Mr Peter Gourdeas v Heyday 5 Pty Limited T/A Heyday
[2021] FWCFB 494
•2 FEBRUARY 2021
| [2021] FWCFB 494 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Peter Gourdeas
v
Heyday 5 Pty Limited T/A Heyday
(C2020/8827)
VICE PRESIDENT CATANZARITI | SYDNEY, 2 FEBRUARY 2021 |
Appeal against decision [2020] FWC 6132 of Deputy President Cross at Sydney on 16 November 2020 in matter number U2020/6301 – permission to appeal granted – appeal upheld
[1] Mr Peter Gourdeas (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a Decision 1 and Order 2 of Deputy President Cross issued on 16 November 2020. The Decision dealt with an application made by the Appellant under s 394 of the Act for an unfair dismissal remedy.
[2] The Appellant alleged that he had been unfairly dismissed from his employment with Heyday 5 Pty Limited (the Respondent). In the Decision, the Deputy President was satisfied that the Appellant was an individual protected from unfair dismissal and that his dismissal was unfair. 3 The Deputy President ordered the Respondent to pay compensation to the Appellant in the amount of $5,987.76, plus superannuation and less appropriate taxation. 4
[3] The matter on appeal was subject to a telephone hearing on 15 January 2021. The Appellant and the Respondent sought permission to be legally represented. The Full Bench was not required to grant the parties permission to be represented at the hearing, as both the Appellant and the Respondent were represented by an “organisation”: per s 596(4)(b) of the Act.
[4] The Full Bench has heard the parties on permission to appeal and the substantive appeal.
Decision under appeal
[5] The factual matrix of the Decision under appeal, in broad summary, is as follows:
• The Appellant commenced employment with the Respondent on 2 September 2019. The Appellant worked as an electrician.
• On Saturday 11 April 2020, the Appellant received an email from the Respondent’s payroll department which attached an Employee assessment form (the “Employee Assessment”). The Employee Assessment identified several areas of on-site performance that the Appellant did not meet. On Wednesday 15 April 2020, the Appellant responded to the email of 11 April 2020 to dispute the Employee Assessment.
• On Friday 17 April 2020, the Appellant was told during a meeting on site that he was being let go due to a downturn in work. Following this, the Appellant was informed by Mr Vuk, a Foreman in attendance at the meeting, that he was being let go because of the Employee Assessment.
[6] The Appellant contended that his dismissal was not a case of genuine redundancy 5 and sought unfair dismissal remedies primarily of reinstatement, continuity of service and lost remuneration, or in the alternative, compensation. 6
[7] As the Appellant’s grounds of appeal impugn only the Deputy President’s consideration of s 392(2)(c) of the Act and the compensation order made, we note the following findings made by the Deputy President in respect of such matters:
• Having regard to the Heyday5 Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019 (the Agreement) and s 389 of the Act, the Deputy President found that the Appellant was not genuinely made redundant because the Respondent did not comply with its obligations to consult with the Appellant regarding the redundancy. 7
• Thereafter, in considering the criteria under s 387 of the Act, the Deputy President stated with respect s 387(h) of the Act:
“[57] I do not accept the Respondent’s submission that the dismissal would have occurred nonetheless. It is entirely possible that if proper consultation occurred, the Applicant may not have been dismissed. His selection to be one of the six made redundant was based on the Employee Assessment. He may have been successful in convincing the Respondent that the Employee Assessment was partially or wholly erroneous. As to whether such a result was probable cannot be determined due to complete failure of the Respondent to comply with the Notice to Produce.
…
[59] I regard the failure to consult and the reliance on the Employee Assessment as matters relevant to the conclusion that the Applicant’s dismissal was harsh, unjust or unreasonable.”
• The Deputy President found that the Appellant’ dismissal was harsh, unjust or unreasonable as:
“… the Respondent’s failure to comply with its consultation obligations in relation to the Applicant meant that the Applicant was denied the opportunity to secure a different outcome, and was denied the opportunity of being supported by the JobKeeper program...” 8
[8] In considering the appropriateness of an order for compensation, the Deputy President reasoned, inter alia, that had the Appellant not been dismissed, then he would have received another three weeks’ remuneration – three weeks being the period of time it would have taken for the Respondent to comply with its consultation obligations under the Agreement and then dismiss the Applicant. 9
[9] An order was made for the payment of compensation of $5,987.76.
Principles of appeal
[10] 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. 10 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] Section 400 of the Act applies to this appeal. It 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.”
[12] 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 of the Act as “a stringent one”. 11 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 In GlaxoSmithKline,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.” 14
[13] 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. 15 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
Grounds one and two
[14] In ground one of the appeal, the Appellant contends that the Deputy President reached an illogical and irrational conclusion at [64] in the Decision, in finding that the Appellant would have been employed by the Respondent for a further three weeks had he been dismissed. Ground two of the Appellant’s appeal is a reformulation of the first ground of appeal with an alternative conclusion that the Deputy President has made a significant error of fact at [64].
[15] The crux of the Appellant’s submissions is that the Deputy President found at [57] in the Decision, for various reasons, that the Appellant’s dismissal may not have occurred at all but then at [64], the Deputy President contradicts himself by finding that if the consultation period had been complied with, the Appellant would have been dismissed in three weeks. It is this contradiction that the Appellant points to as an illogical and irrational conclusion.
[16] The Commission has considered whether a finding made by a decision-maker at first instance amounts to appellable error because such a finding was ostensibly illogical and irrational. 16 In Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie Goodall17 a majority of the Full Bench observed at [51]:
“Irrationality and illogicality have emerged from the concept of unreasonableness as a ground for judicial review of administrative discretionary decision-making. In the High Court decision in Minister for Immigration and Citizenship v SZMDS , Crennan and Bell JJ, in relation to judicial review of a decision made under s.65 of the Migration Act 1958, set out the principles applicable to this ground of judicial review:” [Footnotes omitted]
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[17] On the question of whether these principles are applicable to an appeal by way of rehearing, the majority in Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie Goodall observed:
“[53] Although we are dealing here with an appeal by way of re-hearing and not an application for judicial review, we consider that we should apply the principles set out above with respect to Mt Arthur Coal’s invocation of irrationality and illogicality in its first appeal ground.” 18
[18] When the Deputy President’s comments at [57] in the Decision are properly considered, it cannot logically follow that the appropriate compensation amount could have been three weeks of remuneration (as found at [64]). Had the Deputy President concluded that the Appellant would have been dismissed regardless of whether there was a consultation period, then the conclusion he reached at [64] would have been open to him to make. However, in this case, the Deputy President found at [57] that the Appellant may not have been dismissed at all. This necessarily alters the factual circumstances under which the Deputy President’s assessment of appropriate compensation was to take place. The Deputy President has not shown the process of reasoning he used to traverse the gap between first finding that dismissal may not have occurred at all to finding that dismissal would have taken three weeks to occur. In the absence of this process of reasoning, it is apparent that the application of logic could not have resulted in the conclusion that the Deputy President arrived at.
[19] For the above reasons, we find that the Deputy President’s conclusion at [64] amounts to appellable error and therefore ground one of the appeal is upheld. Given that we uphold appeal ground one, it is unnecessary for us to consider appeal ground two.
Ground three
[20] In ground three of the appeal, the Appellant contends that the Deputy President erred in his determination of the amount of compensation to be awarded to the Appellant.
[21] Although the Appellant has advanced ground three as a separate ground, ground three follows as a natural consequence of the contentions accepted in respect of ground one of the appeal. As the Deputy President erred in his consideration under s 392(2)(c) of the Act, then so too has he erred in his determination of the appropriate quantum of compensation to be awarded to the Appellant.
[22] Accordingly, as we have upheld ground one of the appeal, it naturally follows that ground three is upheld.
Permission to appeal
[23] Having regard to the above, we are satisfied that the appeal enlivens the public interest. The public interest has been enlivened for the purpose of s 400(1) because the Decision involves a significant error of reasoning which has manifested an injustice. It is in the public interest to ensure that a decision-maker’s discretion exercised under s 392(2)(c) of the Act is done so properly. Appellate intervention is both warranted and necessary to examine the identified errors and allow the re-determination of the appropriate remedy.
Conclusion
[24] For the above reasons, we order as follows:
1. Permission to appeal is granted.
2. The appeal is upheld.
3. The decision and order of Deputy President Cross of 16 November 2020 are quashed insofar as they deal with remedy.
4. The matter is remitted to Deputy President Cross for reconsideration of the appropriate remedy.
VICE PRESIDENT
Appearances:
Mr A Jacka, for the Appellant.
Mr G Jervis, for the Respondent.
Hearing details:
2021.
Telephone hearing:
15 January.
Printed by authority of the Commonwealth Government Printer
<PR726581>
1 Peter Gourdeas v Heyday 5 Pty Limited [2020] FWC 6132 (the Decision).
2 PR724579.
3 Decision [60].
4 PR724579.
5 Decision [21].
6 Ibid [1].
7 Ibid [37].
8 Ibid [60].
9 Ibid [64].
10 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd)
11 (2011) 192 FCR 78; (2011) 207 IR 177 [43].
12 O’Sullivan v Farrer and another (1989) 168 CLR 210 [216] – [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46].
13 see: GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); 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].
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
15 Wan v AIRC (2001) 116 FCR 481 at [30].
16 Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal v Jodie Goodall [2016] FWCFB 5492.
17 [2016] FWCFB 5492.
18 [2016] FWCFB 5492.
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