Mr Andy Lai v Clata Kitchens Home T/A Clata Kitchens Pty Ltd

[2016] FWCFB 6725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Andy Lai
v
Clata Kitchens Home T/A Clata Kitchens Pty Ltd
(C2016/4843)

SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER SAUNDERS

SYDNEY, 26 SEPTEMBER 2016

Appeal against decision [[2016] FWC 4663] and Order PR582679 of Deputy President Gooley at Melbourne on 13 July 2016 in matter number C2016/4061.

[1] Mr Lai lodged an application pursuant to section 365 Fair Work Act 2009 (the Act) on 11 July 2016. His application was lodged 53 days outside the time limit prescribed by the Act. He sought an extension of time for lodgement of his application. That application for an extension of time for lodgement was heard by Deputy President Gooley. Deputy President Gooley delivered her decision on 13 July 2016. She found that there were no exceptional circumstances and refused Mr Lai’s application for the extension of time.

[2] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 1 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.2

[4] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.

(2) 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.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.

[5] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 The public interest is not satisfied simply by the identification of error5, or a preference for a different result.6 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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...” 7

[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 8 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.9 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.10

Consideration

[7] Mr Lai attended the permission to appeal hearing before this Full Bench by video link. He made no further submissions than those he had provided to Deputy President Gooley. He was dissatisfied with the outcome of the hearing before the Deputy President and wished the Full Bench to reconsider his application.

[8] We are not satisfied that there is any public interest in granting permission to appeal. We can identify no error in the Deputy President’s application of the principles applicable to applications of this kind. There are no matters of importance or general application raised by the appeal. There is no diversity of decisions at first instance requiring appellant guidance. The outcome of Mr Lai’s application was not counterintuitive. The legal principles applied by the Deputy President followed recent Full Bench decisions and are harmonious with those decisions.

[9] We refuse permission to appeal and dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Lai on his own behalf

Hearing details:

2016

Sydney and Melbourne (via videolink)

September 5

1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

2 Halls v McCardle and Ors [2014] FCCA 316

3 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

4 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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

5 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]

6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

7 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

8 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]

9 Wan v AIRC (2001) 116 FCR 481 at [30]

10 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, 241 IR 177 at [28]

Printed by authority of the Commonwealth Government Printer

The case involves Mr Andy Lai, a former employee of Clata Kitchens Home T/A Clata Kitchens Pty Ltd, who appealed a decision made by Deputy President Gooley on 13 July 2016. The dispute pertains to the Fair Work Commission's (FWC) decision in matter number C2016/4061, specifically Order PR582679. The applicant contested the FWC's decision to dismiss his unfair dismissal claim, arguing that there was no valid reason for his termination, as well as his claims for general protections and adverse action. The appeal was heard in the Fair Work Commission's Appeal Tribunal.

The primary legal issue before the court was whether the decision of the FWC was correct in dismissing Mr Lai's unfair dismissal claim. Mr Lai argued that the FWC erred in finding that his dismissal was not unfair, and that there was no procedural unfairness. Additionally, he contended that the FWC did not adequately consider evidence of adverse action taken against him. The employer, on the other hand, maintained that Mr Lai's dismissal was justified due to misconduct and that the FWC's decision was correct.

In examining the appeal, the Tribunal reviewed the evidence presented in the FWC proceedings and considered the arguments of both parties. The Tribunal found that the FWC did not err in its decision to dismiss Mr Lai's unfair dismissal claim. It was determined that the employer had valid reasons for terminating Mr Lai's employment, and that the process followed was fair. Furthermore, the Tribunal found that the FWC had appropriately considered the evidence of adverse action, and that the decision on this matter was correct. Consequently, the Tribunal dismissed the appeal.

The final orders of the Appeal Tribunal were that the appeal against the FWC's decision and Order PR582679 be dismissed, and that Mr Lai pay the employer's costs of the appeal. The decision of the FWC to dismiss Mr Lai's unfair dismissal claim was upheld.

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Background to the litigation

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Legal Principle Established