Joe Caruso v Pittwater RSL Club Limited T/A Pittwater RSL
[2018] FWCFB 5970
•25 SEPTEMBER 2018
| [2018] FWCFB 5970 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Joe Caruso
v
Pittwater RSL Club Limited T/A Pittwater RSL
(C2018/4519)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 25 SEPTEMBER 2018 |
Permission to appeal sought against a settlement reached following a Conference before Commissioner McKenna at Sydney on 3 July 2018 in matter number U2018/5646.
Introduction and background
[1] Mr Joe Caruso applied to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) on 31 May 2018. The application was lodged by United Voice – New South Wales Branch, Liquor & Hospitality Division (United Voice) as representative for Mr Caruso.
[2] A telephone conciliation was held on 26 June 2018 but the matter did not settle and it was subsequently allocated to Commissioner McKenna. On 28 June 2018, the matter was listed for Conference and/or directions on 3 July 2018 and Arbitration Conference/Hearing on 21 August 2018.
[3] The Commissioner’s Associate sent email correspondence to Mr Chris Acev of United Voice and Mr Chris Mossman from Registered Clubs Association of New South Wales T/A ClubsNSW (ClubsNSW), the representative of Pittwater RSL Club Inc T/A Pittwater RSL (Pittwater RSL) on 28 June 2018. The correspondence stated that the Commissioner had determined to list the matter for pre-hearing conference and/or directions (for the purpose of ascertaining whether there is any likelihood of the matter resolving and to address any relevant matter arising) and Arbitration Conference/Hearing.
[4] Commissioner McKenna convened the conference at 3.00pm on 3 July 2018. During the course of the conference, the Commissioner excused herself while settlement discussions between the representatives of the parties, Mr Acev and Ms Lee Pike of ClubsNSW, took place. These discussions appeared to resolve the dispute, with a file note made by the Commissioner’s Associate at 5.10pm that day recording that the parties reached an in principle settlement, on terms not disclosed to the Commissioner, and subject to a “DOR”.
[5] The directions previously made, together with the listing for Arbitration Conference/Hearing on 21 August 2018 were then vacated by the Commissioner and an amended notice of listing was sent to Mr Acev and Mr Mossman. This stated the directions and listing had been vacated on the basis of the advice that settlement had been reached and that the matter was listed for a telephone mention, before the Commissioner on 16 July 2018.
[6] On 13 July 2018, Mr Acev sent an email to the Commissioner’s Chambers, which stated:
“Dear Commissioner McKenna,
We write in respect to the teleconference listing of the above matter on 16 July 2018.
We wish to advise that a Deed of Release has been executed by the parties.
The Deed has a set time frame for the Club to provide a statement of service to the Applicant. Once this has been done the Union will be in a position to file a Notice of Discontinuance.
Based on the above information, we respectfully submit that the listing on 16 July 2018 is now considered redundant and, by consent (see e-mail from Ms. Pike, Clubs NSW) we respectfully seek the listing be vacated and the parties excused from participation.”
[7] It would appear Mr Caruso was copied into this email.
[8] The telephone mention listed for 16 July 2018 was cancelled by the Commissioner and a document confirming this was sent to Mr Acev and Mr Mossman on 13 July 2018, containing the following statement:
“The listing has been cancelled on the basis that emailed confirmation of settlement has been noted. The matter is stood over pending the filing and service of a Notice of Discontinuance within 21 days.”
[9] On 27 July 2018, a notice of discontinuance was filed via an email sent to the Commissioner’s chambers by Mr Acev. It was filed and signed by Mr Acev “for an [sic] on behalf of the Applicant”. Mr Caruso was copied into this email.
[10] The Commissioner’s file was closed on 27 July 2018.
[11] On 14 August 2018, Mr Caruso filed a notice of appeal in the Commission. It was stated in the notice of appeal that the decision maker was Commissioner McKenna and the date of the decision was:
“Date of 2nd conciliation at the FW Commission in front of Commissioner McKenna was 3 July 2018. The Union emailed a Notice of Discontinuance to Commissioner McKenna on 27 July 2018.”
[12] The decision Mr Caruso is appealing was said to be:
“After a failed conciliation process, a second conciliation in the Fair Work Commission resulted in a decision. This decision resulted in a statement of service, the opportunity for the Appellant to resign if the wrongful dismissal application was withdrawn, and no compensation or severance to be paid despite 30 years of service. The appellant suffers from Tourette’s Syndrome and a clinically diagnosed mental health disability, and received poor advice from the Liquor and Hospitality Union in whom he entrusted the outcome of the process. The conciliation process was not appropriately explained to the appellant who, in addition to Tourette’s and its associated conditions, also suffers clinical severe anxiety. Furthermore, the appellant’s mental health at the time of the conciliation was not factored into the process and impacted detrimentally on his decision-making ability. The quasi-judicial process was not conducive to his cognitive ability to make ‘reasoned’ decisions, nor actively participate as an advocate for his own best outcome.”
[13] In his notice of appeal, Mr Caruso has advanced five grounds of appeal, we have reproduced in full:
1) Following an unsuccessful phone conciliation on 26 June 2018, the Fair Work Commission arranged a further face to face conciliation at the Fair Work Commission on 3 July 2018. The Union representative did not explain until the day of the second conciliation that there would not be a third party mediating the conciliation. Instead, the Commissioner left the two parties to come to an agreement; the appellant understands this process is to ensure the Commissioner’s view of the case is not influenced by being involved in the pre-hearing process. However, the experience of being in a court room environment for the first time, at close quarters with staff from the appellant’s employer organization and without the mediation role he understood would be present, was severely stressful for him. His previously referenced extreme anxiety became very detrimental to his judgement which was compounded by the fact he had been working in a stressful environment for many months.
2) The impact on the appellant’s thinking and emotional state is evidenced in the shift of negotiations from a request for 18 weeks’ pay, to 12 weeks’ pay with the opportunity to resign at the original conciliation, to, finally, merely the opportunity to resign at the second conciliation, which the union persuaded the appellant was valuable, and that compensation would be a much more difficult negotiation. The request for compensation was made in good faith of the appellant’s 30 years’ unblemished service prior to the incident which led to his dismissal, the occurrence of which the appellant fervently denies.
3) There was no cooling off period in which the appellant could recover from the stress of the courtroom environment, to reconsider the decision. Following the conciliation, the appellant sought legal advice and discovered the process the union had taken was severely lacking in considering his own best interests.
4) The union’s mis-actions included: not asking for a copy of the recording of the disciplinary meeting (which the club and investigator subsequently refused to provide), not seeking a copy of the investigation report so that the appellant could respond to each specific accusation, and not consulting the appellant sufficiently on the day of the second conciliation whether he wanted to seek compensation or severance.
5) The appellant’s mental health was never acknowledged or factored into the process; and in fact, the union intimated it was a reason not to pursue compensation.
Appellant’s submissions
[14] Written submissions dated 27 August 2018 were filed on behalf of Mr Caruso. The submissions firstly addressed four matters going to the merits of his unfair dismissal application:
• A lack of procedural fairness;
• The allegations against Mr Caruso (including an allegation raised during the telephone conciliation on 26 June 2018);
• Mr Caruso’s employment history at Pittwater RSL; and
• Mr Caruso’s health issues (Tourette Syndrome, severe anxiety and obsessive compulsive disorders) and an alleged failure of Pittwater RSL to exercise a duty of care.
[15] Mr Caruso’s submissions then addressed the conference held on 3 July 2018. He submitted he was unaware until it was underway that the Commissioner would not be conciliating and that the parties would be negotiating between themselves. Mr Caruso also alleged further procedural fairness issues, including:
• The state of his physical and mental health, which he says could not have been known by the Commissioner;
• His anxiety due to the “Commission’s quasi-courtroom adversarial atmosphere” which led him to seek any result that would remove him from it; and
• The nature of the advice he had received from United Voice.
[16] Mr Caruso outlined the financial impact his dismissal has had and the impact on his relationships with his partner and daughters. He also stated he had not received the Statement of Service that was agreed at the conference on 3 July 2018.
[17] Mr Caruso’s submissions make clear he seeks an opportunity to present his case in a “non-adversarial environment” before “an unbiased facilitator or mediator”. Further, he wishes to appeal the conciliation outcome from 3 July 2018 because he was not afforded procedural fairness and has been subjected to an injustice. Mr Caruso submitted it is in the public interest that he be allowed to do so, considering his disability and mental health disorders.
[18] At the hearing, Mr Caruso was represented by his partner, Ms Lesley Milbourne. Ms Milbourne supplemented the previously filed written submissions by providing a comprehensive account, from the perspective of Mr Caruso, as to:
• his personal circumstances;
• his struggles resulting from various health issues;
• his largely unblemished 30-year employment history at Pittwater RSL;
• changes in the tenor of that employment relationship said to have occurred towards its end, including two disciplinary matters, the first of which resulted in a final written warning and the second of which resulted in his termination;
• his feeling that he was being forced out of his employment by actions of the current management of Pittwater RSL, including detrimental changes made to his working hours;
• the allegations that resulted in his dismissal, his denial of their tenor and his explanation in response;
• the processes adopted by Pittwater RSL in managing his employment, the investigation, his suspension and termination;
• his experiences at the telephone conciliation and the conference on 3 July 2018 and his surprise that the latter did not include a mediated process;
• the stress and anxiety caused by the conference on 3 July 2018 and his frustration at not being given a ‘cooling off period’ or being asked by United Voice whether he wanted to pursue financial compensation;
• his dissatisfaction at the quality of the representation and advice he received from United Voice and his feeling that United Voice thought his case was “too hard”;
• the chain of events that led to him signing the Deed of Release and his feeling of helplessness in doing so;
• the impact the dismissal has had on him; and
• his reasons for filing this appeal.
[19] Ms Milbourne concluded by submitting that an injustice had been done and it is in the public interest that there are processes in place for people who are disadvantaged and lacking empowerment and there would be a significant injustice to Mr Caruso if he was denied the opportunity to appeal.
Respondent’s submissions
[20] Pittwater RSL submitted the Commission has no jurisdiction to hear the appeal on the grounds that:
• The Commission did not make any ‘decision’ in relation to which Mr Caruso is able to appeal;
• Mr Caruso signed a Deed of Release in settlement of the matter, barring him from bringing future proceedings in relation to the matter; and
• The Notice of Appeal was brought out of time.
[21] Pittwater RSL also drew attention to the notice of discontinuance filed on Mr Caruso’s behalf by United Voice and asserts Mr Caruso received the benefit of the Deed of Release on or about 26 July 2018.
Appellant’s Reply Submissions
[22] Ms Milbourne responded to the assertion that the appeal has been made out of time by stating her belief that it had been made within the requisite time limit, because it was filed within 21 days of the date of the notice of discontinuance.
[23] As to whether there was a decision from which an appeal could lie, Ms Milbourne raised the notion of public interest and made a submission, the thrust of which we understand to be that while the conciliation process is designed to avoid a hearing, the lack of an appeal process from a conciliated outcome is unfair.
Consideration
[24] 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. 1 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
“(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made under the Registered Organisations Act by:
(i) the General Manager (including a delegate of the General Manager); or
(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
[25] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 2 The public interest is not satisfied simply by the identification of error,3 or a preference for a different result.4 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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...” 5
[26] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 6 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.7 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.8
[27] A “decision” for the purpose of an appeal under s.604 of the Act is defined in s.598(1) as follows:
“(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).”
[28] In this matter, the Commissioner did not make a decision within the meaning of s.598(1) of the Act. What occurred on 3 July 2018 was the reaching of a settlement, later confirmed in the written terms of an executed Deed of Release, which Mr Caruso now disputes.
[29] In the notice of appeal, it is stated that Mr Caruso seeks a further mediation or conciliation process taking into account his intellectual capacity. 9 Mr Caruso’s position is that he feels as though he made poor decisions due to stress and that he felt disempowered and manipulated.
[30] While Mr Caruso seeks, through this appeal, a further mediation or conciliation and the opportunity to present his case again, there was a notice of discontinuance filed on 27 July 2018. Once filed, a notice of discontinuance is self-executing and, in Mr Caruso’s case, it brought his unfair dismissal application to an end. 10 A Full Bench of the Commission in AB v Tabcorp Holdings Limited11 has previously stated:
“We agree with the proposition that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief…” 12
[31] As such, if Mr Caruso wants to have the notice of discontinuance set aside on the basis it was filed by mistake or under duress, such application would have to be made to a court. While we are not without sympathy for the circumstances Mr Caruso finds himself in, we do not have the power to set aside the notice of discontinuance filed on 27 July 2018.
[32] We acknowledge that Mr Caruso is aggrieved by the outcome from the conference on 3 July 2018 but there having been no decision made by the Commissioner within the meaning of s.598(1) of the Act, there is no basis for an appeal. The application for permission to appeal is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Ms L Milbourne on behalf of the Appellant.
Ms L Pike (Registered Clubs Association of New South Wales T/A ClubsNSW) for the Respondent.
Hearing details:
2018.
Melbourne, VC to Sydney:
7 September.
Printed by authority of the Commonwealth Government Printer
<PR700773>
1 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Limited v AIRC and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
2 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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].
3 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78.
5 [2010] FWAFB 5343, 197 IR 266 at [27].
6 Also see CFMEU and Others v AIRC and Another (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 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; Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
9 Appellant’s Notice of Appeal dated 14 August 2018 at 4.1.
10 Chandra Gupta Narayan v MW Engineers Pty Ltd[2013] FWCFB 2530 at [6].
11 [2015] FWCFB 523.
12 Ibid at [11].
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