resolution of the question that the member is required to decide. The principle gives effect to the requirement that justice should both be done and be seen to be done.” 23
[31] Upon review of the Transcript, we are of the view that the Commissioner expressed strong views regarding the matter, including with respect to the merits and likely remedy. The Transcript reveals detailed discussion of the evidence before the Commissioner at the time of the Directions Hearing, and the Commissioner also expressed views towards such evidence. Our consideration below is based on a fair reading of the entire Transcript, Decision and Order of the Commissioner, and the materials filed by the parties. We note the persons present at the Directions Hearing for Green Castle were Mr Last and Ms Qu (management), and for Mercuri were Ms Mercuri and Ms Schumacher (legal representative).
[32] The Directions Hearing is opened, by the Commissioner, as follows:
“Thank you. So the reason that I called this conference today was to have a discussion about the forthcoming trial and the material that had been received. I can see that I have now received a statement from you, Mr Last, and also a statement from you, Ms Qu, and another. I just want to have a discussion about this case before we embark on a time consuming and costly process.” 24 (Emphasis added)
[33] With respect to the statement of Mr Last, the Director of Green Castle, the Commissioner divulged the following view:
“So Mr Last, I accept that you’re probably unfamiliar with the process but let me tell you, the statement that you have provided appears to contain a lot of hearsay. Hearsay is information that you do not know of your own knowledge. So for example I recall Cathy Qu spoke to Alex following the complaint. Unless you were present at that meeting, that statement is hearsay, that is it’s not a fact within your knowledge. Hearsay evidence, as you can expect, can be received by the Commission but will have very little weight placed on it unless there is some corroboration. Do you understand what I’m saying, Mr Last?” 25 (Emphasis added)
The Commissioner then said to Mr Last that he should review the statement and identify those parts that are hearsay and those that come from his own knowledge. 26
[34] Further to the discussion regarding Mr Last’s statement, the Commissioner said:
“I don’t have a problem with that but it’s also - the fact that you chose not to issue a written warning could also be said to be a reflection about how serious the matter was. Okay. I haven’t reached a concluded view. I’m just making some observations. But it seems to me that the essence of the employer’s case is that there was a complaint received by Mr Jones that the company - that Ms Qu had spoken to the applicant on several occasions, which I think means twice, that you say that the applicant showed indifference and insolence towards Ms Qu’s daughter and - just bear with me - and that the applicant was somewhat cold towards Ms Qu. Is that as good as it gets?” (Emphasis added)
[35] The Commissioner continued and posed questions with respect to Mercuri’s period of employment, regular hours and rate of pay to the parties and both parties provide relevant answers. 27 With clarification of such matters provided, the Commissioner raised the email sent to Mercuri from Green Castle on 21 November 2018, and having read the last sentence to the parties, asked Mr Last what he says to the email being the end of the employment relationship.28 Mr Last expressed that the email should not be interpreted as being the end of the employment relationship29 and the Commissioner identified the “challenges” for Green Castle as follows:
“If there’s been a dismissal then the company will need to show that there’s a valid reason for the dismissal, and we’ve talked about the information that you’ve given me, and the company will also need to show that that dismissal was not harsh, unjust or unreasonable, which means essentially does the punishment fit the crime. Okay. So they’re the challenges that you face, Mr Last. Do you understand that?” 30
[36] The Commissioner then posed specific questions to Ms Schumacher:
“PN66
THE COMMISSIONER: Now I have some questions for you, Ms Schumacher.
PN67
MS SCHUMACHER: Yes.
PN68
THE COMMISSIONER: I understand that a number of these facts are in dispute. One of the things that is exercising my mind is but for this dismissal, if it is unfair, how long would the employment relationship have continued? And it appears to me reading the material that it was somewhat fraught and I don’t know how long it would have continued if things go your way. I am uncertain as to whether or not any award of compensation would exceed your fees. I presume you’re not doing this pro bono.
PN69
MS SCHUMACHER: We’re not.
PN70
THE COMMISSIONER: No. So one of the concerns that I have from your perspective is it’s possible that you could be successful at a hearing and that the award of compensation might be less than your fees. And if it is a dispute as to the facts then, as you would be aware, the likelihood of you being successful in a costs application would be low.” (Emphasis added)
[37] The Commissioner then spoke separately with each party for the purpose of ascertaining their position with respect to participating in the MAC. The Commissioner had noted to both parties that “the process could be an expensive process for the applicant (Mercuri) and a time consuming process for both of you and I’m not sure if anyone would be happy with the result” 31.
[38] We have reviewed each of the Commissioner’s private conversations with the parties, and have formed the view that they should remain confidential. Accordingly, we have decided not to reproduce transcript of such conversations in this appeal, but we have taken them into account during our consideration and in reaching our conclusion.
[39] The Commissioner’s private conversation with Green Castle is contained between PN83 and PN131 of the transcript. The Commissioner’s private conversation with Mercuri is contained between PN132 and PN156 of the Transcript.
[40] With both parties present in the Directions Hearing again, the Commissioner noted that he had “26 minutes left” that could be used to try and conciliate the matter, alternatively the matter could be adjourned to a different time in which it would likely be given to a different Member. 32
[41] We are of the view that the Directions Hearing is not saved by the fact that the MAC was convened by another Member, as the matter was allocated back to the Commissioner after the MAC and it was he who heard the substantive hearing. It is evident from the Transcript that the Commissioner discussed the facts and evidence of the matter in detail with the parties and expressed strong views regarding the outcome of the matter at the Directions Hearing. Having done so, it was inappropriate for the Commissioner to hear and determine the matter after it did not resolve at the MAC.
[42] Oram v Derby Gem Pty Ltd provides that “far from being inappropriate, the expression of a provisional view on a particular issue or warning parties of the consequences of a provisional view will typically be entirely consistent with the requirements of procedural fairness.” 33 The Commissioner’s provisional expression of views during the Directions Hearing goes beyond the appropriate bounds that are consistent with procedural fairness. The Commissioner’s views, in our view, were not expressed for the purposes of engaging with evidence and allowing parties the opportunity to respond to a “certain tendency of mind”34, but rather to firmly encourage the matter to settle without a hearing.
[43] Further, we are of the view that the Commissioner’s recurring statements in the Transcript that categorise his comments as observations and note that the matter has not been determined 35 are insufficient to preserve the procedural fairness required to be afforded to parties. In accordance with Viavattene, justice should both be done and be seen to be done.
[44] We have reviewed the transcript of the Directions Hearing as a whole and are satisfied that the views expressed by the Commissioner throughout, and his engagement with the evidence in the manner considered above, are of sufficient strength to warrant the quashing of the Decision and Order. The Commissioner’s expression of his preliminary views as to the merits and likely remedy meant that he should not have arbitrated the matter.
[45] In forming the view that the Decision and Order should not stand following review of the Directions Hearing transcript, we have decided not to consider Green Castle’s remaining submissions that make detailed references to the transcript of the Determinative Conference.
Conclusion
We order as follows:
• Permission to appeal is granted to Green Castle.
• Green Castle’s appeal is upheld.
• The Decision ([2019] FWC 1834) and Order (PR706040) of Commissioner Platt are quashed.
• Matter U2018/12151 is remitted to Deputy President Anderson.
VICE PRESIDENT
Appearances:
Green Castle Renmark Pty Ltd appeared unrepresented.
Mr A Wright on behalf of Mercuri.
Hearing details:
2019.
14 May.
Sydney.
Final written submissions:
C2019/2074
Green Castle’s submissions dated 13 May 2019.
C2019/2384
Mercuri’s submissions dated 26 April 2019.
Printed by authority of the Commonwealth Government Printer
<PR708452>
1 [2019] FWC 1834.
2 PR706040.
3 PR706639.
4 Permission to appear granted pursuant to s 596(2)(a) of the Fair Work Act 2009 (Cth).
5 Throughout the transcript of proceedings on 30 January 2019, the Commissioner refers to this listing as a ‘conference’.
6 Decision at [10].
7 Decision at [19] - [20].
8 Decision at [25].
9 Decision at [28].
10 Decision at [42] – [52].
11 Decision at [55].
12 Decision at [62].
13 Decision at [78] – [79].
14 McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873.
15 Decision at [74].
16 Transcript of the proceedings on 14 May 2019 PN10; PN13.
17 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
18 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
19 O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46].
20 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].
21 Wan v AIRC (2001) 116 FCR 481 at [30].
22 Arthur Smith and Brett Kimball v Moore Paragron Australian Ltd [2004] AIRC 57.
23 Viavattene v Health Care Australia[2013] FWAFB 2532 at [21].
24 Transcript of the Proceedings on 30 January 2019 PN5.
25 Transcript of the Proceedings on 30 January 2019 PN12.
26 Transcript of the Proceedings on 30 January 2019 PN14.
27 Transcript of the Proceedings on 30 January 2019 PN28-PN43.
28 Transcript of the Proceedings on 30 January 2019 PN47; PN48.
29 Transcript of the Proceedings on 30 January 2019 PN49; PN51.
30 Transcript of the Proceedings on 30 January 2019 PN54.
31 Transcript of the Proceedings on 30 January 2019 PN71.
32 Transcript of the Proceedings on 30 January 2019 PN155.
33 Oram v Derby Gem Pty Ltd (2004) 134 IR 379 at [110].
34 Oram v Derby Gem Pty Ltd (2004) 134 IR 379 citing Johnson v Johnson (2000) 201 CLR 488.
35 Transcript of the Proceedings on 30 January 2019 PN18; PN64; PN73; PN85; PN115; PN119.
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