Mr Paul Kumnick v The Dynamic Engineering Solution Pty Ltd
[2024] FWCFB 439
•20 NOVEMBER 2024
| [2024] FWCFB 439 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Paul Kumnick
v
The Dynamic Engineering Solution Pty Ltd
(C2024/7293)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 20 NOVEMBER 2024 |
Appeal against decision [2024] FWC 2584 of Commissioner Thornton dated 24 September 2024 at Adelaide in matter number C2024/3910 – permission to appeal refused.
Mr Paul Kumnick has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a Decision[1] of Commissioner Thornton issued on 24 September 2024. In the Decision, the Commissioner declined to grant Mr Kumnick an extension of time to file a general protections application against the Respondent, The Dynamic Engineering Solution Pty Ltd. The Commissioner ordered that Mr Kumnick’s application be dismissed.
The matter was listed for permission to appeal only. For the reasons that follow permission to appeal is refused.
Context
Mr Kumnick’s general protections application was made pursuant to s 365 of the Act. Section 366(1) requires that a general protections dismissal application must be made within 21 days after the dismissal took effect. However, the Commission may allow a further period beyond 21 days if it is satisfied that there are exceptional circumstances warranting an extension of time for making the application, taking into account the matters set out in s 366(2).
Mr Kumnick’s application was filed on 10 June 2024. The date of dismissal recorded in Mr Kumnick’s application is 13 May 2024, which reflects the date Mr Kumnick sent an email to the Respondent stating: “I tender my resignation effective end of shift today”.[2] Mr Kumnick later contended his effective date of dismissal was 24 May or 27 May 2024.
If the effective date of dismissal is 13 May 2024, the Decision records that the application was filed 7 days outside of the statutory time limit and could only proceed if the Commission granted an extension of time for the filing of the application. Accordingly, the Decision considered and determined the following two threshold matters:
1. What was the date of Mr Kumnick’s alleged dismissal?
2. If the date of alleged dismissal was 13 May 2024, were there exceptional circumstances warranting an extension of time?
Decision under appeal
Mr Kumnick argued that the termination of his employment did not take effect until two weeks after he sent an email notifying the Respondent of his resignation. Mr Kumnick submitted that the Respondent had unlawfully deducted money from his final pay, and this had the effect of extending the period of notice to reflect the notice required under the Manufacturing and Associated Industries and Occupations Award 2020 (the Award).
The Commissioner rejected this argument and made the following finding:
“Mr Kumnick resigned on 13 May 2024. That is the date of termination. The withholding or failure to pay wages or entitlements has no bearing on the date of termination of employment.”[3]
Having found that the termination occurred on 13 May 2024, the Commissioner went on to consider whether there were exceptional circumstances under s 366(2) that warranted an extension of time. The Commissioner made the following findings:
Mr Kumnick’s reasons for delay were that he miscalculated the date and felt ‘burnt out’.[4] The reasons for delay weighed against a finding of exceptional circumstances.
Mr Kumnick did not take any actions after his resignation to dispute his alleged dismissal.[5] This weighed against a finding of exceptional circumstances.
There was no prejudice to the Respondent and this factor was therefore a neutral consideration.[6]
It would not be fair to other applicants to allow an extension of time for a mistake or error.[7]
In addition, the Commissioner found that Mr Kumnick’s case lacked merit because, on the evidence before her, it appeared Mr Kumnick had voluntarily resigned and therefore his application was likely to fail for jurisdictional reasons. The Commissioner rejected the position that Mr Kumnick’s alleged underpayment claim meant he had no other option than to resign:
“[Mr Kumnick] could have continued to persist with resolving the dispute directly with his employer, made a complaint to the Fair Work Ombudsman or otherwise pursued an underpayment of wages claim in a relevant Court.”[8]
Taking into account the above matters the Commissioner found that there were no exceptional circumstances warranting an extension of time and the application was dismissed.[9]
Permission to appeal
Mr Kumnick seeks permission to appeal the Decision under s 604 of the Act. There is no automatic right to appeal a decision, and an appeal may only be made with the permission of the Commission.
A hearing to determine whether to grant 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.[10] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. Not all errors are appealable errors. An appealable error in relation to a discretionary decision (such as the Decision before us) is an error in the decision-making process.[11]
Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] The public interest is not satisfied simply by the identification of error or a preference for a different result.[13] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[14]
Grounds for appeal
Mr Kumnick advanced multiple grounds of appeal in the attachment to his Notice of Appeal, that he expanded on in oral submissions. These grounds can be summarised as follows:
Firstly, Mr Kumnick contends that the Commissioner made several errors of fact relating to findings on pay and hours of work.[15]
Secondly, Mr Kumnick contends the Commissioner erred in finding the effective date of dismissal was 13 May 2024, as opposed to after a period of notice specified by the Award or specified in his contract of employment (11 June 2024).[16]
Thirdly, Mr Kumnick contends the Commissioner erred by failing to find that a “without prejudice” offer he made in a case management conference before the Commission was not “action” to dispute his dismissal.[17]
Fourthly, Mr Kumnick contends that the Commissioner made further errors in finding that his substantive case lacked merit. Mr Kumnick contended that the Commissioner erred in finding he had other options besides resigning[18] and that his termination should not be likened to the case of Bruce v Fingal Gelen Pty Ltd (in liquidation)[19] because late payment is different to no payment. Mr Kumnick further contended the Commissioner failed to give sufficient weight to the Respondent’s alleged breaches of the Award and general protections provisions and erred by finding that the Respondent continued to try to resolve the pay dispute, just not in “the most efficient way and not to Mr Kumnick’s satisfaction”.[20]
Mr Kumnick contends that there is public interest to grant permission to appeal because there is a lack of clarity and case law relating to date of termination when an Award notice period applies,[21] and further, there is public interest in upholding Award provisions relating to ordinary hours and the 38 hour week; including ensuring these provisions are not undermined by the use of the Facilitative Arrangements or otherwise.[22]
Fresh evidence
Mr Kumnick sought to rely upon fresh evidence in the appeal, in the form of timesheets. These documents had not been before the Commissioner at first instance.
Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information” on appeal, however it is by no means a matter of course that it will do so. Generally, the appellant or the person who wants to adduce the fresh evidence must establish that the fresh evidence could not have been reasonably obtained for use at the first hearing, has a such a high degree of probative value that there is a probability that there would have been a different result at first instance, and must be credible.[23]
Mr Kumnick submitted that he had not relied upon the timesheets at first instance because it only became apparent during the hearing that the Respondent was arguing it paid 7.6 hours a day regardless of timesheets. Mr Kumnick argued the further material was relevant to his grounds for appeal relating to notice and the effective date of dismissal, including whether he was forced to resign.
Noting it is not in dispute that the evidence is credible, on balance we have decided to admit the timesheets into evidence. We are prepared to accept that the material may bear upon the question of permission to appeal, noting that the fresh evidence is said to support arguments advanced by Mr Kumnick at first instance and which are addressed in his appeal grounds.
Consideration
Having considered the fresh evidence, we do not consider it appropriate to grant permission to appeal for the following reasons.
Grounds 1 and 2
In determining the effective date of dismissal and whether an extension of time was warranted, the Commissioner did not need to make, and indeed, did not make, any binding determination in relation to Mr Kumnick’s pay and hours. The Commissioner expressed a preliminary view at [24] that it was “likely” that the Respondent paid Mr Kumnick 7.6 ordinary hours per day, such that he was correctly paid ordinary time of 30.4 hours in his last pay period. This preliminary view was qualified in the Decision:
“It is not necessary that I make factual findings about what Mr Kumnick ought to have been paid to address his argument that any withholding or deduction has an effect on the date of the termination of his employment.”
In circumstances where the Commissioner’s preliminary view did not form part of her dispositive reasoning in relation to two issues for determination in the Decision, no arguable case of appealable error arises.
Nor do we consider it to be arguable that the Commissioner erred in finding that the date of termination was 13 May 2024. Whether an employment relationship has been terminated and the date this termination occurred is a question of fact.[24] The Commissioner’s finding that the employment relationship terminated on 13 May 2024 was clearly open on the factual evidence before her, which included Mr Kumnick’s written notice of resignation, and the fact he did not return to work after 13 May 2024.
If, as Mr Kumnick alleges, the Respondent has unlawfully withheld notice or other entitlements, Mr Kumnick may have one or more causes of action available to him to remedy the deficiency. However, in relation to his general protection application, alleged underpayments do not invalidate, or render void the termination of the employment.[25]
Grounds 3 and 4
The consideration at s 366(2)(b) of the Act relating to action taken by an applicant to dispute the dismissal will, almost invariably, go to actions taken by an applicant before the filing of the application. This is because where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested.[26] Accordingly, Mr Kumnick’s “without prejudice” offer of settlement made after the filing of the application was not a relevant consideration for the Commissioner. Ground 3 reveals no arguable appealable error.
Nor are we persuaded that Mr Kumnick’s contentions in relation to ground 4 demonstrate any arguable errors in the exercise of the Commissioner’s discretion. Mr Kumnick’s submissions in relation to the Commissioner’s finding about merit broadly contend that the Commissioner should have reached different conclusions or attributed weight to other matters. Far from demonstrating arguable error, these contentions simply seek a different result and do not provide a basis for appellate review.
On the evidence before the Commissioner, the finding that it was likely Mr Kumnick voluntarily resigned and therefore that the case lacked merit, was reasonably open to the Commissioner. Even with regard to the fresh evidence before the Full Bench, we remain of the view that there was an evidentiary foundation for the Commissioner’s finding.
Public interest
We are not satisfied that the grant of permission to appeal would be in the public interest. There is already clear authority confirming that the date of termination of the employment relationship is a question of fact, and failure to abide with notice requirements will not invalidate the termination.[27] While we agree with Mr Kumnick that upholding Award standards, including in relation to hours of work is in the public interest, that is not a matter which was determined in the Decision. As set out above, this Decision went to the effective date of dismissal and extension of time only. Mr Kumnick’s application was determined on the basis of its own particular facts and does not manifest any injustice. Nor does the appeal raise any issue of law or principle that might have a wider application for the purposes of s 604(2) of the Act.
Orders and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
P Kumnick on his own behalf.
T Birss of Birss Workplace Law for the respondent.
Hearing details:
2024.
Melbourne (by video):
November 7.
[1] [2024] FWC 2584 (the Decision)
[2] Decision at [13]
[3] Decision at [29]
[4] Decision at [37]
[5] Decision at [43]
[6] Decision at [45]
[7] Decision at [60]
[8] Decision at [52]
[9] Decision at [61-62]
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[11] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; 203 CLR 194; 99 IR 309 at [21]
[12] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[15] Attachment to Notice of Appeal (Grounds for Appeal) at [1]-[4]
[16] Grounds for Appeal at [5]
[17] Grounds for Appeal at [6]
[18] Grounds of Appeal at [7]
[19] [2013] FWC 3941
[20] Grounds of Appeal at [8]-[9]
[21] Grounds of Appeal at 3.1.1 and 3.1.3.1
[22] Grounds of Appeal at 3.1.3.1 and 3.1.3.2
[23] Akins v National Australia Bank [1994] 34 NSWLR 155, cited in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936
[24] Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [32]
[25] Ibid
[26] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
[27] Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878
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