Kyriakos Zapantis v Coles Supermarkets Australia Pty Ltd
[2023] FWCFB 50
•8 MARCH 2023
| [2023] FWCFB 50 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Kyriakos Zapantis
v
Coles Supermarkets Australia Pty Ltd
(C2023/90)
| DEPUTY PRESIDENT CLANCY DEPUTY PRESIDENT MILLHOUSE COMMISSIONER BISSETT | MELBOURNE, 8 MARCH 2023 |
Appeal against decision [2022] FWC 3339 of Commissioner Cirkovic at Melbourne on 22 December 2022 in matter C2022/7264 and decision [2022] FWC 2707 of Commissioner Cirkovic at Melbourne on 11 October 2022 in matter U2022/6566 – permission to appeal refused.
Mr Kyriako Zapantis (the Appellant) has lodged an appeal, for which permission is required, pursuant to s.604 of the Fair Work Act 2009 (FW Act) against a decision (the Revocation Decision)[1] of Commissioner Cirkovic issued on 22 December 2022. The Revocation Decision concerned an application of the Appellant to amend certain aspects and to vary or revoke other aspects of a decision (the Liability Decision)[2] of Commissioner Cirkovic issued on 11 October 2022 in which the Commissioner dismissed an application for unfair dismissal made by the Appellant in relation to the termination of his employment by Coles Supermarkets Australia Pty Ltd (the Respondent).
The appeal was listed for permission to appeal only. Amended directions were issued on 30 January 2023 and the matter listed for hearing on 7 February 2023.
On review of the notice of appeal and the Appellant’s written submissions as to why permission to appeal should be granted, it became apparent that the Appellant, in fact, sought to appeal both decisions of the Commissioner - the Liability Decision and the Revocation Decision. In these circumstances we granted leave to the Appellant to amend his notice of appeal to include both of these decisions as the decisions appealed.
The appeal – to the extent it is in relation to the Liability Decision – has been filed outside the 21 day time period provided for in the Fair Work Commission Rules 2013 for filing an appeal. The Appellant seeks an extension of time within which to lodge this appeal. No extension of time for filing the appeal is required in relation to the Revocation Decision. For this reason the appeals, in relation to each decision, are dealt with separately in this decision.
DECISIONS UNDER APPEAL
Liability Decision
The Appellant’s employment was terminated on or about 27 April 2022 on the ground that he failed to comply with a lawful and reasonable direction to comply with the Respondent’s COVID-19 vaccination policy (the Vaccination Policy).
At the time the Appellant’s employment was terminated he was on extended leave including annual and personal leave due to an ongoing grievance relating to his 2020 performance appraisal. The Commissioner observed that she was not required to consider the purported performance matters as the Respondent did not rely on the performance issues in its reasons for terminating the Appellant’s employment.[3] During the Appellant’s absence the Respondent conducted regular welfare checks on him.
The Commissioner set out details of correspondence between the Respondent and its employees in relation to the vaccination requirements, first pursuant to COVID-19 Mandatory Vaccination (Workers) Directions as updated from time to time and Pandemic Workplace Order 2022 (No. 1) issued by the Victorian Government (Government Directions) and then in relation to the Vaccination Policy.
The Commissioner noted that in November 2021 the Appellant had a heart attack and that the Respondent did not communicate with the Appellant during his recovery.
A meeting was organised with the Appellant for January 2022 in relation to his grievance about the 2020 performance appraisal. Prior to attending the meeting, the Appellant was asked to provide his vaccination exemption. This had expired 2 days prior to the proposed meeting so, given the Appellant had no valid exemption, it was proposed the meeting occur online. The Appellant did not attend this meeting but did produce a further vaccination exemption for the AstraZeneca vaccine which expired on 4 February 2022.[4]
A meeting was held with the Appellant on 4 February 2022 where a return to work and re-integration program, and a transition period from part-time to full-time work were discussed. A further meeting was organised for 17 March 2022.[5]
On 9 March 2022 the Respondent spoke to the Appellant about the requirements of the Vaccination Policy. While the Appellant had provided a further exemption from the AstraZeneca vaccine until 23 March 2022, the Appellant was advised that he would also need to submit a medical contraindication form. The Appellant refused to provide this form.[6]
The Appellant was advised on 17 March 2022 that his exemption only related to the AstraZeneca vaccine and he would either need to get a vaccine from which he was not exempt or provide an exemption for all vaccines.[7]
Through the remainder of March 2022 and up until the termination of his employment, the Respondent was in contact with the Appellant in relation to the Vaccination Policy requirements and his apparent non-compliance with that Policy. This culminated in the Appellant receiving a “show cause” letter. That letter advised the Appellant that the Respondent was considering the termination of his employment given his on-going refusal to comply with the Vaccination Policy. The Appellant was directed to attend a virtual meeting scheduled for 20 April 2022 to discuss why his employment should not be terminated.[8]
Prior to the meeting on 20 April 2022 the Appellant responded in writing to the show cause letter in which he said that “people should have the right to choose what goes into their bodies” and that he was not refusing to take the vaccine but noted that the vaccines were “a trial vaccine until 2023 and, when all the data is in, [he] will be able to make an informed decision at that time”. The meeting of 20 April 2022 was adjourned shortly after it commenced.[9]
On 21 April 2022 the Appellant received an offer to end his employment with a payment from the Respondent (which apparently was not accepted) and on 27 April 2022 the show cause meeting resumed. At that meeting the Appellant was advised that the Respondent had decided to terminate his employment because he failed to follow lawful and reasonable directions to comply with the Vaccination Policy or to provide information of his intention to comply by 12 April 2022.[10] A letter confirming termination of employment and advising the Appellant that he was being given 5 weeks’ notice of termination but could not attend work during that period was provided to the Appellant.[11]
Having made the necessary preliminary findings,[12] the Commissioner considered the factors under s.387 of the FW Act in deciding if the dismissal was harsh, unjust or unreasonable.
The Commissioner found that the Vaccination Policy of the Respondent was within the scope of the Appellant’s employment contract and that it did not require the Appellant to act unlawfully.[13]
The Commissioner found that there were two valid reasons for the dismissal of the Appellant. The first was the Appellant’s failure to comply with a lawful and reasonable direction to comply with the Respondent’s Vaccination Policy (the First Reason). The second valid reason found by the Commissioner was that, because the Appellant failed to comply with the Government Vaccine Directions and Orders, he was unable to fulfil the inherent requirements of his job (the Second Reason).[14]
The Commissioner found that the Appellant had been advised of the First Reason. Further, he was given an opportunity to respond to that reason.
The Commissioner was satisfied that the Appellant had not been directly advised of the Second Reason but said that the Vaccination Policy, in all of its iterations, stated clearly that it was “an inherent requirement of all roles at Coles to attend your place of work, or another Coles site, regularly or from time to time”.[15] In all of the circumstances, the Commissioner was satisfied that the Appellant was notified in substance of this reason for termination. Given this, the Commissioner found that the Appellant, although not expressly advised of this reason for termination, was aware he would not be able to perform the inherent requirements of his role if he remained unvaccinated or did not provide a valid medical exemption. She was therefore satisfied that the Appellant was “given an opportunity to respond to the reason for dismissal related to his capacity.”[16]
The Commissioner found that there was no unreasonable refusal to allow the Appellant a support person, and that the Appellant was not dismissed for reasons related to unsatisfactory performance. She did not consider the size of the Appellant’s business or access to human resources expertise to have any impact on the procedures followed in effecting the Appellant’s dismissal.[17]
The Commissioner then considered submissions of the Appellant as to why the termination of his employment was harsh. These submissions included that:
· the Appellant was on long service leave at the time of his dismissal;
· at the time of the show cause letter and termination the Appellant had a genuine fear and apprehension about vaccinations;
· it would be difficult for the Appellant to gain further employment given his age, length of service with the Respondent and the specialised nature of his work; and
· there was no need for the Respondent to proceed as it did while the Appellant was on leave as the Appellant’s vaccination status presented no threat to the Respondent and the show cause process was expedited.
In considering these submissions in relation to the long service leave question, the Commissioner found that:
· From 4 February 2023 the Appellant was in discussions with the Respondent about his return to work.
· The Appellant was advised that discussions on his return to work would be separated from discussions as to his vaccination status.
· In the Appellant’s written response to the show cause letter he made no comment of hoping to access long service leave in order to delay his return to work.
· The correspondence before the Commission did not suggest the Appellant told the Respondent he intended to access his long service leave to delay a return to work although the Appellant said in cross examination that it was his intention to use long service leave until issues in relation to his 2020 performance appraisal were resolved.[18]
· The Appellant had exhausted his annual and personal leave. He took 3 periods of long service leave from 29 March – 1 April 2022, 4 – 18 April 2022 and 19-25 April 2022. The Appellant applied for a further period of long service leave from 26 April – 1 June 2022 to enable him to be paid during his 5-week notice period.
In consideration of the evidence the Commissioner found that:
· She could not conclude the Appellant made an unequivocal application to take long service leave as a means of delaying the necessity of complying with the Vaccination Policy.
· The Respondent was not in a position to grant a request for long service to enable the Appellant to remain employed for an indefinite period so that he might change his mind on vaccination and/or for some unspecified event to occur where no such request was made.[19] [emphasis added]
Further, the Commissioner noted that the Appellant made no request to take his long service leave as an alternative to the termination of his employment during his 5 week notice period. Rather he requested long service leave to cover his notice period.[20] Even if the Appellant had made such a request the Commissioner did not consider there were any grounds on which the Respondent could have reasonably believed that further time would alter the Appellant’s view on the vaccine.
In considering the further matters raised by the Appellant, the Commissioner did not accept that the dismissal was harsh because there was no pressing need to terminate the Appellant’s employment as he was on long service leave. She rejected the argument as the Appellant was in discussions with the Respondent in relation to a return to work and, in those circumstances, it was reasonable for the Respondent to question the Appellant’s vaccination status to ensure compliance with the Vaccination Policy prior to the Appellant’s return. Further, the Commissioner rejected the proposition that the show cause process did not allow the Appellant sufficient time to consider his position and respond.
The Commissioner took into account that the Appellant’s concerns in relation to the COVID-19 vaccine were genuinely held and that the circumstances surrounding his dismissal caused him great distress.[21] She considered the Appellant’s long service with the Respondent, his unblemished record, his age, his medical condition and the likely difficulties in him finding further work.[22]
The Commissioner also took into account that the Appellant “was paid 5 weeks notice.”[23]
In concluding the Commissioner found:
“[93] After considering each of the matters specified in section 387 of the Act, my assessment is that the Respondent’s dismissal of the [Appellant] was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the [Appellant] prior to terminating his employment.
[94] The [Appellant] was provided with ample opportunity to provide evidence of having been vaccinated or provide a valid medical exemption but did not do so.
[95] The Respondent conducted a fair and thorough process in all the circumstances and was respectful of the [Appellant’s] concerns. However, ultimately the [Appellant] was both unable to meet the inherent requirements of his role and failed to follow a lawful and reasonable direction to comply with the Respondent’s Vaccination Policy.
[96] I appreciate that this is disappointing for the [Appellant] after such a lengthy period of service, but I am satisfied that his dismissal by the Respondent was not unfair. The application is dismissed.”
Revocation Decision
In the Revocation Decision the Commissioner considered an application by the Appellant to correct some identified errors in the Liability Decision.
On these errors, the Commissioner concluded:
“[30] Given my findings at paragraphs [13]-[15] above, I consider it appropriate pursuant to s.602 of the Act to:
· Change the hearing date from 29 October to 29 September appearing on the final page of the Decision;
· Substitute the words “the Department”, with “the Respondent” in paragraph [37]; and
· Substitute the words “Ms Dee”, with “Ms Chipungu,” in paragraph [81].”
The Appellant also applied to vary and (or alternatively) revoke paragraphs [91] and [93] of the Liability Decision.
Paragraphs [91] and [93] of the Liability Decision are as follows:
“[91] I have taken into account that the [Appellant] was paid 5 weeks notice.
…
[93] After considering each of the matters specified in section 387 of the Act, my assessment is that the Respondent’s dismissal of the [Appellant] was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the [Appellant] prior to terminating his employment.”
The Appellant characterised the payment he received during his 5 week notice period not as payment of notice but as a deduction from his long service leave (as he chose to take long service leave during this period). He therefore submitted that the Commissioner should revoke paragraph [91] of the Liability Decision pursuant to s.603 of the FW Act. The Appellant then submitted that, having revoked paragraph [91], the conclusion in paragraph [93] was no longer sustainable and that paragraph should therefore be varied or revoked pursuant to s.603 of the FW Act.
The Commissioner considered the powers available to the Commission pursuant to s.602 and s.603 of the FW Act. She said:
“[23] As stated above, s.602 of the Act permits corrections and amendments to “any obvious error, defect or irregularity” and I exercise my discretion to make the amendments referred to at paragraphs [13] to [15] above.
[24] In my view, a proper reading of s.603 is that it confers power to the FWC to “vary or revoke a decision of the FWC”. I observe first that the finding at paragraph [91] of the [Liability] Decision relates to the reasons for my decision that Mr Zapantis’ termination was not harsh, unjust or unreasonable and as such was not unfair. In those circumstances, in my view paragraph [91], does not fall within the range of matters capable of variation and/or revocation by s.603 of the Act.”
The Commissioner then said that, even if she was wrong (in relation to the powers under s.603 of the FW Act) she was “not persuaded by the Appellant’s submission that ‘the initial error of [91] means that the Commissioner’s conclusion in paragraph [93] of the Decision is not sustainable, and should likewise be the subject of varying or alternatively revocation.’”[24] The Commissioner reached this conclusion because:
“[26] …It is not apparent that…there is a connection between the nature of the payment received by the [Appellant] during the notice period and my findings that there was a valid reason for termination, that the [Appellant] was afforded procedural fairness and that the termination was not harsh, unjust or unfair and ultimately that the dismissal was not unfair. I do not consider that the [Appellant] has substantiated his submission that the finding at para [93] cannot be sustained.”
The Commissioner considered that how the notice of termination was provided had little bearing on her finding as to whether the dismissal was harsh, unjust or unreasonable and whether it was unfair. In this respect she said that paragraph [91] was one of a range of matters she took into account in her arriving at the decision that the Appellant’s dismissal was not unfair.[25]
The Commissioner said that even if she did amend, vary or revoke paragraph [91] under s.602 or s.603 of the FW Act, it was not apparent this provided justification to correct, vary or revoke her conclusions at paragraph [93] of the Liability Decision.[26]
GROUNDS OF APPEAL AND PERMISSION TO APPEAL
On the basis of his notice of appeal and submissions on appeal we understand the grounds of appeal as advanced by the Appellant to be as follows:
In relation to the Liability Decision
1. The Commissioner failed to take into account the Appellant’s medical condition suffered in November/December 2021.
2. The Commissioner failed to take into account that the Appellant was on long service leave at the time of dismissal even though he had enough long service leave to take him to November 2022.
3. The Appellant never refused the vaccine but rather was waiting for more data so that he could make an informed decision.
4. The Commissioner failed to take into account that the Appellant could work from home.
5. The Commissioner failed to take into account the Appellant’s 40 years of unblemished service.
6. The Commissioner failed to take into account that the Appellant was willing to take a rapid antigen test if he needed to attend ‘on site’.
7. The Commissioner failed to take into account that the Respondent used the pandemic as an excuse to terminate his employment instead of resolving issues in relation to the continuing attack on his performance.
In relation to the Revocation Decision
1. The Commissioner failed when, in finding she had made an error in the Liability Decision, she then determined it was her prerogative to leave this in the Liability Decision and, consequently, not revoke paragraph [93] of the Liability Decision.
As to why it is in the public interest to grant permission to appeal the Appellant says:
1. It is appropriate to have the facts in relation to the Pfizer vaccine questioned.
2. It is appropriate to have the basis of policies explained.
3. The judicial system has responsibility to hear evidence and give people a fair go.
4. It is appropriate that the real dispute be dealt with and the employer not be allowed to rely on a new policy to achieve its aim.
Liability Decision
The notice of appeal (as amended) in relation to the Liability Decision has been lodged outside the time period allowed for the filing of a notice of appeal. We therefore must first consider whether an extension of time for the filing of the appeal should be granted.
Extension of time
An appeal filed under s.604 of the FW Act must be filed within 21 calendar days after the date of the decision being appealed, or within such further time allowed by the Commission.[27] The Liability Decision was issued on 11 October 2022, and the prescribed 21-day period ended on 1 November 2022. The Appellant lodged the Form F7 – Notice of Appeal on 10 January 2023, making the application 70 days out of time. Accordingly, the appeal in relation to the Liability Decision cannot proceed unless the Commission grants the Appellant an extension of time.
The principals relevant to determining if an extension of time in which to file a notice of appeal should be granted were summarised by the Full Bench in Jobs Australia v Eland[28] as follows:
“[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.
[6] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.” (reference omitted)
Reasons for the delay
The Appellant submits that, following the Liability Decision, he was advised by his legal counsel not to appeal but instead make application “to question the fact” that the Commissioner had outlined in the Liability Decision that he received 5 weeks’ “termination pay” and had relied on this when coming to her conclusion. The Appellant stated that the application to vary and/or revoke the Liability Decision was then pursued and he did not know he could appeal the Liability Decision. The Appellant said he did as he was advised.
The Appellant, if he did receive the advice he had from his legal counsel, could have instructed his counsel to file the appeal or, alternatively, dispensed with the services of his legal counsel and filed a notice of appeal himself. We have not been persuaded that there was a satisfactory reason for the delay in filing the notice of appeal and the Appellant puts forward no other reason for the delay.
The lack of a satisfactory reason for the delay weighs against the grant of an extension of time.
Length of the delay
As detailed above the Appellant has filed his notice of appeal in relation to the Liability Decision 70 days outside the prescribed time period. This is a significant period of delay and weighs against the grant of an extension of time.
Nature of the grounds of appeal and the likelihood of success of any of those grounds
We have considered the grounds of appeal as advanced by the Appellant. We do not consider that there is any likelihood that any of these grounds would be successful.
Ground 1
It is not apparent that the Appellant’s medical condition was at issue before the Commissioner. In any event, contrary to the Appellant’s contention, we note that the Commissioner did indicate that she had taken into account the Appellant’s personal circumstances, including his medical condition.[29]
Ground 2
The Commissioner gave extensive consideration to the Appellant’s period of long service leave, identifying the period of long service leave taken by the Appellant from 29 March 2022 through until 25 April 2022 and that the Appellant had requested a further period of long service leave to enable him to be paid during his notice period[30]. The Commissioner also found that she could not conclude that the Appellant had made an “unequivocal application to take any further long service leave as a means of delaying the necessity to comply with the Vaccination Policy or providing him with an opportunity to re-consider his position.”[31]
In addition, the Commissioner noted that the Appellant “made no request to take his long service leave as an alternative to termination during his 5-week notice period. Rather he requested to use his long service leave to cover his notice period.”[32] These findings demonstrate that, contrary to the Appellant’s contention, the Commissioner took into account the Appellant’s long service leave.
Grounds 3 and 6
Contrary to the Appellant’s contentions, the Commissioner took into account the Appellant’s concerns in relation to COVID-19 vaccines.[33] She considered the veracity of rapid antigen tests but found the submissions on these matters to be misguided as they failed to consider the requirements of the Government Directions and the Vaccination Policy which did not provide for the exception sought by the Appellant.[34]
Ground 4
The Appellant’s submission that the Commissioner failed to take into account that the Appellant could work from home is not made out. The Commissioner considered submissions of the Respondent as to whether the Appellant could work from home and those of the Appellant that it was not an inherent requirement of his role to attend the Respondent’s worksite. The Commissioner concluded that she disagreed with the Appellant’s assertion:
“[55] On the basis of the above, I accept the Respondent’s submission that it was an inherent requirement of the [Appellant’s] role that he physically attend its worksites. For completeness, I note that the Respondent did not rely on this reason at the time of termination. It is uncontroversial that it is for the Commission to determine whether there was a valid reason for termination. I have found a valid reason for termination based on the [Appellant’s] inability to perform the inherent requirements of his role. That the Respondent did not rely on that reason at the time of termination, does not in my view render the reason less valid.”[35]
Ground 5
The Commissioner took into account the Appellant’s long period of apparently unblemished service:
“[92] Finally, I have taken into account the [Appellant’s] submissions that the termination was harsh on account of his personal circumstances, including his long-standing employment with the Respondent, which appears to be largely unblemished, his age, his medical condition, and the difficulty he is likely to encounter in securing further work. I accept that the loss of his employment has resulted in significant distress and financial burden. However, I do not consider the circumstances before me render the termination harsh. The [Appellant] chose to remain unvaccinated…”
Ground 7
The Commissioner was clearly aware of the matters in relation to the Appellant’s performance and noted it was not a matter she had cause to consider as it did not form part of the reasons for termination.[36] In relation to the Appellant’s return to work program (arising from his long term absence from the workplace which was related to the issues arising from the performance appraisal) the Commissioner noted that “[it] is not in contest that Mr Sharp contacted the [Appellant] on 18 March 2022 and advised him that the discussions as to his return to work would need to be separated from the discussions as to his vaccination.”[37] It is also apparent from the Liability Decision that the reason for the Appellant’s dismissal related solely to his unvaccinated status in breach of the Vaccination Policy.
The Appellant’s submissions that the Vaccination Policy was used as a “cover” for the real reason for his dismissal (purportedly, issues arising from his performance appraisal) is not supported by the evidence in relation to the attempts of the Respondent to assist the Appellant return to work following a lengthy absence that arose from matters associated with the appraisal. If the Vaccination Policy was a cover for the real reason for the Appellant’s dismissal it is unclear why the Respondent would go to the lengths it did to try and assist the Appellant to return to work. In any event it is not apparent whether the use of the Vaccination Policy as a “cover” for other actions was a matter put to the Commissioner at the hearing.
We consider that the grounds of appeal advanced by the Appellant are no more than an attempt to reagitate matters raised by him and properly considered by the Commissioner in the Liability Decision or an attempt to agitate matters not previously put before the Commission. We have considered each of the grounds of appeal as advanced by the Appellant. We do not consider that any have a likelihood of being upheld if time was extended. This weighs against the grant of the extension of time.
Prejudice to the Respondent
The Respondent says it would be greatly prejudiced if an extension was granted. It submits that it has already been put to the time and cost in relation to liability and revocation matters such that to have to defend the termination of employment again after such a period of time would be prejudicial to it.
We acknowledge the time and cost to date to the Respondent associated with proceedings and the desire for finality in proceedings. However, beyond these ongoing costs we do not consider any prejudice to the Respondent might arise if time was extended. While it is some time since the Appellant made his unfair dismissal application in May 2022, the proceedings have been on foot in one way or another since that time such that any delay occasioned by the delay in filing the appeal might not be considered onerous for the Respondent. We consider this a neutral factor in our consideration.
Conclusion on extension of time
We have considered each of the matters relevant to whether we should grant an extension of time within which the Appellant could make his appeal against the Liability Decision. The delay in filing the appeal was significant, there is no satisfactory explanation for the delay and the appeal does not have a reasonable prospect of success. In all of the circumstances, we have not been persuaded to grant an extension of time.
Disposition
The appeal insofar as it goes to the Liability Decision is filed out of time and we decline to grant an extension. We dismiss the appeal in this respect.
Revocation Decision
The notice of appeal in relation to the Revocation Decision was made within time. The grounds on which the Appellant appeals this decision are set out above at [39].
Principles – Permission to 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.[38] There is no right to appeal and an appeal may only be made with the permission of the Commission. The Commission must grant permission if it considers it 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.[39] The public interest is not satisfied simply by the identification of error,[40] or a preference for a different result.[41] 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...”[42]
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.[43] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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.[44] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal and the public interest
We do not consider it is in the public interest to grant the Appellant permission to appeal the Revocation Decision.
The Appellant’s sole ground of appeal is that, having found an error in paragraph [91] of the Liability Decision, the Commissioner erred in failing to exercise the power available to her to set aside paragraph [91] and the finding in paragraph [93] of the Liability Decision.
Section 601 of the FW Act clearly delineates between a “decision” and any “written reasons” for that decision. Both the Commission and Federal Court have emphasised that the power to vary or revoke under s.603 of the FW Act is confined to “decisions” and instruments made as a consequence of a decision.[45] In our view, and for the reasons in the Revocation Decision, the Commissioner was correct to identify that the variation or revocation of her reasons goes beyond the power granted under s.603 of the FW Act.
The Appellant put to the Commission in the hearing in relation to the revocation application that, as paragraph [93] of the Liability Decision is based upon the finding in paragraph [91], the conclusion reached by the Commissioner that the Appellant was not unfairly dismissed is not sound.
The Commissioner, in both Decisions, identified that the payment (or category of payment) made to the Appellant, was only one aspect of the multi-factored consideration that led to her decision that the Appellant was not unfairly dismissed. In making the decision the Commissioner took into account (albeit incorrectly) that the Appellant had received 5 weeks’ pay in lieu of notice, but that does not mean that the Liability Decision was unsound. It certainly cannot be taken from the Liability Decision that this reason alone was determinative of the Commissioner’s decision that the Appellant was not unfairly dismissed. The Commissioner also found that there was a valid reason for dismissal and that the Appellant was afforded procedural fairness. She also considered and rejected a number of the additional matters put by the Appellant pursuant to s.387(h) of the FW Act.
The breadth of the power under s.603 is well established.[46] The Full Court of the Federal Court in Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd[47] opined that there may be circumstances in which the discretionary power under s.603 properly should not be exercised because the applicant for the order is a person who is aggrieved by the decision and should pursue an appeal under s.604. However, the Full Court observed that while it may be contemplated that there are a range of potential circumstances in which the discretionary power under s.603 might properly not be exercised, this does not warrant the implication of arbitrary limits on the power itself.[48]
It has been held that the power may be used where there has been a “change in circumstances such as to warrant the variation or revocation of the original decision or, where the initiation decision was based on incomplete or false information, fraudulently procured or otherwise.”[49] We are satisfied these considerations are not a feature of this case.
Further, in Health Services Union – Victoria No. 1 Branch, Diana Asmar and Nick Katsis,[50] the Full Bench of the Commission found (emphasis added):
“…there is a proper justification to exercise the power in s.603 to revoke a decision where that decision, in some significant respect, was based upon an incorrect factual premise.”[51]
We are satisfied that a fair and complete reading of the Liability Decision demonstrates that the finding at paragraph [91] was not a matter that significantly impacted the Commissioner’s ultimate conclusion. Indeed, earlier in the Liability Decision, the Commissioner had reproduced the text of the letter of termination which clearly stated the Appellant was provided with 5 weeks’ notice of termination of employment.[52] As such, whilst, the reason at paragraph [91] was factually incorrect in that the Appellant did not receive 5 weeks’ pay in lieu of notice, we do not consider that the Liability Decision was made in any significant respect on this factual error. As a result, the Commissioner was correct to identify that there was no justification to exercise the power in s.603 to vary or revoke her decision.
The reasoning of the Commissioner in relation to why, even if s.603 did grant power to revoke paragraph [91], this would not have altered her decision, is sound. In reaching her conclusion the Commissioner properly took into account the totality of the reasons set out in the Liability Decision. As the Commissioner noted in the Revocation Decision, the finding at paragraph [91] of the Liability Decision was only one of a range of matters she considered in reaching her decision that the Appellant had not been unfairly dismissed. We are satisfied that the Liability Decision does not fall into the category of a decision that “ought never have been made” such as to warrant revocation.[53]
Conclusion on the Revocation Decision
We do not consider the grant of permission to appeal is in the public interest. While there is a factual error in the Liability Decision there is no arguable case of appealable error in the Revocation Decision. We consider it was open to the Commissioner to decline to exercise the discretionary power in s.603. Further, we do not consider that the Revocation Decision raises issues of importance or general application, there is no diversity of decisions at first instance such that guidance is required and the Revocation Decision does not manifest an injustice. Nor is the decision counter intuitive. The Commissioner approached the task before her in an orthodox manner and made her decision based on a proper application of the law to the facts before her.
Disposition
The appeal in relation to the Revocation Decision is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr K Zapantis on his own behalf
Mr J Goyal on behalf of the Respondent
Hearing details:
2023.
Melbourne (by video):
7 February.
[1] Zapantis v Coles Supermarkets Australia Pty Ltd [2022] FWC 3339 (Revocation Decision).
[2] Zapantis v Coles Supermarkets Australia Pty Ltd[2022] FWC 2707 (Liability Decision).
[3] Liability Decision, [10].
[4] Liability Decision, [19].
[5] Liability Decision, [21].
[6] Liability Decision, [22]-[23].
[7] Liability Decision, [24].
[8] Liability Decision, [29].
[9] Liability Decision, [30].
[10] Liability Decision, [31]-[32].
[11] Liability Decision, [33].
[12] Liability Decision, [34]-[38].
[13] Liability Decision, [60].
[14] Liability Decision, [61].
[15] Liability Decision, [64].
[16] Liability Decision, [70].
[17] Liability Decision, [71]-[73].
[18] Liability Decision, [80].
[19] Liability Decision, [83].
[20] Liability Decision, [84].
[21] Liability Decision, [89].
[22] Liability Decision, [92].
[23] Liability Decision, [91].
[24] Revocation Decision, [25].
[25] Revocation Decision, [27].
[26] Revocation Decision, [28].
[27] Rule 56(2) of the Fair Work Commission Rules 2013.
[28] [2014] FWCFB 4822.
[29] Liability Decision, [92].
[30] Liability Decision, [82].
[31] Liability Decision, [83].
[32] Liability Decision, [84].
[33] Liability Decision, [89].
[34] Liability Decision, [90].
[35] Liability Decision, [55].
[36] Liability Decision, [10].
[37] Liability Decision, [78].
[38] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[39] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 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].
[40] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27] (GlaxoSmithKline).
[41] GlaxoSmithKline 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 (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[42] GlaxoSmithKline at [24] – [27].
[43] Wan v AIRC (2001) 116 FCR 481 at [30].
[44] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[45] Health Services Union – Victoria No. 1 Branch, Diana Asmar and Nick Katsis [2015] FWCFB 5621 at [23]; Asmar v Fair Work Commission [2015] FCA 16 at [67].
[46] Application by Snyder, Jeremy [2019] FWCFB 7398; Esso Australia Pty Ltd v The Australian Workers Union [2017] HCA 54 at [49]; Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd [2019] FCAFC 26 at [32]–[34].
[47] [2019] FCAFC 26.
[48] Ibid at [74].
[49] Mrs Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 5161at [38] (Grabovsky).
[50] [2015] FWCFB 5621.
[51] Ibid at [28]; see also Grabovsky at [38] and Re Rubber, Plastic and Cablemaking Industry Award 1972 (1975) 167 CAR 929 at 931.
[52] Liability Decision, [33].
[53] Asmar v Fair Work Commission [2015] FCA 16; 247 IR 31 at [88].
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