Mr Daniel Ropciuc v Australian Red Cross
[2016] FWCFB 4542
•14 JULY 2016
| [2016] FWCFB 4542 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Australian Red Cross
(C2016/3874)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 14 JULY 2016 |
Appeal against order PR579977 of Commissioner Wilson at Melbourne on 4 May 2016 in matter number U2013/17809.
Introduction
[1] On 25 May 2016, Mr Daniel Ropciuc lodged a notice of appeal in which he sought permission to appeal and appealed a Decision 1 and an Order2 issued by Commissioner Wilson on 29 March and 4 May 2016 respectively. The Decision arose out of an application for an unfair dismissal remedy made by Mr Ropciuc under s.394 of the Fair Work Act 2009 (the Act). The Commissioner dismissed Mr Ropciuc’s application under s.587(1)(c) of the Act on the basis that it had no reasonable prospects of success because there was a settlement agreement reached between Mr Ropciuc and his former employer, the Australian Red Cross, in a conciliation conference conducted by a staff member of the Fair Work Commission (FWC).
[2] Commissioner Wilson found that there was a settlement agreement reached between the parties of the kind described as the second class of agreement identified by the High Court in Masters v Cameron 3where the parties had completely agreed on all of the terms of their bargain and intended no departure from those terms, whether express or implied, but had made performance of one or more of the terms conditional upon the execution of a formal document.4
[3] Mr Ropciuc now resides in Romania and was not able to indicate when he would return to Australia. The appeal was therefore conducted by telephone link from Melbourne. After the appeal was heard, Mr Ropciuc sought and was granted permission to file further submissions. We have considered those submissions. It was not necessary to give the Australian Red Cross an opportunity to respond to them.
Legislative provisions
[4] An appeal under s.604 of the FW Act is an appeal by way of rehearing. 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 to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
[5] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act:
(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.
[6] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not available to grant permission on discretionary grounds.
[7] Here, the Decision appealed was one made under s.587 of the Act, which is not located in Part 3-2, but relates to an application for an unfair dismissal remedy under that Part. In Asciano Services Pty Ltd v Hadfield 6(which concerned an appeal from a decision to refuse permission for legal representation under s.596 of the Act) a Full Bench of the Commission determined that it would approach the matter on the basis that s.400(1) applied, but that it would also state the conclusion it would reach if s.400(1) did not apply. In taking this approach, the Full Bench relied upon the decision of the Federal Court (Besanko J) in Australian Postal Corporation v Gorman7where it was held that a Decision under s. 587 of the Act was a decision made under Part 3-2.
[8] Consistent with the Decision of the Full Bench in Asciano we have taken the approach that s.400(1) applies to Mr Ropciuc’s appeal. However, we will also take the step of stating what conclusion we would reach if s.400(1) did not apply.
[9] 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”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 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 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.” 10
[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. 11 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.12
Grounds of appeal
[11] Mr Ropciuc maintains that he did not agree to settle his application and that agreement was not reached at the conciliation conference. Mr Ropciuc asserts that Commissioner Wilson made significant errors of fact by not taking into account various pieces of correspondence between the Australian Red Cross and the Commission, and correspondence and telephone conversations between Mr Ropciuc and FWC, which prove that agreement was not reached at the conciliation conference. Mr Ropciuc also asserts that the Commissioner erred significantly by disregarding his contention that the Australian Red Cross had “regarded the conciliation conference as an opportunity to unilaterally impose terms and conditions and the conciliator was just there to facilitate [the] employer’s unilateral interests.”
[12] Further, Mr Ropciuc maintains that Commissioner Wilson made a significant error of fact by relying on a number of cases as precedents. In relation to public interest, Mr Ropciuc submits that Australian Red Cross is funded by public donations and it is crucial to draw the attention of the public to how it treats its employees and to inform the public about how the funds they donate are managed.
Consideration
[13] It is not in dispute that a conciliation conference in relation to Mr Ropciuc’s application for an unfair dismissal remedy was conducted on 6 March 2014 by a FWC Conciliator. Mr Ropciuc represented himself and the Australian Red Cross was represented by a number of employees including its Human Resource Manager, Ms Lillywhite, and Senior Legal Counsel, Ms McCallum. The Conciliator recorded that the matter had been settled and that the parties had agreed to waive a cooling off period that would otherwise have applied to the agreement. The Conciliator corresponded with the parties to that effect.
[14] Before the Commission at first instance, and in the appeal, was correspondence which we have summarised as follows:
● Email from FWC Conciliator dated 6 March 2014 to the parties confirming that the parties had reached a settlement agreement in the conciliation conference held that day and had agreed to waive the cooling off period that applied to the agreement.
● Email from Ms McCallum sent on 7 March 2014 to Ms Lillywhite attaching the settlement agreement drafted by Ms McCallum including a paragraph in the following terms:
“Could you please send these to Daniel (it is better that the communications come through you as I don’t intend to negotiate the terms of the agreement: it is as discussed last night)...”
● Email from Ms Lillywhite to Mr Ropciuc dated 10 March 2014 attaching the settlement agreement and requesting him to sign relevant documentation including the settlement agreement.
● Email from Mr Ropciuc to the FWC Conciliator dated 11 March 2014, stating:
“As I believe I have misunderstood the terms and conditions of the ‘three days cooling off period’ option related to the financial settlement with my employer. I would like to ask you to call me as soon as possible”.
[15] Mr Ropciuc also sent an email to a staff member of the FWC who had previously contacted him in relation to his case, stating that he had questions in relation to the cooling off period and the financial settlement with his employer. Mr Ropciuc sent a follow up email to that staff member stating his disappointment at not receiving a response to his earlier email. Both of those emails were sent on 11 March 2014 and Mr Ropciuc received an “out of office response” on the day he sent them, informing him that the FWC staff member was out of the office and would return on 18 March 2014. Notwithstanding this response, Mr Ropciuc asserts that his emails were ignored.
[16] On 17 March 2014, Mr Ropciuc responded to Ms Lillywhite’s email of 10 March (which had attached the settlement agreement) informing her that he was attempting to talk to his case manager from the FWC and would send her an email after doing so. Mr Ropciuc did not subsequently sign the documentation that was sent to him by Ms Lillywhite and on 26 May 2014, Ms McCallum sent an email to FWC stating that Mr Ropciuc had not responded to correspondence from the Australian Red Cross. The correspondence concludes with a statement that: “The matter therefore appears to be in abeyance.”
[17] The matter appears to have remained in abeyance until August 2015, when Mr Ropciuc sought that his application for unfair dismissal be listed for hearing. Further correspondence referred to by Mr Ropciuc was exchanged with FWC after that date. In that correspondence the Commissioner’s Associate sought a response from Mr Ropciuc in relation to the assertion made by the Australian Red Cross that the matter had settled and asked Mr Ropciuc to provide his bank account details to facilitate payment of an amount of money in accordance with the settlement agreement.
[18] In the hearing and in the appeal, Mr Ropciuc contended that the correspondence read as a whole, proves that there was no agreed settlement and that the Commissioner erred in failing to take the correspondence into account.
[19] We do not accept that Mr Ropciuc has established any error on the part of the Commissioner in relation to his interpretation of the correspondence. It was open to the Commissioner to find that the matter had been settled by agreement reached at the conciliation conference on 6 March 2014. In our view, that conclusion is correct.
[20] Further, we do not accept that there has been any error on the part of the Commissioner in his application of case law to the question he was required to determine. The Commissioner correctly applied the established approach to determining whether there was an agreement to settle the matter and the type of agreement that had been reached. In this regard, the Commissioner considered cases that are frequently referred to by the Commission in determining whether a settlement agreement has been reached (Masters v Cameron 13and Curtis v Darwin City Council14)and the effect of such a finding (Australian Postal Corporation v Gorman and Another). There is no error in the Decision in relation to the application of the law to the question the Commissioner was required to determine.
[21] We are also not satisfied that Mr Ropciuc has demonstrated any basis upon which permission to appeal could be granted in the public interest. We do not consider that the appeal raises any issue of importance and general application concerning the determination of if and when a settlement agreement has been reached, and the effect of such a finding on an application with respect to s. 587(1)(c) of the Act. The approach to those matters is well-settled, having been dealt with in a number of Court and Commission Decisions, which were considered by the Commission in this case. We also agree with the submissions of the Australian Red Cross to the effect that members of the public who have an interest in how donations they may make are expended can peruse its Annual Report and other publicly available information.
[22] No disharmony is apparent in the legal principles applied in the Decision as compared to other decisions. Further, Mr Ropciuc’s submissions seek to re-agitate the merits of the matter rather than identify appealable error. We are satisfied that the conclusion reached by the Commissioner, that Mr Ropciuc’s application had no reasonable prospects of success and should be dismissed pursuant to s. 587(1)(c) of the Act, was correct.
[23] We also note the submission of the Australian Red Cross, both to the Commissioner and in the appeal, that it remains ready to remit the amount agreed to by the parties in the settlement agreement to Mr Ropciuc upon provision of his current bank account details.
[24] Because we are not satisfied that it would be in the public interest to grant permission to appeal, permission to appeal must be refused in accordance with s.400(1). Alternatively, if s.400(1) does not apply to this appeal, we would still refuse permission to appeal for the reasons we have stated. No public interest or discretionary grounds have been made out which would justify the grant of permission to appeal.
[25] Permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
D. Ropciuc for the Appellant.
Ms. Barlow and Ms. Lillywhite for the Respondent.
Hearing details:
2016.
Melbourne and Perth (via video link)
Romania (via phone)
June 17.
Final written submissions:
Appellant, 8 July 2016.
1 [2016] FWC 1858.
2 PR579977.
3 (1957) 91 CLR 353.
4 Ibid at 360.
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 [2015] FWCFB 2618
7 [2011] FCA 975
8 (2011) 192 FCR 78 at [43]
9 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]
10 (2010) 197 IR 266 at [27]
11 Wan v AIRC [2001] FCA 1803 at [30]
12 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
13 Op. cit.
14 [2012] FWAFB 8021.
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