Morgan & Mansour Family Trust and Morgan Family Trust t/a Oscar's Restaurant Currambine v Ashley Duddington
[2017] FWCFB 3904
•5 SEPTEMBER 2017
| [2017] FWCFB 3904 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Ashley Duddington
(C2017/3516)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [[2017] FWC 2958] of Deputy President Bull at Perth on 13 June 2017 in matter number U2016/15256.
Introduction and background
[1] On 28 June 2017 a notice of appeal seeking permission to appeal and appealing a decision of Deputy President Bull issued on 13 June 2017 (Decision) 1 was lodged. The appellant(s) as identified in the appeal appear to be the Morgan & Mansour Family Trust and the Morgan Family Trust, which trade as “Oscar’s Restaurant Currambine” (appellants). The Decision concerned an application by Mr Ashley Duddington in respect of the termination of his employment in the Oscar’s Restaurant business. The Deputy President identified Mr Duddington’s employer(s) to be Morgan Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd (companies). The Deputy President found that Mr Duddington’s dismissal by these entities was unfair, unjust and unreasonable. The Deputy President issued a second decision on 5 July 2017(Compensation Decision)2 in which he determined that Mr Duddington should be receive the amount of $12,480, less tax as required by law, as compensation for his unfair dismissal. An order directed to the companies was issued on the same date to give effect to the Compensation Decision.3 The appellants sought a stay of the Decision in their notice of appeal, and this was heard by Binet DP on 19 July 2017. In a decision issued on 25 July 2017 (Stay Decision)4, Binet DP dismissed the stay application on the basis that the appellants had not demonstrated that they had an arguable case with reasonable prospects of success and the balance of convenience did not favour the grant of a stay order.
[2] Mr Duddington was engaged as the Restaurant Manager for Oscar’s Restaurant on 1 May 2015. In the Decision, the Deputy President found that Mr Duddington was dismissed without notice on 13 December 2016, during a meeting with Mr Nagy Morgan, the “owner” of Oscar’s Restaurant, by being taken off the working roster. The Deputy President also found that Mr Duddington was not given any reason for his dismissal.
The Decision
[3] The Deputy President dealt with three issues in the Decision. The first was the true identity of the applicant’s employer(s); the second was whether the Small Business Fair Dismissal Code (the Code) was complied with; and third, whether Mr Duddington’s dismissal was harsh, unjust or unreasonable. It is only necessary to refer in detail to the Deputy President’s reasoning and conclusion concerning the first issue, since it is only that issue which is ventilated in the appeal. The Deputy President said (footnotes omitted):
“[6] Mr Duddington filed his complaint naming Oscars Restaurant trading as Oscars Restaurant as the employer.
[7] When eventually received, the employer’s response signed by Mr Morgan referred to Morgan Trading and Mario and Clara Enterprises Pty Ltd trading as Oscar’s Restaurant Currambine (Western Australia) as the employer and trading name respectively.
[8] During the first day of hearing there was an apparent agreement by all parties that the employer was the Morgan and Mansour Family Trust and the Morgan Family Trust ABN 31 378 377 138. The parties were advised by the Commission that a trust does not have the status of a separate legal personality and cannot be a party to legal proceedings. Subsequently Mr Morgan was requested to file a copy of the Trust Deed but failed to do so.
[9] Mr Duddington was advised by the Commission that to enliven the Commission’s jurisdiction the employer needed to be a national system employer as defined by the Fair Work Act 2009 (the Act).
[10] The jurisdiction of the Commission in respect of an unfair dismissal application is restricted to where the employee is employed by a national system employer which must be a constitutional corporation. An extended meaning of national system employer to cover unincorporated employers applies where a State has, before 1 July 2009, referred its powers to the Commonwealth for the purposes of paragraph 51 (xxxvii) per s. 30B of the Act. Unlike some other states, the State of Western Australia has not referred its powers under s. 30B.
[11] On 16 May 2017, Mr Duddington made an application to change the name of the respondent to Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd.
[12] In support of this variation application Mr Duddington provided a copy of a document titled Australian Taxation Office Tax Agent Portal – Report which states the employer of the applicant for the financial year 2015-16 as Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd.
[13] Mr Morgan did not oppose the amendment application and during day two of the hearing agreed that the employers as named by Mr Duddington are the correct employers of the applicant.
“PN53 THE DEPUTY PRESIDENT: So the proper employer is Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd. Is that right?
PN54 MR MORGAN: Yes.”
[14] Mr Morgan did not dispute the newly named employers were constitutional corporations in the sense that they were not trading corporations. As such there was no submission that the named employers were not [sic] 5 national system employers, thereby enlivening the jurisdiction of the Commission. Pursuant to s.586 of the Fair Work Act 2009 (the Act) the application is amended to the extent that the true legal employer is correctly identified as per the request of the applicant.”
[4] The Deputy President then went on to find that Mr Morgan had not complied with the Small Business Fair Dismissal Code 6 and to find that Mr Duddington’s dismissal was unfair, unjust and unreasonable.7
Appeal grounds and submissions
[5] The grounds of appeal as stated in the notice of appeal were handwritten. As best as we can comprehend them, they were as follows:
“1. We are operating under Trust Partnership Companies – Attached #2
2. As per contact to the Western Australian Industrial Relations Commission and as per our ABN 31 378 377 138 we are operating under Trust Companies’ partnership Attached #3
3. We submit after a complaint from one of our staff Miss Katylen about his abusing her during the shift and she asked us to complain against him and she attended as witness
4. We have AH warning letter. He refused to received[?] on Nagy’s mobile sent to him as text Attached #4”
[6] Attachment #2 was an ASIC extract for the business name “Oscar’s Restaurant Currambine” identifying the holder name as “Morgan & Mansour Family Trust & Morgan Family Trust”.
[7] In their submissions the appellants submitted that the Deputy President made a significant error of fact as follows:
- Let us agreed on the beginning that Mr. Morgan English language is not that good specially the legal terminology this why he asked for an interpreter for help.
- Let us agreed also that the level of the English language for Mr. Morgan was very clears to the commission.
- Also let us agreed that the commission deal based on the low and Mr. Morgan not the right person to give him the green light to do against the low (Decision #8)
- Really it looks we have conflict that the commission still insist that we are not a trust companies even he clearing admit that we are trust ABN 31 378 377 138 in his decision #8 and the commission advised the parties that a trust does not have status of a separate legal personality and cannot be a party to legal proceeding.
- As per the above how the commission discussed and come up the decision even reaches an order in case he cannot file it under him with consideration of the weakness of Mr. Morgan English language understanding.
- Also as per the rules all parties must get copy of all the document but till now Mr. Moran do not know the base of the order calculation and why we responsible for the period he did not employment also how we can trust that he get the wage of now without cash part not show in books ????
Hope we can get fair decision as I believe that is not an unfair dismissal case as you have to think of the business owner same as the staff
As all of us under one bad economy situation”
[8] In the notice of appeal, Oscar’s Restaurant said that permission should be granted in the public interest because “1. I need all Trust Companies to be treated as Trust Companies not as Pty Ltd Partnership Companies”
[9] Oscar’s Restaurant’s submissions concerning the issue of permission to appeal were as follows:
“Public interest
- How we can get a prove of correct amount of cash wages as this is a room of avoiding the tax(to allow us to know the base of penalties calculation)
- How is the punishment can be only deduct of some dollars when there is an staff humane been abuse for girl in front of people all around.(then it will be easy for anyone to abuse and dealing badly with his college)
- How we can grand the employee to sign the warning letter.(as he refused to sign and he denied in front of the commission)
- By low in case of terminate an employee the business must pay 2 week wages as compensation (based on less than 19 month work period) why the owners of the businesses have to pay more? Is this to cover the bad economy situations for WA because the country cannot find jobs for the employee?
Consideration
[10] An appeal under s.604 of the FW 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. 8 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] This appeal is one to which s.400 of the FW 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.
[12] 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”. 9 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment10. 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.” 11
[13] 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. 12 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.13
[14] 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. 14
[15] It may have been open for Mr Duddington to challenge the competence of the appellants to bring this appeal, but he did not do so, and for the reasons which follows it is not necessary for us to consider this issue further.
[16] There is only one intelligible ground of appeal that we can identify, and that is that the Deputy President erred in his identification of Mr Duddington’s employer. We do not consider that this ground of appeal is arguable. The Deputy President’s identification of the employer was based the employer’s own Form F3 response to the application, a concession made during the hearing by Mr Morgan (who was provided the assistance of an interpreter) as to the identity of the proper employer(s), and a taxation document identifying the companies as being Mr Duddington’s employer. The fact that the appellants are the holders of the business name of the restaurant says nothing about the identity of Mr Duddington’s employer. Nothing had been put before us to suggest that the Deputy President’s conclusion was incorrect.
[17] The appellant’s have not otherwise identified any issue in the appeal that is of importance or general application such as to enliven the public interest. We do not consider that the decision made by the Deputy President manifested any injustice or was counter-intuitive or disharmonious with other decisions of the Commission.
[18] For the reasons stated, we do not consider that it would be in the public interest to grant permission to appeal. Therefore, as required by s.400(1) of the FW Act, permission to appeal is refused.
VICE PRESIDENT
Appearances:
A. Duddington on his own behalf.
N. Morgan on behalf of Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd t/a Oscar’s Restaurant.
Hearing details:
2017.
Sydney:
7 August
1 [2017] FWC 2958
2 [2017] FWC 3544
3 PR594355
4 [2017] FWC 3815
5 We assume “not” is a slip and that the Deputy President intended to indicate that Mr Morgan did not dispute that the appellants were trading coprorations.
6 Decision at [45]
7 Decision at [69]
8 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
9 (2011) 192 FCR 78 at [43]
10 O’Sullivan v Farrer (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]
11 [2010] FWAFB 5343, 197 IR 266 at [27]
12 Wan v AIRC (2001) 116 FCR 481 at [30]
13 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 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
14 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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