JG King Homes v Tyler

[2016] FWCFB 140

[2016] FWCFB 140

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
JG King Homes
v
Mr Tom Tyler
(C2015/6320)
VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON	SYDNEY, 28 JANUARY 2016
DEPUTY PRESIDENT BULL

Appeal against decision [[2015] FWC 6352] of Commissioner Wilson at Melbourne on 18

September 2015 in matter number U2015/993 – Permission to appeal – whether grounds of

appeal attract the public interest – whether arguable case of appellable error – Fair Work

Act 2009 – ss.394, 400 and 604.

Introduction

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[1] This decision concerns an application for permission to appeal against a decision and

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order of Commissioner Wilson handed down on 18 September 2015. The decision of the

Commissioner concerned an application for unfair dismissal remedy made by Mr Tyler under

s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment

with JG King Homes.

[2]        At the hearing of the appeal on 18 December 2015, Ms S Bingham of counsel sought

permission to appear on behalf of JG King Homes and Mr A Bell of counsel sought

permission to appear on behalf of Mr Tyler. Having regarding to s.596 of the Act permission

to appear was granted.

Background

[3]        Mr Tyler was engaged to sell new homes for JG King Homes, including home and

land packages. His application alleges that he commenced working for JG King Homes in

September 1990 and, having worked for the business continuously since that time, he was

called into a meeting on 16 February 2015 and told that his work with the company would

end with immediate effect.

[4]        JG King Homes resisted the application, principally for the reason that it contends that

Mr Tyler has never been an employee of the company. In the alternative it argues that if Mr

Tyler was an employee, he has not been unfairly dismissed.
[2016] FWCFB 140

[5]        The Commissioner noted that application of the multifactorial tests established by the

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Courts has been confirmed in the recent matter Kimber . The Commissioner analysed Mr

Tyler’s circumstances in accordance with the principles laid out in another case French

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Accent.

[6]        The Commissioner concluded:

“[76] Having given consideration to all of the relevant criteria, and having found that

many resolve as characteristic of an employee, it is evident that, at least in the most

recent years of Mr Tyler’s engagement, he was an employee for the purposes of the

Act, and I so find.”

[7]        The Commissioner then proceeded to determine whether Mr Tyler was a person

protected from unfair dismissal at the time of his dismissal.

[8]        The Commissioner reached the following conclusions:

“[140] After consideration of the foregoing issues, I find that the Applicant was

dismissed and that it was unfair within the meaning of the Act.

[142] I find that reinstatement is not an appropriate remedy in this case.

[143] I find that compensation is appropriate.”

Grounds of Appeal

[9]        The grounds of appeal advanced by JG King Homes are:

 The Commissioner erred in determining that the Respondent was engaged as an

employee “At least in the most recent years” in that he failed to take into account

and give appropriate weight to certain factors, constituting errors of fact and law.

 In the alternative, the Commissioner erred in that he was required to identify when

Mr Tyler became an employee and erred in finding that Mr Tyler was engaged for

the minimum employment period.

 The Commissioner erred in the determination of the appropriate remedy.

[10]      JG King Homes asserts that it is in the public interest for the Commission to grant

permission for the appeal for the following reasons:

 The decision is attended with sufficient doubt, manifests an injustice and raises

issues of importance and general application with respect to the engagement of

corporate entities to provide services of individuals pursuant to the contract, and

 The public interest in ensuring that the jurisdiction vested in the Commission is

exercised in accordance with and/or in conformity with established principles and

commercial practice.

[2016] FWCFB 140

Public Interest

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[11] This appeal is one to which s.400 of the 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.

[12]      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

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the test under s.400 as “a stringent one”. The task of assessing whether the public interest test

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is met is a discretionary one involving a broad value judgment . 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

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similar matters.”

[13]      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

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of appealable error. However, the fact that the Member at first instance made an error is not

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necessarily a sufficient basis for the grant of permission to appeal.

[14]      A determination of the nature of a contractual relationship and whether it is properly

described as an employment relationship involves an exhaustive consideration of key aspects

of the engagement. The decision of the Commissioner properly identified the relevant test. It

proceeded to make findings of fact relevant to the factors which were legitimate to consider. It

has not been demonstrated in the appeal submissions that those findings of fact were

inconsistent with the evidence before the Commissioner. It appears to us that JG King Homes

takes issue with the overall conclusion reached in relation to this matter - rather than the

approach taken or the specific factual findings.

[15]      In our view this was a case that depended on its peculiar facts and has no relevance to

other relationships or other contested cases concerning the existence of an employment

relationship. The engagement continued over many years and may have changed over that

period. However the Commissioner properly considered the nature of the relationship at the

relevant time and made findings which led to his conclusion that there was jurisdiction to deal

with the matter.

[16] We are not satisfied that the decision involves any error of principle that requires

correction. The decision applies established legal tests, makes requisite findings and reaches
[2016] FWCFB 140

conclusions which do not appear to us to be counter-intuitive. We are there not persuaded that

it is in the public interest to grant permission to appeal.

Conclusion

[17]      For the above reasons we decline to grant permission to appeal. The application for

permission to appeal is dismissed.

VICE PRESIDENT

Appearances:

Ms Bingham, S of counsel, with Ms Dawson, M on behalf of JG King Homes.

Mr Bell, A of counsel on behalf of Mr Tyler.

Hearing details:

2015.

Melbourne.

18 December.

Final written submissions:

JG King Homes on 19 November 2015.

Mr Tyler on 16 December 2015.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575933>

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[2010] FWAFB 5343 at [27], 197 IR 266

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Wan v AIRC (2001) 116 FCR 481 at [30]

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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 288, 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]

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[2015] FWC 6352

2

PR571877

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[2015] FWCFB 3704

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[2011] FWAFB 8307

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See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]

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(2011) 192 FCR 78 at [43]

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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]