Jason Moore v Newspot Holdings Pty Ltd t/a Newspot Motors
[2017] FWCFB 3921
•29 august 2017
| [2017] FWCFB 3921 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Jason Moore
v
Newspot Holdings Pty Ltd t/a Newspot Motors
(C2017/3848)
| Vice President Hatcher |
|
Permission to appeal against decision [2017] FWC 3380 of Commissioner Platt at Adelaide on 22 June 2017 in matter number U2017/4165.
Introduction
Mr Jason Moore has applied for permission to appeal and appealed a decision of Commissioner Platt issued on 22 June 2017[1] (Decision). In the Decision, the Commissioner dismissed Mr Moore’s application pursuant to s.394 of the Fair Work Act 2009 (FW Act) for a remedy for unfair dismissal on the grounds that Mr Moore had resigned from his employment with Newspot Holdings Pty Ltd t/a Newspot Motors (Newspot), that the resignation was not forced because of conduct or a course of conduct on the part of Newspot, and Mr Moore had therefore not been dismissed within the meaning of s.386(1) of the FW Act such as to enliven the Commission’s unfair dismissal jurisdiction.
Section 385(a) of the FW Act requires that, in order for a person to have been unfairly dismissed, the Commission must first be satisfied that the person was dismissed. Section 386(1) defines when a person has been “dismissed” in the following terms:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Extension of time
Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Mr Moore’s appeal was filed at 12.02am on the 22nd day after the Decision was issued, and was therefore filed out of time (by two minutes). Accordingly it is necessary for the Appellant to be granted an extension of time in order for the appeal to be competent.
The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland[2] as follows (footnotes omitted):
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
· whether there is a satisfactory reason for the delay;
· the length of the delay;
· the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
· any prejudice to the respondent if time were extended.”
We have decided to grant the required extension. The minimal length of the delay and the lack of any possibility of prejudice to the respondent outweigh the lack of any explanation for the delay and weakness of the merits of the appeal (which we will discuss later).
Factual background
The facts of the matter were recounted by the Commissioner in the Decision as follows:
“[13] On Thursday 23 March 2017 at about 3.51pm Mr Moore received a text message from Dale Auty (who used to work for Newspot as a parts interpreter) with words to the effect of ‘Be careful, look after yourself, Darrell is broke, he has no money, he hasn’t paid Andy out yet’.
[14] Andy Day, (Service Manager - Salisbury and Newspot Shareholder) was a former business partner of Mr Wadsworth.
[15] Mr Moore spoke to Mr Kennett later that day and showed Mr Kennett the message and discussed the contents with him.
[16] Mr Moore also spoke to Mr Grant Sapwell, (General Salesman - Salisbury) about the information contained in the text message.
[17] On 24 March 2017, Mr Wadsworth became aware that Mr Moore had communicated information about him to Mr Kennett and Mr Sapwell. Mr Wadsworth believed the information was false, and was upset that Mr Moore had not contacted him first to discuss the matter before telling other employees.
[18] Mr Wadsworth rang Mr Moore on Friday 24 March 2017. Mr Wadsworth was angry and wanted to know where the information had come from. He said to Mr Moore words to the effect of ‘My fucking problem with you is that you spread rumours.’ There is no allegation that Mr Wadsworth mentioned any disciplinary process or that Mr Moore’s employment would be in jeopardy.
[19] After the telephone discussion, Mr Moore wrote out his resignation on a computer, thought better of it and then emailed the draft resignation to himself.
[20] Mr Andy Day rang the dealership to dispel the rumour. Mr Moore was surprised of Andy’s involvement and that the matter had become such a big thing.
[21] Mr Moore did not work on Saturday and Sunday but was ‘stressing all weekend.’ Mr Moore took Monday off as a result.
[22] Mr Moore returned to work on the Tuesday 28 March 2017. Mr Moore states Tuesday ‘went pretty well with myself questioning why I had been so worked up all weekend for no reason.’
[23] On Wednesday 29 March 2017, Ms Karas contacted Mr Moore in relation to the collection of a vehicle which had been serviced. At the end of the conversation Ms Karas mentioned that she was aware of the information about Mr Wadsworth communicated by Mr Moore and expressed her displeasure about the matter and put in question Mr Moore’s loyalty. This was done in a normal speaking tone. Mr Moore took umbrage at his loyalty being questioned, raised his voice, swore and told Ms Karas that he did not appreciate being spoken over and that he would get in a vehicle and come and see her in 20 minutes to have a discussion. Ms Karas felt threatened by Mr Moore’s conduct.
[24] About 4 minutes after that conversation, Mr Moore sent a resignation letter by email to Mr Wadsworth. The email is time stamped 2.03pm. Mr Kennett observed Mr Moore typing and was told by Mr Moore that he was resigning.
[25] The resignation email is reproduced below:
“I don’t appreciate your wife having a go at me & using words such as ‘I am not loyal’. If either of you had of come to speak to me or listen rather than add 2+2 together & come up with 10 you would have found out the truth of what went down.
Hurts her family….what about the shit you listened to from Suresh & then said to me? The attitude of ‘you listen to gossip’ too much & you ‘care what people say about you too much’ didn’t apply when the situation was reversed.
Consider this my resignation. I will finish up on Wednesday 12th of April.”
[26] After sending the email Mr Moore approached Mr Prso and Mr Brand in the showroom and told them he had just told Ms Karas to fuck off as he didn’t like the way she spoke to him on the telephone, and she would not listen to him. Mr Moore later said that he was resigning from his job and that Darrell (Wadsworth) can go and get fucked. Mr Moore said that he wasn’t taking any shit from the owner Darrell or his wife and they can go fuck themselves.
[27] Mr Wadsworth received Mr Moore’s resignation soon after it was sent. Mr Wadsworth tried to ring Mr Moore at about 4.17pm, Mr Moore rang him back 30 minutes later and Mr Wadsworth advised him that he accepted the resignation.
[28] Later in the day Mr Moore announced to staff present in the Eastside salesroom, including Mr Kennett, that he had resigned.
[29] Mr Wadsworth did not hear from Mr Moore again until 3 April 2017 at 2.37pm when Mr Moore emailed him seeking to withdraw the resignation. The email is reproduced below:
“Afternoon Darrell,
You will find attached an email I had drafted at worked on Friday the 24th, the day it came to light that Grant had relayed a conversation, or part there of, to you that myself & Malcolm had had with him the previous day.
After reading it I sincerely hope you can imagine that emotion that was running through me when Patty questioned my loyalty to the company & yourself. Given the personal information I have divulged to you recently & the different things that have transpired during my employment, especially the last few months, I sincerely feel such a comment was uncalled for & I took the strongest possible offence to it.
What seems to have overlooked through the this whole thing is my genuine concern for my own financial security. It was alarming & caused myself great distress to think that this could be happening. Finding out Grant has resigned shortly there after only added to that anxiety.
I do apologise that I let my emotions get the better of me & I respectfully ask that given the circumstances that you allow me to withdraw my resignation & continue with my employment at Newspot.
I await your reply.
Yours Sincerely
Jason Moore.”
[30] On 4 April 2017, Mr Wadsworth responded to Mr Moore rejecting his request.
[31] It appears that Mr Moore was to work out his notice but did not attend work for personal reasons.”
The above factual findings made by the Commissioner were not the subject of any significant challenge by Mr Moore in his notice of appeal. His 4th ground of appeal challenged the finding in paragraph [24] of the Decision that Mr Kennett witnessed Mr Moore typing his resignation, but that does not appear to have been a material matter in the Commissioner’s decision-making process, as discussed below. Mr Moore lodged as his submission in support of his application for permission to appeal a 10-page account of the history of his employment with Newspot which traversed matters well beyond the scope of the evidence given at first instance, but we cannot discern that it was intended to demonstrate any error in the Commissioner’s factual findings.
The Commissioner also referred to allegations made by Mr Moore that he had been bullied at work, and that this had impacted on his decision to resign. Mr Moore referred in this respect to Newspot’s decision to demote him in May 2015, a dispute with Mr Wadsworth in September 2016 concerning the use of trade plates and the preparation of accessories guides, and a dispute with the Service Manager concerning the brand of battery installed in a customer’s vehicle in January 2017.[3] The Commissioner also referred to a number of medical reports and certificates tendered by Mr Moore.[4]
The Decision
Having made the findings of fact set out above, the Commissioner stated the following conclusions concerning whether Mr Moore had been dismissed by Newspot:
“[38] When the chronology is considered in light of the statute and case law described above, it is clear to me that Mr Moore’s conduct in emailing the resignation to Mr Wadsworth, separately announcing his resignation to Mr Prso and Mr Brand, and making the staff announcement witnessed by Mr Kennett amount to three consistent and unambiguous announcements that he was terminating his contract of employment.
[39] The conduct which gave rise to Mr Moore’s initial contemplation of resignation occurred 5 days prior, no prospect of disciplinary action was raised with him, and by Tuesday 28 March 2017 Mr Moore (on his own evidence) had recovered from any stress that arose from his interaction with Mr Wadsworth.
[40] With respect to the conversation with Ms Karas on the day of the resignation, it was Mr Moore that was the aggressor and no pressure to resign was placed upon him by Ms Karas. Additionally, Ms Karas was not his employer nor does it appear that she had any authority to act on Newspot’s behalf.
[41] It appears to me that Mr Moore made his decision to resign independently and not as a result of any conduct of Newspot or its employees. The decision to resign was confirmed on two subsequent occasions.”
Appeal grounds and submissions
The grounds of appeal stated in Mr Moore’s notice of appeal were as follows:
“1 – The afternoon before the commission was to sit we had an unannounced telephone conference to with I was very distressed going into as indicated to the associate at the time – the discussion not to contest Mr Prso’s statement was made in the heat of the moment – there is no evidence or counselling for such behavior.
2 – I do believe the Commissioner gave enough weight to my medical condition & it’s ability to effect [sic] my decision making, my ability to present my case making sound & reasonable arguments, nor my ability to handle the pressure of the situation at the point in time.
3 – The decision does reflect my reasoning for discussing the contents of the text message with Mr Kennet.
4 - Mr Kennet did not witness me typing my resignation – I thought that was the one piece of evidence I managed to be very clear on.
5 – Further to my point 1 – I cannot remember telling Sasha in the presence of Kerron. I may have, but I can remember asking Malcolm at the end of the day coming out of my office, moments before telling the other staff “Does Sasha know”? To the best of my recollection he did not know until the very end of the day.
6 – Due to my depression & my avoidance of anything stressful my case was put together under great duress at the time of submitting evidence. I was distressed Mr Wadsworth chose to bring a completely unrelated medical condition into this process. Whilst not related I do not believe the Commissioner gave enough weight to the pain that this caused me.
7 – Any discussion or evidence in relation to my demotion was shutdown on the basis that the Commissioner saying I should have lodged a complaint at the time
a) The way I was spoken to & treated that afternoon was not taking into account, nor do I feel I was given the opportunity to express that.
b) There was not dispute with Mr Wadsworth over a trade plate – it was with Mr Kennet
c) There was a lot more to the dispute with my Service Manager over a battery – discussion & investigation into this was not sought.
Possibly my inability to present my case properly contributed to some of these confusions above.
8 – I had requested an adjournment to enable myself to receive a medical report being prepared by my treating specialist – this request was denied both formally & verbally with the reasoning being the Commissioner could not hold this up despite his belief that I had tried to obtain the report. To date I still do not have the report with its current status being reported as being with the typist. I believe the opportunity to present this report would have helped the Commissioner to have made a more informed decision with a clear medical history from the Dr whom had been seeing me since approx. August/September 2016 – some six months worth of history before my resignation.
9 – None of the medical evidence presented to the Commission was in existance [sic] whilst I was employed at Newspot Motors.
10 – Ms Karas has a financial interest in the success of the business. By her own testimony she felt her family was threatened by me spreading rumors [sic] & that motived her to speak her mind. On that basis she also has a financial interest in the outcome of this matter.
11 – I submitted evidence in the form of notes before out fixed operations meeting – the pressures & failings of other departments causing myself stress & the effects the alleged bullying on Josh Christophers [sic] had had on my ability to approach this issue & the problems it was causing me.
12 – I came home after the first day knowing I had failed myself in explaining myself & clamed up to simple questions – even one of the Commissioners first questions about my dog – to which there is no question on what my dogs mean to me.
13 – The 5 days it took for me to ask to retract my resignation were clearly explained in my writing statement & my initial application. The Thursday I had my dog diagnosed, the Friday she was put down & my GP provided me with a certificate, a further 2x days were Saturday & Sunday – after my week I don’t believe 2x days to re-evaluate the situation was uncalled for, before sending the retraction on the Monday after again consulting my GP.
14 - I went into the Commission believing that all the documents I had submitted to the Commission would be available – including the email I sent disputing the honesty of the respondents original response. None of this was questioned, asked about, except what I believe to be only 1 incidence by myself.
15 – As a result of my inability to effective present my case verbally I came home after day 1 & wrote all my thoughts & every emotion & memory that day had bought flooding back. Whilst I appreciate how the Commission had to rule some of it inadmissible, there were elements in that 8 page document that either further expanded on my answers already given, or information that was revelant [sic] & could have been tendered if the time was taken to assess it in it’s [sic] content.”
Mr Moore contended in his notice of appeal that the grant of permission to appeal would be in the public interest for the following reasons:
“I do feel that I was given a fair hearing in light of my medical condition (Depression). This severely effected [sic] my ability to conduct myself & my case & restricted my ability to give evidence. I believe it to be in the public interest that all application are heard in their entirety & the challenges facing the applicant in making this complaint brings with it.
Mental illness if a problem that effects [sic] so many people in the community & many in the car industry due to the pressures that go with those professions. It is important that when someone asks for help that they do not slip through the system due to their own short comings – often caused by events out of their control.”
Taking into account the overall context of the matters stated in his notice of appeal and his oral submissions, we assume that the first sentence in the above passage was incorrectly stated and should be read as: “I do not feel that I was given a fair hearing in light of my medical condition (Depression)”. We likewise assume that the second ground of appeal should read: “I do not believe the Commissioner gave enough weight to my medical condition...”. We shall assess Mr Moore’s application for permission to appeal on that basis.
In his oral submissions before us, Mr Moore emphasised that:
he had been bullied at work over a long period, and that this impacted upon his decision to resign; and
he had suffered from mental illness at the time he resigned, which affected his decision to resign, but had not been given a proper opportunity to present evidence of this.
Immediately after the hearing before us on 8 August 2017, Mr Moore supplied the Commission with a copy of a medical report from a psychiatrist, Dr Andrew Beckwith, dated 20 July 2017. This report appears to have been prepared for workers’ compensation purposes. Relevantly, the report stated that Mr Moore was suffering from Major Depressive Disorder, and that “This would appear to be related to his current work related stress which has been present for some months prior to his eventual resignation”.
After the receipt of this medical report, we gave Newspot an opportunity to respond to the medical report. On 11 August 2017 Newspot provided a submission which canvassed a range of factual matters. Most pertinently, Newspot submitted that it had never been supplied with any medical evidence prior to the resignation that would have made it aware of any special circumstances attending the resignation. It also denied the allegation of bullying. On 14 August 2017 Mr Moore supplied the Commission with a further, uninvited, submission which raised a number of new factual matters. Most relevantly, it stated that “There was no medical evidence provided to Newspot at the time because there wasn’t anything diagnosed to report, & who could I trust to have a heart felt conversation like that with given what had recently transpired?”
Consideration
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.[5] 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, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 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]. 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.”[8]
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]
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]
We have earlier set out Mr Moore’s grounds of appeal. Grounds 1, 2 (in part), 6, 8, 12 and 15 raise procedural complaints about the conduct of the matter before the Commissioner, including that the Commissioner did not give enough weight to the impact of Mr Moore’s mental health issues on his capacity to properly represent himself and that the Commissioner did not adequately accommodate Mr Moore’s mental health issues. We do not consider that these grounds disclose any arguable case of appealable procedural error. In accordance with the Commission’s usual procedures, Mr Moore was given an opportunity to set out in writing his case prior to the hearing of his matter, and he did so by way of a written submission dated 9 June 2017. This included a detailed factual account of the circumstances which led to the termination of his employment, and attached documents considered by Mr Moore to be relevant, including the medical evidence which was subsequently received by the Commissioner and referred to in the Decision. It is clear that Mr Moore understood that it was necessary for him to demonstrate that he had been dismissed, and attempted to marshal the evidence to support his case in that respect. Mr Moore was also provided with Newspot’s case on 8 June 2017 in advance of the hearing, which consisted of a number of witness statements and relevant documents and a summary of the propositions upon which Newspot relied. Mr Moore comprehensively replied to this in writing in a submission dated 15 June 2017.
Mr Moore’s matter was then dealt with in a determinative conference before the Commissioner which extended over two days, on 20 and 21 June 2017. The determinative conference procedure, conducted consistently with s.398 of the FW Act, allowed the matter to be dealt with in a relatively informal manner suitable for non-represented litigants. There is nothing in the material before us to suggest that Mr Moore was actually medically unfit, for mental health reasons, to participate in the determinative conference, or that he indicated this to the Commissioner. It may be accepted that Mr Moore felt under stress, and distressed, during the process, but that is not unusual for a litigant, particularly a self-represented litigant. It appears to us from the materials and the Decision that the Commissioner was alert to Mr Moore’s health issues. Appropriate adjustments were made, including the admission of Mr Moore’s material which was filed late and contrary to the Commission’s directions and the rejection of Newspot’s application to have the matter struck out.[12]
Ground 3 does not contain a comprehensible contention of appealable error. Grounds 4, 5 and 7 assert that the Commission made errors of fact. Mr Moore conceded in his notice of appeal that his memory in relation to some of the incidents in question is not precise and/or that he may not have clearly conveyed the information to the Commissioner. We are not satisfied that the appeal grounds contain any contention of a significant error of fact which would be capable of satisfying the requirement in s.400(2). For example, appeal ground 4 asserts that the Commissioner erred when he found that Mr Kennett observed Mr Moore type the resignation. Mr Moore asserted that Mr Kennett did not observe him type the resignation. However, given that it was not in dispute that Mr Moore typed the resignation, whether Mr Kennett observed this occurring is unimportant. Likewise the matters referred to in appeal ground 7 lack significance because they have no apparent relevance to the question of whether Mr Moore was dismissed.
In Ground 8, Mr Moore complained that he was not permitted an adjournment in order to obtain a further medical report. The Commissioner denied the adjournment on the grounds that the likely duration of the delay was unclear and had to be balanced against the obligation to determine matters expeditiously. The medical report which Mr Moore wished to obtain, and which was ultimately provided to us, was not issued until 31 July 2017, many weeks after the appeal was filed and some six weeks after the hearing before the Commissioner. We do not consider that there is any arguable case of appealable error in this discretionary procedural decision made by the Commissioner. Moreover the medical report does not support the proposition that Mr Moore’s resignation was vitiated by his mental health issues.
In Ground 9, Mr Moore stated that none of the medical evidence presented to the Commissioner was in existence at the time Mr Moore was still employed by Newspot. This is a matter the Commissioner rightly took into account at paragraph [45] of the Decision; the Commissioner noted that this information could not be characterised as “special circumstances” that made it unreasonable for Newspot to assume Mr Moore’s resignation was genuine, as Newspot were not aware of the information at the time of Mr Moore’s resignation.
In Ground 13, Mr Moore provided an explanation for the delay before he sought to retract his resignation. This information was before the Commissioner and taken into account by him in reaching his ultimate determination. We are satisfied that the conclusion the Commissioner reached was open to him on the evidence before him, and that it was consistent with the relevant authorities identified by him in the Decision.
In Ground 14, Mr Moore expressed concern about not being questioned about submissions and evidence he filed. Mr Moore filed a considerable amount of material. He conceded that some of this he knew to be irrelevant to the matters which the Commissioner had to determine. Mr Moore did not identify any particular relevant fact or submission which was overlooked by the Commissioner. There is no evidence to suggest that the Commissioner did not have regard to all the material filed and afford it the appropriate weight.
In Ground 2 (in part) and in his oral submissions Mr Moore contended that it was the cumulative effect of his experiences during his employment at Newspot that triggered his resignation rather than simply the events immediately preceding his resignation. However the evidence advanced in the hearing before the Commissioner to support this contention did not satisfy him that there was bullying and harassment which created a situation where resignation was the only alternative open to Mr Moore. It is clear from the decision that the Commissioner took into account both the events immediately surrounding Mr Moore’s resignation and the events which preceded them over the course of Mr Moore’s employment.[13] The “bullying” which Mr Moore alleged, taken at its highest, consisted of a small number of widely dispersed incidents which were temporally and causally remote from the termination of his employment. We consider that this evidence could not on any view have supported a conclusion that Mr Moore was forced to resign because of workplace bullying.
We consider that the Commissioner’s conclusion that Mr Moore was not dismissed was clearly correct, and Mr Moore’s challenge to that conclusion in his appeal is not reasonably arguable. It is clear from the medical evidence tendered that Mr Moore is unwell. It is also clear from the materials filed by Mr Moore that he found his work environment, and some of his colleagues’ behaviour, challenging from time to time. However, there is no evidence that Mr Moore’s employer intentionally or recklessly sought to create a work environment which would force Mr Moore to resign. In particular, there is no evidence that Newspot was even aware of Mr Moore’s mental health issues.
Mr Moore clearly made a conscious decision to resign his employment. He recorded this in writing and forwarded it to his employer. He communicated this decision to two witnesses. There is no doubt that it was his intention to resign. His employer accepted this resignation. Mr Moore did not seek to retract the resignation for a period of five days. While the loss of his pet during the intervening period was no doubt distressing for Mr Moore the retraction did not occur temporally close enough to the resignation to suggest the resignation occurred in the heat of the moment.
That Mr Moore did not succeed before the Commissioner does not demonstrate that he did not have a proper opportunity to advance his case or that his mental health issues prevented him from doing so. We consider that he was given a fair opportunity to present his case both in writing and at the determinative conference, and he took full advantage of that opportunity. His application was ultimately dismissed because his case was fundamentally without merit, not because of any procedural deficiency or unfairness.
On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner’s exercise of his discretion, of the kind discussed in House v King.[14] We also do not consider that an arguable case has been made out that the Commissioner's conclusion was unreasonable, manifested by any injustice or counter-intuitive. We are not persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest. In accordance with s.400(1) of the FW Act, permission to appeal must be refused.
VICE PRESIDENT
Appearances:
J. Moore on his own behalf.
Hearing details:
2017.
Sydney:
August 8.
[1] [2017] FWC 3380
[2] [2014] FWCFB 4822
[3] Decision at [32]
[4] Decision at [33]
[5] This is so because on appeal the Commission has 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
[6] (2011) 192 FCR 78 at [43]
[7] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] -[46]
[8] [2010] FWAFB 5343, 197 IR 266 at [27]
[9] Wan v AIRC (2001) 116 FCR 481 at [30]
[10] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[11] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[12] Decision at [7]
[13] Decision at [43]-[44]
[14] (1936) 55 CLR 488
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