Imogen Corrie v Loddon Mallee Housing Services Ltd
[2023] FWCFB 84
•1 JUNE 2023
| [2023] FWCFB 84 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Imogen Corrie
v
Loddon Mallee Housing Services Ltd
(C2023/1959)
| VICE PRESIDENT CATANZARITI | SYDNEY, 1 JUNE 2023 |
Appeal against decision [2023] FWC 858 of Commissioner Wilson at Melbourne on 12 April 2023 in matter number U2023/888 – permission to appeal refused.
Background
Ms Imogen Corrie (Ms Corrie) has lodged an appeal under s.604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision of Commissioner Wilson (Commissioner) issued on 12 April 2023 (Decision).[1] The Respondent to the appeal is her former employer, Loddon Mallee Housing Services Ltd (LMHS).
In the Decision, the Commissioner dismissed Ms Corrie’s application for a remedy for unfair dismissal (Application) on the grounds that Ms Corrie had not completed the minimum employment period necessary to be protected from unfair dismissal.
On 17 April 2023, directions were set for the filing of material. Ms Corrie filed written submissions on 1 May 2023. LMHS was not required to file any written material and did not do so. The Appeal was initially listed for hearing on 12 May 2023, to determine whether to grant Ms Corrie permission to appeal.
On 9 May 2023, Ms Corrie consented to the permission to appeal being determined on the papers. LMHS did not object and the listing was subsequently vacated. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.
For the reasons that follow, permission to appeal is refused.
Grounds of appeal and submissions
The Decision identifies the relevant statutory provisions and deals with the question of whether Ms Corrie had completed the minimum employment period in a through and orthodox manner. Ms Corrie identifies no error of fact or law in the Decision.
Rather, Ms Corrie asserts that in reaching the Decision the Commissioner denied her procedural fairness by refusing her request to amend the Application and by granting LHMS an extension to file their materials.
Ms Corrie submits that it is in the public interest for the FWC to grant permission to appeal to “uphold the principal (sic) of ‘justice’ which includes procedural fairness.”[2] She contends that there is an “onus on the applicant to abide by the timelines and rules which the general public would not agree is fair,” and that “Applicants who are self-represented are denied their rights.”[3]
Principles on appeal
An appeal under s 604 of the FW 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.
This appeal is one to which s 400 of the FW Act applies. Section 400 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] 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.”
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.[6] 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.[7]
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.[8] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
Ms Corrie lodged the Application on 3 February 2023. On 17 February 2023, LMHS filed a Form F3 – Employer response to application for unfair dismissal remedy which identified the jurisdictional objection that Ms Corrie’s period of employment did not satisfy the minimum employment period (Jurisdictional Objection).
The Application was allocated to the Commissioner on 2 March 2023. On the same day the Chambers of the Commissioner wrote to Ms Corrie explaining the jurisdictional objection and setting out the dates upon which materials would be required to be filed in the event Ms Corrie decided to contest the jurisdictional objection.
The following day LMHS sought an extension to file their materials on the following grounds:
“Dear Rose
With respect to 1. Respondent to file on objection – 13 March. This date is a public holiday. Also, I will be on leave from eod today (3 March 2023) and returning to the office on Wednesday 15 March 2023. I will be overseas and not in a position to be able to respond during this time. There is no one suitable in the business that I can hand over to during this time.
Please advise if this Respondent to file on objection can be moved to eod 15 March 2023 which is the day I return to work.
Thank you”
An extension of two days was granted to LMHS and an extension of the same duration granted to Ms Corrie.
On 16 March 2023 the Commissioner’s Chambers contacted LMHS noting that its materials had not been filed in accordance with the Directions. LHMS replied to the Commissioner’s Chambers the same day seeking an extension on the following terms:
“Dear Ms Barnsley
With reference to the above matter, I returned from leave on Wednesday 15 March 2023 and am currently putting together a response. I require some further information from an employee who is on leave and returning tomorrow.
I request an extension up to eod tomorrow - Friday 17 March 2023, to ensure that all relevant material can be gathered and provided.
Thank you”
Ms Corrie informed the Commissioner’s Chambers that she objected to the extension being granted.
The Commissioner considered the respective submissions of the parties and his Chambers responded on 17 March 2023 in the following terms;
“Dear Parties
RE: U2023/888 - Ms Imogen Corrie v Loddon Mallee Housing Services Ltd
The Commissioner notes the below correspondence. He grants the Respondent the extension sought, until 4PM today. He also grants the Applicant a corresponding extension, until 4PM 31 March.
Kind regards,”
The Commission’s records reveal that:
a.Both requests for an extension to file materials were supported by reasonable grounds;
b.The extensions sought and granted were short;
c.Ms Corrie had the opportunity to provide her objections to the requests; and
d.Ms Corrie was granted equivalent extensions.
In all the circumstances we are satisfied that Ms Corrie suffered no procedural unfairness as a result of the granting of the extensions of time to LMHS to file its materials.
On 29 March 2023 Ms Corrie filed her materials in accordance with the Commissioner’s amended directions. In her written submissions she made the following request:
“As per s. 586 of the Fair Work Act 2009, I would like to update my application to include a claim that my workplace rights were breached by LMHS.”
She then set out details of the alleged breaches of what she described were her ‘workplace rights’.
A Determinative Conference was held by the Commissioner to determine the Jurisdictional Objection on 4 April 2023. At the Determinative Conference the following exchange occurred between the parties and the Commissioner:[9]
“THE COMMISSIONER: Now, before I get too far into the conference, does anyone wish to raise any questions or concerns at this time?
MS CLARKE: No. No, Commissioner.
THE COMMISSIONER: All right. Well, Ms Corrie, any from you?
MS CORRIE: Only that I note that I have requested that the application's updated under section 586 of the Fair Work Act to include a claim that my workplace rights were breached by Loddon Mallee Housing Service.
THE COMMISSIONER: All right. Well, if I can say about that, that I won't be determining that point at this time because this is purely about the jurisdictional objection that's been made. The other issue that needs to be pointed out to you is that you can, under the Fair Work Act, either make an unfair dismissal application, or you can make a general protections application, you can't do both and there's no capacity to run two concurrently.
Now, your dismissal might have been unfair because of the issues that you refer to but that's not to say we can simply change the basis of the application. All right. But we'll explain that more if and when it's needed to, to consider the merits.”
Following the Determinative Conference on 4 April 2023, Ms Corrie was permitted to file an updated version of her written submissions in which she expanded upon the details of the alleged breach of her ‘workplace rights’.
The Commission is empowered under section 586 of the FW Act to amend any application or other document relating to a matter before the Commission on any terms that it considers appropriate or to waive any irregularity in the form or manner in which an application is made to the Commission. Pursuant to this power the Commission routinely grants parties leave to amend the names of named parties to cure an error which does no injustice to the other party; for example to correct the name of a company named in an application as the employer where a business name was used instead.
Nevertheless, that power may not be invoked to cure an error of substance. It cannot be used to convert an unfair dismissal application into a general protections application. This is because an unfair dismissal application is fundamentally different to a general protections application, even though both may have arisen from same set of circumstances involving the dismissal of the employee.[10]
As the Commissioner correctly explained to Ms Corrie, a general protections dismissal dispute application cannot be made if another application or complaint dealing with the dismissal (such as an unfair dismissal application) has also been made.[11]
Section 725 provides as follows:
“725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”
Section 729 deals with unfair dismissal applications:
“729 Unfair dismissal applications
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i)been withdrawn by the person who made the application; or
(ii)failed for want of jurisdiction; or
(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”
As the Commissioner also correctly explained to Ms Corrie, he was prevented from considering the merits of the Application to the extent the alleged breaches of her ‘workplace rights’ made her dismissal unfair before he determined that Ms Corrie was a person protected from unfair dismissal.
Conclusion
The Decision was reasonably open to the Commission and arrived at by an orthodox process of reasoning. It does not raise matters of general importance.
Ms Corrie clearly disagrees with the Decision. However, an appeal is not a forum to re-argue one’s case. Error needs to be established and permission to appeal is only granted if the public interest is enlivened.
None of the grounds on which the appeal is advanced have apparent merit individually or collectively. The Decision and Order do not manifest an injustice, are not counter intuitive and the legal principles applied are not disharmonious. No matter of general importance arises. There is no public interest in hearing and determining a meritless appeal.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
1 May 2023, for the Appellant.
[1] [2023] FWC 858 (Decision).
[2] Form F7 – Notice of Appeal at Question 3.1.
[3] Ibid.
[4] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[5] 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].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] 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].
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[9] Transcript 4 April 2023 PN19-PN24.
[10] Peter Ioannou v Northern Belting Serices Pty Ltd (2014) FWCFB 660 at [17].
[11] Fair Work Act 2009 (Cth) s.725, Alex v Costco Wholesale Australia[2014] FWC 1904.
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