Hume Investments (ACT) Pty Limited T/A Alpha Fresh Foods v Peter Preston

[2014] FWCFB 8572

[2014] FWCFB 8572 [2014] FWCFB 8572

[3]        The respondent appeared at the hearing as did his mother and father. Each had

prepared a statutory declaration which was provided to the Deputy President and each of them

also gave oral evidence. Additionally, a number of other documents were provided including

medical certificates, a medical report, Fair Work Ombudsman documentation concerning

payments to the respondent for notice and annual leave, documentation from Retail

Employees Superannuation Trust concerning the respondent’s membership details,

superannuation payments and extracts from Telstra telephone records.

[4]        At the conclusion of the hearing the Deputy President announced his decision. He

made findings in relation to the period of service of the respondent and the reason for his

absence from work in the period immediately prior to his dismissal. For present purposes, it is

adequate to note that the absence was due to a medical procedure he underwent. Findings

were made about the actions taken to inform the appellant that the respondent would be absent

from work and the reason for that absence. The Deputy President addressed each of the

considerations referred to in s.387 of the Act. Most importantly for present purposes he found

that there was no valid reason for the appellant to have dismissed the respondent and that he

was not told of the reason why he has been dismissed. He was simply "told to leave".[2]

[2]PN110.

[5]        The Deputy President noted that the respondent did not seek reinstatement. Reference

was then made to s.392 of the Act which deals with considerations the Commission must take

into account when making an order for the payment of compensation. Before us, the appellant

concentrated on one of the comments made by the Deputy President in this respect. It

concerned findings made by reference to ss.392(2)(c) and (d) of the Act which required him

to take into account the remuneration that the respondent would have received, or would have

been likely to receive, if he had not been dismissed, and the efforts he had made to mitigate

the loss he suffered because of the dismissal. About these considerations the Deputy President

found that the respondent was an apprentice butcher and had approximately nine months to go

in his apprenticeship. He considered the warnings he had received and said he was satisfied

the respondent knew he had to take the correct steps to inform his employer if he was to be

absent from work. The Deputy President found that steps had been taken to notify the

appellant about the respondent’s absence from work, for medical reasons, immediately prior

to his being dismissed. The Deputy President found that the respondent would have

completed his apprenticeship with the appellant. He found that an illness the respondent had
[2014] FWCFB 8572

suffered was aggravated as a consequence of his dismissal and that he had not been able to

secure further employment.[3]

[3]PN113.

[6]        The Deputy President subsequently published a decision.[4]As no part of the appellant’s

[4][2014] FWC 4903.

grounds of appeal or its written submissions identified any particular paragraph of those

reasons (as opposed to extracts from transcript) as reflecting appealable error it is sufficient

for us to briefly summarise them. The reasons were consistent with the decision the Deputy

President had previously announced at the conclusion of the hearing. Additional detail was

given in relation to the efforts made on behalf of the respondent to notify the appellant that he

would be absent from work and the reasons for that absence. The Deputy President found that

the appellant was aware of those reasons. He found that on the evidence before him it

appeared that the dismissal had arisen as a direct consequence of the respondent’s absence

from work due to illness. In referring to the remedy which may be ordered, he commented

that the appellant had chosen not to attend the hearing and therefore he had no submissions

from the employer in relation to the considerations he was obliged to take into account prior

to ordering a remedy of compensation. Consistent with the decision he had announced at the

conclusion of the hearing, the Deputy President found that the respondent would have

completed his apprenticeship with the appellant and that the respondent had “an aggravated

illness as a consequence” of his dismissal and had not been able to secure any other

employment. He had not earned any remuneration since his dismissal.[5]

[5]Paragraphs [15] and [16].

[7]        In its notice of appeal the appellant sought a stay of the decision and order of the

Deputy President. The application for the stay order was dismissed by Senior Deputy

President Harrison, the presiding member of this Full Bench.[6]In the reasons for doing so she

[6][2014] FWC 5945.

said:

‘[8] The appellants grounds of appeal are brief, they plead:

“1. The decision maker was guided by irrelevant facts

2. The decision made is unreasonable or plainly unjust.”

No particulars are given identifying anywhere in the reasons for decision what the

appealable errors may be. There is no identification of any jurisdictional error or a

substantial error of fact.

[2014] FWCFB 8572

[9] The reasons in the notice of appeal as to why the Commission should be persuaded

the appeal is in the public interest are also short:

“1. Substantial injustice may result if permission is refused”.

Again no particulars are given to support this as being a reason why permission to

appeal should be granted.

[10] It should be noted that prior to the hearing before the Deputy President the

appellant had not complied with directions issued on 21 May 2014, to file submissions

and any material upon which it relied. This was despite advice given to the appellant

of the necessity for it to comply, and the possible consequences of it not doing so. I

also note that there was no appearance for, or on behalf of, the appellant at the hearing

before the Deputy President on 17 July 2014. No application for an adjournment had

been made by the appellant, nor was any explanation given for its non attendance.’

[8]        Senior Deputy President Harrison concluded that she was not persuaded that an

arguable case had been established that permission should be granted on the basis that it

would be in the public interest to do so. She also said that she was not persuaded the

submissions “or grounds of appeal, as they are currently pleaded” establish the appellant has

an arguable case on the merits of the appeal. The application for a stay of the decision and

order of the Deputy President was dismissed.

[9]        No application was subsequently made by the appellant to amend its grounds of

appeal. No submission was made by the appellant addressing its non attendance at first

instance nor why it had failed to comply with the directions for the filing of submissions and

documents prior to the hearing before the Deputy President. No challenge was made to the

Deputy President’s finding as to the period of service the respondent had completed prior to

his dismissal nor any of the findings made by him by reference to s.387 of the Act when

deciding whether the respondent’s dismissal was harsh, unjust or unreasonable. The challenge

that was made related solely to the remedy ordered by the Deputy President.

[2014] FWCFB 8572

[10]      We granted both the appellant and respondent permission to be represented by a

lawyer having regard to the provisions of s.596(2) of the Act. We considered it would enable

the appeal to be dealt with more efficiently, taking into account the complexity of matters

likely to arise, that neither party was able to adequately represent themselves and that fairness

between the parties suggested that each should be represented.

[11]      The appellant submitted that a substantial injustice would result if permission to

appeal was not granted. The reason why this was so was described as follows:

“The Appellant submits that the decision at first instance, awarding the Respondent

the maximum amount of 26 weeks remuneration, involved an error of law and

was fundamentally flawed as there was no evidence to support that the Respondent

had an inability to secure employment elsewhere, or that such an inability was

caused by his unfair termination.

The issues to be raised in this appeal are:

1. When the maximum remuneration may be awarded under the Act;

2. When a decision maker may be satisfied on the balance of probabilities.

The Appellant submits that the issues above are "of importance and general

application" and attract the public interest”.[7]

[7]Page 1 Appellant’s submission.

[12]      The same reasons given in support of permission to appeal being in the public interest

were also relied upon as constituting errors made by the Deputy President. The Appellant

submitted that there was no evidence to support the conclusion that the respondent's illness

was aggravated by the termination of his employment. It submitted that the medical report

before the Deputy President did not support that conclusion. The appellant also submitted the

Deputy President made an error of law in concluding that the aggravation of the respondent's

illness resulted in an inability to secure employment elsewhere. The Appellant submitted that

expert evidence of the respondent's illness should have been led prior to any such

determination being made by the Deputy President.
[2014] FWCFB 8572

[13]      We have not been persuaded that the matters raised by the appellant warrant the grant

of permission to appeal. In our opinion, those matters do not persuade us that it is in the

public interest for us to do so.

[14]      We agree with the respondent's submission that despite the reasons given for why the

public interest was enlivened by this appeal, that in fact the appellant does not seek this Full

Bench to consider matters of importance or general application about when the maximum

remuneration may be awarded or when a decision maker may be satisfied on the balance of

probabilities to make a compensation order. It is clear that the appellant’s real complaints are

of a much narrower scope. It seeks for this Full Bench to consider whether the Deputy

President ought to have awarded the maximum remuneration to the respondent and whether

he ought to have been satisfied, on the balance of probabilities, to do so. We agree with the

respondent that the Deputy President’s rulings on these issues were based on the peculiar facts

in this case. They do not raise matters of general importance. It is of significance that the

concerns now raised by the appellant about to the exercise of the Deputy President's discretion

as to what might be an appropriate remedy could have been addressed by the appellant had it

appeared before him. No persuasive submissions have been made as to why we should now

allow the appellant to raise issues on appeal which should properly have been raised at first

instance.

[15]      We refer to the appellant’s submission that the Deputy President was in error in

concluding that the respondent had suffered an aggravated illness as a consequence of his

dismissal and had been unable to obtain further employment. We have earlier noted the

appellant criticised the weight given by the Deputy President to the medical evidence before

him. In this respect, we agree with the respondent that, in fact, the Deputy President did not

indicate that he relied solely on the medical report for his findings. It is clear that in addition

to the medical evidence he also had before him the evidence of the respondent, his mother and

father. They each addressed the stress that the dismissal had placed upon the respondent and

the aggravation to a pre-existing illness. Had the appellant appeared at first instance it would

have been entitled to cross-examine those witnesses and to have challenged the medical

evidence. It could have called its own medical evidence. It should not be allowed now on

appeal to attempt to rectify its failure to do so.

[2014] FWCFB 8572

[16]      In our opinion, having taken all the evidence into account, each of the findings made

by the Deputy President, now the subject of challenge on appeal, were ones reasonably open

to him.

[17]      There was no contest before us as to the principles that should properly be applied

when considering this appeal. It is made pursuant to s.604 of the Act however, it being an

appeal against a remedy awarded in the context of an unfair dismissal, s.400 of the Act is also

applicable. That section is in these terms:

“400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal

from a decision made by FWA under this Part unless FWA 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.”

[18]      The test under s.400 has been characterised as ‘a stringent one’.[8]The Commission

[8]Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at para.[43].

must not grant permission to appeal unless it considers that it is ‘in the public interest to do

so’. In the oft quoted decision of 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 issue 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….” [9]

[9][2010] FWAFB 5343 at para.[27].

[19]      None of the considerations referred to in the above extract are present in this appeal.

[2014] FWCFB 8572

[20]      Contrary to the submission of the appellant, we were not persuaded that a substantial

injustice would result if permission to appeal were refused. We were also not persuaded that

the appellant had established that the Deputy President’s decision was attended by sufficient

doubt such as to warrant its reconsideration.

Conclusion

[21]      In our opinion, this is a case which turns on its own peculiar facts and the appellant

has not demonstrated any public interest in granting permission to appeal. Accordingly,

consistent with s.400 of the Act, we refuse permission to appeal.

[22]      We note that in its written submissions the respondent foreshadowed that it may make

an application for an order for costs. We seek confirmation from the respondent that it seeks

such an order and, if so, an indication of the time within which it proposes to file any

submissions in support. In this respect it need not repeat the submissions it has already made

about this matter. In the event the respondent presses for an order for costs to be made we

direct the parties to discuss a timetable for filing further submissions and whether the

application can be dealt with on the papers.

SENIOR DEPUTY PRESIDENT

Hearing:

The Parties agreed to have this matter dealt with on the papers.

Decision reserved 22 October 2014.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR558375>

[2014] FWCFB 8572

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Hume Investments (ACT) Pty Limited T/A Alpha Fresh Foods
v

Peter Preston

(C2014/5774)

SENIOR DEPUTY PRESIDENT HARRISON

DEPUTY PRESIDENT SAMS	SYDNEY, 16 DECEMBER 2014
COMMISSIONER CAMBRIDGE

Appeal against decision [[2014] FWC 4903] of Deputy President Smith at Melbourne on 25

July 2014 in matter number U2014/3693.

[1]        This decision concerns an appeal by Hume Investments (ACT) Pty Limited t/a Alpha

Fresh Foods (the appellant) against a decision relating to an application made by Mr Peter

Preston (the respondent to this appeal) under s.394 of the Fair Work Act 2009 (the Act).

Deputy President Smith found that the dismissal of the respondent was unfair and ordered the

appellant pay an amount of remuneration of “26 weeks’ pay at the ordinary rate, less the

appropriate taxation, as compensation in lieu of reinstatement”. The amount was due to be

paid within 14 days of the order.1

[2]        The appellant’s submissions were confined to the remedy awarded and we comment

further about those submissions later in this decision. To put those submissions into context

we should first refer to the manner in which the hearing before the Deputy President

proceeded. It did so in the absence of any person appearing for or on behalf of the appellant. It

is clear from numerous Commission file entries that the appellant was well aware of the date

for the hearing before the Deputy President. No application was made by the appellant for any

adjournment nor was there any indication given prior to the hearing that it did not propose to

attend.

1 PR553335.