Mr Andrew Rennie v Demjet Pty Ltd (in Liquidation) formerly T/A Just Better Care Brisbane East
[2017] FWCFB 2212
•20 APRIL 2017
| [2017] FWCFB 2212 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Demjet Pty Ltd (in Liquidation) formerly T/A Just Better Care Brisbane East
(C2017/1146)
VICE PRESIDENT CATANZARITI | SYDNEY, 20 APRIL 2017 |
Appeal against decision in transcript of Commissioner Booth at Brisbane on 10 February 2017 in matter number U2016/5994.
Introduction
[1] Mr Andrew John Rennie (Appellant) has applied for permission to appeal a decision made by Commissioner Booth on 10 February 2017 to dismiss Mr Rennie’s application for an unfair dismissal remedy application made under s.394 of the Fair Work Act 2009 (FW Act). The reasons for the Commissioner’s decision are contained in the transcript of the hearing (Decision).
[2] At the hearing of the appeal before us Mr Rennie represented himself. There was no appearance for Demjet Pty Ltd (in liquidation) formerly T/A Just Better Care Brisbane East (Respondent). Neither was the respondent directed to file submissions in the matter.
Background
[3] Drawing upon the matters referred to by the Commissioner in the Decision, the factual background can be summarised as follows,
a) Mr Rennie worked as a support worker. He has a Certificate III in Aged Care. He is also a qualified cook.
b) His employment commenced in July 2015.
c) However, his letter of appointment was not issued until 18 November 2015.
d) Mr Rennie worked around 20 hours per fortnight.
e) The respondent is an employment agency. It provides workers to clients. Two clients included Blue Care and PresCare.
f) As is the norm in disability services industry Mr Rennie had no guaranteed hours or of regular ongoing work. Work was based on client demand.
g) Two complaints were made against Mr Rennie,
i. one by a colleague working with Blue Care. Mr Rennie denied the allegations made against him; and
ii. one by clients of PresCare. Following the intervention of a representative of the respondent, this issue was resolved with Mr Rennie continuing to work with the clients of PresCare.
h) Later PresCare ceased to give the relevant work to the respondent. PresCare gave the work to another agency. Hence the Respondent could not provide that work to the Applicant.
i) The Respondent had concerns about the performance of the Applicant and sought to address these with him.
j) There was a meeting to discuss the Applicant’s work performance on 23 March 2016.
k) No work has been provided to the Applicant since 23 March 2016.
l) Representatives of the Respondent gave evidence that work was offered to the Applicant, but that he refused it because of the travel time required.
m) The Applicant claimed he had been constructively dismissed.
n) The Respondent submitted there had been no termination at its initiative.
o) The jurisdictional issue (was there a dismissal) was determined by the Commissioner in favour of the Respondent.
Decision under appeal
[4] In the Decision the Commissioner;
a) set out the factual background 1 by summarising both the Applicant’s and the Respondent’s position,2
b) referred to the relevant provision of the FW Act concerning the term “dismissed”, 3
c) set out the evidence 4 including the circumstances of the complaints made against the Applicant,5
d) referred to the most relevant recent authority relating to the obligations of labour hire companies in the context of the requirements of host employers and unfair dismissal laws 6, namely Kool v Adecco Industrial Pty Ltd t/a Adecco,7
e) indicated that she preferred the evidence of the Respondent’s witnesses over that of Mr Rennie, 8
f) held that it was appropriate for the Respondent to work on a performance management plan with the Applicant, 9
g) held that,
The contract of employment makes it clear Mr Rennie was employed as casually, he signed the letter. The lack of work was either because it went to another agency, as in the case of Mr and Mrs G, or other individuals asked for a carer or clients themselves. There is no evidence the removal of work was because of a complaint made by Mr Rennie. 10
….
There was no work for Mr Rennie then and apparently now. This is mainly due to the lack of clients, but also limited by the ongoing need to deal with performance issues. 11
[5] Having considered all that she was required to consider under the FW Act, the Commissioner concluded that,
I therefore find that the employer has established its onus that Mr Rennie was not dismissed. 12
[6] The Commissioner then dismissed the application. 13
The nature of appeals
[7] 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.
[8] 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(1) as “a stringent one”. 14
[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment15. 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. 16
[10] 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. 17 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.18
Grounds of appeal
[11] Mr Rennie’s Notice of Appeal identified 3 grounds of appeal. Mr Rennie wrote,
1. Andrew Nolen written testimony was a significant error of fact. In the transcripts PN28-30.
2. Could PresCare provide the paperwork over the 6 months, that I did not fill out?
3. Also the purchising [sic] of the food was what the client wanted.
[12] In advance of the hearing before us an Appellant’s Outline of Submissions had been filed. In those submissions the appellant’s grounds of appeal were recast as follows,
• The reason for the appeal is that, if there was no complaint from PreCare I would still have work.
• So the error of fact is that of Mr Nolan statement of the complaint from PresCare.
• The argument in this matter is that there was no complaint.
[13] Mr Rennie then continued by identifying those transcript references that he took issue with, namely PN28, PN29, PN30, PN44, PN45, PN47 and PN49.
[14] In essence the grounds of appeal focus on a number of points in the transcript and allege significant errors of fact on behalf of the Commissioner.
[15] It is not immediately apparent how the grounds of appeal could give rise to a House v King 19 error. It is not clear how it could be argued the Commissioner:
a) acted upon a wrong principle,
b) allowed extraneous or irrelevant matters to guide or affect her,
c) did not take into account some material consideration, or
d) exercised her discretion in a way that was unreasonable or plainly unjust.
[16] What is apparent is that Mr Rennie is seeking to re-litigate the matters that were before the Commissioner. That is not the purpose of an appeal.
[17] However, at this point we are only concerned with whether we should grant permission to appeal. In his Notice of Appeal Mr Rennie submitted that it is in the public interest for the Commission to grant him permission for the appeal. He wrote,
It is in the public interest to do so [grant permission to appeal] because, the client and PreCare also Just Better Care have the right to know the significant errors of fact.
[18] In the submission filed in advance of the hearing before us the public interest was restated as above.
[19] Before us Mr Rennie made a short statement. He said the order made by the Commissioner was made on the basis that a complaint had been made against him, but that no complaint had been made by PresCare. He said the error was made by Mr Nolan in his statement of evidence. Before us Mr Rennie conceded that he did not cross-examine Mr Nolan about the issue before the Commissioner. In any case this is an argument about the underlying merits of the unfair dismissal application, not a matter relating to whether there was a dismissal (which was the issue before the Commissioner).
[20] Consequently, we reject Mr Rennie’s submission in relation to the enlivening of the public interest. Mr Rennie’s matter does not give rise to issues of importance and or general application. It is simply a case where the Commissioner exercised the discretion that was open to her to exercise in a manner that Mr Rennie does not like. Further, having considered all that has been put before us we are not satisfied that this matter:
a) is in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;
b) is one 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.
[21] Likely Mr Rennie believes the Decision at first instance manifests an injustice, or the result is counter intuitive. However, it seems to us that the appeal was initiated as a vehicle to rerun the case that had been conducted before the Commissioner in circumstances where Mr Rennie was simply dissatisfied with the decision at first instance. That is not the purpose of an appeal.
Conclusion
[22] We are not persuaded that Mr Rennie has established that it is in the public interest to grant permission to appeal. The Commissioner addressed the relevant statutory criteria and we are not persuaded that there is an arguable case that the Decision or Order was attended by any error of principle or any significant error of fact.
[23] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
VICE PRESIDENT
Appearances:
Mr Andrew John Rennie the Appellant.
No appearance for Demjet Pty Ltd (in liquidation) formerly T/A Just Better Brisbane East.
Hearing details:
2017.
Sydney:
April, 4.
1 PN6 – PN6.
2 PN7 – PN10.
3 PN11.
4 PN17 – PN21.
5 PN23 – PN30.
6 PN39 – PN40.
7 [2016] FWC 925.
8 PN44 and PN52.
9 PN46.
10 PN49.
11 PN51.
12 PN52.
13 PN54.
14 (2011) 192 FCR 78 at [43]
15 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]
16 [2010] FWAFB 5343 at [27], 197 IR 266
17 Wan v AIRC (2001) 116 FCR 481 at [30]
18 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 (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
19 [1936] HCA 40; (1936) 55 CLR 499, (17 August 1936).
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