Lewis v Altus Traffic Pty Ltd

[2015] FWCFB 259

[2015] FWCFB 259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Michael Lewis
v
Altus Traffic Pty Ltd
(C2014/6738)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILLIAMS ADELAIDE, 15 JANUARY 2015

Appeal against decision [[2014] FWC 6705] of Commissioner Cloghan at Perth on 24 September 2014 in matter number U2014/11333 - minimum employment period - requirement for a hearing - procedural fairness issues.

[1] Mr Lewis has appealed against a decision issued by Commissioner Cloghan on 24 September 2014. 1 In that decision the Commissioner dismissed Mr Lewis’ unfair dismissal application, made with respect to the termination of his employment with Altus Traffic Pty Ltd (Altus), on the basis of his finding that Mr Lewis had not completed the minimum employment period so as to be a person protected from unfair dismissal.

[2] Mr Lewis’ application was made on 31 July 2014. The minimum employment period was the only initial or jurisdictional issue identified relative to the application and the Commissioner’s decision dealt exclusively with the Altus contention that Mr Lewis had not completed that minimum employment period.

[3] On 26 August 2014 the Commissioner issued a Statement and Directions in which he stated:

“[5] I intend to deal with the Employer's jurisdictional objections to Mr Lewis' application by way of written responses to the following questions.

DIRECTIONS

[6] Mr Lewis:

1. Do you agree that your employment commenced on 4 February 2014 and not 27 January 2014 as claimed in your application? If you do not agree, what documentation do not agree, what documentation do you have which demonstrates that you commenced on 27 January 2014?

2. Do you agree with the following submission by the Employer:

"Atlus Traffic asserts that Mr Lewis has not completed a period of employment with Altus Traffic. Section 384(2) [of the FW Act] states that a period of service as a casual employee 'does not count towards the employee's period of employment' unless it is both regular and systematic, and the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The wage history demonstrates that Mr Lewis' employment has not been regular and systematic for the period of time that he was engaged by Altus Traffic. There is no discernible pattern of work over the time frame of his engagement by Altus Traffic."

If you do not agree with the above assertion, what is your submission and documentation (if any) to support that submission?”

[4] The parties were given specific dates by which material relevant to these questions was to be exchanged and provided to the Commissioner. The Statement and Directions concluded on the basis that:

“[9] Having received the written material, the Commission will make a determination whether it has jurisdiction to deal with Mr Lewis' application.

[10] Should the Commission determine that it does not have jurisdiction to deal with the application, it will be dismissed.

[11] Should the Commission determine that it does have jurisdiction to deal with the application, it will proceed to consider the merits of the application.”

[5] In his decision, the Commissioner summarised the competing assertions relative to the minimum employment issue in the following terms:

“[7] The Applicant asserts in his application that he commenced employment on 27 January 2014 and his employment ceased on 30 July 2014.

[8] The Employer asserts that the Applicant commenced employment on 4 February 2014 and his employment ceased on 30 July 2014.

[9] The question for determination is, what date did the Applicant’s employment commence?” 2

[6] The Commissioner then considered the material the parties had provided to him before setting out his conclusion:

“[15] Having considered the submissions and documentation provided by both parties, I find that the Applicant commenced his employment on 4 February 2014. Accordingly, Mr Lewis has not completed the minimum period of employment to be protected from the unfair dismissal provisions contained in Part 3-2 of the FW Act. An order to this effect is issued jointly with this Decision.” 3

The Appeal

[7] Mr Lewis’ appeal was made on the basis that, subsequent to the Commissioner’s decision, he had been able to provide documentation which he asserts establishes that he completed the minimum employment period. Mr Lewis also seeks to make further submissions relative to the accuracy of the material relied upon by Altus. Mr Lewis contends that the process followed by the Commissioner to determine this matter deprived him of the opportunity to contest the assertions made by Altus.

The Appeal Proceedings

[8] Mr Lewis’ appeal is made pursuant to s.604. That section deals with appeals generally. Those general requirements are modified in relation to unfair dismissal appeals by s.400 of the FW Act which states:

“400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”

[9] At the commencement of the appeal proceedings on 12 January 2015 we brought to the attention of the parties the provisions of s.397 and invited the parties to make submissions relevant to this issue. Section 397 states:

“397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”

[10] The Commissioner’s decision confirms matters of fact relevant to the minimum employment period issue were contested. Notwithstanding this, the Commissioner did not convene a hearing or conference before reaching a conclusion on that minimum employment period issue.

[11] Mr Lewis contended that this issue supported his appeal position. Altus argued that, notwithstanding s.397, the Commissioner was entitled to rely on the material put to him in response to these directions.

[12] Additionally, in the appeal hearing Altus conceded that it did not provide to Mr Lewis the payroll information summary which it provided to the Commissioner. It is clear from the Commissioner's decision that he considered this information so as to conclude that Mr Lewis had commenced his employment on 4 February 2014.

[13] The process followed by the Commissioner to decide the minimum employment period issue did not comply with s.397 of the FW Act. Additionally that process did not meet the natural justice requirements to ensure that Mr Lewis had a proper opportunity to respond to the Altus contentions before a decision on the minimum employment issue was made. Had that payroll information been demonstrably provided to Mr Lewis it may have called into question the utility of these appeal proceedings. However, in the circumstances before us, these matters represent appealable errors and give rise to public interest considerations.

[14] Consequently, we have decided to uphold the appeal and quash the decision 4 and order5 and remit the matter to Deputy President Gooley for reconsideration. It is important to note that this finding does not mean that we endorse the arguments and submissions put by Mr Lewis about the duration of his employment. That is a matter for consideration by Deputy President Gooley. An Order (PR559955) giving effect to this decision will be issued.

Appearances:

M Lewis on his own behalf.

A Marriott representing the respondent.

Hearing details:

2015.

Perth:

January 12.

 1  [2014] FWC 6705

 2  [2014] FWC 6705, paras [7] - [9]

 3  [2014] FWC 6705, para [15]

 4  [2014] FWC 6705

 5  PR555839

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