Mades Efemo v SouthLink Pty Ltd
[2019] FWCFB 6728
•2 OCTOBER 2019
| [2019] FWCFB 6728 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mades Efemo
v
SouthLink Pty Ltd
(C2019/5537)
| VICE PRESIDENT HATCHER | MELBOURNE, 2 OCTOBER 2019 |
Appeal against decision [2019] FWC 5749 of Deputy President Clancy at Melbourne on 19 August 2019 in matter number U2019/689.
Mr Mades Efemo has applied for permission to appeal against a decision of Deputy President Clancy issued on 19 August 2019[1] (Decision) in which the Deputy President found that Mr Efemo had entered into a binding settlement agreement in relation to his unfair dismissal claim. The Deputy President dismissed Mr Efemo’s application pursuant to s 587(1)(c) of the Fair Work Act 2009 (FW Act) on the basis that it had no reasonable prospects of success.
The background to the matter was summarised in a decision of a differently constituted Full Bench issued on 1 August 2019[2] (the First Full Bench), arising from an application by Mr Efemo for permission to appeal an earlier decision of Deputy President Clancy in the matter:
“[3] The Appellant had been dismissed from his employment with SouthLink Pty Ltd (the Respondent). Deputy President Clancy noted in the Decision that according to the Form F2 - Unfair Dismissal Application, the Appellant was unsure of the date his dismissal took effect. The Appellant stated that he was notified of his dismissal on 20 December 2018, but was unsure when his dismissal took effect because he remained rostered to work on 28 and 29 December 2018 but was removed from these rosters on 27 December 2018. The Respondent stated in the Form F3 - Employer Response to Unfair Dismissal Application that the Appellant’s dismissal took effect on 20 December 2018. The Appellant subsequently lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Application was lodged on 23 January 2019.
[4] An unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows pursuant to s 394 (3) of the Act. If the dismissal took effect on 27 December 2019, the Application should have been lodged by 17 January 2019 and was therefore 6 days out of time. If the dismissal took effect at an earlier date then the Application would also have been out of time, but for a longer period. In any case the Deputy President correctly concluded that, either way, the Appellant did not make his Application within 21 days of his dismissal taking effect.
[5] In his Decision, the Deputy President set out the background and history of the Application, in particular the circumstances surrounding the conciliation of the matter that had been conducted by the Commission. In summation, it is apparent that the following events occurred:
· Prior to any determination as to whether or not the Appellant should be granted an extension of time to lodge the Application, the matter was referred for conciliation.
· The matter was listed for conciliation on 25 February, before a Commission conciliator.
· The conciliator’s correspondence to the parties immediately after the conciliation confirmed that a settlement had been reached.
· On the day following the conciliation, the Appellant wrote to the Commission confirming that he had not yet reached a settlement.
· The conciliator responded to the parties the same day advising that the matter was resolved through a settlement reached during the conciliation.
· The Appellant maintained in subsequent correspondence, that a settlement was not reached and ultimately requested that the matter be referred to arbitration.
[6] On 20 March 2019, the Deputy President issued directions for the parties to file submissions and evidence as to whether a binding settlement agreement was reached between the parties and whether the Application should be dismissed on the basis that it had no reasonable prospects of success. The parties filed materials in accordance with the directions. The directions did not make any reference to a date for a conference or hearing and it is apparent that no conference nor hearing took place.
[7] The Deputy President commenced his consideration by stating that the issue to be determined in deciding whether the matter should be reopened was whether a binding settlement agreement had been reached between the Appellant and the Respondent. The Deputy President then set out in some detail his reasoning and consideration of the written material filed. Having done so, the Deputy President determined that the Appellant had entered into a “binding settlement of his claim” and therefore his Application was dismissed. An order to that effect was issued in conjunction with the decision. The Appellant seeks permission to appeal the Deputy President’s Decision and Order and that is the matter before us.”
The First Full Bench concluded that the question as to whether or not Mr Efemo had reached a binding settlement agreement with the respondent that would have the effect of extinguishing his cause of action in making the unfair dismissal application was a contested fact arising under Part 3-2 of the FW Act. Pursuant to s 397 of the FW Act, where a matter arising under Part 3-2 involves contested facts, the Commission must hold a conference or conduct a hearing in relation to the contested fact. The First Full Bench determined that the Deputy President had not complied with s 397 as he did not hold a conference or conduct a hearing. Accordingly, the First Full Bench upheld Mr Efemo’s appeal, quashed the Deputy President’s earlier decision and order dismissing the unfair dismissal application, and remitted the matter to the Deputy President to re-determine whether or not a settlement agreement had been reached.
Upon remittal, the Deputy President conducted a determinative conference on 16 August 2019. Mr Efemo attended by telephone. Mr Conlon and Mr Henderson attended on behalf of the respondent. Mr Tulic, the lawyer representing Mr Efemo at the conciliation conference on 25 February 2019, attended pursuant to an Order requiring a person to attend before the Commission.
The Decision
In the Decision, after setting out the facts of the matter, the Deputy President summarised the evidence given by Mr Efemo at the determinative conference as follows:
“[30] Mr Efemo confirmed he was present during all the discussions that took place during the conciliation conference and that he heard everything that was discussed. He said that he could not speak when he wanted to because he had been instructed to only talk to Mr Tulic and nor could he voice any disagreement to what was being done. Mr Efemo said he had previously met with another colleague of Mr Tulic and had only met Mr Tulic on the morning of the conciliation conference. He said he did not know Mr Tulic was going to represent him before then. Mr Efemo said he did not agree to what Southlink was putting forward at the conciliation conference and that he refused the offer.”
The evidence given by Mr Conlon, on behalf of the respondent, was summarised as follows:
“[31] Mr Conlon said Mr Efemo was present at the conciliation and that Mr Tulic had presented Mr Efemo’s version of what had happened. Mr Conlon said the company had responded and then some offers to settle the matter without it needing to go further, passed between the parties. Mr Conlon said an agreement was reached at the end of that conciliation call without conditions attached. He said no one said they wanted to go away and think about anything and the conciliator said that she would prepare a terms of settlement “letter” and then sent it through. Mr Conlon then referred to the subsequent correspondence that passed between the parties over the ensuing days and weeks. Mr Conlon said that Southlink believed that when the conciliation conference call had completed, an agreement had been reached without a cooling off period or the need for someone to go off to think about it. Mr Conlon maintains a binding agreement was reached at that time.”
The evidence given by Mr Henderson, on behalf of the respondent, was summarised as follows:
“[32] Mr Henderson said his recollection was that it was very clear there was a settlement arranged via the conciliator at the end of the telephone call and through the paperwork received after. Mr Henderson said that on the following day he sent “the information” off to be signed by the other party.”
The evidence given by Mr Tulic was summarised as follows:
“[33] Mr Tulic said:
· Mr Efemo was present with him in the room during the conciliation conference;
· offers were exchanged during the course of the conciliation conference;
· the conciliation conference concluded on the basis that there was an agreement to the terms that were put; and
· the parties were then to execute the terms of the settlement that were provided by the Commission.
[34] Mt [sic] Tulic agreed all the terms were agreed, they were to be recorded in the settlement agreement prepared by the conciliator and there was no cooling off period. Mr Tulic said the settlement agreement documents prepared by the conciliator and sent on 25 February 2019 reflected what had been agreed at the conciliation.”
Mr Efemo contended that the respondent raised the issue of redundancy during the 25 February 2019 conciliation conference. He said this was a barrier to settling the claim and the reason why he says he did not agree to a settlement. As to this issue, the Deputy President said:
“[35] …Mr Conlon says he never mentioned redundancy and Mr Henderson said there was no redundancy and he does not recall discussions having involved redundancy. For his part, Mr Tulic says there was mention of a ‘genuine redundancy’ as part of the issues raised by Southlink at the commencement of the conciliation. I do not consider finding one way or the other on this point is determinative in this matter because Mr Tulic ultimately said Mr Efemo gave his agreement to the terms which were agreed between the parties.
[36] In response to this evidence of Mr Tulic, Mr Efemo says he could not talk until after the conciliation call was over so his understanding was that he would discuss matters with Mr Tulic and then the case would proceed further. Mr Efemo also said that if Mr Tulic was saying that he agreed to the settlement, Mr Tulic will also remember that he kept bringing up the redundancy issue. Mr Efemo said he did not agree to any binding settlement when he understood what everything meant and that he informed Mr Tulic later that same day. He said when he understood that settlement would mean there has not been an unfair dismissal, he refused the offer.”
In considering whether a binding settlement agreement was reached between the parties, the Deputy President set out certain passages of the High Court decision in Masters v Cameron,[3] which describe the manner in which a binding agreement is reached. The Deputy President concluded that:
“[39] The evidence at the Determinative Conference on 16 August 2019 persuades me that a binding settlement agreement was reached at the conciliation conference on 25 February 2019. I am not persuaded that there was any intention of the parties not to make a concluded bargain, unless and until they executed a formal contract. I prefer the evidence of Mr Tulic, Mr Conlon and Mr Henderson that settlement was agreed at the end of the conciliation and there was no cooling off period. The contemporaneous correspondence sent to the parties by the conciliator shortly afterwards unequivocally confirms this and the terms of settlement drafted by her were not said to be subject to any conditions.
…
[42] Having been persuaded by the nature of the correspondence of the Commission conciliator sent on 25 February 2019 and 26 February 2019 and the accompanying Terms of Settlement documents, and preferring the version of events given by Mr Tulic, Mr Henderson and Mr Conlon, I am satisfied that Mr Efemo and Southlink reached agreement at the conciliation conference on 25 February 2019 and that the settlement position was reflected in the Terms of Settlement drafted by the Commission conciliator and provided to the parties on the same day. I am satisfied the agreement fell within either the first or second category described in Masters v Cameron and that in either case, there was a binding contract.”
Having reached this conclusion, the Deputy President dismissed the application under s 587(1)(c) of the FW Act on the basis that it had no reasonable prospects of success. An order to that effect was issued in conjunction with the Decision on 19 August 2019.[4] Mr Efemo seeks permission to appeal this Decision and that is the matter now before us.
Appeal grounds and submissions
In his notice of appeal, Mr Efemo advanced seven grounds of appeal. These can be summarised as follows:
(1) The determinative conference was not conducted in a balanced and fair manner, on the basis that the Deputy President:
(a) had already reached his conclusion based on his earlier decision in the matter (ground 1); and
(b) abruptly adjourned the conference while Mr Efemo had residual submissions to make (grounds 2, 3 and 7).
(2) The respondent changed its stance on its redundancy claim but this was not considered by the Deputy President (grounds 4 and 5).
(3) The Deputy President incorrectly assumed that:
(a) Mr Efemo had access to email on 25 February 2019 following the conciliation conference; and
(b) Mr Efemo had agreed to the settlement but later changed his mind after the conciliation conference concluded (ground 6).
The grounds for the grant of permission to appeal set out in the notice of appeal were (in summary) that:
(1) the Decision was made in the absence of facts that were critical to the application, manifesting in an injustice to Mr Efemo; and
(2) compensating Mr Efemo for an unfair dismissal is in the public interest.
In his written submissions[5] and orally before us, Mr Efemo also contended, in summary, that he did not reach a settlement with the respondent on 25 February 2019. He said he did not give “informed consent to Mr Tulic agreeing to the respondent’s offer”[6] and made this clear to Mr Tulic the same day. This, Mr Efemo contended, is not a case where he did agree but later changed his mind.
The respondent did not attend the hearing before us on the basis that it did not object to, and found no fault in, the Decision. We take that to mean that it opposes the grant of permission to appeal.
Consideration
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.[7] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the FW Act applies.[8] Section 400 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[9] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.”[11]
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.[12] 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.[13]
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.[14] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
We do not consider that Mr Efemo has an arguable case that the Deputy President erred in the manner contended. Mr Efemo’s appeal appears to us to be lacking merit in at least four respects.
Firstly, the critical issue in the Decision was a factual question concerning whether a binding settlement agreement had been reached between Mr Efemo and the respondent. Mr Efemo contended that the Deputy President’s finding that a binding agreement had been reached was attended by error. Where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The contentions of factual error advanced by Mr Efemo, while labelled “significant” by him, do not in substance disclose any allegation of significant error of fact, or indeed any error at all. Rather, Mr Efemo’s appeal grounds and submissions simply recount his version of the disputed facts without attempting to demonstrate that the factual findings made in the Decision were not supported by the evidence.
The Deputy President dealt squarely with the relevant factual contest in the Decision and concluded at [39] and [40] of the Decision that he preferred the evidence of Mr Conlon, Mr Henderson and Mr Tulic that a settlement was agreed at the end of the conciliation conference on 25 February 2019 and there was no cooling off period. In support of this position, the Deputy President relied upon:
(1) the contemporaneous correspondence sent to the parties by the Commission conciliator shortly after the conciliation conference on 25 February 2019, which unequivocally confirmed the evidence of Mr Conlon, Mr Henderson and Mr Tulic;
(2) the terms of settlement drafted by the Commission conciliator, which were not said to be subject to any conditions;
(3) Mr Efemo’s evidence that “when he understood what everything meant” he told Mr Tulic “later that same day” that he did not agree to the settlement (which suggested to the Deputy President that Mr Efemo changed his mind after the conciliation conference) and Mr Efemo’s letter dated 25 February 2019 which was consistent with this; and
(4) the subsequent email from the Commission conciliator later on 26 February 2019, which was unequivocal in stating that a settlement had been reached during the conciliation conference.
These matters demonstrate that the factual findings made by the Deputy President were firmly supported by the evidence.
Secondly, and as noted by the Deputy President at [41] of the Decision, Mr Efemo’s reply material filed on 17 April 2019 and his written material submitted on 15 August 2019 did not address the question of whether or not a settlement agreement had in fact been reached on 25 February 2019. Rather this material canvassed matters related to the merits of the unfair dismissal application. Mr Efemo did not provide any documentary evidence to support his contention that no binding settlement agreement was reached at the conciliation conference on 25 February 2019, beyond his statements to this effect in his correspondence.
Thirdly, the procedural issues alleged in the notice of appeal concerning the manner in which the determinative conference was conducted do not appear to have any substance. A review of the audio transcript of the determinative conference before the Deputy President reveals that the proceeding was not adjourned abruptly, as contended. Mr Efemo was given multiple opportunities to advance his position, provide responsive submissions, and make closing remarks. Mr Efemo exercised these opportunities.
Fourthly, we do not consider it to be reasonably arguable that the Deputy President failed to take into account any consideration materially relevant, including Mr Efemo’s concerns regarding the issue of redundancy. Our perusal of the Decision and the materials discloses that the Deputy President dealt specifically with this matter at paragraphs [35] and [36] of the Decision. In any event, the Deputy President concluded that this issue was not determinative of the question of whether a binding settlement agreement had been reached, and we concur with this conclusion.
We are not persuaded that any of the matters raised by Mr Efemo as justifying the grant of permission to appeal enliven the public interest. The matter turned on its own facts and the appeal does not raise any issue of novelty, importance or general application.
Accordingly, we are not satisfied that it would be in the public interest to grant permission to appeal. Having reached this conclusion, permission to appeal must be refused in accordance with s 400(1) of the FW Act.
VICE PRESIDENT
Appearances:
Mr M Efemo on his own behalf
Hearing details:
2019.
Melbourne:
30 September 2019.
<PR712854>
[1] [2019] FWC 5749
[2] [2019] FWCFB 5291
[3] [1954] HCA 72; 91 CLR 353 at 360
[4] PR711442
[5] Appellant’s outline of submissions dated 22 September; Applicant’s response to Deputy President’s “what happened” given 16 August 2019 hearing was abruptly adjourned document undated but filed on 6 September 2019; Applicant’s response to Deputy President Clancy’s 19 August 2019 decision document dated 6 September 2019
[6] Appellant’s outline of submissions dated 22 September at [5]
[7] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[8] See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]
[9] (2011) 192 FCR 78 at [43]
[10] O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[11] [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[12] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[13] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[14] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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