Mr Kyriakos Zapantis v Coles Supermarkets Australia Pty Ltd
[2022] FWC 3339
•22 DECEMBER 2022
[2022] FWC 3339
The attached document replaces the document previously issued with the above code on 22 December 2022.
The name of the Respondent is corrected from “Coles Supermarkets Australian Pty Ltd” to “Coles Supermarkets Australia Pty Ltd”
Associate to Commissioner Cirkovic
Dated 23 December 2022
| [2022] FWC 3339 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision
Mr Kyriakos Zapantis
v
Coles Supermarkets Australia Pty Ltd
(C2022/7264)
| COMMISSIONER CIRKOVIC | MELBOURNE, 22 DECEMBER 2022 |
Application to vary or revoke a FWC decision.
On 2 November 2022, Mr Kyriakos Zapantis (Applicant) made an application pursuant to s.602 and/or s.603 of the Fair Work Act 2009 (Act) to vary or revoke paragraphs 91 and 93 of the decision of the Fair Work Commission (Commission) as presently constituted in Kyriakos Zapantis v Coles Supermarkets Australia Pty Ltd [2022] FWC 2707 (Decision).
The relief sought in the application is as follows:
“1. The Commission correct the un-numbered paragraph on page 25 of the liability decision published as [2022] FWC 2707 by Cirkovic C on 11 October 2022 (‘Decision’), by:
(a) deleting ‘2022, 29 October’ and
(b) substituting ’29 September’ in its place.
2. The Commission:
(a) vary; and (or alternatively)
(b) revoke,
paragraphs [91] and [93] of the Decision.
3. Such further or other orders as the Fair Work Commission deems fit.”
The grounds for relief set out in the application are as follows:
“Correction
1. The hearing of the Applicant's unfair dismissal application occurred on 29 September 2022 ('Hearing').
Variation and/ or revocation
2. On 11 October 2022, following the Hearing, the Commission published written reasons.
3. In the Commission's liability decision published as [2022] FWC 2707 ('Decision') the Commissioner made an identifiable error. That initial error was in paragraph [91] of the Decision.
4. The paragraph provides (in full):
[91] I have taken into account that the Applicant was paid 5 weeks notice.
[underlining added, not in original]
5. It was not in dispute during the hearing that the Applicant was provided with 5 weeks' notice of his forthcoming termination of employment: see the Commission-prepared Court Book ('CB') at page 405, at [54] It does not appear (having regard to the documents which the Respondent included in the Commission-prepared Court Book) that the contents of paragraph [91] was based upon a submission made, or otherwise a part of the Respondent's case.
6. By contrast, the Applicant tendered pay and wage records, which provide the amounts paid to him during the period from 27 April 2022 to his termination on 1 June 2022.
7. Upon a proper construction of the pay records at CB349-362, comprising Exhibit KZ-3, it is clear that:
(a) the Applicant received amounts, including a period of hours' pay based upon 'Term A LSL' and Term Marginal Ann Lve'. These are the clearly correspond to (respectively):
(i)the Applicant's long service leave balance; and
(ii)the Applicant's accrued annual leave balance;
(b) such amounts paid to him, were deductions from the Applicant's LSL and AL balances, and in no way to be regarded as a 'payment of' or in lieu of notice. Based upon Exhibit KZ-3, and the lack of other material put by the Respondent, it is tolerably clear that such payment or payments did not occur.
8. Accordingly, to the extent that the Commissioner concluded otherwise (including in paragraph [93] of the Decision, this ought to be varied or revoked.
9. The Applicant says that the initial error of [91] means that the Commissioner's conclusion in paragraph [93] of the Decision is not sustainable, and should likewise be the subject of varying or alternatively revocation.”
Directions for the filing of material were issued to the parties on 22 November 2022 including a request for the matter to be determined on the papers. As neither party objected to the matter being determined on the papers, I have come to my decision on the basis of the written material before me.
Set out below are the reasons for my decision.
Background
It is of assistance at this juncture to briefly set out the history of this matter.
Original Decision
On 11 October 2022, I issued a Decision determining that the Applicant’s dismissal from his employment by the Respondent was not harsh, unjust, or unreasonable,[1] and as a consequence was not unfair.
Briefly stated, I determined at paragraph [61] of the Decision, as set out below, that the Respondent had two separate valid reasons to terminate the Applicant’s employment.
“[61] For the reasons given, I am satisfied that the Respondent had two separate valid reasons to terminate the Applicant’s employment. Firstly, for his failure to comply with a lawful and reasonable direction to comply with the Respondent’s Vaccination Policy (Reason 1). Secondly, because by refusing to comply with the CHO Directions, he was unable to fulfil the inherent requirements of his role (Reason 2). The Applicant chose not to become vaccinated, at least in part because of concerns relating to the safety of the vaccine, as he stated he did not “believe in medical apartheid”, that it was “a trial vaccine until 2023”, and that “when all the data is in, [he would] be able to make an informed decision at that time.”[2] The Respondent was required to comply with the CHO Directions and a failure to do so left it exposed to significant financial penalty. The Applicant was of course within his rights to decline to be vaccinated or provide the Respondent with evidence that he had a valid medical exemption. He did neither. For these reasons, the Respondent had a sound, defensible and well-founded reason to terminate the Applicant’s employment.”
At paragraph [64] of the Decision, I considered s.387(b) of the Act and determined that “In all the circumstances before me, I am satisfied that the Applicant was notified in substance of this reason for termination.”
As to s.387(c), I determined at paragraph [70] that “Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to his capacity.”
Sections 387(d) and (e) were considered and deemed not relevant in the circumstances of the case. I considered the impact of ss.387(f) and (g) at paragraph [73] of the Decision.
At paragraphs [74] to [91], I considered a range of matters as to any other potential elements of unfairness. Having considered all relevant matters, I concluded at paragraphs 92 to 96 that:
“[92] Finally, I have taken into account the Applicant’s submissions that the termination was harsh on account of his personal circumstances, including his long-standing employment with the Respondent, which appears to be largely unblemished, his age, his medical condition, and the difficulty he is likely to encounter in securing further work. I accept that the loss of his employment has resulted in significant distress and financial burden. However, I do not consider the circumstances before me render the termination harsh. The Applicant chose to remain unvaccinated. He did not present a valid medical exemption. His views on the safety of the vaccines are no doubt genuinely held beliefs. That said, at the time of termination, the Respondent was obliged to comply with the law and faced significant penalty if it failed to do so. Further, the direction issued to the Applicant pursuant to the Vaccination Policy was both lawful and reasonable.”
Conclusion
[93] After considering each of the matters specified in section 387 of the Act, my assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to terminating his employment.”
[94] The Applicant was provided with ample opportunity to provide evidence of having been vaccinated or provide a valid medical exemption but did not do so.
[95] The Respondent conducted a fair and thorough process in all the circumstances and was respectful of the Applicant’s concerns. However, ultimately the Applicant was both unable to meet the inherent requirements of his role and failed to follow a lawful and reasonable direction to comply with the Respondent’s Vaccination Policy.
[96] I appreciate that this is disappointing for the Applicant after such a lengthy period of service, but I am satisfied that his dismissal by the Respondent was not unfair. The application is dismissed.”
Submissions
The Applicant seeks the deletion of 29 October 2022 and the insertion of 29 September 2022 on the last page of the Decision. There is no dispute that the hearing was on 29 September 2022.
Further, the Respondent seeks two corrections to the Decision. First in paragraph [37], to substitute the words “the Department” with “the Respondent”, and second in paragraph [81], to substitute the words “Ms Dee” with “Ms Chipungu”.
In my view the above amendments are capable of correction pursuant to s.602 of the Act and are appropriate. I exercise my discretion to make the amendments sought.
I now turn to consider paragraph [91] of the Decision, which states:
“[91] I have taken into account that the Applicant was paid 5 weeks notice.”
The Applicant characterises the sum of monies received as a “deduction” from the Applicant’s long service leave and annual leave entitlements and asserts that the amounts paid to him cannot be regarded as a “payment of” or “in lieu of” notice of termination.[3] As such, the Applicant relies on s.603 in support of its assertion that it is necessary for the Commission to “vary and/or alternatively revoke, paragraph [91].” The Applicant submits it follows, that the conclusion at paragraph [93], reproduced above at paragraph [12], is not sustainable and urges the Commission to revoke or vary paragraph [93] of the Decision.
The Respondent submits that the Applicant’s 5 week period of notice of termination was “taken as long service leave and paid accordingly” and in essence asserts that the appropriate manner of dealing with the matter is to delete paragraph [91] of the Decision in its entirety.
Further, the Respondent submits that the finding at paragraph [91] is “an entirely incidental matter”[4] to the core considerations of whether the dismissal was harsh, unjust, or unreasonable and as such “there is no logical connection between the technical error at paragraph [91] of the Decision and the ultimate finding in paragraph [93] that the Applicant was not unfairly dismissed.
The Respondent also submits that the Applicant, indirectly seeks an appeal under s.604 of the Act “that is out of time and which would otherwise have no proper basis.”[5]
For completeness I note that the parties filed submissions primarily focused on the powers of the Commission to correct, amend, vary or revoke its decisions pursuant to ss.602-603 of the Act. In the interest of efficiency I have not restated the submissions of the parties but have taken them into account in coming to my decision.
Relevant Legislation
The following legislation is of relevance to the current matter:
“FAIR WORK ACT 2009 - SECT 602
Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
…
FAIR WORK ACT 2009 - SECT 603
Varying and revoking the FWC's decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2-3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);
(c) a decision under Part 2-5 (which deals with workplace determinations);
(d) a decision under Part 2-6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”
Consideration
As stated above, s.602 of the Act permits corrections and amendments to “any obvious error, defect or irregularity” and I exercise my discretion to make the amendments referred to at paragraphs [13] to [15] above.
In my view, a proper reading of s.603 is that it confers power to the FWC to “vary or revoke a decision of the FWC” . I observe first that the finding at paragraph [91] of the Decision relates to the reasons for my decision that Mr Zapantis’ termination was not harsh, unjust or unreasonable and as such was not unfair. In those circumstances, in my view paragraph [91], does not fall within the range of matters capable of variation and/or revocation by s.603 of the Act.
Even if I am wrong, I am not persuaded by the Applicant’s submission that “the initial error of [91] means that the Commissioner's conclusion in paragraph [93] of the Decision is not sustainable, and should likewise be the subject of varying or alternatively revocation.”[6]
I have considered the role of paragraph [91] in the Decision. It is not apparent to me that there is a connection between the nature of the payment received by the Applicant during the notice period and my findings that there was a valid reason for termination, that the Applicant was afforded procedural fairness and that the termination was not harsh, unjust or unfair and ultimately that the dismissal was not unfair. As such, I do not consider that the Applicant has substantiated its submission that the finding at paragraph [93] cannot be sustained.
I consider that in the circumstances before me, the question of how the notice of termination was provided to the Applicant has little bearing on my findings prescribed by s.387 as to whether the termination of the Applicant’s employment was harsh, unjust or unreasonable and whether the dismissal was unfair. Paragraph [91] is one of a range of matters that I took into account in arriving at my decision that the Applicant’s dismissal was not harsh, unjust or unreasonable, and therefore not unfair.
In my view, even if a variation to paragraph [91] was a variation contemplated pursuant to s.603, or paragraph [91] is an obvious error that falls within my discretion under s.602, it is not apparent to me from the Applicant’s submissions that there is any justification to correct, amend, vary, or revoke the conclusion at paragraph [93] of the Decision.
Finally, I agree with the Respondent’s submission that s.603 of the Act “cannot be used as a circuitous device to appeal a decision, with such appeals falling squarely within the remit of section 604 of the Act, particularly in circumstances where the time limit for appealing a decision has lapsed.”[7] I note that the application before me was made one day after the 21-day deadline for appeal of the Decision had lapsed.
Conclusion
Given my findings at paragraphs at [13] – [15] above, I consider it appropriate pursuant to s.602 of the Act to:
Change the hearing date from 29 October to 29 September appearing on the final page of the Decision;
Substitute the words “the Department”, with “the Respondent” in paragraph [37]; and
Substitute the words “Ms Dee”, with “Ms Chipungu,” in paragraph [81].
An Order[8] will be issued separately to give effect to this decision.
COMMISSIONER
Hearing details:
Determined on the papers.
Final written submissions:
Submissions received by the Applicant on 29 November 2022.
Submissions received by the Respondent on 6 December 2022.
[1] Decision at [23].
[2] DCB page 430.
[3] Applicant’s Form F1, Question 2.2, paragraph 7(b).
[4] Respondent submissions, paragraph 34.
[5] Respondent submissions, paragraph 40.
[6] Applicant’s Form F1, Question 2.2, paragraph 9.
[7] Respondent submissions, paragraph 30.
[8] PR749104.
Printed by authority of the Commonwealth Government Printer
<PR749103>
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