Matthew Gugiatti v SolarisCare Foundation Ltd

[2016] FWCFB 280

[2016] FWCFB 280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Matthew Gugiatti
v
SolarisCare Foundation Ltd
(C2015/3759)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SAUNDERS

SYDNEY, 5 FEBRUARY 2016

Permission to appeal against decision [2015] FWC 2447 of Commissioner Williams at Perth on 9 April 2015 in matter number U2014/11321.

[1] On 9 April 2015, Commissioner Williams issued a decision 1 finding that the appellant, Matthew Gugiatti, had not been dismissed from his employment with SolarisCare Foundation Ltd (SolarisCare). This was because Mr Gugiatti was under a contract of employment for a specified period of time, and his employment terminated at the end of that period. The Commissioner further found that even if Mr Gugiatti had been dismissed, he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. Mr Gugiatti’s application for an unfair dismissal remedy was therefore dismissed.

[2] On 30 April 2015, Mr Gugiatti filed a notice of appeal against the Commissioner’s decision. The appeal was originally listed to be heard in June 2015, but was adjourned to 19 January 2016 at the appellant’s request, on medical grounds.

[3] On 15 January 2016, Mr Gugiatti emailed the Commission to request a further adjournment on medical grounds. On 18 January 2016, he was advised that his application would not be granted and that the matter would proceed as scheduled at 2:00pm Eastern Standard Time on 19 January 2016.

[4] On 19 January 2016, approximately five minutes before the hearing was due to commence, Mr Gugiatti provided a statutory declaration outlining further medical grounds on which he contended the matter should be adjourned again, for an unspecified period. We considered the statutory declaration filed in support of the adjournment application. We decided to refuse the appellant’s application on the grounds that we were not satisfied that the appellant was medically incapable of appearing before the Commission and advancing submissions in support of his appeal. The appellant was advised accordingly and the matter was stood over to the next day.

[5] The hearing proceeded on 20 January 2016. There was no appearance for Mr Gugiatti.

[6] Mr Gugiatti has not complied with directions to provide an outline of submissions in support of his appeal before the hearing. The only material we have before us in support of his appeal, therefore, is his notice of appeal itself. Several of the grounds of appeal relate to allegedly improper actions by SolarisCare, e.g. failing to produce documents and submitting evidence close to the hearing date at first instance. Mr Gugiatti also contends that the Commissioner made errors of fact that led to him dismissing the application on jurisdictional grounds (e.g. finding that SolarisCare was a small business), and that the Commissioner did not adequately consider the impact his ill health had on his ability to prepare for the first-instance hearing.

Consideration

[7] The appeal is made under s.604(1) of the Fair Work Act 2009 (the FW Act), which provides:

604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

[8] However, s.400 (found in Part 3-2 of the FW Act) provides:

400 Appeal rights

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

[9] Section 400 applies to Mr Gugiatti’s appeal, as it is an appeal against a decision made under Part 3-2 of the FW Act.

[10] In the Full Federal 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”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.3 In GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 4

[11] Nothing in the information available to us indicates that it would be in the public interest to grant Mr Gugiatti permission to appeal. We accept SolarisCare’s submission that many of the grounds of appeal advanced are not directed to the Commissioner’s reasons for his decision. Those which do relate to those reasons appear to be unsupported allegations. There is no issue of importance or general application arising from Mr Gugiatti’s application at first instance. The Commissioner’s decision is an orthodox application of the provisions of the FW Act which confer jurisdiction on this Commission to award unfair dismissal remedies. Moreover we are satisfied that the Commissioner has not made any error in the application of those principles to the facts as presented to him.

Conclusion

[12] In accordance with s.400(1) of the FW Act, permission to appeal is refused.

VICE PRESIDENT

Appearances:

No appearance for M. Gugiatti.

E. Moran solicitor for SolarisCare Foundation Ltd.

Hearing details:

2016.

Sydney:

19 and 20 January.

 1  [2015] FWC 2447

 2   (2011) 192 FCR 78 at [43]

 3   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]

 4  [2010] FWAFB 5343 at [27], 197 IR 266

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