Mr Robert Maat v WCH Services Pty Ltd T/A WCH Services
[2017] FWCFB 547
•25 JANUARY 2017
| [2017] FWCFB 547 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
WCH Services Pty Ltd T/A WCH Services
(C2016/7265)
VICE PRESIDENT CATANZARITI | SYDNEY, 25 JANUARY 2017 |
Appeal against decision [[2016] FWC 8324] and Order PR587717 of Commissioner Cribb at Melbourne on 23 November 2016 in matter number U2016/1790.
[1] Robert Maat has applied for permission to appeal against a decision made by Commissioner Cribb given on 23 November 2016 concerning his application for relief from unfair dismissal from employment he held with WCH Services Pty Ltd. In the hearing for permission to appeal, Mr Maat appeared with Mr Whelan, a friend, and there was no appearance on behalf of WCH Services.
[2] His employment with WCH Services was as a Shopping Trolley Collector, and dated from late 2014.
[3] Because of the lack of attendance of a representative of the Respondent, the matter proceeded before Commissioner Cribb in its absence on 22 August 2016. The Commissioner gave an ex tempore preliminary decision made on the day of the proceedings before her and then gave the Respondent an opportunity to review the transcript of the proceedings before she finalised her decision. The Commissioner made it clear to the parties at the conclusion of the determinative conference before her that, after allowing such an opportunity, she would either confirm the preliminary decision or issue a new one. A final decision was published on 23 November 2016 and is consistent with her earlier findings.
[4] Mr Maat’s Notice of Appeal in this matter was filed on 10 December 2016, which is within 21 days of the publication of the decision. In the circumstances, which include publication of a fully reasoned decision some weeks after the initial ex tempore decision, we accept that the Notice of Appeal was lodged within 21 calendar days after the date of the decision being appealed against, which is the requirement of the Fair Work Commission Rules.
[5] Commissioner Cribb’s decision initially dealt with a jurisdictional objection advanced by WCH Services to the effect that it was a small business employer to which the Small Business Fair Dismissal Code applied. In her decision, the Commissioner determined that WCH Services was not, at the time of Mr Maat’s dismissal, a small business employer and, therefore, it was unnecessary for her to have regard to the Small Business Fair Dismissal Code.
[6] The Commissioner set out the circumstances of Mr Maat’s dismissal in the following way:
“[23] It was Mr Maat’s evidence that:
- On Monday 4 April 2016, he turned up at work as per normal.
- There were two Indian guys in the company’s outfit (uniform) who told him that they were working there now and to ring his boss.
- He rang Mr Whitby and Mr Whitby came to the site and made some phone calls. Mr Whitby then told Mr Maat that he was fired and to go home.
- He was not offered anything otherwise he would have taken the job.
[24] It was Mr Whelan’s evidence that they found out after 4 April 2016 that Mr Hancock had lost the contract in Traralgon and that the parent company were taking over the contract. Mr Whelan also recalled that he had heard rumours from Mr Whitby that Mr Maat and the others were going to get hired again. He said that Mr Maat had never been called.
[25] It appears to be common ground in the material before me that, on 4 April 2016, Mr Maat was dismissed due to the loss of the trolley collection contract at Traralgon by his employer. Despite Mr Hancock’s document stating that Mr Maat was immediately hired by UTC, I have not been persuaded that this is the case. I have no reason to doubt Mr Maat’s evidence (corroborated by Mr Whelan) that he was not offered employment by UTC.” 1 (references omitted)
[7] A central matter for consideration by the Commissioner was whether or not Mr Maat’s dismissal was a genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (the Act). She held that it was not a genuine redundancy, principally for the reason that the Respondent’s proprietor, Mr Hancock, had not consulted with Mr Maat about the loss of the company’s contract, which was its obligation under the Modern Award applying to Mr Maat’s employment.
[8] The Commissioner’s written reasons for her decision canvassed each of the criteria within s.387 of the Act. In relation to s.387(a), concerning the question of whether or not there was a valid reason held by the employer for Mr Maat’s dismissal relating to his capacity or conduct (including its effect on the safety and welfare of other employees), the Commissioner found that there was a valid reason for his dismissal, being the changes in the company’s operational requirements and, in particular, the loss of its trolley collection contract. In finality, the Commissioner found that Mr Maat’s dismissal was harsh for the reason that he was not advised as soon as his employer knew that the company’s trolley collection contract had been terminated, and unreasonable as it did not allow Mr Maat an opportunity to secure employment with the ongoing contract. She also took into account that Mr Maat was employed by the company in and around an area in which unemployment is high, particularly in relation to lower skilled jobs.
[9] Having found that Mr Maat was unfairly dismissed, the Commissioner proceeded to determine the question of remedy for the unfair dismissal, and, after finding that reinstatement was inappropriate and that compensation was appropriate, she made the following findings about the amount of compensation to be awarded;
“[55] Given the reason for Mr Maat’s dismissal, it is my view that the remuneration that Mr Maat would have received, or would have been likely to receive, if he had not been dismissed would have been another two weeks’ remuneration. This is on the basis that two weeks is the period that it would have taken the Respondent to comply with its obligations in the relevant modern award to consult with Mr Maat about the redundancy that led to his dismissal.
[56] Two weeks’ remuneration for Mr Maat is $962.28 gross plus 9.5% superannuation. This is based on the figures provided by Mr Maat and Mr Whelan during the determinative conference, together with Mr Maat’s timesheet.” 2 (references omitted)
[10] After considering the other criteria within s.392, the Commissioner finalised the matter with an order of compensation in the amount of $962.28 gross, less taxation as required by law plus 9.5% superannuation.
[11] Mr Maat’s Notice of Appeal raises three grounds for the appeal as follows:
● That it was his understanding that his case was not one of unfair dismissal, but rather, one of genuine redundancy;
● The compensation awarded by the Commissioner did not take into account all of the relevant evidence; and
● The Commissioner failed to give consideration to several aspects of Mr Maat’s case.
[12] The same notice sets forth, in relation to the public interest test for the granting of permission for appeal, that Mr Maat considers a wrong decision has been made on the evidence and that it would be in the public interest to correct the mistake.
PRINCIPLES ON APPEAL
[13] This appeal is one to which s.400 of the Act applies. 3 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.”
[14] In the Federal Court Full Court decision 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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 The Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the instances when the public interest might be attracted:
“… 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.” 6
[15] In order to grant permission to appeal, an arguable case of appealable error should be demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, an error made by the Member at first instance is not necessarily a sufficient ground for the grant of permission to appeal.8
[16] In an appeal from a decision involving an exercise of discretion, an error in the exercise of discretion must be demonstrated: 9
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
CONSIDERATION
[17] Mr Maat advances little in the way of submissions to the Full Bench in relation to whether it is in the public interest to grant permission to appeal. His contentions in that regard are limited to the proposition that the Commissioner erred in law by finding that Mr Maat was redundant, notwithstanding that WCH Services continued to operate after his dismissal.
[18] Such a finding was not part of the Commissioner’s reasoning. Instead, she found that, notwithstanding Mr Maat’s dismissal for reason of a loss of a contract by WCH Services, his dismissal was not a case of genuine redundancy. 10
[19] The notice of appeal does not otherwise raise any issue of general application or importance.
CONCLUSION
[20] For these reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, and in accordance with s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr R Maat, the Appellant, on his own behalf.
No appearance on behalf of the Respondent.
Hearing details:
2017.
Melbourne:
10 January.
1 [2016] FWC 8324 [23]-[25].
2 Ibid [55]-[56].
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]; (2011) 282 ALR 561.
4 [2011] FCAFC 54 at [43]; (2011) 192 FCR 78
5 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].
6 [2010] FWAFB 5343 at [27], 197 IR 266.
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 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].
9 House v The King (1936) 55 CLR 499 at 505.
10 [2016] FWC 8324 [36].
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