Hair & Co Pty Ltd v Eden McGinty
[2023] FWCFB 143
•22 AUGUST 2023
| [2023] FWCFB 143 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Hair & Co Pty Ltd
v
Eden McGinty
(C2023/3478)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 22 AUGUST 2023 |
Appeal against decision [2023] FWC 1257 on 29 May 2023, decision [2023] FWC 1387 on 15 June 2023 and order PR763041 on 15 June 2023 of Deputy President Boyce at Sydney in matter number U2023/1149 – permission to appeal refused.
Hair & Co Pty Ltd (Appellant), has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against orders[1] and two decisions[2] of Deputy President Boyce, for which permission to appeal is required.
In two decisions, Deputy President Boyce decided that the Appellant had unfairly dismissed the respondent (liability decision)[3] and, after inviting further submissions from the parties on the question of relief, decided that compensation in the amount of $14,678.04 plus 10.5% superannuation was appropriate (compensation decision).[4]
The matter was listed for permission to appeal only. At the hearing, leave was granted for the appeal to address the liability decision and the compensation decision.
For the reasons that follow, permission to appeal is refused.
Procedural history
The matter concerned an application, made by Ms Eden McGinty (the respondent to the application for appeal) for an unfair dismissal remedy against the Appellant pursuant to s 394 of the Act on 13 February 2023.
On 8 March 2023, the Appellant filed its Form F3 response to the application. The Appellant raised a jurisdictional objection to the application on the basis that it had complied with the Small Business Fair Dismissal Code (SBFDC). The Appellant annexed a copy of the SBFDC checklist to its Form F3.
On 9 March 2023, the Appellant emailed the Commission advising that it would not participate in conciliation “due to staffing issues” and that the decision to dismiss the respondent was “final.”
On 30 March 2023, the Deputy President issued directions for the resolution of the jurisdictional objection and the substantive unfair dismissal claim. The matter was listed for hearing on 17 May 2023.
The 30 March 2023 directions required, amongst other things, the Appellant to file an outline of submissions, witness statements, and any documents addressing the issues for determination by 18 April 2023. The Appellant did not comply with this direction. The following day, 19 April 2023, the Deputy President’s Chambers wrote to the Appellant identifying its failure to comply with the 30 March 2023 directions and ordering as follows:
[1] The [Appellant] is to file with the Commission, and serve on the [respondent], written submissions regarding their non-compliance with directions. The [Appellant] is to comply with this Direction by no later than 4:00pm AEST Today, 19 April 2023.
[2] If the [Appellant] does not comply with Order [1] above, or if the Deputy President is not satisfied by the [Appellant’s] submissions, this may result in the [Appellant] being unable to rely on any submissions or evidence at the Hearing on Wednesday, 17 May 2023.
(emphasis omitted)
The Appellant did not respond to this email.
The respondent filed in accordance with the directions on 2 May 2023. The directions invited the Appellant to file any submissions in reply, and any documents in support of those reply submissions by 10 May 2023. The Appellant did not file any materials in reply.
The hearing proceeded on 17 May 2023. Ms McGinty gave evidence in support of her application and was cross-examined by Mr El Hallak, the Appellant’s director. Mr El Hallak gave evidence for the Appellant and was cross-examined.
On 29 May 2023, the Deputy President handed down the liability decision. The Deputy President dismissed the jurisdictional objection, found that the dismissal was unfair, found that reinstatement was not appropriate and relegated the issue of compensation to a further hearing as evidence had not been tendered in relation to the issue.
The Deputy President issued further directions on 29 May 2023 concerning the amount of compensation to be awarded to the respondent by reference to ss 392(1) to 392(6) of the Act. Both parties were required to file any witness statements, other documents and written submissions by 9 June 2023. Upon both parties complying with the directions, the matter was to be determined on the papers.
The respondent complied with the directions. The Appellant did not.
On 13 June 2023, the Deputy President’s Chambers wrote to the Appellant identifying its failure to comply with the 29 May 2023 directions. The email granted the respondent an extension of time to 14 June 2023 to comply with the directions and advised that a failure to do so would result in a decision being made “solely based on the filed material.” The Appellant did not comply with this revised deadline.
The compensation decision was handed down on 15 June 2023 and an order for compensation was made in favour of the respondent.
The Appellant filed its Notice of Appeal on 19 June 2023. The Appellant applied for a stay of the compensation order.
The application for a stay of the compensation order was heard and determined on 21 July 2023. The decision found there to be no arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal, such that the application for a stay of the compensation order could not succeed.
The decisions
The significant aspects of the decisions are set out below.
In the liability decision, the Deputy President dismissed the SBFDC objection on the basis that there was no evidence, other than a completed SBFDC checklist, establishing the Appellant’s purported compliance with the SBFDC.[5]
In considering the factors in s 387 of the Act, the Deputy President found there to be no valid reason for the dismissal. In so finding, the Deputy President noted that the difficulty with Appellant’s allegations as to the respondent’s conduct, contained in its Form F3, “is that they are not supported, in any shape or form, by evidence.”[6] On the basis of there being no valid reason for the dismissal, or because there was no relevant evidence or submissions, the Deputy President considered the factors in s 387(b)-(g) to be neutral in his consideration. Pursuant to 387(h),[7] the Deputy President considered that there had been a total absence of procedural fairness in affecting the dismissal, the respondent did not engage in any misconduct or poor performance and that the respondent’s economic considerations, as a minor undertaking an apprenticeship/traineeship, were relevant. The Deputy President then proceeded to determine that the dismissal was harsh, unjust and unreasonable, having considered the various factors under s 387 of the Act.[8] Further, in considering remedy in the liability decision, the Deputy President found that reinstatement was not appropriate.[9]
In the compensation decision, the Deputy President noted that the Appellant had failed to comply with the 29 May 2023 directions and the extended deadline for compliance, such that there was no evidence or submissions filed by the Appellant on the issue of compensation. In accordance with s 390(3)(b), the Deputy President found compensation to be appropriate, taking into account the unfair dismissal and the reasons for the dismissal.
The Deputy President made findings on each of the relevant matters in s 392(2) and found against payment by instalments.[10] The Deputy President the applied the formula for calculating compensation set out in Sprigg v Paul’s Licensed Festival Supermarket[11] and concluded the compensation amount to be $14,678.[12] The Deputy President considered the amount of compensation to be appropriate in all the circumstances of the case,[13] and that the compensation cap was not engaged.[14] The Deputy President ordered as follows:[15]
A. The Respondent is pay to the Applicant the gross sum of $14,678.04 (subject to
applicable taxation as required by law) by way of electronic funds transfer into the
Applicant’s nominated bank account.B. The Respondent is to pay into the Applicant’s nominated superannuation fund the
sum of $1,541.19 (i.e., 10.5 percent of $14,678.04).C. Orders A. and B. above must be complied with by no later than 4.00pm Thursday,
29 June 2023.
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission.
By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the Act. The test under s 400 is “a stringent one.”[16]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[17] The public interest is not satisfied simply by the identification of error,[18] or a preference for a different result.[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]
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] 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 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.[22]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[23]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[24]
“"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision- maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
(citations omitted)
For there to be legal error, it would need to be shown that the Deputy President acted on a wrong principle, took into account irrelevant matters, mistook facts,[25] or is manifestly wrong.[26] It is not enough that a different member or an appellant body might have reached a different conclusion.
Grounds of appeal
The Notice of Appeal lists four grounds of appeal. Broadly, all the complaints assert either that the Deputy President “did not consider” evidence or had mistaken material facts.
Grounds 1 to 4 of the Notice of Appeal are as follows (reproduced as written):
“1. The decision maker has confirmed he has not taken into account evidence that was submitted during the initial response to the application.
2. The decision maker has mistaken the facts of this case and has relied upon information only given t them by the applicant.
3. failing to take into consideration material evidence that was sent but may not have been received at the time.
4. There are errors of facts in this case which has not been taken into consideration.”
The Appellant made submissions which address some of the appeal grounds:
(a) The Appellant had sent through witness statements;
(b) The Appellant had advised the Deputy President that it had sent through witness statements;
(c) These witness statements may not have been received by the Commission;
(d) There were inconsistencies at [13] of the liability decision regarding hours of work and annual leave loading; and
(e) The dismissal did relate to unsatisfactory performance contrary to the findings in the liability decision.
In the section of the Notice of Appeal addressing public interest, the Appellant lists the following (reproduced as written):
“1.The decision at first instance manifests an injustice- evidence, witness statements and submissions have not been taken into account during the decision process;
2.There are clear mistakes in facts on the reasons for the dismissal, pay rates, employee misconduct being overlooked;
3. The actions of the employee resulted in the dismissal and these actions were not take into account during herring;
4. There had been significant errors in relation to findings of fact and/or irrelevant considerations by the decision maker as the applicant for unfair dismissal was dismissed based on reasonable grounds with sufficient warning and witness accounts have been overlooked;
5.The applicants claims of being underpaid was accepted without supporting Evidence; and
6.The applicants representative has a history of making false claims and workplace misconduct that has been overlooked by the decision maker.”
Consideration
Having regard to the grounds of appeal, we do not consider that it would be in the public interest to grant permission to appeal.
Ground one alleges that the Deputy President “confirmed” that he did not take into account “evidence” that was submitted by the Appellant. The nature of this evidence is not specified in the Notice of Appeal. Ground three appears to be related and it alleges a failure to consider evidence that “was sent but may not have been received at the time.” The oral submissions made by the Appellant at the permission to appeal hearing with respect to these grounds converge upon the same issue – that is, the Deputy President did not take into account three witness statements purportedly filed by the Appellant during the proceedings at first instance. These witness statements are contained in the Appeal Book filed for the purposes of this appeal on 23 June 2023.[27] Two of the statements are given by employees of the Appellant, and the third statement is given by Ms Saima Naimey, whose position with the Appellant is not clear on the material before us. Ms Naimey has spoken on behalf of the Appellant at various stages during the appeal process. Ms Naimey confirmed that she had prepared and filed the three witness statements at some stage during the proceedings at first instance.
Neither the liability decision nor the compensation decision refers to the three statements. A thorough search of the Commission’s file reveals that the Commission did not receive any of the three witness statements from the Appellant prior to the Appeal Book being filed on 23 June 2023. The Full Bench raised this proposition with the Appellant at the permission to appeal hearing. The Appellant, through Ms Naimey, submitted that “it is possible that you have not received it, but that does not mean that I did not send it through. Like clearly you can see the dates, so the dates were from February, of the witness statements, so they’re not new evidence.”
Regardless of the dates of the statements, the Appellant did not produce any email or other record of communication establishing that it did send the witness statements to the Commission prior to the Appeal Book being filed on 23 June 2023. At the commencement of the hearing before the Deputy President on 17 May 2023 the Deputy President set out the procedural background to the matter, noting the Appellant’s failures to comply with the Commission’s directions. Thereafter, the following exchange occurred:
THE DEPUTY PRESIDENT: All right, so Mr Hallak, I've got the form F3 filed by you, along with a Small Business Fair Dismissal Form that was filed, dated 21 February 2023. That's all the material you rely upon?
MR EL HALLAK: Correct.
The transcript further reveals that no mention was made of any of the three witness statements having been filed with the Commission. Rather, Mr El Hallak referred to the witnesses he had available who could file witness statements and the Deputy President identified that there was no further opportunity for the parties to file witness statements. Mr El Hallak then noted “we'll do it in further time” and said further as follows:
MR EL HALLAK: Okay, well, I'm running a business, working here, and I don't have time to file evidence, and go through my staff and stop all my staff and file evidence, over a matter that I don't think is unfair dismissal. That's her side of the story.
We do not consider the Appellant’s contention that it had filed the three witness statements contained in the Appeal Book during the proceedings at first instance to be accurate. Plainly, documents that have not been filed with the Commission cannot be taken into account in a decision. On this basis no “respectable argument” can be made with respect to grounds one and three.[28] To the extent these witness statements are relied upon in support of appeal grounds two and four, the same conclusion applies.
While it is not necessary for us to reach a concluded view on the following issue for the purposes of determining the application for permission to appeal, we observe that the three witness statements are dated 16 February and 17 February 2023 respectively. The Commission’s file reveals that the unfair dismissal application was served on the Appellant on 20 February 2023. It is not apparent on the materials whether the Appellant was aware of the potential for an application to be made against it prior to 20 February 2023 and accordingly, this is not a matter that we rely upon in this decision.
Ground four and part of ground two allege that the Deputy President made significant errors of fact. It is not entirely clear from the Notice of Appeal what the alleged significant error of fact is said to be. However, at the hearing before the Full Bench the Appellant identified several matters that it considered were not supported by the evidence before the Commission, including in relation to findings regarding alleged unsatisfactory performance and underpayments.
In relation to the respondent’s performance, the Deputy President considered whether the respondent had been warned about any unsatisfactory performance. The Deputy President did not make a finding that the respondent had been dismissed due to poor performance because there was no evidence before him of any unsatisfactory performance issues. Against this context, we observe that the Appellant’s contention may be characterised as dissatisfaction and disagreement with the finding in the decision. This does not give rise to an arguable case of appealable error.
In relation to the allegation that the Deputy President mistook facts at [13] of the liability decision regarding the hours worked by the respondent and the leave loading paid to her, we note that this paragraph is no more than a recounting of communications from the respondent’s mother to Mr El Hallak outlining her concerns regarding her daughter’s employment. The Deputy President did not make any express finding regarding the truth of those concerns or any alleged underpayment. Against these observations, we consider there to be no arguable case of appealable error arising from this contention.
The other aspect of ground two alleges that the Deputy President only relied upon the information given to him by the respondent. The Appellant did not substantiate this at the permission to appeal hearing. We observe that the liability decision makes express reference to the information filed by the Appellant, being its Form F3 and the SBFDC checklist, and the evidence of Mr El Hallak given at the hearing. This amounts to all of the material advanced by the Appellant. Accordingly, we do not consider an arguable case of appealable error arises with respect to this aspect of ground two.
Conclusion
We do not consider that a reasonably arguable case has been advanced that the decisions of the Deputy President were attended by appealable error.
We are not persuaded that it would be in the public interest to grant permission to appeal. The Appellant advised the Full Bench during the permission to appeal hearing that it was yet to comply with the compensation order, notwithstanding the Commission’s refusal to grant a stay in respect of it. A failure to comply with an order under Part 3-2 of the Act constitutes a contravention of s 405. We do not consider that it would be in the public interest to grant permission to appeal in circumstances where the Appellant has not compiled with the orders it seeks to appeal.[29] Even if this were not the case, we would not grant permission to appeal as we are not satisfied, for the purposes of s 604(2) that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required;
(b) the appeal raises issues of importance and/or general application;
(c) the decisions manifest an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
S. Naimey and J. El Hallak, for the Appellant
E. McGinty and M. McGinty, for the respondent
Hearing details:
2023.
Sydney (by video using Microsoft Teams):
8 August.
[1] Eden McGinty v Hair & Co Pty Ltd – 14 June 2023 - PR763041 (‘Compensation order’).
[2] Eden McGinty v Hair & Co Pty Ltd[2023] FWC 1257; Eden McGinty v Hair & Co Pty Ltd[2023] FWC 1387.
[3] Eden McGinty v Hair & Co Pty Ltd[2023] FWC 1257 (‘Liability decision’).
[4] Eden McGinty v Hair & Co Pty Ltd[2023] FWC 1387 (‘Compensation decision’).
[5] Liability decision at [21]
[6] Liability decision at [31]-[33]
[7] Liability decision at [48]-[51].
[8] Liability decision at [54]
[9] Liability decision at [55]
[10] Compensation decision at [5]-[20]
[11] (1998) 88 IR 21
[12] Compensation decision at [21]-[28]
[13] Compensation decision at [30]
[14] Compensation decision at [33]
[15] Compensation order.
[16] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34], [43].
[17] 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].
[18] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]
[19] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [26]-[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].
[20] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[21] Wan v AIRC (2001) 116 FCR 481 at [30].
[22] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[23] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] – [29].
[24] [2000] HCA 47; 203 CLR 194 at [19].
[25]And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a “significant error of fact”: s 400(2) of the Act.
[26] House v The King (1936) 55 CLR 499 at 505.
[27] Appeal Book at 19-22
[28] Gregory v Qantas Airways Ltd [2016] FCAFC 7 at [77]
[29] See, Cali Press Pty Ltd v Shih Chieh Wu[2023] FWCFB 86 at [10]
Printed by authority of the Commonwealth Government Printer
<PR765435>
0
15
0