Matthew Meekin v Suez Recycling and Recovery Pty Ltd
[2021] FWCFB 6066
•13 DECEMBER 2021
| [2021] FWCFB 6066 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Matthew Meekin
v
Suez Recycling and Recovery Pty Ltd
(C2021/3501)
VICE PRESIDENT CATANZARITI | SYDNEY, 13 DECEMBER 2021 |
Appeal against decision [2021] FWC 2254 of Commissioner Bissett at Melbourne on 31 May 2021 in matter number U2020/12539 – permission to appeal refused.
[1] Mr Matthew Meekin (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Commissioner Bissett (the Commissioner) issued on 31 May 2021.
[2] Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, Suez Recycling and Recovery Pty Ltd (the Respondent) was not required to file any material and it did not do so.
[3] The matter on appeal was subject to a hearing by telephone on 1 December 2021. The Full Bench has had regard to the Appellant’s written and oral submissions regarding permission to appeal.
[4] For the reasons that follow, permission to appeal is refused.
The Decision under appeal
[5] In her decision, the Commissioner was required to consider whether or not a binding settlement agreement had been reached by the parties in relation to an application for an unfair dismissal remedy (the application) brought by the Appellant.
[6] The Respondent submitted that the application should have been dismissed on the basis that a binding settlement agreement had been reached and thus, the application had no reasonable prospects of success. The Appellant submitted that a binding settlement agreement had not been reached and that the application should be heard.
[7] After considering all the submissions and evidence before her, the Commissioner found that a binding settlement had not been reached and therefore, she referred the application for arbitration by another Member (in this instance, Deputy President Dean). This is plainly a favourable result for the Appellant, and it is curious that he has sought to appeal the Decision. The reasons why he has lodged an appeal will shortly become clear.
Principles of Appeal
[8] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[9] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 2
[10] 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. 3 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[11] 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. 4 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal and submissions
[12] As mentioned above, the Appellant was the successful party in the matter at first instance. His F7 Notice of Appeal sheds light on why it is he has brought the current appeal. The Appellant has apparently taken issue with certain “comments” made by the Commissioner at first instance which the Appellant considers to be “personal and defamatory in nature”.
[13] The Appellant indicated that his written submissions are contained in his F7 Notice of Appeal. We will not reproduce those submissions in full. In summary, the Appellant is aggrieved by certain observations made by the Commissioner in her Decision and he points to paragraphs [32], [47] and [48] of the Decision in particular. The Appellant further contends that the comments with which he takes issue have been disseminated within the Commission and influenced the decision-making of other Members.
[14] The Appellant further submits that the Commissioner made a significant error of fact at paragraph [17] of the Decision. That paragraph reads as follows: 5
“Mr Meekin submits that as soon as he saw Mr Pinkas’ email to the Commission notifying that the matter had resolved, he immediately contacted the staff conciliator to inform him that no agreement had been reached and as such no binding settlement was ever made. This, he says, is evidence that he never reached agreement.”
[15] Mr Pinkas was the Appellant’s representative from the Transport Workers’ Union (the TWU) at first instance. The Appellant submits that he in fact never saw Mr Pinkas’ email to the Commission until he had read the TWU’s submissions at first instance. He contends that this is a significant error of fact in the Decision.
[16] At the hearing of the appeal, the Appellant provided further oral submissions to the Full Bench. Most of the submissions did not engage with the question of permission to appeal.
Consideration
[17] The Appellant has failed to identify any arguable grounds of appealable error in the Decision. The Appellant merely dislikes certain observations made by the Commissioner at first instance. This does not give rise to any grounds of appeal. We would note that the observations made by the Commissioner in the paragraphs specified by the Appellant are not unusual in nature nor do they constitute a personal attack on the Appellant. Again, the Appellant may be aggrieved by these observations but that in and of itself does not give rise to appealable error.
[18] Regarding the Appellant’s submission that the Commissioner made a significant error of fact, we do not accept that she has done so. Even if we did accept the Appellant’s submission, nothing turns on the alleged error of fact that would make it appropriate for permission to appeal to be granted.
[19] The Appellant also expresses his concern that other Members of the Commission, having read the Decision, would be influenced by it so as to give rise to an apprehension of bias against him. The Appellant has expressed concerns specifically regarding Deputy President Dean who, as aforementioned, is currently the Member allocated the arbitration of this matter. If the Appellant is of the view that there are concerns of apprehended bias, then the appropriate arena to raise this matter is before Deputy President Dean and not in the context of this appeal. This has been pointed out to the Appellant by the chambers of Vice President Catanzariti.
[20] The Full Bench appreciates that the Appellant feels personally aggrieved by the comments made in the Decision at first instance. However, the Appellant was ultimately successful at first instance and accordingly, this appeal has no utility.
Public interest
[21] The Appellant submits that it is in the public interest to grant permission to appeal because allowing the commentary made by Commissioner Bissett to persist in the Decision “calls into question the impartiality and rigour of the [Commission’s] processes.” The Appellant further elaborates on the importance of transparency and a perception of unbiased decision-making which he submits is in the public interest to maintain. Finally, the Appellant submits that not granting the appeal would be strongly against the public interest as it would not be an efficient use of public funds and resources. It is the Appellant’s contention that the Commissioner’s comments must first be “cleared up” before the application can be determined.
[22] We have considered whether it is in the public interest to grant permission to appeal and we are not satisfied that, for the purposes of s 400(1) that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The Decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[23] Furthermore, we are not satisfied that the Appellant’s submissions identify an error made by the Commissioner that would justify the grant of permission to appeal in the public interest or otherwise.
Conclusion
[24] For the above reasons, permission to appeal is refused.
[25] We note that although permission to appeal has been refused in this instance, should the Appellant be aggrieved by the determination of the merits of the application, he can appeal at that time.
VICE PRESIDENT
Appearances:
Mr M Meekin on his own behalf
Hearing details:
2021.
By telephone.
1 December.
Printed by authority of the Commonwealth Government Printer
<PR736720>
1 Meekin v Suez Recycling and Recovery Pty Ltd [2021] FWC 2254.
2 (2010) 197 IR 266 at [27].
3 Wan v AIRC (2001) 116 FCR 481 at [30].
4 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
5 Decision at [17].
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