Mades Efemo v SouthLink Pty Ltd
[2019] FWCFB 5291
•1 AUGUST 2019
| [2019] FWCFB 5291 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mades Efemo
v
SouthLink Pty Ltd
(C2019/3431)
VICE PRESIDENT CATANZARITI | SYDNEY, 1 AUGUST 2019 |
Appeal against decision 2019 FWC 3370 – application dismissed pursuant to s 587 - matter determined without a hearing or determinative conference - contested factual matter about a critical issue – s 397 - conference or hearing required - permission to appeal granted and appeal upheld - matter remitted to Deputy President Clancy to conduct a hearing.
[1] Mr Mades Efemo (the Appellant) has lodged an appeal, for which permission is required, against a Decision 1 and Order2 of Deputy President Clancy issued on 15 May 2019 in which the the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy (the Application).
[2] On 9 July 2019, the matter was listed to deal with the question as to whether permission to appeal should be granted.
[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. 3 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 2018.4 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. 5 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.
Permission to appeal principles
[8] The Full Bench as presently constituted recently dealt with an appeal against a decision of a Member of the Commission who had dismissed an application for unfair dismissal pursuant to s 587 of the Act. In that decision 6 we set out the relevant principles as follows:
“[11] 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. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] Section 400(1) modifies s 604(2) of the Act in relation to appeals from decisions made under Part 3-2, which concern unfair dismissal applications. It provides that, despite subsection 604(2), the Commission must not grant permission to appeal from such decisions unless it considers that it is in the public interest to do so. If s 400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the appeal bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. In Coal & Allied Mining Services Pty Ltd v Lawler, the Federal Court characterised the test under s 400 as “stringent”. 8
[13] The Deputy President’s Decision was made under s 587, which allows the Commission to dismiss an application on the grounds therein specified. Section 587 is in Part 5-1 of the Act and on this basis it might be contended that s 400 does not apply to decisions made under that provision. However, the Decision was made in relation to an application brought under Part 3-2 of the Act, namely the Appellant’s unfair dismissal application. In Australian Postal Corporation v Gorman, 9 Besanko J concluded that an appeal from a decision to dismiss an unfair dismissal proceeding under s 587 of the Act was a decision to which s 400 applied. Further, in Asciano Services Pty Ltd v Hadfield,10 a Full Bench of the Commission decided that s 400 applied to an appeal from a decision not to grant permission for representation under s 596 of the Act in respect of an unfair dismissal application.
[14] The apparent purpose of s 400 is to confine the circumstances in which unfair dismissal applications can be appealed so as to promote the finality of litigation with respect to such claims. It would be contrary to this purpose if the limitation applied to substantive decisions made under Part 3-2, but not to procedural or interlocutory decisions concerning those same matters. In our view, the present appeal is one from a decision made under Part 3-2 of the Act. The Decision dealt with the dismissal of an unfair dismissal proceeding brought before the Commission under that part of the Act. Accordingly, we consider that s 400(1) of the Act applies to the matter before us.
[15] 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.” 11
[9] We adopt the same principles in determining this matter.
Consideration
[10] As we have indicated, the Deputy President determined that a binding settlement agreement had been reached and therefore dismissed the application. A critical issue in the proceedings at first instance, was the dispute as to whether or not a settlement agreement had in fact been reached. The Appellant asserted that no binding settlement agreement had been reached. The Respondent asserted that a binding settlement agreement had in fact been reached. This factual dispute needed to be determined by the Deputy President who found in favour of the Respondent in relation to that issue.
[11] At the time of the hearing of the appeal, the Appellant appeared via telephone. The Respondent did not appear. At the hearing, the Appellant’s attention was drawn to the requirements of s 397 of the Act. Section 397 of the Act provides as follows:
“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.”
[12] It is apparent from the terms of s 397, that where a matter arising under Part 3-2 involves contested fact(s), the Commission must either hold a conference or conduct a hearing in relation to the contested fact(s). Consistent with the principles set out above, we consider that the question as to whether or not the Appellant had reached a binding settlement agreement with the Respondent, that would have the effect of extinguishing his cause of action in making the Application was a contested fact arising under Part 3-2 of the Act. As noted above, it is apparent that a conference or hearing was not held.
[13] During the hearing we determined that in the circumstances we would grant permission to appeal. As the Respondent was not present at the hearing, the Full Bench wrote to the parties on 16 July 2019 setting out the requirements of s 397 and proposed that the appeal be upheld and the matter be remitted to Deputy President Clancy to conduct a hearing in relation to the disputed facts. The views of the Respondent were sought on this course of action. On 19 July 2019, the Respondent replied that it agreed with the Full Bench’s proposal that the matter be remitted to Deputy President Clancy to conduct a conference or hold a hearing in relation to the disputed facts. We will adopt that course.
[14] In conclusion, we find that the Deputy President’s failure to comply with s 397 of the Act in circumstances where the relevant contested fact was a critical issue in the proceeding enlivens the public interest and on that basis we are satisfied that it is in the public interest to grant permission to appeal and permission is granted. The failure to comply with s 397 in the context of this case was an error that warrants correction on appeal. We uphold the appeal and quash the Deputy President’s Decision and Order dismissing the Appellant’s Application. We remit the matter to Deputy President Clancy to conduct a conference or hold hearing in order to determine the contested factual matters.
[15] For the avoidance of doubt, it should be noted that if, after conducting a conference of holding a hearing, the Deputy President determines not to dismiss the application, the question whether the Respondent should be allowed a further period within which to lodge his application will require determination. An efficient course might be to deal with both matters in the conference or hearing.
VICE PRESIDENT
Appearances:
Mr M Efemo, on his own behalf via telephone.
No appearance on behalf of the Respondent.
Hearing details:
9 July
2019
Sydney with videolink to Melbourne.
Printed by authority of the Commonwealth Government Printer
<PR710841>
1 [2019] FWC 3370.
2 PR708345.
3 Decision at [2].
4 Ibid.
5 [2019] FWC 3370 at [39].
6 [2019] FWCFB 4791.
7 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
8 (2011) 192 FCR 78 at [43].
9 (2011) 196 FCR 126 at [37].
10 [2015] FWCFB 2618.
11 Wan v AIRC (2001) 116 FCR 481 at [30].
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