Mladen Stupar v Australian Postal Corporation T/A Australia Post
[2015] FWCFB 2316
•22 APRIL 2015
| [2015] FWCFB 2316 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Australian Postal Corporation T/A Australia Post
(C2015/1971)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 APRIL 2015 |
Appeal against decision [2015] FWC 1090 of Deputy President Gooley at Melbourne on 16 February 2015 in matter number U2014/4265 - permission to appeal refused.
[1] This is an appeal against a decision of Deputy President Gooley dismissing an application by Mr Mladen Stupar (the appellant or Mr Stupar) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President ruled that the application had no reasonable prospects of success. 1 The reason for this was the fact Mr Stupar had signed terms of settlement following a private conference with his former employer, Australian Postal Corporation T/A Australia Post (the respondent). The conference was conducted by a member of the Fair Work Commission (the Commission) on 16 June 2014.
[2] In the hearing before us, neither Mr Stupar, nor any person representing him appeared. Ms Bernasconi, solicitor, appeared for the respondent. We decided, consistently with s.596(2)(a) of the Act, the appeal would be dealt with more efficiently if the respondent was legally represented. We also note that Ms Bernasconi appeared for the respondent in the proceedings before Deputy President Gooley.
[3] We proceeded to hear the appeal in Mr Stupar’s absence. No application for an adjournment of the date set for the hearing had been made. The notice of listing sent to the parties on 19 March 2015, contained the following note:
“PLEASE NOTE:
1) Any failure to comply with the above directions and/or to attend the hearing date scheduled may lead to the appeal being dismissed.
2) The Appellant is required to lodge with the Commission and serve appeal books in accordance with rules 56(3) and 52 of the Fair Work Commission Rules 2013, which provides:
56 Appeals
...
(3) The appellant must, within 7 calendar days after lodging the notice of appeal, lodge the following with the Commission:
(a) 3 copies of the notice of appeal;
(b) 3 copies of a paginated appeal book containing:
(i) any order made by the Commission to which the appeal relates; and
(ii) the statement of the reasons for the decision being appealed against; and
(iii) the transcript of the evidence and argument in the matter from which the appeal is brought, or the relevant extract from the transcript; and
(iv) each document that was an exhibit or written submission in the matter from which the appeal is brought that relates to the grounds of appeal set out in the notice of appeal.
Note: Rule 52 requires the appellant to serve a copy of the appeal book upon each party to the matter from which the appeal is brought.”
[4] On 24 March 2015, a document comprising 4 pages was handed to staff at the Brisbane registry of the Commission. Although no matter number was on the document, it was apparent it related to this appeal. The first three pages of the document contained a very broad range of complaints made by Mr Stupar, similar to those he made in documents attached to his notice of appeal which we will refer to later. For present purposes it is adequate to note that the first three pages of the document complain about practices engaged in by employees at one of the respondent’s mail facilities, the manner in which the respondent had treated Mr Stupar and comments about the difficulty he had experienced in obtaining legal advice. A number of comments about historical events and ethnicity were also made which we do not propose to summarise. They are not relevant to the considerations raised in this appeal. The fourth page of the document contains details of a flight booking sent from “Flight Centre” on 14 January 2015. Mr Stupar is named on the booking as the passenger and it indicates that he would be travelling to an overseas destination on 1 April 2015. The return date appears to be 28 May 2015. Although nothing was said about the relevance of that document we have assumed it was an attempt by Mr Stupar to indicate that he would not be attending the hearing of the appeal. It would appear that the booking to travel overseas was made in or about January of 2015. However, as we have earlier observed, no application for an adjournment of the hearing of the appeal was made. The notice of listing made it clear that the appeal would proceed in the absence of a party. We decided there were no grounds upon which it would be appropriate for us to adjourn the hearing of the appeal. For the reasons we later address, the respondent was entitled to insist on the appeal proceeding as listed and it being dealt with as efficiently as possible.
The relevant provisions of the Act
[5] The order dismissing Mr Stupar’s application was described by the Deputy President as being made upon the respondent’s application under s.587(1)(c) of the Act. 2 That section is contained within Part 5-1 of the Act, which relevantly deals with general powers the Commission has in respect of the conduct of matters including the powers to dismiss a matter. Although it is clear that this appeal is filed under s.604 of the Act, the question arises as to whether s.400 of the Act also applies. This matter was recently the subject of consideration in Clermont Coal Pty Ltd and others v Troy Brown and others3 (Clermont) which was an appeal against orders made under s.590 of the Act, which section is also contained in Part 5-1. In its reasons for decision the Full Bench said:
“[9] Under s.604(1), an appeal lies to a Full Bench only with permission. In relation to such permission, s.604(2) provides: “Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.” The effect of this provision is that permission must be granted if it is in the public interest to do so, but may otherwise be granted on discretionary grounds.
[10] Section 400(1) modifies s.604(2) in relation to a certain category of decisions. It 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.
[11] “This Part” refers to Part 3-2 of the FW Act, which is concerned with unfair dismissal. If section 400(1) applies, the public interest is the sole criterion for the grant or refusal of permission to appeal. If the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.
[12] In this case, the decisions and orders the subject of the appeal were made in relation to applications made under Part 3-2, but involved the exercise of general powers in s.590(2), which lies outside of Part 3-2. The parties were at odds in that circumstance as to whether s.400(1) applied to the appeal: the appellants submitted that it did not, but the respondents submitted that it did.
[13] In Australian Postal Corporation v Gorman the Federal Court (Besanko J) gave consideration as to whether, in an appeal from an order dismissing an unfair dismissal application under s.587 of the FW Act, s.400(1) applied. The Court said:
“[37] The question of whether there was or was not a binding settlement agreement is a question of fact, although no doubt informed by legal principles. In this case in considering whether permission to appeal should be granted and in considering the appeal itself the Full Bench was required to apply s 400 of the Act. I did not understand the first respondent to contend otherwise. It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s 587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was a decision to dismiss the first respondent’s application made under s 394 for a remedy for unfair dismissal. That is a decision under Chapter 3 Part 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.”
[14] Consistent with the Court’s conclusion, we shall approach the appeal on the basis that s.400(1) applies. However, for more abundant caution, we will alternatively state the conclusion we would reach if s.400(1) did not apply.
[15] In the Federal Court Full 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”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 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 issue 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.”
[16] 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. 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.”
[6] We have taken the same approach as the Full Bench in Clermont in that we have considered the grounds of appeal in this matter both on the basis that s.400(1) applies and we have also indicated the conclusion we would reach if s.400(1) does not apply.
The Deputy President’s reasons for decision
[7] We note that Mr Stupar was represented by a lawyer in the proceedings before the Deputy President. As we have earlier indicated, Ms Bernasconi appeared for the respondent. We have closely considered all of the Deputy President’s reasons for decision. We need only summarise the key issues which she addressed. After he had filed his s.394 application, Mr Stupar participated in a conference before a Member of the Commission. He was provided with the services of an interpreter at that conference. There was no dispute that a document containing terms of settlement was prepared and that Mr Stupar signed that document. Pursuant to its terms, an amount of money was to be paid to him which was to be “a once and for all settlement of all matters arising from the course of the Applicant’s employment and the cessation of the Applicant’s employment with the Respondent”. Mr Stupar was paid the amount referred to in the terms of settlement. Subsequently, Mr Stupar wrote to the Commission seeking a further conference on the basis he had misunderstood the nature of the document that he had signed. He said he did not know that it would prevent him from taking other action against the respondent. He made comments about what he said the interpreter had told him. He also made an application for the Commission to hear and determine whether the terms of settlement document should be set aside. The respondent then filed its application under s.587(1)(c) of the Act seeking the dismissal of the s.394 application.
[8] Mr Stupar gave evidence in the proceedings and the Deputy President summarised each of the reasons he relied upon in support of the terms of settlement being set aside. Having considered the various judgments referred to by Mr Stupar’s lawyer and Ms Bernasconi, the Deputy President said she accepted the submissions of the respondent that the Commission is not empowered to set aside the agreement which had been reached and reflected in the terms of settlement. She was not satisfied that Mr Stupar was unaware of what he was signing. The interpreter had not been called to give evidence and the Deputy President was unable to find that person had misled Mr Stupar. She noted the interpreter had signed the terms of agreement and attested that the document had been interpreted by her. There was no basis upon which the Deputy President could find that the terms of settlement had not been accurately translated to Mr Stupar. She said that Mr Stupar had not been a reliable witness and was not clear at the hearing about what he had agreed to. She found that he had intended to settle his unfair dismissal claim and had received monies in accordance with the terms of that settlement. She concluded that, on the material before her, Mr Stupar’s s.394 claim had no reasonable prospects of success. She dismissed his application for an unfair dismissal remedy.
The notice of appeal
[9] Before we turn to the notice of appeal filed by Mr Stupar, we should note that he failed to comply with the directions contained in the notice of listing of this appeal about the need for him to file and serve an appeal book. He made no attempt to file any such document, nor did he seek relief from the obligation to do so. This failure of itself might have persuaded us to decline to grant permission to appeal, particularly given his non-attendance at the hearing. However, we decided to proceed to consider his appeal by reference to the notice of appeal he filed.
[10] The notice of appeal contains a number of documents, some typewritten and some handwritten. They are not documents which were exhibits in the hearing before the Deputy President. Nowhere in the notice of appeal, or the documents which accompanied it, are we able to identify any reference to why we should be persuaded that it would be in the public interest to grant permission to appeal. Similarly, there is no identification in the documentation of any other reasons why permission to appeal should be granted. The matters raised in the notice of appeal do not identify any findings made by the Deputy President which are said to constitute appealable errors. There is no identification of any significant error of fact. It is apparent from the notice of appeal that Mr Stupar is dissatisfied with the conclusion reached below. He also maintains his dissatisfaction with the way he was treated by the respondent. The appellant’s task however is to persuade us there is some appealable error in the Deputy President’s reasons for decision. We are not able to identify anything in the appellant’s documentation that does so.
[11] It is clear from the summary we have earlier given of the Deputy President’s decision that she set out the relevant background facts. They were not put in issue by counsel who appeared for Mr Stupar. A fair opportunity to give evidence and make submissions was given. Each finding made by the Deputy President was reasonably available on the evidence and submissions. There is no suggestion in the notice of appeal that the relevant case law was not considered.
[12] As previously indicated, we are also unable to identify in the appellant’s notice of appeal any attempt to address why this appeal raises any matters which might persuade us that it would be in the public interest to grant permission to appeal.
[13] Having considered all of the entries made in the appellant’s notice of appeal, we are not satisfied, for the purposes of s.400(1), that it would be in the public interest to grant permission to appeal. Alternatively, if s.400(1) is not applicable to this appeal, we are not satisfied that the appellant has advanced any discretionary ground which would justify the grant of permission to appeal.
[14] Permission to appeal is refused and the appeal dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
[There was no appearance for Mladen Stupar.]
Ms R Bernasconi, solicitor, for Australian Postal Corporation T/A Australia Post.
Hearing details:
Sydney.
2015.
April 9.
1 [2015] FWC 1090.
2 Ibid [9].
3 [2015] FWCFB 2460.
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