Monochromatic Engineering Pty Ltd v Farzady

[2016] FWCFB 1061

[2016] FWCFB 1061

DECISION

Fair Work Act 2009
s.604—Appeal of decision
Monochromatic Engineering Pty Ltd T/A MCE Lasers
v
Jahangir Farzady
(C2015/7258)
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT DRAKE	MELBOURNE, 11 MARCH 2016
COMMISSIONER JOHNS

Appeal against decision [[2015] FWC 7216] of Commissioner Lee at Melbourne on 20

October 2015 in matter number U2015/2882 - Permission to appeal – whether grounds of

appeal attract the public interest – whether arguable case of appealable error – Fair Work

Act 2009, ss.394, 400 and 604.

Introduction

1

[1] This decision concerns an application for permission to appeal against a decision of

Commissioner Lee handed down on 20 October 2015. The decision of the Commissioner

concerned an application for unfair dismissal remedy made by Mr Jahangir Farzady on

6 February 2015 under s.394 of the Fair Work Act 2009 (the Act) in relation to the

termination of his employment by Monochromatic Engineering Pty Ltd T/A MCE Lasers

(Monochromatic Engineering).

[2]        At the hearing of the appeal matter on 10 February 2016 Mr Z Crvenkovic appeared

on behalf of Monochromatic Engineering, and Ms R Preston of counsel appeared on behalf of

Mr Farzady, with Ms C Hemingway.

Grounds of Appeal

[3]        The grounds of appeal advanced by Monochromatic Engineering are as follows:

 The statements made by Mr Farzady at the hearing before the Commissioner are

untrue

 Monochromatic Engineering does not agree with the decision or any of the

accusations made

 Monochromatic Engineering are unable to pay any amount of compensation.

[2016] FWCFB 1061

[4]        Monochromatic Engineering submits that it is in the public interest to grant permission

to appeal, as there is no clear explanation as to why the dismissal was unfair and what

Monochromatic Engineering should have done differently.

Permission to appeal

[5]        An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.

604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These

requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which

provides:

“400	Appeal rights
(1)	Despite subsection 604(2), FWA must not grant permission to appeal from a

decision made by FWA under this Part unless FWA 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.”

[6]        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

2

one’ . The Commission must not grant permission to appeal unless it considers that it is ‘in

the public interest to do so.’

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[7]        The test for determining the public interest has been described as follows:

“[26] Appeals have lain on the ground that it is in the public interest that leave should

be granted in the predecessors to the Act for decades. It has not been considered useful

or appropriate to define the concept in other than the most general terms and we do not

intend to do so. The expression ‘in the public interest’, when used in a statute,

classically imports a discretionary value judgment to be made to be made by reference

to undefined factual matters, confined only by the objects of the legislation in question.

[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing

O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although 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, it seems to us that none of those elements is present in

this case.”

[8]        It is also important to note that the decision under appeal is of a discretionary nature.

Usually such a decision can only be successfully challenged on appeal if it is shown that the

4

discretion was not exercised correctly. It is not open to an appeal bench to substitute its view

on the matters that fell for determination before the Commissioner in the absence of error of
[2016] FWCFB 1061

an appealable nature in the decision at first instance. As the High Court said in House v The

5

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.”

The Decision under Appeal

[9]        The decision under appeal traverses a range of issues that arose from the application

by Mr Farzardy and the submissions of the parties. It followed an earlier decision of Deputy

President Gooley that determined that the jurisdictional prerequisite of a dismissal occurred in

the circumstances of this case and whether Mr Fazardy had served the qualifying period of

employment in ss.382 and 383. The Deputy President found that a dismissal had occurred and

that Mr Fazardy had served the relevant minimum employment period.

[10]      Commissioner Lee noted that the application was filed within the statutory time

period. He found that Mr Fazardy was otherwise a person protected from unfair dismissal.

[11]      Monochromatic Engineering contended, as it did in the jurisdictional proceedings, that

Mr Farzardy resigned and then changed his mind, and then the company retrenched him.

[12]      The Commissioner first considered whether the dismissal was a case of genuine

redundancy. He considered each of the elements of s.389. He found that there was no

evidence of operational changes of the relevant type or extent, no evidence of consultation, no

consideration of redeployment and no payment of redundancy pay. He concluded that the

dismissal was not a genuine redundancy and that the redundancy claim was a sham.

[13]       The Commissioner turned to consider whether Monochromatic Engineering was a

small business and covered by the Small Business Fair Dismissal Code. He found that it was

not, but that in any event, the dismissal was not consistent with the Code.

[14]      The Commissioner then considered whether the termination was harsh, unjust or

unreasonable. He found that there was no valid reason for the dismissal, no notification of any

reason and other factors relating to warnings and opportunity to respond to conduct reasons

were neutral as there was no evidence of any reason relating to conduct or performance. He

noted the limited size of the business and the absence of dedicated human resources

professionals in the business. He concluded that the dismissal was harsh, unjust and

unreasonable.
[2016] FWCFB 1061
Conclusions

[15]      As the above authorities make clear, an appeal will not succeed if it is simply an

attempt to reargue a case and seek a different outcome. Permission to appeal can only be

granted if the public interest is attracted. In this case we are not satisfied that there is an

arguable case of error. The Commissioner addressed the relevant considerations that arose for

determination and made findings based on the evidence before him. Nor are we satisfied that

it is in the public interest to grant permission to appeal. The case was based on the particular

facts of the matter and an unexceptional application of the tests to the facts of the case. No

issue of principle, importance or manifest injustice has been established.

[16]      For completeness we are also not satisfied that there is a diversity of decisions so that

guidance from an appellate body is required on a matter such as this or that the legal

principles applied by the Commissioner were disharmonious when compared with other

decisions dealing with similar matters.

[17]      For these reasons we decline to grant permission to appeal. The application for

permission to appeal is dismissed.

VICE PRESIDENT

Appearances:

Mr Z Crvenkovic on behalf of Monochromatic Engineering.

Ms R Preston, of counsel, with Ms C Hemingway, on behalf of Mr Farzady.

Hearing details:

2016.

Melbourne.

10 February.

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1

[2015] FWC 7216.

2

(2011) 192 FCR 78 at paragraph 43.

3

GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

4

House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

5

Ibid.