Mr Amir Fazlhamidi v AGL Macquarie Pty Ltd
[2020] FWCFB 6497
•22 DECEMBER 2020
| [2020] FWCFB 6497 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Amir Fazlhamidi
v
AGL Macquarie Pty Ltd
(C2020/5216)
DEPUTY PRESIDENT ASBURY | BRISBANE, 22 DECEMBER 2020 |
Appeal against decision [[2020] FWC 3145] of Deputy President Saunders at Newcastle on 16 June 2020 in matter number U2020/1376.
Background
[1] This decision will determine an application for permission to appeal and appeal, pursuant to ss 604 and 400 of the Fair Work Act 2009 (FW Act), filed by Mr Amir Fazlhamidi (Appellant), against a decision issued by Deputy President Saunders on 16 June 2020 (Decision). The effect of the Decision was to refuse an application by the Appellant for an extension of time to lodge an unfair dismissal application, pursuant to s 394 of the FW Act.
[2] The appeal was listed before the Full Bench on 5 August 2020. The appellant represented himself. The respondent sought permission to be represented by Minter Ellison pursuant to s 596 of the FW Act. The Appellant did not object to permission being granted and the Respondent was granted permission by the Full Bench on the basis that we were satisfied the requirements of s 596 of the FW Act had been met.
[3] The background can be stated in short compass. In his Form F2 application for an unfair dismissal remedy, the Appellant contended that he was employed by AGL Macquarie Pty Ltd (Respondent) from 15 November 2018 and that he was unfairly dismissed. The Appellant stated that he was notified of his dismissal on 11 November 2019 and that it took effect on 15 November 2019 when he left the job.
[4] The Form F2 application was lodged with the Commission on 8 February 2020. In the Form F2 the Appellant also stated that he was not making the application within 21 days of the dismissal taking effect and provided reasons for the delay in lodging the application. The Respondent objected to the Appellant’s unfair dismissal application on the basis that it was not the Appellant’s employer, and that the Appellant performed work for the Respondent pursuant to a labour hire agreement with another entity, Recruitment Solutions, a division of Chandler MacLeod.
[5] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). These subsections provide as follows:
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[6] On the basis of the material in the Form F2, the application was filed 64 days outside of the 21 day timeframe and the Deputy President conducted a hearing to determine whether a further period should be granted for the application to be made.
The Decision
[7] The hearing was conducted by telephone on 9 June 2020 and dealt with both objections:
• whether the Respondent was the Appellant’s employer; and
• whether an extension of time should be granted to the Appellant to lodge his unfair dismissal application in the Fair Work Commission.
[8] The Deputy President first proceeded to deal with the Appellant’s application for an extension of time, and noted that although there was a dispute about whether the Appellant was employed by the Respondent, he would take the Appellant’s case at its highest for the purpose of determining the extension of time issue. The Deputy President proceeded on the basis that the Appellant’s dismissal took effect on 15 November 2019 and turned to consider each of the matters required to be taken into account under s394(3) of the FW Act.
[9] In relation to the reason for the delay, the Deputy President considered the following information that the Appellant said was provided to him on 11 November 2019 by the Respondent’s Major Outage Manager:
• he needed to leave the Respondent by the end of the week due to a change of plan and a budget overrun;
• the “good news” that the Respondent had decided to make his role permanent and the Appellant could apply for the permanent position through two agencies, Chandler MacLeod and GWG; and
• the “bad news” that the Respondent would not be planning its next project until January 2020.
[10] The Deputy President records that the Appellant applied for the permanent role of Scheduler through Chandler MacLeod on 4 December 2019, and that he also applied for the role through GWG. On 27 January 2020 the Appellant was advised he was unsuccessful for the role. The appellant sought feedback on why he was successful and attended a meeting with Chandler MacLeod on 7 February 2020. The Appellant considered that he did not receive any satisfactory responses from Chandler MacLeod and filed an unfair dismissal application on 8 February 2020.
[11] The Appellant also said that he delayed filing his unfair dismissal application until he learned the outcome of the recruitment process for the permanent role. Upon learning the outcome, the Appellant sought, and was provided with, reasons for his application not being successful. The Deputy President also records that the Appellant said that he had done all he could to question that decision with Chandler MacLeod and that he had not wanted to jeopardise his relationship with the Respondent had he been successful in the role. The Appellant also stated that he filed his application expeditiously following his meeting with Chandler MacLeod.
[12] The Deputy President found none of the reasons when considered individually or together, to be an acceptable or reasonable explanation for the delay. The Deputy President concluded by stating;
“Although I can understand why the Applicant made his decision to delay filing his application for unfair dismissal, that was a decision the Applicant took for his own reasons and to maximise his prospect of succeeding in his application for the role of Scheduler. The Applicant was not prevented from filing his unfair dismissal application at an earlier time, nor did he, in my view, have an acceptable or reasonable explanation for the 64 day delay or any part of it.” 1
[13] In relation to whether the Appellant first became aware of the dismissal after it had taken effect, the Deputy President found that although the Appellant contended he was not notified of his dismissal, and the Respondent agreed it did not notify the Appellant (as it contended it did not employ the Appellant and did not dismiss him) it was clear that the Appellant accepted he left the Respondent on 15 November 2019 and had not worked for the Respondent since that time. The Deputy President found that this formed the relevant background to the Appellant’s contention that his dismissal took effect on 15 November 2019. The Deputy President also found this to be a neutral consideration.
[14] As to actions taken by the Appellant to dispute his dismissal, the Deputy President found this factor weighed in the Appellant’s favour. In respect to any prejudice to the employer, the Deputy President found this factor was a neutral consideration.
[15] In relation to the merits of the application, the Deputy President stated as follows:
“[22] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, I am of the view that the Applicant has a weak prima facie case in relation to the question of whether he was employed by the Respondent. The Applicant accepts that he was initially engaged by Hays to work for the Respondent. He also accepts that in July 2019 he was transferred from Hays to Chandler Macleod, but continued working on assignment for the Respondent. The transfer took place because the Respondent made a decision to source labour hire workers at its facilities exclusively through Chandler Macleod; before then, the Respondent had been using both Chandler Macleod and Hays to supply labour hire workers. The Applicant’s assignment, through Chandler Macleod, to work for the Respondent came to an end on 15 November 2019. The Respondent has a strong prima facie case that its relationship with each of Hays and later Chandler Macleod in respect of the Applicant’s deployment to work on assignment for the Respondent was that of a genuine commercial labour host and provider. The Applicant contends that when he was first employed by Hays to work on assignment for the Respondent, he was told by Ms Johnston of Hays that his assignment with the Respondent would be for 12 months initially and the Respondent was happy to give him a permanent role thereafter if he liked. The Applicant does not suggest that any manager or employee of the Respondent made such a promise to him. Even if such a promise was made by Ms Johnston and she had actual or ostensible authority to make it on behalf of the Respondent, there is no doubt that the Respondent did not fulfil the promise; it did not give the Applicant a permanent role. Instead, it told the Applicant that he could apply for the role of Scheduler. The Respondent has a strong prima facie case that the Applicant continued to be employed by Chandler Macleod, not the Respondent, from July 2019 until the conclusion of his work assignment with the Respondent on 15 November 2019.”
[16] On the basis of those matters, the Deputy President found the merits of the application to weigh against an extension of time. The Deputy President also considered fairness as between the Appellant and other persons in a like position to be a neutral consideration.
[17] In concluding that the further period should be refused, the Deputy President said:
“Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.”
[18] The Deputy President went on to state that because he had declined to grant an extension of time to the Appellant there was no need to determine the Respondent’s second jurisdictional objection, that the Appellant was not at any time employed by the Respondent.
Grounds of appeal
[19] In his amended Notice of Appeal, in relation to appeal grounds, the Appellant set out the basis upon which he disagrees with four factual findings made by the Deputy President. The first finding with which the Appellant takes issue in paragraph [12] of the Decision is that on 11 November 2019 he was told by Mr Messenger that he needed to leave the Respondent by the end of the week, due to a change of plan and a budget overrun. The error alleged by the Appellant is that his evidence at the hearing was that this occurred on 4 November 2019 and that: “I was notified by Mr Messenger to leave due to the followings: I had completed my portion of work, and financial issue, OR TO FIND ANY AREA OF THE BUSINESS I MAY INVOLVED.” The Appellant referred to paragraph 17 of his witness statement in the proceedings before the Deputy President in relation to this matter and tendered an email sent by him to Mr Messenger on 5 November 2019 in which he set out business improvement areas in which he was interested in getting involved. The Appellant also contends that on 18 October 2019, Mr Messenger informed him that he would be involved in the next projects, unit 2 and 3, in March and August 2020, and that this was confirmed by Mr Messenger at the hearing.
[20] The second factual error alleged by the Appellant is a finding that he states is made in paragraph [13] of the Decision which he describes as follows: “That the Applicant also applied for that role through GWG. On 27 January 2020.” The Appellant states that he applied for the role through GWG on 27 November 2019, and not 27 January 2020 and tendered a document confirming his application dated 28 November 2019.
[21] The third factual error alleged by the Appellant is that the Deputy President found – also in paragraph [13] – that the Appellant was informed by Chandler MacLeod that his application for the permanent role with the Respondent was not successful. The Appellant takes issue with this finding and states that he did not know the unsuccessful application was for a permanent role as the role was advertised for a 6 to 12 month contract period despite Mr. Messenger’s advice.
[22] The fourth factual error alleged by the Appellant is in paragraph [16] where the Deputy President stated that the decision to delay the filing of his unfair dismissal application was a decision the Appellant took for his own reasons, and to maximise his prospect of succeeding in in his application for the role of Scheduler (with the Respondent). In relation to this finding, the Appellant states in his appeal grounds that:
“First, I did not need to take action to dispute the dismissal afterward 15th November 2019 as I was not aware that the dismissal had happened. It was the nature of my job to be allocated to projects, switching from one project to another and temporarily deallocated based on work’s resourcing need. …
However, I was left with ambiguity in November 2019 when I left the job due to the followings: First, on 18th Oct. 2019, Mr. Messenger advised me of my engagement in the planning phase of the next projects instantly after completion of my current project. The execution phase of projects was supposed to be started in March and August 2020. Then on 4th November, he informed me that due to the plan’s change and financial issue, I needed to leave or find another business area to keep engaged, which I proposed my new engagement plan a day after. Next, on 11th November, Mr. Messenger informed me of the new decision of AGL to make my role permanent. This was conveyed by Mr. Messenger as “Good news”. Again, he also said that the new project would be starting in late January 2020. This was titled “Bad news!”. He also advised me that the role would be advertised through two agencies namely Chandler Macleod and GWG.
Therefore, I did not need to maximise my prospect of the application as I had just applied since I had been advised as “the good news” by Mr. Messenger. Even if the roles were never advertised, I would keep maintaining my relation until I become aware of otherwise. I have also applied to two roles with AGL after my unfair dismissal application in April 2020.
However, it was the outcome of my job application which manifested that I had become dismissed and would no longer be capable of maintaining the relationship with the employer alone, and I needed to get help from the Fair Work Commission.”
[23] In relation to the public interest, the Appellant said that a hard-working and motivated employee who had brought a considerable benefit to his employer, involving a 90% improvement in his employer’s planning process, had been dismissed without being informed of the reasons. The Appellant also contended that he has been further penalised by ambiguity in relation to the Respondent and its labour hire companies. Further, the Appellant said that he is the sole bread-winner for his family and has lost his job and is further penalised for his trust in the Respondent and his attempts to maintain a functional relationship with the Respondent.
Submissions on appeal
[24] The Appellant elected not to file written submissions, and instead relied on the information contained in his form F7 Notice of appeal. The Appellant’s submissions at the hearing of the Appeal were that the Deputy President had erred in his decision as follows:
“MR FAZLHAMIDI: The error was - the major error was in the decision, as made, Deputy President Saunders has - saying that because I had applied for the job and I was waiting for the outcome to fulfil my benefits, I didn't - that was the reason I never bring the offer because of claim but that's not the case.
As my submissions, I think when it applied for the job as recommended by the respondent, even I was not recommended by the respondent, I would never bring - I would never apply for the job and - but what I would like to tell that the outcome of the application was actually the reason which made me to think that and to actually make sure that the dismissal has happened.
Before that, I was never aware of dismissal has been happened. But after outcome and as I didn't receive any proper response it's my case that they probably dismissed me at the very beginning in November.
And the second error was Deputy President Saunders say that I was expected a permanent job from the respondent. Also the respondent had promised, after one year permanent job but it doesn't say that - I don't say that I definitely - if the respondent didn't give me a permanent job, it didn't forfeit his responsibility or obligation but what I'd been promised from the first hand it was a expectancy of ongoing opportunity, that was my second point.” 2
[25] The Appellant also said that the Deputy President erred because the Appellant did not understand that he was dismissed on 15 November 2019 and only understood this when he was told that he was not successful in the recruitment process for the permanent role. Further the Appellant said that despite his response on his Form F2 application for an unfair dismissal remedy that he was notified of his dismissal on 11 November 2019, the Appellant said that he had only accepted that there was no financial project between November and January, and did not accept that he had been dismissed. 3
[26] The Appellant further asserted that before this Mr Messenger had advised him that there was no budget but that he should try to find any business area he could work in to fill the gap, and that the Appellant had sent correspondence to Mr Messenger telling him of the new area that the Appellant wished to be involved in until January 2020. 4 The Appellant also contends that the Deputy President should have determined the second jurisdictional objection – whether the Respondent was the Appellant’s employer – because this issue was inter-related with the question of whether he should be granted a further period in which to make his application. The Appellant maintains that he is deprived of knowing the Deputy President’s position and cannot properly respond to his conclusion in relation to the merits of the application.
[27] The Respondent’s submissions at the hearing of the Appeal were that there was no ambiguity that the Appellant’s engagement, whether he was employed by the Respondent or by a labour hire provider, had ended on 15 November 2019. In this regard, it was submitted that regardless of the Appellant’s subjective understanding, it was communicated to him that the work had finished and that if he wanted a role at AGL in the new year, he would need to apply for that role through external providers. The Respondent also submitted that even if the original recruiter made representations of permanency, or an ongoing engagement, no such representations were made by anyone at AGL and this was a matter that the Deputy President properly took this into account in forming his view as to the identity of the true employer.
[28] In relation to the alleged factual errors identified by the Appellant, the Respondent submitted that:
• If the finding that the Appellant was notified of the end of his placement on 4 November rather than 11 November was an error, then it favoured the Appellant;
• In relation to the commitments the Appellant alleged Mr Messenger made to him about his role not changing, Mr Messenger clarified in his evidence at the hearing that this related to the limited circumstances of the existing outage that was coming to an end;
• The alleged error in relation to the Appellant applying for the role through GWG on 27 January 2020, was a misreading of the Decision;
• Any error in relation to whether the role the Appellant applied for was permanent or of 6 – 12 months duration was neither here nor there because nothing was happening until March 2020 and this date was also pushed back; and
• The inference that the Appellant did not file his unfair dismissal application because he wanted to see how things played out with AGL and did not want to damage his relationship with the Company, was available on the evidence before the Deputy President.
[29] The Respondent also submitted that it was open on the evidence for the Deputy President to find that in circumstances where there had been no guarantee of permanency, and where the Appellant was required to go through a second process through an external provider, he must have known that there was some uncertainty about that process and that waiting to file an unfair dismissal application was something that might benefit the Appellant in the long run. The Respondent further submitted that having made this election, the Deputy President quite properly found that the Appellant should be held to it. In relation to the Appellant’s complaint that the Deputy President did not make a finding about whether the Respondent employed him, the Respondent submits that such a finding was not required. It was also submitted that in the hearing before the Deputy President, the Appellant conceded under cross-examination that he was an employee of Hays and later Chandler MacLeod.
[30] Given the Appellant’s stated language difficulties, he was given an opportunity to respond to the submissions made by the Respondent in the appeal, after being provided with the transcript of the appeal hearing. The Appellant responded by inserting his comments into the transcript of the appeal hearing at various points under paragraphs where the Respondent’s submissions were set out. In summary, to the extent that the comments are relevant, the Appellant said that there was ambiguity about the date of his dismissal, in that a few weeks prior to being told that the work was finished and that if he wanted to have a role at AGL in 2020 he would need to apply, the Appellant was told that he would be involved in two projects in March and August 2020. The Appellant also said that there was ambiguity on the basis that Mr Messenger told him that he needed to find new areas of the business to get involved in until the start of the next project in January 2020 and that he had good news and bad news for the Appellant. Further, the Appellant said that he should have been asked questions by the Deputy President to clarify his position about the date of his dismissal.
[31] While accepting that no-one at AGL had promised him a permanent role, the Appellant said that he had expectations of such a role as a result of the Company’s interest in keeping him engaged to fill the gap between November 2019 and January 2020 and this also caused ambiguity. In relation to the fact that the Deputy President did not determine whether the Respondent was the Appellant’s employer, the Appellant said that the second jurisdictional objection was dependent on the first one and not the other way around. The Appellant maintained that this denied him the opportunity to prepare for his appeal and disadvantaged him. The Appellant also said that he has never denied that his employment was initiated by Hays and said that he is happy to clarify why his employer is the Respondent.
Consideration
[32] 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. 5. There is no right of appeal and an appeal may only be made with the permission of the Commission.
[33] 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.
[34] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], 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. 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
[35] 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
[36] In relation to extensions of time to lodge applications under s 394(3) of the FW Act, the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion. 10. It will therefore be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King11 – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.
[37] We turn now to deal with each of the appeal grounds as follows.
[38] We do not accept that the four findings identified by the Appellant are errors of fact, much less errors of fact that could be described as significant. The Appellant said in his witness statement that Mr Messenger told him three things when informing that he had to “leave”: he had completed his portion of work; financial issues; and to find any area of the business in which he could be involved. While the Deputy President did not specifically note the third matter in the Decision, there is nothing to indicate that he did not have regard to all of the Appellant’s evidence. Further, the omission of a reference to the Appellant being told to find an area of the business in which he could be involved, does not undermine the Deputy President’s findings that the Appellant was told by Mr Messenger on 11 November 2019 that he needed to leave the Respondent by the end of the week and that the Appellant left on 15 November 2019, and did not work again for the Respondent.
[39] The second matter raised by the Appellant is not a factual error at all, but rather, as is conceded by the Appellant, a misreading of the relevant sentence in paragraph [13] of the Decision. The Deputy President made no finding that the Appellant applied for a role through GWG on 27 January 2020. The third matter is also not an error. Regardless of whether the Appellant knew that the role he applied for in December 2019 was permanent or not, the Appellant left AGL on 15 November 2019, and applied for a role with AGL through Chandler MacLeod and GWG. Similarly, the fourth matter referred to by the Appellant is not a factual error on the basis that on the Appellant’s own evidence, he delayed filing his unfair dismissal application to maximise his opportunity to obtain a position with AGL for which he applied in December 2019.
[40] The gravamen of the Appellant’s case on appeal is that he did not understand that he had been dismissed until 27 February 2020 when he was informed that his application for a position with the Respondent had been unsuccessful. This point was not advanced at first instance before the Deputy President and was raised for the first time in the appeal. The usual principle is that a party should not be permitted to argue a case on appeal which it did not raise at first instance, and that permission to appeal would not be granted to permit this to occur. The exception to this principle, namely where the new argument raised by an appellant involves a pure question of law the determination of which could not be affected by any evidence which the respondent might have adduced had the point been agitated at first instance, is not applicable here.12
[41] Further, there was evidence before the Deputy President establishing that the Appellant was not labouring under any misapprehension about the date his dismissal took effect. Firstly, the Form F2 Application for an unfair dismissal remedy filed by the Appellant, which is in question and answer format, contains the following information. In response to a question as to the date he was notified of his dismissal, the Appellant stated: “On 11 November 2019 I was advised by the Project Manager, Mr Darryl Messenger, I needed to leave the job by the end of the week”. In response to a question about what date the dismissal took effect, the Appellant stated: “I left the job on 15th November 2019”. In response to a question about whether the application is being made within 21 days of the dismissal taking effect, the Appellant has checked a box [No] and set out his reasons for not applying within 21 days. They are essentially the same matters advanced in his appeal.
[42] Secondly, as referred to in his witness statement at first instance, after filing his application on 8 February 2020, the Appellant received email correspondence from the Commission pointing out that he had stated in his application that his dismissal took effect on 15 November 2019 and that the application was made 64 days beyond the 21 day period and seeking his response in relation to whether there were exceptional circumstances justifying the grant of a further period to file his application and setting out the matters in s. 394(3). In his response on 13 April 2020 (referred to in his evidence), the Appellant did not take issue with the assertion that his application was filed outside the required time period and provided his reasons for not filing within time. Thirdly, there is no suggestion in the Appellant’s evidence to the Commission at first instance, of any lack of understanding about the date on which his employment ended, leaving aside the question of the identity of his employer.
[43] In relation to the other appeal grounds raised by the Appellant, we agree with the submissions of the Respondent, that the Deputy President was not required to determine whether the Respondent was the Appellant’s employer, in order to decide whether to exercise the discretion to grant him a further period in which to make his application. We do not accept that the Appellant was disadvantaged because this matter was not determined. In any event, we note that in his assessment of the merits of the application, the Deputy President did conclude that the Respondent had a strong prima facie case that its relationship with Hays and later Chandler MacLeod was that of a genuine commercial labour host and provider, in relation to the Appellant’s deployment to work on assignment for the Respondent, and that the Appellant continued to be employed by Chandler MacLeod and not the Respondent, and set out the basis for that view.
[44] We discern no error in the Deputy President’s conclusions and in his balancing of all the factors under s 394 of the FW Act. Overall, we consider the Deputy President’s approach to the specific requirements of s 394(3) of the FW Act to be entirely conventional and unremarkable. No arguable case of appealable error is disclosed.
[45] We are not satisfied that this appeal raises any issues of general importance and/or general application beyond the direct interest of the parties, or that there is not a diversity of Commission decisions about this subject matter. Lastly, we do not consider that it is arguable that the Deputy President’s decision manifests an injustice or that it is counterintuitive.
[46] For the reasons herein, we are not satisfied that the public interest is enlivened in this case. Accordingly, permission to appeal must be refused.
DEPUTY PRESIDENT
Appearances:
The Appellant on his own behalf.
Mr P Zielinksi on behalf of the Respondent.
Hearing details:
2020.
Brisbane (By telephone)
5 August.
Final written submissions:
Appellant: 19 August 2020.
Printed by authority of the Commonwealth Government Printer
<PR725114>
1 [2020] FWC 3145 at [16].
2 Transcript PN17 to PN22.
3 Transcript PN60.
4 Transcript PN62.
5 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
6 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]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin[2012] FWAFB 5343, 197 IR 266 [26]-[27]; 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]
10 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
11 [1936] HCA 40, 55 CLR 499
12 Nilsen (SA) Pty Ltd v CEPU[2016] FWCFB 3119 at [13]-[15]
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