Mr Leighton Cowley v Dust-A-Side Australia Pty Ltd
[2016] FWCFB 3220
•24 MAY 2016
| [2016] FWCFB 3220 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Dust-A-Side Australia Pty Ltd
(C2015/5818)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 24 MAY 2016 |
Appeal against decision [2015] FWC 2024 of Deputy President Asbury at Brisbane on 25 August 2015 in matter number C2015/186; permission to appeal granted; appeal upheld; decision at first instance quashed; jurisdiction to deal with dispute; rehearing of application; application dismissed.
[1] On 25 August 2015, Mr Leighton Cowley lodged an appeal under s.604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Asbury issued on 25 August 2015 1 (Decision). The Decision concerned Mr Cowley’s application (initial application) for the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Act in relation to his long service leave entitlements under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (CLSL Act).
[2] The application for permission to appeal and the appeal, were heard on 25 February 2016. An earlier hearing of the appeal listed for 7 October 2015 could not proceed because Mr Cowley did not attend.
Background
[3] Mr Cowley was dismissed from his employment with Dust-A-Side Australia Pty Ltd (Respondent) on 19 January 2015. Following the cessation of his employment, Mr Cowley applied to the Coal Industry Long Service Leave Corporation to access his long service leave on the basis that he had been retrenched by the Respondent. Mr Cowley was precluded from accessing his long service leave as the Respondent contended that he had been dismissed for reasons that did not include redundancy. Mr Cowley wanted the Respondent to agree that the termination of his employment was a retrenchment in accordance with the letter of termination with which he says he was provided when he was dismissed.
[4] The Deputy President dismissed the initial application on jurisdictional grounds. Her reasons for doing so were as follows:
“[44] It does not appear to be in dispute that Mr Cowley has less than eight years but more than six years eligible service in the Black Coal Mining Industry as defined in the LSL Act. It is also apparent that Mr Cowley's service with Dust-A-Side is qualifying service as defined in s. 39A of the LSL Act in that it has been credited to him by the LSL Corporation. What Mr Cowley seeks to agitate in this application is his allegation that Dust-A-Side has provided incorrect information to the LSL Corporation by stating that he was dismissed.
[45] I do not accept that in the circumstances of this case that the Commission has jurisdiction to deal with the dispute. The evidence demonstrates that Mr Cowley was verbally informed of his dismissal on 19 January 2015 and that it had already been effected at the point he raised the issue of his LSL entitlements with Mrs Coetzer. This is apparent from the email that Mr Cowley sent to Mrs Coetzer at 4.01 pm on 19 January 2015 which refers to the "termination". It is not in dispute that Mr Cowley was a casual employee. Accordingly he was not entitled to notice and even if it is accepted that the email communication and any discussion with Mrs Coetzer was sufficient to activate the operation of the Dispute resolution procedure in the Black Coal Mining Industry Award 2010, Mr Cowley could not commence a dispute under that procedure until after his employment was terminated.” 2 [Emphasis added]
[5] The Deputy President also considered the merits of the dispute as follows:
“[46] If I am wrong on the question of jurisdiction, I would not find in favour of Mr Cowley or grant him the relief sought in his application. The effect of granting the relief sought by Mr Cowley would be to Order or Recommend that Dust-A-Side provide specified information to a third party - the LSL Corporation. Any Order or Recommendation to that effect would not bind the LSL Corporation so that it was required to release the funds it holds on behalf of Mr Cowley.
[47] I am not satisfied that Mr Cowley has established a basis for an entitlement to the payment from the fund in any event. Mr Cowley has not provided evidence of his total service in the black coal mining industry to establish that the service with Dust-A-Side would make any difference to his right to claim a benefit from the LSL fund at this time.
[48] I am also not satisfied that Mr Cowley was retrenched. The evidence in support of this proposition is:
[49] Mr Cowley's evidence about the letter he claims to have received by post on 21 January 2015 is not convincing. Mr Cowley's evidence that he did not receive the version of the letter tendered by Dust-A-Side until 18 February when it was attached to the Company's response to his unfair dismissal application is also not convincing. In a covering email attached to his application to the Commission Mr Cowley states that he received that letter on 19 January 2015. Mr Cowley made no mention of having received the letter by post until the Conference in the Commission on 26 February.
Mrs Coetzer tendered an email sent to Mr Cowley on 19 January 2015 and provided a statutory declaration to the effect that the version of the letter tendered by Mr Hoskin was attached to that email and that she had not seen the version attached to Mr Cowley's application until after the first conference in the Commission. There is an email to Mrs Coetzer from Mr Cowley sent on 19 January 2015 almost immediately after her email to Mr Cowley and it is more probable than not that Mr Cowley's email was a response to Ms Coetzer's email attaching the Company's version of the termination letter. It is improbable that Mr Cowley decided to email Ms Coetzer within fifteen minutes of her email to him. I do not accept Mr Cowley's evidence in this regard.
[50] I make no finding that the letter tendered by Mr Cowley was falsified. Such an allegation is serious and requires cogent proof. In circumstances where the hearing in relation to Mr Cowley's application was conducted by telephone, it is not appropriate to make such a finding. Regardless of the authenticity of the version of the letter tendered by Mr Cowley, I am satisfied and find that he received the version of the letter emailed to him by Mrs Coetzer on 19 January 2010[sic] stating that his casual employment had been terminated.
[51] The fact that Mrs Coetzer made an error when she completed the first form that was submitted by her to the LSL Corporation, does not transform Mr Cowley's dismissal into a case of retrenchment. At no time has Dust-A-Side provided any information to the LSL Corporation stating that Mr Cowley was retrenched.
[52] The fact that there are new water carts on the site that Mr Cowley worked at does not establish that he was retrenched, even if the carts were purchased by Dust-A-Side. It is equally probable that – consistent with Mr Hoskin's evidence – the carts were hired rather than being purchased. The reference to new water carts could simply mean that they are new at the site and not that they have been recently purchased. The rosters tendered by Mr Cowley and the fact that his place may have been filled by an existing employee, does not establish that Mr Cowley was retrenched.
[53] For these reasons there is no basis for the Commission to make a Recommendation in the terms sought by Mr Cowley or to otherwise deal with the dispute subject of his application under s. 739 of the Act. That application is dismissed and an Order to that effect will issue with this Decision.” 3
The Grounds of Appeal
[6] In the Notice of Appeal, Mr Cowley disputes several aspects of the Deputy President’s findings, in particular [44], [47] to [51] and [53] of the Decision, contending that the Deputy President ignored his original evidence, particularly the version of the termination letter he tendered in the proceedings. We will describe these challenges to the Decision as “merits errors”.
[7] At the hearing of this appeal, we granted Mr Cowley permission to amend his Notice of Appeal to add an additional ground of appeal; that the Deputy President erred in determining that the Commission did not have jurisdiction to deal with the dispute. 4 The granting of permission was appropriate as it was obvious to us that Mr Cowley had not understood that his initial application was dismissed by the Deputy President on jurisdictional grounds.5
The Relevant Statutory Provisions and the Code
[8] The entitlement to long service leave in the black coal mining industry is provided for in Part 5A of the CLSL Act. Section 39CB deals with the payment of long service leave on cessation, as a result of redundancy, and s.39D provides for the Commission to deal with disputes relating to long service leave. Those sections provide as follows:
“39CB Payment on cessation–redundancy
(1) This section applies if:
(a) an employee ceases to be an eligible employee because he or she is made redundant; and
(b) at the time of so ceasing, the employee has completed a period, or periods, of qualifying service (being a period that is, or periods that add up to, at least 6 years) in respect of which the employee is not entitled to long service leave under this Part; and
(c) at any time after so ceasing, the employee requests the employer, in writing, to make a payment under this section.
(2) The employer must, within 30 days after the request is made, pay the employee no less than the amount that would have been payable to the employee under this Part had the employee:
(a) been entitled to long service leave for the period, or periods, of qualifying service; and
(b) taken that long service leave immediately before ceasing to be an eligible employee;
less any amount previously paid to the employee under this section.
(3) Subsection (2) is a civil penalty provision.
Note 1: Part 7A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: Division 4 of this Part provides other remedies for contraventions of civil penalty provisions.
39D FWC may deal with disputes relating to long service leave
(1) Despite subsection 595(1) of the Fair Work Act 2009, the FWC may deal with a dispute (an LSL dispute) about matters in relation to long service leave under this Part.
(2) For the purposes of the FWC dealing with an LSL dispute, the Fair Work Act 2009 applies as if:
(a) the dispute were a dispute in relation to the National Employment Standards; and
(b) subsection (1) of this section were a term referred to in section 738 of that Act; and
(c) a reference in subsection 739(5) of that Act to “this Act” were a reference to “the Coal Mining Industry (Long Service Leave) Administration Act 1992”.”
[9] Section 739 of the Act provides as follows:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[10] The dispute resolution provision in the Black Coal Mining Industry Award 2010 6(Award) is as follows:
“9. Dispute resolution
9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
9.2 If a dispute about a matter arising under this award, or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.
9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.
9.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.”
[11] The Award does not deal with the issue of long service leave.
The Appellant’s submissions
[12] Mr Cowley did not provide any written submissions beyond the Notice of Appeal. In that notice, Mr Cowley cited the following errors in the Decision:
• Paragraph [47] – the Deputy President erred in determining that he had not provided evidence of his total service in the industry, with Mr Cowley contending that he had provided such evidence. Mr Cowley also referred to paragraph [44] of the Deputy President’s decision.
• Paragraph [48] – Mr Cowley disputed the Deputy President’s findings set out in the dot points in this paragraph, contending that he had provided evidence that he had been retrenched, that his position had not been replaced and that he had been retrenched as a result of the purchase of two new water carts by the Respondent.
• Paragraph [49] – the Deputy President erred in finding that the Respondent had emailed the termination letter to Mr Cowley on 19 January 2015.
• Paragraph [50] – the Deputy President erred in not taking into account the copy of the termination letter he had tendered, despite making no finding that the letter was falsified.
• Paragraph [51] – Mr Cowley questioned how he could be dismissed for misconduct when the termination letter does not give a reason for his dismissal.
• Paragraph [53] – the Deputy President erred in ignoring the termination letter which he had tendered.
[13] Mr Cowley also relied upon the matters above as reasons for supporting the grant of permission to appeal.
[14] At the appeal hearing, Mr Cowley reiterated the aspects of the evidentiary material which he asserts the Deputy President did not take into account. In particular, Mr Cowley contended that the copy of the termination letter he had tendered to the Deputy President was not taken into account. 7 Mr Cowley also maintained that his employment had been terminated to make way for the new water carts8 and contended that the Deputy President erred in referring to his application as an unfair dismissal application.9 Mr Cowley also disputed that he was given the opportunity to cross-examine the Respondent’s witnesses in the hearing before the Deputy President.10
The Respondent’s submissions
[15] In its written submissions, the Respondent, relying on several authorities including the Full Bench decision in ING Administration Pty Ltd v Jajoo, Ramsin, 11 submitted that the Deputy President did not err in her decision to dismiss Mr Cowley’s application for want of jurisdiction. The Respondent further submitted that the Deputy President did not fall into error in making the findings set out at [46]-[52] of the Decision. As to the issue of permission to appeal, the Respondent contended that the public interest was not enlivened in this matter and that permission to appeal should not be granted.
[16] At the hearing, the Respondent accepted a proposition from the Bench that the dispute was brought pursuant to a conferral of jurisdiction under the CLSL Act and not under the dispute resolution procedure of the Award. Against that background, the Respondent indicated at the hearing that it would not press its jurisdictional submissions. 12 As to the merits errors contended by Mr Cowley, the Respondent submitted that the Deputy President considered the relevant evidence, and reached conclusions about issues agitated by Mr Cowley which were reasonably open to her based on that evidence, adding that in doing so the Deputy President did not make any appealable errors.
Permission to appeal
[17] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. An appeal may only be made with the permission of the Commission; there is no right to appeal. Section 604 of the Act provides:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
[18] If we are satisfied that it is in the public interest to do so, we must grant permission to appeal.
[19] Assessing whether the public interest is enlivened is discretionary, involving a broad value judgement. 13 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,14 the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[20] Otherwise, the grounds for granting permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 15
[21] As the appeal in this case raises an issue of importance and general application surrounding the resolution of disputes about long service leave in the black coal mining industry which has not been the subject of Full Bench consideration, since the 2011 amendments to the CLSL Act, we are satisfied that it is in the public interest for permission to appeal to be granted, and we do so.
Merits of the appeal
[22] We turn now to consider each of the grounds of appeal.
Jurisdictional ground
[23] As previously noted, s.39D of the CLSL Act confers power on the Commission to deal with a dispute about matters in relation to long service leave under Part 5A of the CLSL Act. That section was enacted through the passage of the Coal Mining Industry (Long Service Leave) Legislation Amendment Bill 2011 (Bill).The Explanatory Memorandum to the Bill provides as follows in respect of s.39D:
“97. Clause 39D gives FWA jurisdiction to deal with an LSL dispute arising under Part 5A. FWA's jurisdiction here is modelled on FWA's power to deal with a dispute about the National Employment Standards.” (Emphasis added)
[24] As earlier noted, s.39CB, which is found in Part 5A, sets out the circumstances in which a person is eligible for a long service leave payment in the event of a cessation of employment because of redundancy, and the obligation of an employer to make a long service leave payment to a person, in that event.
[25] As the dispute initiated by Mr Cowley related to the payment of his long service leave on the cessation of his employment with the Respondent, as a result of (on his contention) redundancy, it was a dispute relating to long service leave under Part 5A of the CLSL Act. The dispute concerned two issues: first, whether Mr Cowley ceased “to be an eligible employee because he…is made redundant” 16 and secondly, if so, whether the Respondent was liable to make the long service leave payment. Accordingly, it was a dispute contemplated by s.39D of the CLSL Act. The Deputy President had jurisdiction to deal with the dispute, not by reason of clause 9 of the Award (as she correctly concluded) but as a consequence of s.39D of the CLSL Act. As s.39CB deals with the entitlement to long service leave following the cessation of employment due to redundancy, s.39D has the practical effect of not excluding disputes which arise following the cessation of employment from the Commission’s jurisdiction to deal with a dispute under s.739 of the Act. More specifically, s.39D has the effect of:
• amending s.738 of the Act so that a dispute about coal industry long service leave was a dispute in relation to the NES and to include s.39D(1) as a term; and
• amending the reference to “this Act” in s.739(5) of the Act such that it were a reference to the CLSL Act.
[26] Disputes about an entitlement to long service leave in circumstances of redundancy in the black coal mining industry under the CLSL Act will invariably arise following the cessation of employment. The entitlement is only then crystallised.
[27] Accordingly, we consider that the Deputy President erred in determining that the dispute was initiated under the dispute resolution clause of the Award. It was a dispute to which s.39D of the CLSL Act applied and the Deputy President had jurisdiction to deal with it.
Merits Errors
[28] An analysis of the Notice of Appeal and Mr Cowley’s oral submissions identifies three errors on which he relies:
(i) the Deputy President did not take into account the copy of the termination letter he tendered;
(ii) he was retrenched to make way for the new water carts; and
(iii) his position had not been filled following the termination of his employment.
[29] We will deal with each of these below.
[30] First, as to Mr Cowley’s contention about the first termination letter, we consider that on any reading of [49] to [50] of the Decision, it is clear that the Deputy President considered the version of the termination letter relied on by Mr Cowley. However, the Deputy President found Mr Cowley’s evidence in this regard unconvincing, and ultimately was satisfied that Mr Cowley had received the termination letter emailed to him by the Respondent on 19 January 2015. That letter read as follows:
“Dear Leighton,
Re: Your employment with Dust-A-Side Australia Pty Ltd (Dust-A-Side)
Further to the verbal notification provided to you this morning, this letter serves to inform you that your casual employment with Dust-A-Side has been terminated with effect from 19 January 2015. You will therefore not be required to return to work for your next rostered shift due on 23 January 2015.
Your final pay and any outstanding accrued entitlements will be processed on Wednesday 21st January has part of the usual fortnightly payroll period.”
[31] The version of the letter relied on by Mr Cowley was, in content, identical to the text above but the subject matter under the salutation was different in that the word “retrenchment” appeared between the words “Your” and “employment”.
[32] The material before the Deputy President also included an email sent by Mr Cowley on 19 January 2015 to Ms Coetzer of the Respondent. 17 The email was sent in response to Ms Coetzer’s earlier email to Mr Cowley forwarding him a copy of the above termination letter.
[33] Based on the material before us, we consider that the Deputy President had regard to Mr Cowley’s evidence on this issue but preferred the Respondent’s evidence on the matter for the reasons outlined in [49] to [50] of the Decision. We do not detect any error in the Deputy President’s finding in this regard.
[34] Turning next to Mr Cowley’s contention that he was retrenched to make way for the new water carts, the material before the Deputy President was:
• Mr Hoskin’s (the Respondent’s General Manager) statutory declaration stating that the Respondent never purchased two new water carts;
• Mr Hewitt’s (the Respondent’s Site Manager) statutory declaration 18 stating that, in verbally advising Mr Cowley on 19 January 2015 that his contract was being terminated, he did not mention that Mr Cowley was being retrenched or that the Respondent was purchasing new water carts, as all of its vehicles were on hire; and
• copies of two emails provided to the Deputy President by Mr Cowley which both refer to the new 773 water cart, the first is an email of 20 January 2015 from Mr Hewitt which states “Herewith the new roster and crews for the next three months based on our operational needs with the new 773” 19 and the second, an email from the Respondent’s Mr Des Heatherton which states “In preparation for the arrival of the new 773 water cart, we need to undertake challenge testing with Mt Arthur training department.”20
[35] At the appeal hearing, Mr Cowley essentially reiterated the submissions made in the proceedings before the Deputy President.
[36] We observe that there is nothing in either of the two emails provided to the Deputy President by Mr Cowley which supports an inference, let alone a conclusion, that he was being displaced by the arrival of the new water carts or that the Respondent had purchased those water carts. We do not discern any error by the Deputy President. Indeed, the Deputy President’s analysis at [52] of the Decision, on the issue of the water carts, seems to us to be correct given the evidence before her. We would come to the same view.
[37] As to the third of Mr Cowley’s contentions that his position had not been filled following the termination of his employment, during the hearing before the Deputy President, Mr Cowley relied on the rosters for January 2015 which he submitted, indicated that another operator, Mr Berggren, had commenced work prior to 18 January 2015, contrary to the Respondent’s submissions. Mr Hoskin’s statutory declaration indicates that Mr Cowley’s role had been filled by another operator, adding that there were 12 operators in the pay period 5-17 January 2015, and 12 operators in the following pay period. At the hearing before the Deputy President, Mr Hoskin submitted that Mr Berggren had been on personal leave from October 2014 and that he undertook training in the week prior to recommencing as an operator on 18 January 2015. 21 On the basis of the evidence before the Deputy President, we cannot identify any error in [52] of the Decision. The Deputy President’s conclusion that the rosters tendered by Mr Cowley and the fact that his place may have been filled by an existing employee, did not establish that Mr Cowley was retrenched, was in our view reasonably open on the material before the Deputy President. We would come to the same view.
[38] Finally, we deal with Mr Cowley’s contentions earlier noted that the Deputy President erred at [49] of the Decision when she referred to his application as an unfair dismissal application, and that he was not given the opportunity to cross-examine the Respondent’s witnesses in the hearing before the Deputy President. While the reference to “his unfair dismissal application” at [49] of the Decision is clearly incorrect, nothing material turns on the error. The incorrect reference does not affect the validity of the Deputy President’s reasoning and findings. As to the second issue raised by Mr Cowley, this is not supported by the transcript of 24 March 2015, 22 which indicates that the Deputy President offered to convene a hearing in person to enable Mr Cowley to cross-examine Mr Heatherton regarding his statutory declaration. However, Mr Cowley was unable to attend. When the transcript was brought to Mr Cowley’s attention in the proceedings before us, he had little to say other than he did not think it would have been with Mr Heatherton. 23
[39] In summary, we are not persuaded that Mr Cowley’s “merits errors” grounds identify any error by the Deputy President in dealing with the initial application.
Re-hearing
[40] As noted above, appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. The Decision was attended by error because the initial application was dismissed erroneously on jurisdictional grounds. On a re-hearing, we find that the Commission has jurisdiction to deal with the dispute. Having considered the material before the Commission, and for the reasons discussed in our analysis of the “merits errors” advanced by Mr Cowley, we are satisfied that Mr Cowley was dismissed for reasons that did not include redundancy. He was not retrenched by the Respondent. No entitlement under s.39CB of the CLSL Act to a long service leave payment is enlivened by the dismissal. We determine the dispute accordingly and we dismiss Mr Cowley’s initial application.
Conclusion
[41] For the reasons given above, we:
(i) grant permission to appeal;
(ii) uphold the appeal;
(iii) quash the Deputy President’s Decision in [2015] FWC 2024;
(iv) quash the order in PR571246; and
(v) on a re-hearing we:
(a) find that the Commission had jurisdiction to deal with the dispute;
(b) find that Mr Cowley was dismissed for reasons that did not include redundancy and that he was not retrenched by the Respondent. Therefore, no entitlement to payment of long service leave under s.39CB of the CLSL Act arises; and
(c) dismiss Mr Cowley’s initial application.
[42] An Order dismissing Mr Cowley’s application is separately issued in PR580608.
DEPUTY PRESIDENT
Appearances:
Mr L. Cowley (the Appellant) on his own behalf.
Mr B. Cooper, Solicitorfor Dust-A-Side Australia Pty Ltd.
Hearing details:
2016.
Brisbane.
February 25.
1 [2015] FWC 2024.
2 [2015] FWC 2024 at [44]-[45].
3 Ibid at [46]-[53].
4 Transcript at PN120.
5 Transcript PN98 – PN117.
6 MA000001.
7 Transcript PN13.
8 Transcript PN63.
9 Transcript PN62.
10 Transcript PN159 – PN164.
11 [2006] AIRC 773.
12 Transcript at PN150.
13 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [6].
14 [2010] FWAFB 5343 at [27].
15 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [7].
16 s.39CB(1)(b) of the CLSL Act.
17 Appeal Book: Statutory Declaration by Mr Neil Hoskin of 16 March 2015 at Item#06.
18 Appeal Book: Statutory Declaration by Mr Neil Hoskin of 16 March 2015 at Item#02.
19 Appeal Book: Email of 24 March 2015 a 4.17pm from Mr Cowley to Chambers – Asbury.
20 Appeal Book: Email of 24 March 2015 a 5.53pm from Mr Cowley to Chambers – Asbury.
21 Transcript of 24 March 2015 at PN143 - PN149.
22 Ibid at PN121 - PN131.
23 Transcript of 25 February 2016 at PN196 - PN197.
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