Mr Blair Bonser v Nexus (Aust) Pty Ltd T/A Nexus Risk Services
[2016] FWCFB 7334
•21 OCTOBER 2016
| [2016] FWCFB 7334 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Nexus (Aust) Pty Ltd T/A Nexus Risk Services
(C2016/1781)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 21 OCTOBER 2016 |
Appeal against decision [2016] FWC 3224 of Deputy President Binet at Perth on 8 July 2016 in matter number U2016/4182.
Introduction
[1] Mr Blair Bonser (Mr Bonser) has applied for permission to appeal a Decision and Order issued by Deputy President Binet on 8 July 2016 1 (the Decision). In the Decision the Deputy President found that Mr Bonser was not dismissed from his employment with Nexus (Aust) Pty Ltd T/A Nexus Risk Services (Nexus) and dismissed his application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.
[2] The Deputy President had before her for determination a factual dispute as to whether Mr Bonser had resigned his employment. The Deputy President dealt with the matter by convening a determinative conference under s.398 of the Act. At the determinative conference Nexus sought permission to be represented by a lawyer pursuant to s.596 of the Act. Deputy President Binet refused Nexus permission to be represented. Mr Bonser did not seek to be represented before the Deputy President.
[3] Both parties sought and were granted permission to be represented at the hearing of Mr Bonser’s appeal.
[4] The facts found by the Deputy President can be summarised as follows. Following a 2014 performance review, Mr Bonser became “disenchanted” with Nexus because his remuneration and support expectations were not being met. When further issues arose during Mr Bonser’s 2015 performance review Mr Bonser decided to go into business for himself.
[5] Determination of the factual issues turned upon the events of a meeting on 9 December 2015 between Mr Bonser and Mr Ellis, Broking Operations Manager, to whom Mr Bonser reported. Mr Ellis’ evidence was that during that meeting, Mr Bonser stated “I resign”. Mr Ellis also gave evidence before the Deputy President that Mr Bonser was considering resigning for some time and intended to start his own business. Mr Bonser denied using the words “I resign”, or any words to that effect, because he did not have another job to go to. Mr Bonser did concede that he told Mr Ellis he was looking elsewhere and had considered becoming an “Authorised Representative”.
[6] The Deputy President preferred the evidence of Mr Ellis and on the basis of that evidence was satisfied that Mr Bonser resigned his employment at the meeting of 9 December 2015. The Deputy President also preferred Mr Ellis’ evidence in respect of a further conversation on 11 December 2015 during which Mr Ellis maintained that Mr Bonser had confirmed his resignation. Further, the Deputy President relied on two emails sent by Mr Bonser. The first email sent by Mr Bonser was in response to an email to all staff from Mr Ellis advising of Mr Bonser’s resignation. In that email Mr Bonser said:
“Michael … Thank you … I’ll drop by with nexus [SIC] assets”
[7] The second email, which was sent by Mr Bonser to colleagues, stated that Mr Bonser “…had not resigned in writing.” The Deputy President found that these emails corroborated the evidence of Nexus’ witnesses that Mr Bonser had resigned his employment. The Deputy President also found that the second email was sent after Mr Bonser had spoken to his wife and was an attempt by Mr Bonser to “recover” the situation by asserting that his earlier resignation was not binding because it was not in writing. The Deputy President went on to find that:
“Unfortunately for Mr Bonser, at this point in time his employer had already accepted his resignation. Resignations do not need to be in writing to be effective. Once notice is given an employer is entitled to rely on it. There is no evidence that the decision to offer his resignation was made in the heat of the moment and, in any event, Mr Bonser was given adequate opportunity to withdraw it and did not do so. Therefore, there is no basis on which Mr Bonser might argue he ought to have been entitled to withdraw his resignation without the consent of Nexus.
I therefore find that the termination of Mr Bonser’s employment was at his own initiative and not at the initiative of Nexus. I also find that he was not forced to resign because of conduct, or a course of conduct, engaged in by his or her employer.” 2
Permission to Appeal
[8] Mr Bonser has sought permission to appeal the Deputy President’s Decision on a number of grounds, which may be summarised as follows:
1. The appeal raises issues of general importance and application regarding the Commission’s power regarding the proper conduct of determinative conferences; the proper role of a lawyer or paid agent during a determinative conference once permission to be represented has been refused; and the performance of the Commission’s functions in a manner that is fair and just;
2. The Decision manifests an injustice;
3. The Decision was not the exercise of discretion and went to the Commission’s jurisdiction and should therefore be determined according to law; and
4. The legal principle applied in the Decision is disharmonious with principles established by the decided cases.
[9] Central to Mr Bonser’s appeal grounds is the assertion that his contract of employment contained a provision stating that: “You may resign from employment with the Employer by giving notice in writing…”. Citing Halsbury’s Laws of Australia Mr Bonser submitted that it is open to the parties to a contract of employment to agree that the contract is terminable by the giving of a fixed period of notice. Such notice may be required to be in writing and if not, may be given orally. Mr Bonser submitted that on this authority, any agreement, whether written, oral or implied, between Mr Bonser and Nexus prescribing the notice (if any for termination) was central to the proper disposition of the case at first instance. The Deputy President’s finding that resignations do not need to be in writing, was said to be contrary to authority and to constitute the adoption by the Deputy President of a wrong principle.
[10] Mr Bonser’s contract of employment was not tendered in the hearing before the Deputy President. At the application for permission to appeal, Mr Bonser sought to tender it and asserts that in failing to inquire of the parties whether there was any agreement prescribing the mode of resignation by Mr Bonser the Deputy President failed to inform herself as to the facts relevant to jurisdiction. He further asserted that, by assuming there were no agreed terms prescribing the mode of Mr Bonser’s resignation, the Deputy President made an error of fact, which was a significant error for the purposes of s.400(2) of the Act. Further, this matter is also said to give rise to disharmony with established principles regarding contractual requirements for the giving of notice.
[11] Mr Bonser also complains in relation to the process of the determinative conference conducted by the Deputy President. The Deputy President refused permission for Nexus to be represented by a lawyer at the conference. However, the lawyer for Nexus was permitted to remain in the room during the determinative conference and to communicate with and assist Nexus’ representative through the conference. Mr Bonser submits that he was not afforded an equivalent opportunity.
Legislative provisions
[12] An appeal under s.604 of the 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[13] This appeal is one to which s.400 of the Act applies. 4 Section 400 of the Act 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.
[14] The test under s.400 is “a stringent one”. 5 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 as follows:
... 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
[15] 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
Consideration
[16] Mr Bonser sought permission to rely on two affidavits in respect of his application for permission to appeal. Given our ultimate finding regarding permission to appeal we do not consider it necessary to consider Mr Bonser’s application to admit fresh evidence. We have accepted for present purposes that Mr Bonser’s contract of employment did provide for notice to be provided in writing.
[17] Mr Bonser asserts that notice under his contract of employment was required to be given in writing unless some other mode of notice was agreed between the parties. As no agreement was reached on another mode of notice, there was no verbal agreement validating the verbal resignation and it was ineffective at law to terminate the contract.
[18] We do not accept these propositions. Even if a written resignation is required by a contract, a resignation is not necessarily invalid because it is verbal. Mr Bonser does not challenge the Deputy President’s findings that he resigned his employment in the meeting with Mr Ellis on 9 December 2015 and then confirmed his resignation in the discussion of 11 December 2015. Mr Bonser does not assert that he was forced to resign by any conduct or a course of conduct engaged in by Nexus. Mr Bonser also accepts that the requirement to give notice is susceptible to variation or waiver by agreement. While the Deputy President does not expressly make the finding that Nexus accepted Mr Bonser’s verbal resignation and waived any requirement that the resignation be in writing, the underlying facts are not challenged by Mr Bonser and it is clear that this is what occurred.
[19] In so far as Mr Bonser challenges the finding of Deputy President Binet that Mr Bonser’s verbal resignation had been accepted by Nexus we are unable to discern an arguable case that the Deputy President has erred. Mr Bonser’s email to all staff, on which he relies as evidence that he was disputing that he had in fact resigned, was sent in response to an all staff email from Mr Ellis advising that Mr Bonser had resigned. It was open to the Deputy President to consider that by this time Nexus had accepted Mr Bonser’s resignation.
[20] We do not consider it was incumbent upon the Deputy President to inquire as to the contract of employment in circumstances where neither party had sought to rely upon the contract of employment or raised any substantive submission in relation to it. Mr Bonser had the benefit of legal advice in preparing his material for hearing and had a copy of his contract at the time of the determinative conference before Deputy President Binet. The Commission must act in a manner that is “quick, informal and avoids unnecessary technicalities” 10. Even if the Deputy President had sought the contract of employment, given our view above regarding agreement between the parties, it is unlikely that a different outcome would have been achieved.
[21] As to the conduct of the determinative conference s.398 of the Act provides:
“398 Conferences
(1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.
(2) Despite subsection 592(3), the FWC must conduct the conference in private.
(3) The FWC must take into account any difference in the circumstances of the parties to the matter in:
(a) considering the application; and
(b) informing itself in relation to the application.
(4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:
(a) considers the application; and
(b) informs itself in relation to the application.”
[22] The Act does not define “in private”. Section 596 only limits whether a party may be “represented” before the Commission, which includes making an application or submission to the Commission on the party’s behalf. We do not consider that s.398 was intended to operate so that a conference “in private” must occur to the total exclusion of all persons other than parties to the matter. The Deputy President conducted the determinative conference “in private” in the sense that the conference was not open to the public generally. It is a matter for the Member conducting proceedings to determine who might be permitted to remain in a “private” conference and the Member makes that decision taking into account all the circumstances of the matter. We do not identify an arguable case of error arising from the manner in which the Deputy President conducted the conference.
[23] Mr Bonser also complains that once the Deputy President determined to permit Nexus to have their legal representative remain in the room during the conference the opportunity should have been given to Mr Bonser to do the same. Commissioner Saunders raised with Mr Hemery, who appeared for Mr Bonser at the application for permission to appeal, that Mr Bonser resisted the application for permission to be represented on the basis that he could not afford representation. In these circumstances it is unclear what would have been achieved had the Deputy President provided Mr Bonser with such opportunity. There is also no evidence that the presence of the legal representative gave rise to any unfairness or disadvantage through the course of the determinative conference.
[24] There is nothing novel or inconsistent with decided authority in the conclusions reached by the Deputy President. We are not satisfied that it is in the public interest to grant permission to appeal. Nor, as we have indicated above, are we persuaded that there is an arguable case of error in relation to the decision subject to appeal or that there are any other considerations that warrant the grant of permission to appeal.
[25] Permission to appeal is refused. The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr M Hemery for the Appellant.
Ms E Hartley for the Respondent.
Hearing details:
2016.
5 September.
Sydney by video to Perth
Final written submissions:
1 September 2016.
1 [2016] FWC 3224 and PR580611 respectively.
2 Ibid at [62] to [66].
3 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].
5 Coal & Allied Mining Services Pty Ltd v Lawler and others, per Buchanan J (with whom Marshall and Cowdroy JJ agreed) (2011) 192 FCR 78 at [43].
6 O’Sullivan v Farrerand Another (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].
7 [2010] FWAFB 5343 at [27], 197 IR 266.
8 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
9 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 and Others (2011) 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
10 Fair Work Act 2009 (Cth) s.577(b).
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