Mercato Enterprises Pty Ltd T/A Mercato e Cucina v Ms Te Hiumamaeroa (TJ) Joseph
[2016] FWCFB 7345
•8 NOVEMBER 2016
| [2016] FWCFB 7345 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Ms Te Hiumamaeroa (TJ) Joseph
(C2016/4874)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 8 NOVEMBER 2016 |
Appeal against an order PR583280 of Commissioner Cambridge at Sydney on 25 July 2016 in U2016/5117.
Introduction
[1] Mercato Enterprises Pty Ltd T/A Mercato e Cucina (Mercato) sought permission to appeal a Decision and Order issued by Commissioner Cambridge on 25 July 2016 1 (the Decision). In the Decision, the Commissioner found that the dismissal of Ms Joseph from her employment with Mercato was unfair and awarded Ms Joseph compensation in lieu of reinstatement.
[2] In the proceedings at first instance before Commissioner Cambridge Mercato failed to appropriately respond to Ms Joseph’s application or to take an active part in much of the proceedings. This was despite Mercato being represented by its Director (Mr Mark Marando) who appears to be legally qualified. In his Decision, Commissioner Cambridge discussed Mercato’s response to Ms Joseph’s application as follows:
“The material contained in the file has established that the employer did not initially provide any documentary response to the claim by way of a Form F3. Conciliation of the claim occurred on 28 April 2016, but the matter remained unresolved. Directions were issued by the Fair Work Commission (the Commission) for the filing of evidence and submissions in preparation for the Hearing of the arbitration of the claim. The applicant has filed material in accordance with these Directions. The employer has not filed any material in accordance with these Directions.
The Commission’s file contains several email communications from a Mr Mark Marando who has acknowledged receipt of material on behalf of the employer. The Notice of Listing and Directions advice (sic) documents have been provided to various addresses provided by Mr Mark Marando.
At 6:12 pm on Sunday, 24 July 2016, the evening before the Hearing fixed for today, Mr Mark Marando who is apparently a Director of the employer, filed an F3 Employer Response to Unfair Dismissal Application. This F3 document raised jurisdictional objections indicating that it was alleged that the applicant was not an employee, and that the applicant was not dismissed. The F3 document included the following text: “THE APPLICANT WAS NOT EMPLOYED BY THE RESPONDENT. IN ANY EVENT, THE APPLICANT WAS NOT DISMISSED AND RESIGNED WITHOUT GIVING ANY NOTICE”.
The provision of extremely late, confounding, and seemingly contradictory information by way of the Form F3 filed on the evening before the scheduled Hearing, represents highly regrettable conduct on behalf of the employer. The veracity of the information contained in the belated Form F3 is questionable, and reflective of the employer’s generally inadequate response to the unfair dismissal claim.” 2
[3] The Commissioner proceeded to determine the application on the material before him.
Permission to Appeal
[4] Mercato sought permission to appeal the Commissioner’s Decision on a number of grounds which are summarised below:
1. The Decision did not firstly address the jurisdictional objections raised by Mercato, in particular, that Mercato was not the employer of the employee, and that Ms Joseph was not terminated at the employer’s initiative;
2. The Decision failed to provide adequate reasons; and
3. The Decision raised issues in relation to procedural fairness.
[5] In relation to the first ground of appeal Ms Joseph maintained that her employer was Mercato and that her employment was terminated at the employer’s initiative. Ms Joseph also submitted that Mercato had made an offer of settlement in relation to the application, as well as providing the Commission with an undertaking to pay the employee’s outstanding leave entitlement, both of which actions supported a finding that Mercato was in fact the employer.
[6] Ms Joseph argued that the Commissioner provided adequate reasons in its decision and any shortfall in detail was a result of Mercato’s failure to adhere to the directions timetable or present any submissions or witness statements for consideration by the Commissioner.
[7] On procedural fairness grounds Ms Joseph argued that granting permission to appeal would further prolong the matter. Ms Joseph noted the length of time since the dismissal and the potential further delay if the matter was to proceed to a Full Bench appeal. Ms Joseph also argued that in light of her present unemployment and distressed financial position, granting permission to appeal would have adverse effects for her.
Legislative provisions
[8] An appeal under s.604 of the Fair Work Act 2009 (“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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] This appeal is one to which s.400 of the Act applies. 4 Section 400 of the Act 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.
[10] The test under s.400 is “a stringent one”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 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. 7 “
[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. 8 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.9
Consideration and Conclusion
[12] We refused permission to appeal at the conclusion of the hearing of the application for permission to appeal on 6 September 2016 and made orders on the same day. 10 We also informed the parties that we would publish our reasons in due course. These are our reasons.
[13] We were not satisfied that it was in the public interest to grant permission to appeal. Nor were we persuaded that there was an arguable case of error in relation to the Decision or that there were any other considerations that warranted the grant of permission to appeal.
[14] Mercato engaged in the conciliation process initiated by the Commission and the directions timetable before Commissioner Cambridge, but did not present any significant material and made only limited submissions in relation to the application. Mercato did not submit that it was not the proper respondent until the day before the hearing, and only then by way of a half completed Form 3, without any measure of detail. Evidence was adduced by Ms Joseph which supported the Commissioner’s finding that Mercato was her employer at the relevant time. In addition, Mercato negotiated as though it was the employer during settlement discussions and further, gave an undertaking to the Commission (which it has not honoured) in relation to Ms Joseph’s unpaid employee entitlements. The Commissioner gave adequate reasons for the findings he made and afforded procedural fairness to the parties during the hearing.
[15] We were not persuaded that in all the circumstances of this application Mercato’s failure to engage in the arbitration process could be relied upon to enliven grounds for an appeal. To grant permission to appeal in these circumstances would have allowed Mercato to benefit from its own disregard for the procedures in this Commission. There were no public interest grounds which supported a grant of permission to appeal and Mercato failed to demonstrate any arguable appealable error by the Commissioner. Further, the manner in which the Commissioner dealt with the matter in circumstances where Mercato had failed to respond appropriately to Ms Joseph’s application, was entirely understandable and orthodox.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms Andelman of Counsel for the Appellant.
Ms Nasser of Rochforts Workplace Solutions for the Respondent.
Hearing details:
2016.
6 September.
Sydney.
1 [2016] FWC 5004 and PR583280 respectively.
2 [2016] FWC 5004 at [3] to [6].
3 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].
5 Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at [43] per Buchanan K (with whom Marshall and Cowdrey JJ agreed).
6 O’Sullivan v Farrerand Another (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].
7 [2010] FWAFB 5343 at [27], 197 IR 266.
8 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
9 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
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