Keaton Wheeler v Power Research and Development Pty Ltd
[2021] FWCFB 4646
•30 JULY 2021
| [2021] FWCFB 4646 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Keaton Wheeler
v
Power Research and Development Pty Ltd
(C2021/2961)
VICE PRESIDENT CATANZARITI | SYDNEY, 30 JULY 2021 |
Appeal against decision 2021 FWC 2577 of Deputy President Lake at Perth on 6 May 2021 in matter number C2020/8414 - permission to appeal refused.
[1] Mr Keaton Andre Wheeler has applied for permission to appeal and has appealed against a decision of Deputy President Lake made on 6 May 2021 1 (Decision), in which he refused to grant an extension of time for Mr Wheeler to lodge a general protections dismissal application under s 365 of the Fair Work Act 2009 (Cth) (Act). The matter was listed for hearing before us in respect of permission to appeal only.
[2] Mr Wheeler’s general protections application contended that he had been dismissed from his employment with Power Research and Development Pty Ltd (Power Research), with effect from 5 November 2020 and the company had misrepresented to him that he was a contractor in contravention of the sham contracting provisions in s 357 of the Act. He also contends that Power Research contravened s 340 of the Act and that company had failed to compensate him for wages and entitlements owing.
[3] Power Research denied having contravened the Act and objected to Mr Wheeler’s request for an extension of time. It contended that Mr Wheeler was not its employee, but instead a contractor who “provided specialist professional services”. 2 Power Research contends that it terminated its contract with Mr Wheeler on 6 October 2020, subject to “a 14 day remedy” which was not remedied3. Power Research further submitted that Mr Wheeler’s application was lodged out of time, and that no extension should be granted.
[4] On 6 October 2020, Mr Wheeler was sent an email (the ‘Breach Notice’) from Power Research which advised him that the “Contractor Agreement is terminated immediately today 6 October 2020, subject to 14 days for the breach to be remedied.” 4 The Deputy President concluded that Mr Wheeler was dismissed on 20 October 2020 and that “21 days from the date of dismissal” was “9 November 2020”, and that the application, having been lodged with the Commission on 17 November 2020, was therefore out of time. He concluded that it was necessary for Mr Wheeler to obtain an extension of time pursuant to s366(2) in order to make his application. Mr Wheeler states that he had been dismissed from his employment with effect from 5 November 2020 and that his Application was therefore within time.
[5] Mr Wheeler’s request for an extension of time was heard by the Deputy President on 16 April 2021. After taking into account the considerations in s 366(2), the Deputy President concluded that he was not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s 366(2).
[6] We note that the Decision proceeds on the assumption that Mr Wheeler was an employee of Power Research. The Deputy President did not make a finding as to whether Mr Wheeler was dismissed. This course was in line with the decision of the Full Bench of the Commission in Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera and Video Digital 5, which had held that the Commission does not need to be satisfied that an applicant has been dismissed before dealing with an application under s 365, and that it was sufficient that the Commission have before it an application that alleged a dismissal in contravention of Part 3-1. However, this approach was disapproved by the decision of the Full Court of the Federal Court in Coles Supply Chain Pty Ltd v Milford6. The Court noted that s 365 applies ‘if a person has been dismissed’, and s 366 imposes a time limit for lodgement of 21 days after the dismissal takes effect, allowing the Commission to extend that period in exceptional circumstances. In rejecting the approach in Hewitt, the Full Court said that it was difficult to comprehend why the Act would permit the Commission to make a finding about when a dismissal occurred, but not about whether a dismissal had occurred.7
[7] In light of the Full Court’s decision in Coles, the Deputy President’s failure to make a finding about whether Mr Wheeler was dismissed from employment with Power Research was an error as the Deputy President assumed the existence of a jurisdictional fact. However, it was one that worked in Mr Wheeler’s favour. It was not an error that affected the Deputy President’s decision to refuse an extension of time.
[8] One further matter worth addressing that was not raised in the Applicant’s notice of appeal is the date given by the Deputy President as constituting 21 days after dismissal. Taking 20 October 2020 as the effective date of dismissal, it is accepted that time begins to run on the day following dismissal 8, meaning 21 days after 20 October would be 10 November and not 9 November 2020 as stated by the Deputy President at paragraph 31. We note this was not an error that affected the Deputy President’s decision to refuse an extension of time.
The appeal
[9] An appeal under s 604 of the Act may only be made with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is 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. 9 The public interest is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench identified some of the considerations that may enliven 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...’ 10
[10] Aside from the special case in s 604(2), the grounds for granting permission to appeal are not confined. Matters traditionally considered to justify the grant of permission include where a decision is attended with sufficient doubt to warrant its reconsideration, or that substantial injustice may result if leave is refused. 11 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, because an appeal cannot succeed in the absence of error.12 But the fact that a member at first instance has made an error is not necessarily a sufficient basis to grant permission to appeal. 13 In deciding whether to grant permission, it is not necessary for the Full Bench to conduct a detailed examination of the grounds of appeal. 14 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[11] We make some observations about the provisions that are relevant to this appeal. Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal takes effect, or within such further period as the Commission allows. Section 366(2) sets out the circumstances in which the Commission may grant an extension of time. It states:
‘The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
[12] The meaning of ‘exceptional circumstances’ in s 366(1) was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty), 15 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.
[13] Mr Wheeler’s notice of appeal raised 16 grounds. Grounds 1 to 6 variously contend that the Deputy President erroneously determined the effective date of termination. Grounds 7 to 8, and 13 to 16 variously allege pre-judgment and bias. Grounds 9 to 12 variously contend that the Deputy President made significant errors of fact and failed to apply the principles of natural justice.
[14] By grounds 1 through to 6, Mr Wheeler effectively contends that the Deputy President mischaracterised the sequence of events recorded in a chain of emails between Mr Wheeler’s lawyers at the time and Power Research following the 6 October 2020 ‘breach notice’. Mr Wheeler concludes that the Deputy President’s purported failure to properly scrutinise the correspondence caused the Deputy President to incorrectly find the effective date of termination as 20 October 2020. Further Mr Wheeler states that the Deputy President’s statement that ‘it is unfortunate that the Respondent did not respond to the Applicant’s letter of 7 October 2020 to confirm that they disputed the date of dismissal’ 16, is evidence of the Deputy President’s error and supports Mr Wheeler’s assertion the Deputy President “incorrectly applied the time sequence of events”.17
[15] We agree that there is some ambiguity about the passages in question. As stated above, Mr Wheeler is of the view that the passages indicate that the Deputy President believed the letter of 7 October 2020 from the Mr Wheeler’s lawyers at the time at the time to Power Research was not responded to when in fact, the email of 9 October 2020 appears to be written in response to the 7 October 2020 letter. However, this factual error does not appear to have had any significant bearing on the Deputy President’s reasoning or affected the outcome. The Deputy President nevertheless correctly determined at paragraph 24 that “the correspondence of 6 October 2020, in which the Respondent gave the Applicant 14 days within which to remedy the breach or else the Agreement be terminated, was clear.” 18
[16] At paragraph 26, 27 and 28 the Deputy President states that:
“• [26] I prefer the Respondent’s evidence in respect of whether the breach was remedied. It seems that the Applicant either did not understand or was unwilling to conduct the exercise of analysis and provide the information requested by the Respondent. The Respondent claimed the Applicant was obfuscating a standard reporting requirement contained within the contract is an industry standard in the consulting environment in which the Applicant had considerable experience.
• [27] The letter of 6 October was drafted by legal representatives for the Applicant and the Respondent says that it did not address the simple requirement of accounting for work performed in the previous period. It was an attempt to cloud and complicate a standard requirement for any contractor performing work.
• [28] Having considered the evidence provided, I conclude that the breach was not remedied”
[17] Although the Deputy President’s reasoning for his conclusion reached at paragraph 28 above is not readily apparent, it appears that the correspondence of 9 October 2020, read compatibly with the response from Power Research on 13 October 2020, supports the conclusion that Mr Wheeler, through his legal representative at the time, rejected the content of Power Research’s correspondence of 9 October 2020. An obvious effect of that approach was that the 14 day period for rectification as set out in the 6 October 2020 email was fast approaching. There being no evidence before the Deputy President of any further correspondence between the parties until after 20 October 2020, we see no error in the Deputy President’s overall conclusion.
[18] We reject Mr Wheeler’s assertion that the Deputy President relied upon, “anecdotal evidence from the Respondent that it was obvious the breach had not been rectified”. 19The Deputy President relied on the evidence before him, particularly Mr Wheeler’s response communicated through his legal representative at the time of 13 October 2020 to reach the conclusion that the breach had not been rectified. On the evidence, this conclusion was open to the Deputy President to make. We note the reference in the 13 October 2020 correspondence to arrangements for Mr Wheeler to return items provided to him under the contractor agreement, followed by emails of 15 October 2020 between Mr Wheeler and Power Research as to shipping arrangements and logistics.
[19] Appeal ground 7 contends that the Deputy President determined that Mr Wheeler was a contractor and not an employee of Power Research. We do not accept this submission in light of the Deputy President’s remarks at paragraph two of his decision 20 and our findings at paragraph 7.
[20] As to appeal ground 8, that the Deputy President’s failure to test the claim that time sheets produced by Mr Wheeler were insufficient, we see no error. We have dealt with the Deputy President’s error as to the correspondence of 9 October. Having reviewed the correspondence, Mr Wheeler’s submissions do not indicate the significance of the submission and how it would impact the outcome of the matter. Accordingly, we are not satisfied that appeal ground 8 is reasonably arguable.
[21] Appeal ground 9 asserts that the disputation as to whether the Mr Wheeler was an employee or contractor has some impact as to the length of time it took him to lodge his application and that the Deputy President erred by failing to give this consideration due weight. We reject this submission, in our view the Deputy President considered Mr Wheeler’s submissions in an orthodox and reasoned way and made findings that were reasonably open to him on the evidence.
[22] By grounds 10 and 11, Mr Wheeler in essence contends that the Deputy President erred by not giving significant weight to delays caused by Power Research with respect to both Mr Wheeler’s final pay and Power Research’s queries as to Mr Wheeler’s time sheets, used for ‘distraction to create unnecessary delays.’ 21 This submission is not fully developed, but given our findings above as to the effective date of termination, in so far as it alleged that there was ambiguity as to the date of termination, we reject the submission. It follows we reject appeal grounds 10 and 11.
[23] Having reviewed the transcript of this proceeding, appeal ground 12 cannot be substantiated and is rejected.
[24] Grounds 13 to 16 contain generalised allegations of errors of reasoning, as well as the contention that the Deputy President was biased and prejudiced. Having reviewed the transcript, we are not satisfied there is proper basis for making allegations of bias and prejudice. We reject this contention. As to various contentions that ‘the Covid-19 environment constitutes exceptional circumstances’ 22, although it is the case that the pandemic is an unprecedented event and in that sense is an exceptional circumstance, there was no evidence before the Deputy President that the COVID-19 pandemic contributed in any significant way to Mr Wheeler’s failure to lodge the application in time. Matters of this nature are determined on their own specific facts and we reject the submission that the pandemic in isolation provides an overarching exceptional circumstance that can be applied to all matters. The Deputy President considered and attributed weight to each of the matters he was required to by the Act to take into account and concluded that he was not satisfied that there were exceptional circumstances warranting the granting of a further period to make an application under s 366. We do not identify any error in the Deputy President’s approach to the considerations in section 366(2) or in his conclusion that there were no exceptional circumstances warranting an extension of time moreover, we agree with his conclusion.
[25] Finally, we are not persuaded that Mr Wheeler has identified any public interest considerations that support the granting of permission to appeal.
Conclusion
[26] We are not persuaded that the matters set out in the grounds of appeal and submissions raise an arguable case of a material error. The Deputy President’s mistaken understanding as to the chronology of emails referred to above at paragraphs 13 to 15 and his reference to the 9 November instead of 10 November as the date the application was due were not errors of any apparent consequence. We do not consider that the decision to refuse an extension of time is attended with sufficient doubt to warrant its reconsideration, or that the decision manifests an injustice. It appears to us that the case put before the Deputy President, for an extension of time was a weak one. Mr Wheeler’s application was filed out of time for no apparent good reason, and he did not present convincing arguments of exceptional circumstances to support an extension of time. The appeal does not raise any issues of general application. We do not consider the grant of permission to be in the public interest, nor do we consider that there is any other basis upon which permission to appeal should be granted.
[27] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Mr K Wheeler on his own behalf.
Mr C Stonehouse for the Respondent.
Hearing details:
2021.
Telephone hearing.
7 July.
Printed by authority of the Commonwealth Government Printer
<PR732331>
1 Mr Keaton Andre Wheeler v Power Research and Development Pty Ltd [2021] FWC 2577
2 Respondent’s Form F8A
3 Ibid
4 Email from Colin Ames to Mr Wheeler, 6 October 2020
5 [2013] FWCFB 6321 at [50]
6 [2020] FCAFC 152 (11 September 2020)
7 [2020] FCAFC 152, [71]
8 Acts Interpretation Act 1901 (Cth) s.36(1)
9 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
10 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
11 CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR at 481 at [26]
12 Wan, above, at [30]
13 NSW Bar Association v Brett McAuliffe; Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
14 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
15 [2011] FWAFB 975
16 Mr Keaton Andre Wheeler v Power Research and Development Pty Ltd [2021] FWC 2577, [23]
17 Appellant’s Notice of Appeal, paragraph 5
18 Mr Keaton Andre Wheeler v Power Research and Development Pty Ltd [2021] FWC 2577, [24]
19 Appellant’s Appeal Submissions, paragraph 23
20 Mr Keaton Andre Wheeler v Power Research and Development Pty Ltd [2021] FWC 2577, [2]
21 Appellant’s Outline of Appeal, paragraph 10
22 Appellant’s Outline of Appeal, paragraph 14
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