Mehregan Mahdavi v Australia Advance Education Group Pty Ltd T/A Sydney International School of Technology and Commerce (Sistc)
[2023] FWCFB 1
•3 JANUARY 2023
| [2023] FWCFB 1 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mehregan Mahdavi
v
Australia Advance Education Group Pty Ltd T/A Sydney International School Of Technology And Commerce (Sistc)
(C2022/6803)
| VICE PRESIDENT CATANZARITI | SYDNEY, 3 JANUARY 2023 |
Appeal against decision [2022] FWC 2401 of Deputy President Hampton at Adelaide on 23 September 2022 in matter number U2022/6919 – permission to appeal refused.
Mehregan Mahdavi (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Hampton, issued on 23 September 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Australia Advance Education Group Pty Ltd T/A Sydney International School of Technology and Commerce (SISTC) (the Respondent), pursuant to s.394 of the Act.
The Appellant’s originating application was filed 13 days outside of the 21-day time limit. The Decision therefore considered whether an extension of time should be granted for the filing of the application. The Deputy President considered the relevant factors in s.394(3) of the Act and ultimately found that no exceptional circumstances existed to satisfy the grant of an extension of time. The Deputy President dismissed the application.
Directions were set for the filing of material. Both the Appellant and Respondent filed written submission and made further oral submissions at the hearing on 21 November 2022. For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant commenced employment with the Respondent in January 2021 in the role of Academic Dean – IT. The Appellant’s employment with the Respondent concluded by way of a letter of termination on 2 June 2022, citing redundancy as the reason for the end of the employment relationship. There was no prior explicit discussion of any impending redundancy involving the Appellant or a restructure directly impacting upon his position.
The Appellant asserted, that at the time of his dismissal, he was promised all his employment entitlements would be paid promptly, however it took several communications with the Respondent for this to occur. The events following the Appellant’s dismissal are summarised as follows:
· 4 June 2022 – the Appellant emailed the Respondent asking when he would be paid his entitlements.
· 6 June 2022 – the Appellant was provided a table of his final pay and advised that normal wages, additional hours and redundancy pay would be paid this week, with his remaining annual leave being paid on 22 June 2022.
· At some stage approximately up to 5 days after his dismissal, the Appellant visited the Commission’s website and became aware of the 21-day time limit for the filing of applications.
· 10 June 2022 – the Appellant sent the Respondent an email indicating that he believed his dismissal was unfair.
· 24 June 2022 – the Appellant advised the Respondent of some outstanding entitlements arising from additional work. On the same day, the Respondent replied indicating that they would get back to him with a final decision on the annual leave payments by the end of the week.
· 27 June 2022 – there was a further exchange between the parties to clarify the basis upon which some payments had been made. It became apparent to the Appellant around this time that not all of his expected payments would be made by the Respondent.
· 6 July 2022 – the Appellant lodged his originating application.
The Deputy President then turned to consider whether an extension of time should be granted by considering the factors in s.394(3) of the Act. Turning first to the reason for the delay, the Deputy President noted that the explanation given by the Appellant was that he was awaiting payment of his outstanding entitlements by the Respondent. The Deputy President considered that having taken some steps to ascertain his rights, the Appellant was aware of the 21-day time limit and elected to pursue the substance of his concerns directly with the Respondent. Despite being aware, relatively soon after the dismissal, that the payments were not being made promptly, and may be in dispute, the Appellant elected not to make his original application until 6 July 2020. The Deputy President therefore found that these were not exceptional circumstances and did not consider this to be a satisfactory reason for the delay.
The Deputy President was satisfied that the Appellant was aware of his dismissal on the day it took effect and that this does not support a finding of exceptional circumstances.
In terms of action taken to dispute the dismissal, the Deputy President considered that the Appellant wrote to the Respondent on 4 June 2022 regarding his discontent with the dismissal and to advise that he may contact “Fair Work”. However, the Deputy President found that the subsequent delay in taking any action to contest his dismissal before making his unfair dismissal application did not support a finding of exceptional circumstances.
Having regard to prejudice to the employer, the Deputy President noted that the Respondent did not rely on this ground and that the absence of prejudice is not itself a sufficient basis to warrant an extension of time.
The Deputy President then considered the merits of the application, taking into account that the Respondent raised two jurisdictional objections and claimed that changes in the organisation meant that the Appellant’s position had become redundant. Conversely, the Appellant alleged that his dismissal was not a case of genuine redundancy and that he was covered by an award. The Deputy President also considered that the Appellant had an arguable case on merit, based on the manner in which his dismissal was handled and more generally, and that the Respondent had an arguable case that that the Appellant’s salary exceeded the high-income threshold. However, the Deputy President noted that it was not possible to make a definitive assessment on the merits of the application without hearing robust evidence on the facts of the matter. The Deputy President ultimately took into account the competing positions on merit and findings concerning the existence of an arguable case in his assessment of exceptional circumstances.
The Deputy President noted that nothing of relevance was raised in relation to fairness between persons in a similar position.
In conclusion, having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act, the Deputy President was not satisfied that there were exceptional circumstances to justify an extension of time for the lodgement of the application. Accordingly, the application was dismissed.
Grounds of Appeal and Submissions
Appellant
The Appellant’s grounds of appeal are contained in his Form F7 – Notice of Appeal and written submissions. The Appellant submits that the Deputy President erred by failing to consider the following facts:
“After the 21-day period, I became aware that the company also made several other positions redundant including an “associate dean” position and asked the person who held this position to leave the company. However, they appointed another person in a matter of a week as “associate dean” without discussing the opportunity with the person who was made redundant. This indicated to me that the company’s restructure was not in fact genuine, and the company used it to get rid of some people and bring in new people.
After the 21-day period, I became aware that Professor Michael Milgate had organised individual meetings with staff, and one of them indicated to me that during their meeting he mentioned that: if anyone gets in his way, he will get rid of them.”
Further, the Appellant submits that the Respondent cannot operate without a Dean and Chief Academic Officer and the Respondent’s claim that the CEO has absorbed these roles cannot be sustained as this would create a conflict of interest for the company. The Appellant also submits that the Respondent hired a new ‘Associate Dean’ and queries how an Associate Dean can exist without a ‘Dean’.
In terms of why the appeal is in the public interest, the Appellant submits that the Respondent made 20 employees leave the company within several weeks and that the Respondent’s new owners have imposed stress and intimidation on their staff. The Appellant submits that people should not be treated in this way and that it is in the public interest for such unfair treatment to be examined. Further, the Appellant contends that the Respondents claims to be in financial trouble are untrue.
Respondent
While the Respondent was not directed to provide written submissions as this matter was listed for permission to appeal only, they nonetheless filed short submissions in response to the Appellant’s written submissions. The Respondent submits that the Appellant is attempting to adduce new evidence on appeal, in relation to the Deputy President’s failure to consider the facts set out above at [14]. The Respondent sought to clarify that only two employees were made redundant, the other employees described resigned. Further, the Respondent contends it is untrue that 20 staff were forced to leave by new management. The Respondent submits that employees were offered to reach out to the Respondent if they wanted to discuss the future of the business and that they did not organise individual meetings with staff as the Appellant says. The Respondent also outlined their new business structure, in order to demonstrate how they operate without a ‘Dean’ position. Overall, the Respondent submits that the “emotive and inaccurate comments” by the Appellant do not demonstrate any error in the Decision or that there is no public interest in this appeal.
Principles on Appeal
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.[2] 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 Act applies. 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 Coal & Allied Mining Services Pty Ltd v Lawler and others,[3] a Full Court of the Federal Court characterised the test under s.400 as “a stringent one”. Where the task of assessing whether the public interest test is met is a discretionary one, involving a broad value judgment.[4] 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.”[5]
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.[6] 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.[7]
Relevantly, the decision under appeal is of a discretionary nature. Such a decision can be successfully challenged on appeal only if it is shown that the discretion was not exercised correctly.[8] It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Deputy President in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”[9]
Consideration
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. The Appellant’s submissions fail to point to any evidence or parts of the Decision that may be infected by error. We consider that the Appellant’s submissions are merely an expression of his dissatisfaction with the outcome of the appeal and are an attempt to reagitate the merits of his case. As to the Appellant’s submission that the Deputy President failed to take into account relevant considerations, we note that the Respondent argues that such factors are new evidence which were not put to the Deputy President at first instance. Regardless of whether these facts were only discovered by the Appellant after the Decision was made, we are satisfied that they would not have impacted the Deputy President’s findings for two reasons. First, the Deputy President was not satisfied the Appellant had a satisfactory reason for the delay in filing his application. Second, those matters are relevant to the merits of the application and in particular, whether the termination of the Appellant’s employment was a case of genuine redundancy. As set out earlier, the Deputy President noted that it was not possible to make a definitive assessment on the merits of the application without hearing robust evidence on the facts of the matter.
Further, we note that a decision as to whether to extend time under s.394(3) involves the exercise of a broad discretion. Considering the submissions and evidence in this matter, we are not satisfied that the Appellant has established an error of the House v The King type. The Deputy President considered all the relevant factors and then weighed whether an extension of time should be granted. Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence. We are satisfied that the Deputy President’s findings were within his discretion and open to him on the evidence.
Finally, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400(1) that any of the matters raised by the Appellant enliven the public interest and justify the grant of permission to appeal. We do not consider that the appeal raises any issue of importance or general application. Nor do we consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr M Mahdavi, on his own behalf.
Mr M Milgate, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
21 November.
[1] [2022] FWC 2401.
[2] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[3] [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43].
[4] 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 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].
[5] [2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] 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].
[8] Wingate v Monadelphous[2014] FWCFB 5913.
[9] House v King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
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