Ian Birchley v Downer EDI Mining Pty Ltd
[2019] FWCFB 7888
•29 NOVEMBER 2019
| [2019] FWCFB 7888 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ian Birchley
v
Downer EDI Mining Pty Ltd
(C2019/6230)
VICE PRESIDENT HATCHER | SYDNEY, 29 NOVEMBER 2019 |
Appeal against decision PR712311 of Deputy President Asbury at Brisbane on 20 September 2019 in matter number U2018/10780
Introduction
[1] Mr Ian Birchley has pursuant to s 604 of the Fair Work Act 2009 (FW Act) applied for permission to appeal against a decision issued by Deputy President Asbury on 20 September 2019 1 (decision). The decision concerned an application by Mr Birchley under s 394 of the FW Act for an unfair dismissal remedy in respect of his dismissal from his employment with Downer EDI Mining Pty Ltd (Downer EDI) on or around 15 October 2018. The Deputy President found that Mr Birchley’s dismissal was harsh and unreasonable, and therefore unfair. Mr Birchley was not reinstated (on the basis that the parties agreed that the working relationship had broken down) and the Deputy President awarded Mr Birchley monetary compensation. The amount of the compensation awarded in the decision and ordered2 was initially $14,436.00 (less any tax required to be deducted by law), but an error in the calculation of the amount was corrected by the Deputy President on 11 October 2019, resulting in the amount increasing to $15,238.00 under an amended order.3 In his notice of appeal, Mr Birchley contends that the assessment of compensation in the decision was in error in a number of respects, and that it would be in the public interest to grant permission to appeal the decision.
[2] The background to the matter is as follows. Downer EDI is a provider of contract mining services. Mr Birchley was employed by Downer EDI on a casual basis as an Emergency Services/Security Officer from 16 September 2016 until his dismissal on or around 15 October 2018. Mr Birchley last worked on 9 August 2018 at the Meandu mine site located at Nanango in Queensland. On this day Mr Birchley left the worksite after emailing his supervisor that he would not be available to work any further shifts until 20 August 2018, although rostered to work during this period. Mr Birchley’s supervisor arranged for alternate coverage up to 31 October 2018.
[3] In her decision, the Deputy President found that Downer EDI’s conduct in then removing Mr Birchley from the roster and not providing any guarantee that his position on the roster would be reinstated, and instead informing him that he would only be offered other shifts as required, was a dismissal for the purposes of s 386(1)(b) of the FW Act. The Deputy President found that there was no valid reason for the dismissal and that it was unfair.
[4] In assessing the amount of compensation to be awarded to Mr Birchley, the Deputy President’s starting point was that, if he had not been dismissed, Mr Birchley would have been employed until 31 December 2018 because he had been included in a roster which ran until then, but that it could not be concluded that he would have been employed beyond that time. The Deputy President calculated how much Mr Birchley would have earned over this period, and then deducted 25% for his failure to mitigate his loss and a further 25% on account of the contribution Mr Birchley made to his dismissal to arrive at the figure of $15,238.00.
Appeal grounds and submissions
[5] Mr Birchley’s appeal grounds and submissions, as pressed at the hearing of his application, contend that the Deputy President’s assessment of compensation was attended by significant errors of fact, in that:
• the conclusion that Mr Birchley’s employment would not have continued past 31 December 2019 was “mere conjecture”, and in the two years prior to dismissal he had worked in excess of 39 hours per week every week;
• there was no inclusion of superannuation in the calculation of the amount of compensation ordered;
• the reduction of compensation of 25% on account of a failure to mitigate loss was unfair and excessive in the circumstances, noting the Deputy President’s finding that Mr Birchley was 57 years of age and lived in a rural area where alternative employment would be hard to find, and also that Downer EDI refused to acknowledge that it had dismissed him;
• the reduction of compensation of 25% on account of Mr Birchley’s contribution to his dismissal was also unfair and excessive in the circumstances, given that he had not behaved in a belligerent and intransigent manner as found by the Deputy President, and constituted punishment for Mr Birchley not allowing himself to be treated unfairly.
[6] Mr Birchley contends that the grant of permission to appeal would be in the public interest because public confidence in the Commission’s ability to deliver fair, balanced and reasoned outcomes is a matter of public interest, and there were several significant errors of fact in the decision which made the amount of compensation awarded unfair and unjust. Additionally, superannuation contributions were required to be paid according to law.
Consideration
[7] 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.4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[8] This appeal is one to which s.400 of the Act applies. Section 400 of the Act 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.”
[9] In the Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v Lawler and others, 5Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one.”6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.7
[10] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 8
[11] 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.9 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.10
[12] 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. 11 Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[13] We are not satisfied that it would be in the public interest to grant permission to appeal, for the following reasons. First, the contentions of significant factual error lack merit and are not of a nature to attract the public interest. Insofar as Mr Birchley contends that the Deputy President erred in her consideration of how long he would have remained in employment but for the dismissal, this could not constitute an error of fact. Section 392(2)(c) of the FW Act requires that, in determining the amount of monetary compensation, the Commission must take into account “the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed”. This usually requires an estimation to be made as to how long the employee would have remained in the relevant employment but for the dismissal. Undertaking that task cannot be characterised as the making of a finding of fact; it rather involves the making of an evaluative judgment concerning a hypothetical scenario (although it may be guided in part or whole by primary findings of fact). As stated in Ellawala v Australian Postal Corporation, “[s]uch an assessment is often difficult, but it must be done”. 12 In this case the Deputy President’s assessment was based on the facts that Mr Birchley was a casual and that he was on the roster until 31 December 2018. Neither of those facts is in contest. Beyond the assertion that he would have remained employed for a longer period, Mr Birchley does not identify any error in the Deputy President’s evaluative process, such as a failure to take into account a material consideration or regard being had to an irrelevant matter. His appeal in this respect does not identify any arguable basis for the contention that the Deputy President’s assessment was not reasonably open to be made.
[14] The alleged error concerning the non-inclusion of superannuation in the compensation amount seems to have been founded on the proposition that this was required as a matter of law. This is obviously incorrect. The Australian Taxation Office’s Superannuation Guarantee Ruling 2009/2 (SGR2009/2) sets out what payments are not salary or wages for the purposes of the Superannuation Guarantee (Administration) Act 1992. At paragraphs [46] and [75] of SGR2009/2 it is made clear that payments of compensation for unfair dismissalare not salary or wages. Beyond this, the inclusion or otherwise of superannuation in the compensation amount was a matter within the discretion of the Deputy President. No arguable contention of error in that respect is identifiable in the appeal grounds.
[15] In respect of the deductions made by the Deputy President on account of his failure to mitigate his loss and the contribution he made in causing his dismissal by his “belligerent attitude”, Mr Birchley did not other than disagreeing with the conclusions of the Deputy President direct us to any reasonably arguable contention of significant error of fact or any error of law affecting the Deputy President’s decision to make these deductions. While Mr Birchley believes the deductions were unfair and excessive, they were plainly available to the Deputy President to make in accordance with s392(2)(d) and (g) and were within a range that does not demonstrate an injustice.
[16] Second, we do not consider that Mr Birchley has identified any other feature of his appeal against the decision which would attract the public interest. Compensation was assessed on the basis of the particular facts of the case, and the appeal does not raise any issue of law or principle of broader application. We do not consider that the decision manifests any injustice or lack of fairness towards Mr Birchley. It cannot be said that the compensation amount ordered in respect of casual employment lasting approximately two years is manifestly inadequate or unfair.
[17] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the FW Act.
VICE PRESIDENT
Appearances:
Mr I Birchley on his own behalf.
Ms C Attreed and Mr J Goos on behalf of the respondent.
Hearing details:
2019.
Sydney with video link to Kingaroy Court House:
12 November.
Printed by authority of the Commonwealth Government Printer
<PR714418>
1 [2019] FWC 6336
2 PR712643
3 PR713274
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2) of the Act; see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 (2011) 192 FCR 78.
6 Ibid at [43].
7 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
8 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
9 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
10 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
11 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
12 [2000] AIRC 1151, Print S5109 at [33]
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