Mr Gareth Davies v Ace Operations Pty Ltd
[2015] FWCFB 8300
•21 DECEMBER 2015
| [2015] FWCFB 8300 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
ACE Operations Pty Ltd
(C2015/7084)
VICE PRESIDENT CATANZARITI | SYDNEY, 21 DECEMBER 2015 |
Appeal against decision [[2015] FWC 6798] of Commissioner Bissett at Melbourne on 7 October 2015 in matter numbers U2015/10128 and U2015/10130
[1] This decision concerns an application for permission to appeal against a decision of Commissioner Bissett made on 7 October 2015. The decision of the Commissioner concerned an unfair dismissal application made by the Appellant under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of their by employment by ACE Operations Pty Ltd (Respondent).
[2] At the hearing of the appeal matter on 20 May 2015, the Appellant appeared on his own behalf. Prior to the hearing, Ms Schreier-Joffe sought permission to appear on behalf of the Respondent. Having regard to section 596 of the Act, and in circumstances where the Respondent was represented at first instance, permission to appear was granted.
Background
[3] The Appellant was employed by the Respondent as a Farm Manager. It is agreed that his employment was terminated on 29 July 2015. However, the issue of his start date was the subject of factual dispute at first instance. The Commissioner summarised the factual background as follows:
“[6] Mr Davies says that he commenced work with ACE as a Farm Manager on 23 January 2015. Mr Davies produced an unsigned contract dated 19 January 2015 that has a commencement date of 23 January 2015. This contract provided for a payment of $50,000 per annum, inclusive of superannuation.
[7] Mr Davies says that he was initially offered a position in Cobram with a commencement date of 23 January 2015. Accommodation was not available at Cobram so a position at Maffra was offered.
[8] On 20 January 2015 Mr Davies flew from New Zealand where he lived ahead of his wife and children. He says he arrived in Melbourne where he stayed for three days. In this period he arranged to inspect the farm at Maffra to determine if it was suitable for him and his family.
[9] Mr Davies travelled to Sale on 25 January 2015 where he was met by Mr Hopkinson (known as Hoppy). He was placed in temporary accommodation at Happy Days Motor Inn where he stayed for about 5 days. He was also given the use of a company car.
[10] On 29 January 2015 Mr Davies travelled to Melbourne. He met his wife and children who had arrived from New Zealand on 30 January 2015. They then travelled to Cobram to collect some furniture and returned to Maffra.
[11] Mr Davies says that on 31 January 2015 he attended for work, milked some cows, met some staff and then, with some help, unloaded furniture.
[12] ACE produced a contract (again unsigned) which indicated a start date for Mr davies of 2 February 2015 with an annual salary of $60,000 inclusive of superannuation.
[13] ACE also produced a number of emails sent by Mr Davies to various representatives of ACE where he indicated that his start date was 1 February 2015. These are included in the evidence of Mr Bayard and are marked Annexure C and D.
[14] ACE produced, as part of its material filed with the Commission, a number of ‘daily reports’ for the Maffra farm which, Mr Bayard says, indicate the number of cows milked, where they are paddocked and other activities for the day and indicate who was rostered on and off on the farm, who was working that day and the tasks they did (e.g. milking). 1 This form is completed daily by the manager or most senior person rostered on. The daily sheets do not indicate Mr Davies as having been at work until 3 February 2015.
[15] Mr Davies agrees that his employment was terminated on 29 July 2015.
[16] Mr Davies submits that, as he was provided with the use of a company car and his accommodation at Happy Days was paid for by ACE he, at least, was employed by ACE from 25 January 2015. This means that at the time his employment was terminated he had been employed for a period greater than six months.”
[4] The Commissioner then proceeded to make the following findings:
“[17] There is no evidence that Mr Davies did any work for ACE prior to 31 January 2015. That he had arrived in Australia and his accommodation was being paid for by ACE does not mean he had commenced working for it.
[18]Nothing can be taken from the contracts of employment. Neither was signed by Mr Davies and neither was signed by a representative of ACE. I would observe however that the failure to have the contracts signed by Mr Davies or by ACE is a sign of poor management practices. Had the contracts been signed or had there been any clear written communication of the date of commencement of employment much time could have been saved at least with respect to this matter.
[19] Mr Davies does not suggest he commenced working for ACE prior to 31 January 2015, just that his accommodation was being met and he had the use of a car and he does not understand how this could occur if he was not working for them at that stage.
[20] In reaching my conclusion I have not had regard to the daily reports as provided as part of Mr Bayard’s statement. They add nothing to my consideration and I am not convinced, in any event, of their accuracy.
[21] If I accept Mr Davies evidence the first day he worked for ACE was 31 January 2015 when he attended work for milking. That he was in accommodation provided by ACE and that he had use of a car prior to 31 January 2015 does not mean his employment had commenced prior to 31 January 2015.
[22] I am satisfied that Mr Davies commenced working for ACE on 31 January 2015. His employment was terminated on 29 July 2015. Mr Davies therefore did not complete six months employment with ACE.”
Grounds of Appeal
[5] The Appellant submitted that incorrect findings of fact were made at first instance in relation to his commencement date in the Respondent’s employ. The Appellant further submitted that relevant evidence relating to the Appellant’s commencement date was not taken into account. The Appellant sought to argue that the provision of a farm vehicle and accommodation prior to 31 January 2015 constituted the commencement of employment. In the Appellant’s submission, he had completed six months employment at the time of his termination with the Respondent and as such, the finding of no jurisdiction was incorrectly made.
Consideration
[6] This appeal is one to which s.400 of the FW Act applies 1. 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.
[7] 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 as “a stringent one”. 2 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment3. 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.” 4
[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. 5 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.6
[9] We have considered the circumstances of this matter, all relevant material and the grounds of appeal advanced by the Appellant. In our view, the Appellant has not demonstrated any error in the decision of the Commissioner or any basis on which it might be concluded that it is in the public interest to grant permission to appeal. All relevant circumstances were considered at first instance, findings of fact were made based on the evidence led before the Commission and a finding that there was no jurisdiction was correctly made by the Commissioner.
[10] It will often be the case that a party to an unfair dismissal proceeding believes a different result should have been reached or that certain aspects of the circumstances are not expressed in accordance with the views of that party. However that is an insufficient basis for a successful appeal. For these reasons we are not satisfied that the appeal raises matters that justify permission to appeal on public interest grounds.
Conclusion
[11] For the above reasons the application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
The Appellant in person.
Ms Schreier-Joffe for the Respondent.
Hearing details:
17 February
2015
Melbourne via video-link to Sydney.
1 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
2 (2011) 192 FCR 78 at [43]
3 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]
4 [2010] FWAFB 5343 at [27], 197 IR 266
5 Wan v AIRC (2001) 116 FCR 481 at [30]
6 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]
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