Mr Ilya Demin v Kwasi Studios Pty Ltd
[2016] FWCFB 4772
•26 JULY 2016
| [2016] FWCFB 4772 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604 - Appeal of decisions
v
Kwasi Studios Pty Ltd
(C2016/4171)
DEPUTY PRESIDENT SAMS | SYDNEY, 26 JULY 2016 |
Appeal against decision [2016] FWC 3434 of Senior Deputy President O'Callaghan at Adelaide on 31 May 2016 in matter number U2016/694.
[1] Mr Demin has applied for permission to appeal and appealed against a decision 1 issued by Senior Deputy President O’Callaghan on 31 May 2016 (Decision). In that Decision the Senior Deputy President found that the termination of Mr Demin’s employment was not harsh, unjust or unreasonable. The Senior Deputy President made an order2 dismissing Mr Demin’s application for an unfair dismissal remedy.
[2] The matter was listed for hearing of Mr Demin’s application for permission to appeal on 13 July 2016. At that time Mr Demin appeared for himself and Ms Rachel Pierro appeared, as a paid agent with our permission, for Kwasi Studios Pty Ltd (Kwasi Studios).
The Decision
[3] The principal findings made by Senior Deputy President O’Callaghan in his Decision were as follows:
(a) Mr Demin did not attend the determinative conference on 26 May 2016. Mr Demin was given seven days to provide reasons for his failure to attend. Mr Demin took up that opportunity and provided a detailed explanation for his failure to attend the determinative conference. Fundamental to Mr Demin’s non-attendance was the fact that he mistook the conference date and had his mobile telephone on silent, with the result that he did not hear the calls from the Fair Work Commission. The Senior Deputy President was not satisfied that Mr Demin provided a satisfactory reason for his failure to attend the determinative conference;
(b) The Senior Deputy President determined Mr Demin’s application on the basis of the written material filed by the parties; and
(c) Mr Demin’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code), which applied because Kwasi Studios was a small business employer at the time of Mr Demin’s dismissal. In particular, Mr Demin was dismissed for a valid reason, namely poor performance. He was given a number of warnings about his performance before he was dismissed, and was given an opportunity to respond to the warnings and to rectify the problem. Mr Demin was also notified in writing that he had the right to have a support person with him at the performance review meeting which resulted in the termination of his employment.
Consideration
[4] This appeal is one to which s.400 of the Fair Work Act 2009 (FW Act) applies. 3 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.
[5] 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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. 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.” 6
[6] 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. 7 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.8
Grounds of Appeal
[7] One of the principal grounds of appeal relied on by Mr Demin relates to his assertion that Kwasi Studios did not, at any time during his employment, provide him with a copy of the Fair Work Information Statement. Mr Demin also contends that Kwasi Studios’ internal disciplinary procedures do not make any reference to his right to have a support person present at particular meetings. As a result of these failures, Mr Demin says that he was not aware of his right to bring a support person to various performance meetings he was required to attend during his employment with Kwasi Studios. However, Mr Demin was informed in writing prior to the meeting on 29 January 2016 that he had a right to have a support person attend that meeting with him. That was the only meeting at which Mr Demin’s dismissal was possible. The earlier performance discussions with Mr Demin were not “discussions with an employee in circumstances where dismissal is possible” within the meaning of the Code. In any event, Mr Demin did not ask to have a support person present with him in any of these earlier performance discussions. Accordingly, we are not satisfied that there is an arguable case of error in relation to this part of the Decision.
[8] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.
[9] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required in an appeal of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Senior Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[10] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the FW Act, that it would be in the public interest to grant permission to appeal. Accordingly, we dismiss the appeal.
DEPUTY PRESIDENT
Appearances:
Mr Ilya Demin on his own behalf.
Ms Rachel Pierro, paid agent, on behalf of the respondent.
Hearing details:
2016.
Sydney:
July, 13.
1 [2016] FWC 3434
2 PR580890
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
4 (2011) 192 FCR 78 at [43]
5 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]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 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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