Larry Young v Expo Signage and Digital Pty Ltd
[2021] FWCFB 313
•22 JANUARY 2021
| [2021] FWCFB 313 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Larry Young
v
Expo Signage and Digital Pty Ltd
(C2020/7733)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 JANUARY 2021 |
Appeal against decision [2020] FWC 5058 of Deputy President Binet at Perth on 25 September 2020 in matter number U2020/2138 – permission to appeal refused.
[1] Mr Larry Young (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a Decision 1 and Order2 of Deputy President Binet issued on 25 September 2020. The Decision dealt with an application made by the Appellant for an unfair dismissal remedy, made under s 394 of the Act (the Application).
[2] The Appellant alleged that he had been unfairly dismissed from his employment with Expo Signage and Digital Pty Ltd (the Respondent). In the Decision, the Deputy President was satisfied that the Appellant was protected from unfair dismissal and that the dismissal was unfair. The Deputy President ordered the Respondent to pay compensation to the Appellant in the amount of $1,153.80, less appropriate taxation and superannuation. 3
[3] On the basis of our view that the appeal may be adequately determined on the basis of written submissions, and with the consent of the parties, the appeal has been conducted without holding a formal hearing pursuant to s 607(1) of the Act.
[4] The Full Bench has heard the parties on permission to appeal and the substantive appeal.
The Decision under appeal
[5] The factual matrix of the Decision under appeal, in broad summary, is as follows:
• The Appellant commenced employment with Bokay Signage (Bokay) in the role of Business Development Manager on 11 February 2019. The Appellant then commenced employment with the Respondent in the role of Business Solutions Manager on 16 December 2019, following an asset transfer between Galena Nominees Pty Ltd as trustee for the Jason Signmakers Unit Trust (the parent company of the Respondent) and Bokay on 16 December 2019. 4
• In the Appellant’s role of Business Solutions Manager, his contract of employment (Employment Contract) provided for, inter alia:
◦ A retention incentive payment of $4,000 in the following circumstances:
“A Retention Incentive payment of $4,000 gross will be paid in the next payroll immediately following 6 months of service from the Start Date referenced in Item 2, and successful completion of the Probationary Period.” 5
◦ A six-month probationary period. 6
• The Appellant’s role at Bokay and his role with the Respondent involved the performance of substantially the same duties. As a Business Solutions Manager, the Appellant worked in a senior sales position, with duties which included, inter alia, the retention of existing and securing of new clients, scoping quote requirements and providing them to the quoting team, calculating adjustments and converting quotes into sales. 7
• The Appellant took annual leave from 16 December 2019 until 14 January 2020 during which, it was contended, the Respondent received numerous customer complaints from the Appellant’s clients, including one that involved further rework at the Respondent’s cost. 8
• On 7 February 2020, the Appellant was informed that a decision had been made to terminate his employment effective 21 February 2020, following his poor performance in the sales team overall relative to net income generated. 9
• The Appellant thereafter obtained employment in a similar role which commenced on 23 February 2020.
[6] The Deputy President was satisfied that the Appellant was a person protected from unfair dismissal, pursuant to ss 382 and 385 of the Act. Specifically, the Deputy President noted that the Appellant had completed the minimum employment period, the reasons for which were outlined in a separate decision. 10
[7] The Deputy President was satisfied that the Application was made within the period required under s 394(2) of the Act. Furthermore, after considering ss 385 and 387 of the Act, 11 the Deputy President was satisfied that the Appellant was unfairly dismissed, and that reinstatement was inappropriate in the circumstances. Given the lack of procedural fairness the Appellant was afforded, the Deputy President was satisfied that a compensation payment order was appropriate. Her Honour determined that there was no evidence that the Appellant’s employment would have continued beyond a period of six weeks from the time that he was dismissed, and therefore that the Appellant would not have continued for the necessary period of time for his contractual right to the retention incentive payment to vest.12
[8] The Deputy President made an order that the Respondent pay the Appellant compensation in the amount of $1,153.80 gross, plus superannuation, less applicable taxation. 13
Permission to appeal
[9] 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. 14 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[10] Section 400 of the Act applies to this appeal. It 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.”
[11] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the Act as “a stringent one”. 15 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.16 The public interest is not satisfied simply by the identification of error, or a preference for a different result.17 In GlaxoSmithKline,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.” 18
[12] 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. 19 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
Appeal ground one
[13] The Appellant’s first ground of appeal contended that the Deputy President erred in fact and in law in finding that there was a valid reason for the dismissal, as she reversed the onus of proof and found that the Appellant had not led evidence to refute the Respondent’s assertions as to his performance. 20 Furthermore, the Appellant in substance asserted that the Deputy President made a significant error of fact in finding that there was a valid reason for dismissal.
[14] First, in addressing the contention that the Deputy President reversed the “onus of proof”, that is, by shifting the onus on the Appellant to demonstrate that there was not a valid reason for his dismissal, we note the following observations and finding made by the Deputy President in the Decision:
“[55] In addition to Ms Dunning’s oral evidence with respect to Mr Young’s deficient performance, Expo produced as evidence sales reports detailing Mr Young’s sales performance during his employment with Expo. Those records reveal that during a period in which he was expected to generate more than $160,000 in gross sales his total quotes amounted to only $56,632. These records also reveal that he managed to convert these quotes to only $22,229 worth of gross sales. According to Expo, Mr Young had a conversion rate of 39.25% compared to the company average of 70% and his average monthly sales equated to only 9% of his monthly target. Expo estimate that cost of reworks associated with Mr Young’s sales (because he inadequately facilitated the work performed) amount to over $10,000. This is nearly half the value of his gross sales during his entire employment with Expo.
[56] Mr Young chose not to call any witnesses to corroborate his assertion that he was a proficient salesperson. Nor did he seek production of corporate records which would demonstrate that he was not in fact the worst salesman as asserted by Ms Dunning. Ms Dunning was not cross examined in relation to the sales data which was tendered and there was no assertion made that the data was inaccurate. Nor was any evidence produced or submissions made on behalf of Mr Young that the monthly targets were unreasonable.
[57] On the balance of the evidence before me I am satisfied that Mr Young’s performance was deficient and I find that there was a valid reason for his dismissal.”
[15] On a fair reading of the Decision, we reject the contention that the Deputy President reversed the “onus of proof” in considering s 387(a) of the Act. It is clear that the Deputy President at [56] was observing the nature of the evidence before her concerning the facts in the matter under dispute. We are not satisfied that the Deputy President applied the wrong test or misapplied the law in a way that constitutes appellable error.
[16] With respect to the evidence relied on by the Deputy President in forming her conclusion under s 387(a) of the Act, the Appellant contends that the contract of employment did not stipulate a sales level for the Appellant, but rather a minimum sales target amount ($80,000) before commission payments were accessible. 21 On the evidence before us, it was reasonably open for the Deputy President to consider the Appellant’s performance in the context of his sales target, particularly given that the Appellant acknowledged that his monthly target was $80,000.22
[17] The Appellant also contends that the Deputy President erred by accepting the Respondent’s evidence concerning the Appellant’s sales performance over a three-month period, when the Appellant had only worked for a total of three weeks in the role. The Deputy President found that at the time of dismissal the Appellant had completed a period of employment with the Respondent of at least the minimum employment period. 23 In such circumstances, we do not accept that the Appellant had only worked for “a total of 3 weeks”.24 As there was a transmission of business, it was open for the Deputy President to accept the Respondent’s evidence over the entirety of the Appellant’s employment period, including evidence of complaints received concerning the Appellant’s work (while the Appellant was on annual leave), in the context of considering s 387(a) of the Act. To this extent, we are not persuaded that the Deputy President made a significant error of fact in finding that there was a valid reason for the dismissal.
[18] We are not persuaded that any of the matters raised by the Appellant under this ground of appeal establish appealable error. Accordingly, appeal ground one is dismissed.
Appeal grounds two and three
[19] Appeal ground two was that the Deputy President erred in fact and in law when she found that the employment of the Appellant would not have lasted more than six weeks. 25 Related to this ground of appeal was the Appellant’s third ground of appeal, which impugned the compensation amount that the Deputy President ordered, following from her conclusion as to the future period that the Appellant would have been employed.26
[20] It is a well-known proposition that Members of the Commission must exercise discretion in considering what the remuneration was, or was likely to be for the aggrieved party, had they not been dismissed. In the recent Full Bench decision of Butterfly Systems Pty Ltd v Eduard Sergeev 27, the Bench at [30] considered the assessment of the length of continued employment as set out in Coal and Allied Operations Pty Ltd:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”(Footnotes omitted)
[21] Having considered the evidence that was before the Deputy President, we agree with the Deputy President’s conclusion at [99] that the Appellant’s employment would not have continued for a period beyond six weeks. We see no error in the exercising of the Deputy President’s discretion in the Decision. Having regard to the principles enunciated in House v King 28 we do not accept that the Deputy President’s findings, and subsequent order made, were unreasonable or unjust in the circumstances.
[22] The Appellant also contended that the Deputy President failed to consider that there was no evidence to suggest that he would not comply with a performance management plan. The Appellant’s contention amounts to no more than an attempt to re-run the case at first instance. The public interest is not enlivened where an Appellant expresses a preference for a different result. That the Deputy President took a different view to the Appellant on the determination of the appropriate remedy, is not a factor that enlivens the public interest.
[23] Based on our reasons above, appeal ground two fails. Following from this, we also see no error in the Deputy President’s calculation in relation to the compensation order awarded and therefore appeal ground three also fails.
Permission to appeal
[24] The Appellant’s contention that permission to appeal should be granted because the Deputy President reversed the onus of proof concerning the question of whether there was a valid reason for the Appellant’s dismissal is rejected, following our consideration of appeal ground one. That the Deputy President found that the Appellant’s employment would not have lasted beyond a period of six weeks, does not amount to an injustice.
[25] Having considered the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:
• there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• the appeal raises issues of importance and/or general application;
• the decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[26] For the reasons set out above, we are not satisfied, for the purpose of s 400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[27] Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant’s submissions dated 2 December 2020
Respondent’s submissions dated 24 November 2020
Printed by authority of the Commonwealth Government Printer
<PR726352>
1 Larry Young v Expo Signage and Digital Pty Ltd [2020] FWC 5058(the Decision).
2 PR722952.
3 Ibid.
4 Decision [13]-[15].
5 Ibid [19].
6 Ibid [17].
7 Ibid [21].
8 Ibid [30].
9 Ibid [32].
10 Ibid [37]-[42].
11 Ibid [45]-[88].
12 Ibid [99].
13 PR722952.
14 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)
15 (2011) 192 FCR 78; (2011) 207 IR 177 [43].
16 O’Sullivan v Farrer and another (1989) 168 CLR 210 [216] – [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46].
17 see: GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28].
18 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
19 Wan v AIRC (2001) 116 FCR 481 at [30].
20 F7 – Notice of Appeal, 2.1.
21 Appellant’s submissions, paragraph 24.
22 Decision [24]; Appellant’s submissions paragraph 20.
23 Larry Young v Expo Signage and Digital Pty Ltd [2020] FWC 3595.
24 Appellant’s submissions, paragraph 22.
25 F7 – Notice of Appeal, 2.1.
26 F7 – Notice of Appeal, 2.1.
27 [2021] FWCFB 18.
28 [1936] HCA 40.
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