Mr Jose Melo Gaete v Healthcare Australia Pty Ltd
[2019] FWCFB 9
•2 JANUARY 2019
| [2019] FWCFB 9 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604 - Appeal of decisions
Mr Jose Melo Gaete
v
Healthcare Australia Pty Ltd
(C2018/6297)
DEPUTY PRESIDENT SAMS | SYDNEY, 2 JANUARY 2019 |
Permission to appeal against a decision [2018] FWC 6349 of Commissioner McKinnon at Melbourne on 18 October 2018 in matter number U2018/6449 – jurisdictional decision – appellant’s failure to comply with directions – failure to attend proceedings – no grounds of appeal identified – no public interest grounds established – public interest not enlivened – permission to appeal refused – appeal dismissed.
BACKGROUND
[1] On 8 November 2018, Mr Jose Melo Gaete (the ‘appellant’) filed an appeal, for which permission to appeal is necessary, against a decision published in Melbourne of Commissioner McKinnon on 18 October 2018 (the ‘Decision’). That Decision concerned the appellant’s application, made pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), for an unfair dismissal remedy in relation to his alleged dismissal by Healthcare Australia Pty Ltd (the ‘respondent’) on 28 May 2018.
[2] The Commissioner determined three jurisdictional objections to the application pressed by the respondent. Firstly, that the appellant was a casual employee and was not dismissed; secondly, the appellant had not completed the minimum employment period; and thirdly, even if the appellant had been dismissed, the dismissal took effect on 16 November 2017, meaning his unfair dismissal application was filed six months late.
[3] The appeal was listed for hearing as to permission to appeal only before the Full Bench on 11 December 2018. There was no appearance by, or on behalf of, the appellant. Mr Rick Taylor, Chief Financial Officer, appeared for the respondent.
THE COMMISSIONER’S DECISION
[4] The appellant had a curious employment history with the respondent. He was employed for a series of periods of employment as a casual employee from 2002 until 10 November 2017. He had not worked for the respondent since that date. At paras [9]-[21] of the Decision the Commissioner set out what happened after the appellant was rostered to work on 14 November 2017:
“[9] Mr Melo Gaete was rostered to work again on 14 November 2017. After the cancellation of his shift was not communicated to Mr Melo Gaete until he arrived for work as rostered, there was an incident. Mr Melo Gaete was told he was not required to work and that he should go home. Eventually, Healthcare Australia says he was escorted off the premises. Mr Melo Gaete denies it. The dispute is not necessary to resolve. Mr Melo Gaete subsequently had a conversation with Healthcare Australia and advised that he was leaving the country on 26 November 2017. He said “see you next year” or words to that effect.
[10] On 16 November 2017, Skye Wilkins of Healthcare Australia made a file note of a conversation with Mr Melo Gaete about the incident. The file note recorded as follows:
“Spoke with Jose this afternoon and asked him to attend a meeting regarding the feedback from Melbourne Private Hospital. He kept speaking over the top of me, would only talk about the cancellations, suggested we were playing games with him. He has refused to attend a meeting and said he doesn’t want to work with Healthcare Australia again this year. I advised him we would not be offering him work again until he meets with us. File has been deactivated.”
[11] Healthcare then deactivated Mr Melo Gaete’s file on its online system and Mr Melo Gaete went overseas. Mr Melo Gaete had been deactivated in this way for a range of reasons in the past, and did not consider his being deactivated to mean that his employment relationship with Healthcare Australia had come to an end. I am satisfied it did not.
[12] The reason for Mr Melo Gaete travelling overseas was not disclosed to Healthcare Australia. That reason was as follows:
“In the last three years, I usually leave the country in November for 6 months to look after my mother. My father and I take 6 month turns. I can’t get a full time job because I need to do that work.”
[13] Mr Melo Gaete was overseas and unavailable for work from 26 November 2017 to 22 May 2018. He returned to Australia on 22 May 2018 and rang Healthcare Australia on 23 May 2018 but could not get through.
[14] On 24 May 2018, Healthcare Australia says it wrote to Mr Melo Gaete as follows:
“Good morning Jose,
We recently received a request from you to have your JCA profile reactivated. As explained to you in November 2017, we are not prepared to offer you shifts. At that time you were asked to come in and meet with us regarding a complaint from Melbourne Private Hospital. You refused to attend a meeting and this led to your deactivation. Given the circumstances undwer [sic] which you were deactivated we will not be reactivating your file.
Kind regards,
Dianne Rendle | Nursing Services Manager” .
[15] Mr Melo Gaete did not recall receiving this email. The original email is not in evidence and Ms Rendle was not called to give evidence. I am not satisfied that Mr Melo Gaete received the email from Ms Rendle.
[16] While the decision of an employer not to offer a new contract of employment to an employee at the end of an agreed period of employment will not by itself constitute a termination at the initiative of the employer, that is not what happened here.
[17] In the early hours of 28 May 2018, Mr Melo Gaete sent an “activation request” to Healthcare Australia at 12.03am for his file to be reactivated. He also completed two online training modules.
[18] On 28 May 2018, Mr Melo Gaete spoke to Ms Wilkins on the phone and asked when he could come back to normal duties. According to Mr Melo Gaete, Ms Wilkins said:
“Sorry Jose due to your poor performance you have been terminated.”
[19] Mr Melo Gaete says there was no discussion about having a meeting before he returned to work, which had been earlier communicated to him as a condition of having his file reactivated on 16 November 2018. Ms Wilkins was not called to give evidence.
[20] I consider that the advice to Mr Melo Gaete on 28 May 2018 that his employment had been terminated was the act that terminated the employment relationship between Mr Melo Gaete and Healthcare Australia. It occurred well after the last contract of employment between them had come to an end, but in circumstances where he had a longstanding relationship with the business characterised by long periods of inactivity.
[21] I find that Mr Melo Gaete was dismissed from his employment with Healthcare Australia.”
[5] As a consequence of the above finding, the appellant’s unfair dismissal application was filed within 21 days after his dismissal took effect. That being so the jurisdictional objection was dismissed. As to the minimum employment period objection, the Commissioner, at paras [28]-[29] of the Decision, considered the employment history of the appellant by reference to the number of shifts he worked in each year from 2002-2018 and concluded that this history disclosed a series of periods of employment which were ‘entirely casual in nature’. While accepting that three of these periods were potentially capable of being characterised as regular and systematic, the appellant had only completed 15 weeks of employment for the purposes of s 382 of the Act and had not completed the six month minimum employment period. This finding meant that the appellant was not a person protected from unfair dismissal and therefore his application was dismissed.
PRELUDE TO APPEAL HEARING AND ADJOURNMENT REQUEST
[6] In the context of our consideration of this matter, it is necessary to briefly set out the chronology of events subsequent to the filing of the appellant’s appeal. The Commission’s usual appeal directions and notice of listing were issued by the presiding member of the Full Bench on 12 November 2018. Given the appellant failed to file the appeal book and the respondent expressed concern that the appellant would not comply with the Commission’s directions, Deputy President Sams listed the matter for conference and directions on 19 November 2018. The appellant failed to attend, or provide any explanation for his non-appearance at the listing. Shortly thereafter, the respondent filed an application, among other applications that were made, in which it sought to have the Full Bench dismiss the appeal, pursuant to s 400(1) and/or s 587 of the Act.
[7] On 26 November 2018, having failed to file any submissions in compliance with the directions of 12 November 2018 and the day before he was due to fly to Chile, the appellant sought an adjournment of his appeal on the grounds that he had to urgently attend to the care of his sick mother in Chile. He attached a copy of his airline ticket which disclosed he had purchased the airline ticket on 22 April 2018. The views of the respondent were sought on the adjournment request and Mr Taylor advised as follows:
“With respect to the email attached and request for adjournment, we object to the application and continue to press for the matter to be dismissed.
Furthermore, while we acknowledge that it is unusual for the FWC to award costs, we feel that this is an appropriate example of where costs could be awarded. We put the Appellant on notice that from this point forward, we will seek to recover costs through sections 400A (unreasonable acts or omissions), section 611 (2) (b) (no reasonable prospect of success), section 570 (refers to costs incurred during an appeal).
Our grounds for opposing the application for adjournment are as follows:
1. We are sympathetic to the Appellant and his family during this difficult time and hope that he can spend some quality time with his mother, whilst relieving his father.
2. We note that the airline ticket was purchased on 22nd April 2018. This flight was not some last-minute mercy dash to be with his sick mother, as the Appellant seeks to portray, but a well-planned trip. Throughout his appeal process the Appellant knew he was flying on 27th November 2018.
3. The flight is clearly booked for the 27th November 2018 – after Deputy President Sam’s clear instructions for the 26th November 2018 as the deadline. The timing of the flight is therefore completely irrelevant to the Appellant’s ability to meet the deadline.
4. It is unacceptable for the Appellant to seek an adjournment less than 24 hours before his flight to Chile. Again, he has known about this flight for many months and his leaving it to the last minute is deliberately designed to disadvantage us by removing time for us to respond appropriately.
For the Appellant to use his sick mother in Chile as an excuse to miss the Deputy President’s deadline is abhorrent to us. It is especially galling that the Appellant seeks to mislead the Deputy President when this is a well-planned trip that he has known about for 7 months.
We continue to ask the FWC to dismiss the case.” (underlining in original)
[8] The Full Bench refused the appellant’s adjournment application and given the circumstances, while sympathetic to the application to dismiss the appeal, we proposed to determine the appeal on the material before the Full Bench. Before doing so, we are bound to observe that it is entirely unsatisfactory for the appellant to have failed to inform the Commission at the time the directions were issued and the hearing listed, that he had booked a flight to Chile several months earlier and would be in Chile on the day he was required to file and serve his submissions and later to attend his appeal on 11 December 2018. We consider the respondent’s frustration and complaint as to the time and cost it has wasted in defending this matter to be understandable and well justified.
CONSIDERATION
[9] 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. 1 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[10] This appeal is one to which s 400 of the Act applies. 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.
[11] 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 judgment.3 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
[12] 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
[13] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 7
GROUNDS OF APPEAL
[14] The only material filed by the appellant which the Full Bench has before it is the Notice of Appeal. Under the heading Grounds of Appeal the appellant put (as written):
“Healthcare Australia, didn’t pay me for the cancelation of the shift on the 14th November 2017. I have found very unfair this decision. In one way they got away with the unfair dismissal and also didn’t pay me 4 hours for the cancelation of the shift”
[15] Under the section in the Notice requiring the appellant to address why it was in the public interest to grant permission to appeal, the appellant put (as written):
“Healthcare Australia, didn’t pay me for the cancelation of the shift on the 14th November 2017. I am entitle to get pay for a cancelation of shift, and the commissioner didn’t make any decision regarding this issue”
[16] The appellant has not identified any appealable error, let alone significant error, in the Decision, and has not raised any issue of importance or general application to the Commission’s unfair dismissal jurisdiction. He does not claim that the Decision manifests any injustice, or is counter-intuitive. In our view, the Decision does not disclose an application of any legal principles which are disharmonious with other comparable Commission decisions.
[17] In these circumstances, we are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s 400(1) of the Act, permission to appeal must be refused. We so order.
DEPUTY PRESIDENT
Appearances:
R Taylor on behalf of Healthcare Australia Pty Ltd.
Hearing details:
2018.
Sydney:
11 December.
Printed by authority of the Commonwealth Government Printer
<PR703556>
1 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
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, 197 IR 266 at [27]
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 388, 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]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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