Laser Bean Pty Ltd t/a Muzz Buzz v Heather Munckton
[2015] FWCFB 8396
•8 DECEMBER 2015
| [2015] FWCFB 8396 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Heather Munckton
(C2015/4735 and C2015/4815)
Laser Bean Pty Ltd t/a Muzz Buzz
(ADM2015/4)
VICE PRESIDENT HATCHER |
|
Appeal against decision [[2015] FWC 4105] and order [PR568596] of Commissioner Bissett at Melbourne on 22 June 2015 in matter number U2014/16102.
[1] Laser Bean Pty Ltd t/a Muzz Buzz (Laser Bean – the Appellant) has applied for permission to appeal a decision of Commissioner Bissett issued on 22 June 2015 1 (Decision). On 30 April 2015 the Commissioner determined (the initial decision) that Ms Heather Munckton (the Respondent) had been unfairly dismissed and that reinstatement was not appropriate2. On 22 June 2015, after further hearing from the parties, the Commissioner ordered Laser Bean to pay Ms Munckton an amount of $15,456.96 plus 9.5% superannuation in compensation (Order).3
[2] By way of background, Ms Munckton commenced employment with Laser Bean in September 2013 as a casual employee working regular shifts each week at Muzz Buzz Moorabbin. In September 2014 Ms Munckton moved to Muzz Buzz Rowville as the Store Manager and became an on-going employee. Ms Munckton was terminated on 3 December 2014, with her termination taking effect on 7 December 2014.
[3] As noted in the Commissioner’s initial decision:
“[7]The letter of termination received by the Applicant (dated 3 December 2014 but received after 7 December 2014) said:
I consider that your performance and conduct is still unsatisfactory and have decided to terminate your employment for the following reasons:
● gross misconduct and behaviour against your employer;
● deliberately behaving in a way that is inconsistent with continuing your employment;
● refusing to carry out reasonable instructions that is part of your job;
● breach of confidentiality agreement;
● store appearance assessed against our standards.
Your employment will end on 07/12/2014…” (Citations not included)
[4] In the initial decision, the Commissioner first considered whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) as Laser Bean was a small business employer as per s.23 of the Fair Work Act 2009 (the Act). The Commissioner found, inter alia, that there was not a valid reason for Ms Munckton’s dismissal and that Laser Bean had not complied with the Code. The Commissioner then went on to consider whether the dismissal was harsh, unjust or unreasonable, having regard to the factors set out in s.387 of the Act. The Commissioner concluded that she was satisfied that the dismissal was harsh, unjust or unreasonable and therefore found that Ms Munckton was unfairly dismissed. Further, the Commissioner found that reinstatement was not appropriate in the circumstances and, as noted above, relisted the matter to deal with the issue of compensation.
[5] With regard to the issue of compensation, the Commissioner:
(i) determined that Ms Munckton would have remained in employment with Laser Bean for a further six months had her employment not been terminated;
(ii) found that Ms Munckton made legitimate attempts to mitigate her loss;
(iii) did not deduct any amount for contingencies; and
(iv) did not consider that the amount of compensation should be reduced because Ms Munckton was “under qualified and under experienced, in an elevated role on trial” as submitted by Laser Bean.
[6] As to the last issue mentioned above, the Commissioner stated at paragraph [24] of the Decision:
“… there is nothing in the contract that suggests the Applicant was ‘on trial’ in the position. Mr Stinean made the decision to promote the Applicant to the Store Manager position she occupied at the time her employment was terminated. In doing so he was aware of her qualifications and experience, having employed her for 12 months prior to the promotion. It should also be observed that this is the first time the Respondent has suggested the Applicant was ‘on trial.’ There is nothing in the contract of employment she signed that suggested this was the case. Further, this was not a matter raised during the hearing of the merits of the unfair dismissal application.” (Underlining added)
[7] As previously mentioned, the Commissioner ordered Laser Bean to pay Ms Munckton an amount of $15,456.96 plus 9.5% superannuation in compensation.
[8] In appealing the Decision Laser Bean sought a stay order which was refused by Senior Deputy President Hamberger on 15 July 2015 in a decision handed down in transcript.
[9] The application was listed for hearing on 26 August 2015 to deal with the issue of whether or not permission to appeal should be granted. At the hearing, Mr Neville Jordan appeared with Mr Ciprian Stinean (the Director of Laser Bean) on behalf of the Appellant, while Ms Munckton was represented by Mr John Frandsen. The initial hearing focused almost entirely on whether or not Mr Stinean had received the email sent by Ms Munckton on 14 April 2015 which had attached to it the evidentiary material which she intended to rely on in the proceedings before the Commissioner. Against that background, the Bench indicated that it would issue further directions and list the matter to deal with the issue of permission to appeal and the appeal (if permission was granted). The appeal was listed for further hearing on 6 November 2015. At that hearing Ms Munckton was represented by Mr Rahul Vase.
The Relevant Statutory Provisions and the Code
[10] The relevant provisions of the Act are ss.385, 387 and 388 which are set out below.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
The Appellant’s Case
[11] Laser Bean in its Notice of Appeal cited eight grounds of appeal. Those grounds can be summarised as follows:
- the Decision was against the evidence and weight of evidence;
- Laser Bean was denied a fair process and the Decision was biased;
- the Decision did not deal with the employment status of “trial”;
- the dismissal was not unfair in the circumstances; and
- the amount of compensation awarded was grossly excessive in the circumstances.
[12] As to why it was in the public interest for permission to appeal to be granted, Laser Bean submitted that the public interest was attracted because:
- the Decision raises issues of the Commission’s approach to the concept of a trial in the employment contract;
- the standard to be applied needs to be defined and demonstrated to be compatible with Australian commercial standards; and
- the process and the Commissioner were biased.
[13] Laser Bean submitted that the denial of procedural fairness was its prime complaint regarding the Decision, describing Ms Munckton’s failure to serve her witness statements on Laser Bean as a substantial failure of procedure. This failure, Laser Bean contended, resulted in Mr Stinean being ambushed by statements and oral evidence which he had no reason to anticipate. Laser Bean further submitted that the hearing notice did not explicitly state that it was necessary for witnesses to attend the hearing. As a result, Mr Stinean formed the view that if his witness statements had been provided to the Commission and served on the applicant they would be admissible as evidence. Finally, Laser Bean submitted that the Commissioner should have more fully explained her statements about informality in the proceedings, with the subsequent strict application of the rule in Browne v Dunn 4 leaving a layperson wondering just what the dimension and ambit of this informality was.
[14] In respect of the purported employment trial, Laser Bean acknowledged that Ms Munckton’s contract of employment did not make a reference to a trial but submitted that a trial is a matter of fact. To that end, Laser Bean submitted that a trial occurs at the commencement of any advancement to a significantly more responsible position, citing the provision in the contract of employment that the contract could be terminated by either party with one week’s notice as indicating agreement on the period of notice required to terminate the trial. Laser Bean also submitted that Ms Munckton’s aggregate period of employment was less than 12 months full-time and that, for the purposes of unfair dismissal, the full-time manager’s position attracted a fresh 12 month qualifying period of which less than three months had passed.
[15] As to the remaining grounds of appeal, Laser Bean submitted that the lack of procedural fairness inevitably undermined the integrity of the evidence upon which these considerations depend. In conclusion, Laser Bean submitted that “The Appellant now appreciates the adversary nature of this process and will make good use of the opportunity of a rehearing if permitted.” 5
The Respondent’s Case
[16] Ms Munckton in her submissions characterised the appeal as an attempt to reargue the case, adding that the Full Bench was being asked to consider a different case to that which was put to the Commissioner. Ms Munckton submitted that the Full Bench was further being asked to discount evidence not challenged in the first instance proceedings and on that basis to make findings different to those of the Commissioner.
[17] As to the denial of fair process, Ms Munckton submitted that:
(i) there was no evidence that Mr Stinean had or had not received her witness statements;
(ii) Mr Stinean had the same opportunity to ask questions of all employees as she had and in fact was allowed to cross-examine some witnesses twice during the April hearing;
(iii) Mr Stinean was provided with instructions by the Commission on how to approach the April hearing;
(iv) Ms Munckton was also unable to enter into evidence a witness statement filed on her behalf as the witness, Ms Muccillo, was unable to attend the hearing; and
(v) the Appellant refused to supply any financial information as he did not want the information known and failed to provide any evidence to support his submission that the business was in financial hardship.
[18] Ms Munckton submitted that she should not be punished for the Appellant’s lack of understanding of the Commission’s processes.
[19] In respect of the trial, Ms Munckton submitted that there was nothing in her contract of employment that suggests she was on trial in the position, adding that Laser Bean did not submit any evidence supporting this contention at the hearing below.
[20] Ms Munckton concluded that Laser Bean had not demonstrated that there is any error of law or significant errors of fact in the Decision. As such, permission to appeal should not be granted and the application dismissed.
Dealing with the Appeal
[21] This appeal is one to which s.400(1) of the Act applies. Section 400(1) 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.
[22] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment7. In GlaxoSmithKline Australia Pty Ltd v Makin (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.” 8
[23] 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. 9 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.10
Consideration of the Issues
[24] We turn now to deal with the grounds of appeal relied upon by Laser Bean. For the purposes of our consideration, we deal with those grounds in the same way as they were dealt with in Laser Bean’s written submissions of 20 October 2015.
Whether a denial of procedural fairness
[25] This issue centres primarily on whether or not Mr Stinean was denied procedural fairness on the basis that he had not received certain of Ms Munckton’s witness statements prior to the hearing below. At the hearing on 26 August 2015 Mr Stinean gave evidence that he did not recall receiving an email from Ms Munckton dated 14 April 2015 which had attached to it four witness statements - those of Ms Munckton herself, Ms Lucy Muccillo, Ms Emma Carapellotti and Mr Rahul Vase - which she had submitted to the Commission. On the other hand, Ms Munckton attested that when she emailed these statements to the Commission at 5:41pm on Tuesday, 14 April 2015, she copied them to Mr Stinean. Ms Munckton further attested that she did not receive an email indicating that her email was either not sent or rejected. Given the dispute over this issue, on 1 October 2015 the Commission issued several Orders to produce documents. Those Orders required:
(i) Laser Bean to provide a copy of all emails received and sent by Mr Stinean from and to Ms Munckton for the period 1 February 2015 to 26 August 2015; and
(ii) Muzz Buzz Franchising Pty Ltd (which held the server for Laser Bean’s emails) to provide a copy of the email record and/or log for Mr Stinean’s email address showing all emails received and/or rejected and sent from and to Ms Munckton for the period 1 February 2015 to 26 August 2015 contained or recorded in the email records and email server log held by Muzz Buzz Franchising Pty Ltd and associated entities, as well as copies of those emails.
[26] Unfortunately, the material provided in accordance with those Orders failed to clarify whether or not Mr Stinean had received Ms Munckton’s email of 14 April 2015. In those circumstances, we are prepared to accept that Mr Stinean did not receive the email of 14 April 2015 and attachments, even though we accept Ms Munckton’s evidence that she copied her email of 14 April 2015 (with attachments) to Mr Stinean. It is likely that some technological defect occurred, noting that the Commission’s records disclose that there had been an earlier problem in sending an email to Mr Stinean because of the size of the documents attached to the email.
[27] We acknowledge that service of evidentiary material lodged with the Commission is an integral part of ensuring procedural fairness. We are satisfied that in this case, short of personally serving her submissions and evidentiary material on Laser Bean, Ms Munckton did all she reasonably could to comply with the Commission’s Requirements (see below). The real question is whether the procedural infraction which appears to have occurred, albeit unintentionally, led to any substantive prejudice to Laser Bean in advancing its case which would justify the grant of permission to appeal in the public interest. The relevant principle in this respect was stated by McHugh J in Re Refugee Review Tribunal; Ex parte Aala 11as follows:
“[103] Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.” Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because “[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”. In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second Tribunal and the history of the proceedings, the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.” (References omitted)
[28] Although the above statement was made in the context of judicial review, we consider the principle stated is apposite to the question as to whether permission to appeal should be granted in the public interest.
[29] We have come to the conclusion that the procedural infraction which occurred did not cause any substantive prejudice to Laser Bean and did not deny it the opportunity for a successful outcome, for a number of reasons.
[30] First, of the four statements, the statement of Ms Munckton was simply a copy of a statement which she had earlier made and which had previously been served on Laser Bean on 4 March 2015, and the statement of Ms Muccillo was not admitted into evidence (because she did not attend for cross-examination). The statements of Ms Carapellotti and Mr Vase were admitted into evidence, but the substantive content of those statements was almost entirely repeated in the examination in chief of those witnesses in the presence of Mr Stinean. That meant that there was no evidence from those witnesses which was admitted of which Laser Bean had no prior notice apart from some minor matters contained in the statements of Ms Carapellotti and Mr Vase.
[31] Second, the procedural infraction was actually identified by Laser Bean in the course of the proceedings, but notwithstanding this Laser Bean did not consider itself to have been prejudiced and declined to take any step to remedy the situation. The starting point in this regard is the transcript of the hearing below where Mr Stinean indicated that he had not received the material. The relevant extract from the transcript which occurred during Mr Vase giving evidence is set out below.
“MR STINEAN: Sorry, I just want to mention, I didn’t have access to the statement he sent to Fair Work commission on the Commission. I’m not sure if I’m actually supposed to. I made all my witness statements available to everyone, but I haven’t received any witness statements from either…
THE COMMISSIONER: Hold on just a moment. The material was sent to you, Mr Stinean, on 14 April.
…
THE COMMISSIONER: Did you receive…
MR STINEAN: My documents were sent in – her documents were sent in four separate emails, but it doesn’t really make that much difference.
THE COMMISSIONER: Okay.
MR STINEAN: Yes, I’m ready to move on…” 12 (Underlining added)
[32] We also note that Mr Stinean elected not to put any questions to Ms Carapellotti despite being invited to do so by the Commissioner 13, nor did he request an adjournment to familiarise himself with the witness statements of Mr Vase or Ms Carapellotti. To the contrary, the transcript suggests that Mr Stinean was happy to press on.
[33] Third, Mr Stinean gave evidence after both Mr Vase and Ms Carapellotti. This provided Mr Stinean with an opportunity through his evidence to rebut their oral evidence (which, as earlier stated, substantially repeated what was in their statements). Mr Stinean also had a second opportunity to cross-examine both Mr Vase and Ms Munckton after they were recalled to give further evidence by the Commissioner. The transcript, which we have set out below, indicates the Commissioner’s reasoning in recalling these witnesses:
“THE COMMISSIONER: What I’m going to do before I call you Mr Stinean, is I’m going to recall Mr Vase and I’m then going to have to recall Ms Munckton because there are things that have arisen that weren’t put to you when you were in the witness box and I need to know.…
THE COMMISSIONER: Thank you, so Mr Stinean, I’m going to ask Mr Vase a question. If you don’t question him about evidence that he’s given then I will take his evidence as being – if it hasn’t been contradicted anywhere I’ll take his evidence as the evidence. Okay?… Yes.
So if you dispute any evidence that he’s given you need to question him about it.
MR STINEAN: In this process now?
THE COMMISSIONER: Yes.
MR STINEAN: Okay.
THE COMMISSIONER: This is what you should have done earlier…” 14
[34] Finally, an examination of the Commissioner’s initial decision does not indicate that the Commissioner relied upon the evidence of either Mr Vase or Ms Carapellotti in any material way in coming to her findings. The Appellant was unable to point to any part of that decision which was in any way based upon their evidence. The Commissioner’s decision appears to be almost entirely based on the evidence of Mr Stinean and Ms Munckton.
[35] Taken together, the above analysis does not point to any substantive unfairness or prejudice resulting from Mr Stinean not having received Ms Munckton’s evidentiary material which would justify the grant of permission to appeal in the public interest. In some respects, the analysis suggests that the Commissioner went out of her way to provide Mr Stinean with an opportunity to best put his case. This is perhaps best exemplified by the Commissioner’s decision to recall Mr Vase and Ms Munckton to give further evidence.
[36] Laser Bean submitted a further failure of procedure concerned the process pertaining to the Appellant’s written witness statements. By way of background, the Commissioner declined to admit several witness statements sought to be relied on by Laser Bean and one submitted by Ms Munckton (Ms Muccillo) on the basis that none of the witnesses was in attendance at the hearing. Specifically, Laser Bean contended that the notice of hearing forwarded to the parties did not explicitly state that it would be necessary for a party to attend with its documents and witnesses. In the absence of such a statement, Laser Bean further contended that Mr Stinean formed the view that if the witness statements he intended to rely upon had been provided to the Commission and served on Ms Munckton that they would be admissible as evidence. With regard to this issue, Ms Munckton pointed to the material provided to the parties by the Commission to assist them in preparing for the hearing as undermining the Appellant’s submissions in this regard.
[37] The material referred to by Ms Munckton was attached to the Requirements (i.e. Directions) forwarded to the parties on 3 February 2015 by the Commission. The Requirements state that the matter will be listed for Conference/Hearing with the notice of listing to be sent to the parties in due course. The requirements also state “Please refer to attached information for assistance with preparing for the proceedings.” The attached material, Preparing for a Conference or Hearing, states that:
“Each person who completes a statement of evidence must attest to this statement by attending the conference.” 15
[38] While we respectfully suggest that it may have been appropriate for the Commissioner to have first asked the parties whether they had any objections to any of the relevant witness statements being admitted into evidence, the Commissioner’s decision not to admit any of those witness statements in our view does not constitute a denial of procedural fairness. This is particularly the case in circumstances where the parties were clearly advised in advance of the hearing of the need for witnesses to attend the conference/hearing. As the Vice President pointed out at the hearing on 6 November 2015, the terms conference/hearing are used interchangeably in the abovementioned material to reflect the terms of ss.398 and 399 of the Act.
[39] The third ground relating to procedural fairness relied upon by Laser Bean concerns the Commissioner’s statements about informality and her alleged subsequent strict application of the rule in Browne v Dunn. Laser Bean submitted that it was incumbent upon the Commissioner to explain in greater detail just what this procedural informality would and would not be.
[40] At the commencement of the hearing the Commissioner stated the following:
“Just a few things before we start. I’m going to have the court room door closed during the proceedings. I think that it will be of assistance to dealing with this matter if we just deal with it a little bit less formally than I normally would if I had lawyers here, okay? It might make it easier for everyone. It means that we don’t have any members of the public wandering in, because members of the public can come in and observe these proceedings.
If I have to issue a decision in this matter, the decision will be public and people’s names will be in the decision, but we’re just not going to have anyone in here listening…” 16
[41] We note that if the meaning of the term ‘informality’ was not clear to Mr Stinean at the hearing he could have asked the Commissioner to clarify precisely what it meant. However, he did not do so. Further, a plain reading of the Commissioner’s comments on transcript provides a clear sense of what she meant by ‘informality’. Accordingly, we fail to see how the Commissioner’s comments resulted in a lack of procedural fairness.
[42] The above analysis does not support a finding that Laser Bean was denied procedural fairness.
The Employment Trial
[43] It is not disputed that Ms Munckton’s contract of employment makes no specific reference to a trial. However, Laser Bean contended that a trial is a matter of fact and that a trial occurs at the commencement of any advancement to a significantly more responsible position as occurred in this case.
[44] By way of background, the contract of employment signed by Ms Munckton on 26 September 2014 states:
“Terms and Conditions of Employment
The terms and conditions of your employment are governed by the National Employment Standards and the Fast Food Industry Award 2010…
Clause 7 – Award Flexibility, of the Award permits an employer and employee to vary the application of certain terms of this award by agreement.
…
Clause 19.2(b) of the award makes provision for a payment to you to launder your uniform. Instead of paying an allowance per shift we propose, subject to your agreement, to increase your hourly rate of pay by $1.00c per hour instead of the payment per shift. This payment will ensure you are not disadvantaged and are better off than if paid the allowance per shift.
Under the terms of the Award, either party may terminate the agreement relating to this variation by giving 1 week written notice.” 17
[45] The reference to termination in the last paragraph of the above extract is ambiguous and could also be construed as relating to termination of the award flexibility arrangement regarding the laundering of Ms Munckton’s uniform as opposed to the termination of her contract of employment. Even if it were conceded that the relevant provision in the contract of employment deals with the termination of employment, the unfair dismissal provisions of the Act nevertheless apply in circumstances where an employee has completed the minimum employment period specified in s.383 of the Act (this issue is discussed further below).
[46] Ms Munckton submitted that Laser Bean did not submit any evidence supporting the contention regarding her employment being subject to a trial in the proceedings before the Commissioner. The transcript of the 23 April 2015 hearing before the Commissioner supports Ms Munckton’s submission in this regard. An examination of the material before the Commissioner indicates that the issue of an alleged trial was first raised in Laser Bean’s submissions regarding the issue of compensation. Further, the issue was only briefly touched upon in the proceedings dealing with compensation as the Commissioner considered the issue related to whether or not Ms Munckton’s dismissal was fair – which the Commissioner pointed out had already been determined 18.
[47] Finally, Laser Bean also submitted that Ms Munckton’s aggregate period of employment was less than 12 months full-time and that, for the purposes of unfair dismissal, the full-time manager’s position attracts a fresh 12 month qualifying period of which less than three months had passed. Section 384 of the Act which deals with the issue of period of employment provides as follows:
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and …”
[48] In circumstances where it was not disputed that Ms Munckton worked as a casual employee on a regular and systematic basis for 12 months prior to taking up the Store Manager position at Muzz Buzz Rowville, Laser Bean’s submission as to how the period of employment should be calculated is clearly inconsistent with s.384 of the Act.
[49] Taken together, these factors do not support a finding that the Commissioner erred in her conclusion as set out at paragraph [6] above regarding the alleged trial.
The Remaining Grounds of Appeal
[50] At the hearing on 6 November 2015, Laser Bean submitted that these issues were more appropriately dealt with should permission to appeal be granted and the matter reheard. In particular, we note Laser Bean’s submission that it “… now appreciates the adversary nature of this process and will make good use of the opportunity of a rehearing if permitted.” If anything, this submission supports Ms Munckton’s characterisation of the appeal as an attempt to reargue the case.
[51] Without going to the details of each of the remaining grounds of appeal, we have considered the Appellant’s submissions and are not satisfied that Laser Bean has established that it would be in the public interest to grant permission to appeal on these grounds or that the Decision is affected by significant errors which attract the public interest.
Conclusion
[52] Drawing on the above analysis, we consider that the Decision is not attended by any significant error any denial of procedural fairness which either manifests an injustice or attracts the public interest. Accordingly, permission to appeal is refused.
[53] At the same time as we heard Laser Bean’s application for permission to appeal the Decision, we also heard two other associated applications made by Laser Bean. The first was an application for permission to appeal the decision of Senior Deputy President Hamberger issued on 15 July 2015 to refuse a stay of the Decision and Order pending the hearing and determination of Laser Bean’s appeal against the Decision and Order. The second was an application by Laser Bean for certain orders concerning the conduct of its appeal against the Decision and Order. Because we have refused permission to appeal in relation to the primary appeal, these associated applications must also be dismissed.
VICE PRESIDENT
Appearances:
N. Jordan with C. Stinean for the Appellant.
J. Frandsen and R. Vase for the Respondent.
Hearing details:
2015.
Melbourne:
26 August and 6 November.
1 [2015] FWC 4105
2 [2015] FWC 2874
3 PR568596
4 (1893) 6 R 67 – The rule in Browne v Dunn was described in MWJ v The Queen [2005] HCA 74 at paragraph 38 in the following way “The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.”
5 Appellant's Submission – 20th October 2015 at paragraph 31
6 (2011) 192 FCR 78 at [43]
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
8 [2010] FWAFB 5343 at [27], 197 IR 266
9 Wan v AIRC (2001) 116 FCR 481 at [30]
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
11 (2000) 204 CLR 82
12 Transcript of 23 April 2015 at PN224-232
13 Ibid at PN283-284
14 Ibid at PN572-579
15 Appeal Book at pages 145-147
16 Transcript of 23 April 2015 at PN 12-13
17 Appeal Book at pages 154-155
18 Transcript of 9 June 2015 at PN802-803
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