Mr Sergey Baychkov v Whitech Pty Ltd
[2016] FWCFB 4773
•26 JULY 2016
| [2016] FWCFB 4773 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604 - Appeal of decisions
v
Whitech Pty Ltd
(C2016/3937)
DEPUTY PRESIDENT SAMS | SYDNEY, 26 JULY 2016 |
Appeal against decision [2016] FWC 3405 of Senior Deputy President Drake at Sydney on 26 May 2016 in matter number U2016/103.
[1] Mr Baychkov has applied for permission to appeal and appealed against a decision 1 issued by Senior Deputy President Drake on 26 May 2016 (Decision). In that Decision the Senior Deputy President found that Mr Baychkov had not been dismissed within the meaning of s.386 of the Fair Work Act 2009 (FW Act). As a result, the Senior Deputy President made an order2 dismissing Mr Baychkov’s application for an unfair dismissal remedy.
[2] The matter was listed for hearing of Mr Baychkov’s application for permission to appeal on 13 July 2016. At that time Mr Baychkov appeared for himself and Ms Judith Healy, solicitor, appeared with our permission for Whitech Pty Ltd (Whitech).
The Decision
[3] There was no dispute that Mr Baychkov resigned, for he provided Whitech with a written letter of resignation dated 18 December 2015. The principal issue in the case was whether Mr Baychkov was forced to resign because of conduct, or a course of conduct, engaged in by his employer.
[4] The Senior Deputy President first considered the course of conduct relied on by Mr Baychkov to support his contention that he was forced to resign. The Senior Deputy President then had regard to the options that were available to Mr Baychkov to resolve his difficulties in the workplace. Her Honour found that Mr Baychkov had a number of options open to him, other than resigning, to deal with his difficulties. Because Mr Baychkov had choices in that regard, the Senior Deputy President concluded that he was not forced to resign.
Consideration
[5] This appeal is one to which s.400 of the Fair Work Act 2009 (FW 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.
[6] 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 judgment5. In GlaxoSmithKline Australia Pty Ltd v Makin 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.” 6
[7] 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. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
Grounds of Appeal
[8] One of principal grounds of appeal relied on by Mr Baychkov is his contention that Whitech breached an implied contractual term of mutual trust and confidence by making false allegations against him and engaging in other conduct. In Commonwealth Bank v Barker 9, the High Court made clear (at [41]) that a term of mutual trust and confidence is not as a matter of law implied in all employment contracts. No plausible argument or grounds were advanced to support the incorporation of such a term as a matter of fact or by custom into Mr Baychkov’s contract of employment with Whitech.10 Accordingly, we are not satisfied that there is an arguable case of error in relation to this part of the Decision.
[9] Furthermore, the conduct the subject of Mr Baychkov’s complaint commenced on 2 December 2015. He resigned 16 days later on 18 December 2015. He had the option of responding to the allegedly false allegations, giving his side of the story, and waiting to see what decision, if any, Whitech would make. Instead of taking such a course, he elected to resign. In those circumstances, we are not satisfied that there is an arguable case of error in relation to Mr Baychkov’s contention that the false allegations made against him forced him to resign.
[10] Mr Baychkov also contends that her Honour failed to take into account a number of material considerations, including the nature of Mr Baychkov’s job and the nature of the business in which he worked. It is apparent from paragraph [6] of the Decision that the Senior Deputy President had regard to a wide range of conduct and matters in forming the view that Mr Baychkov was not forced to resign. We are not satisfied that there is an arguable case of error in relation to Mr Baychkov’s contention that her Honour failed to take into account material considerations.
[11] Senior Deputy President Drake granted permission for Whitech to be represented at the hearing by an in-house lawyer of a related corporation. Mr Baychkov submits that her Honour erred in making that decision, including by reason of an alleged failure to give reasons for that decision. However, it is apparent from the transcript (at PN35) that her Honour did give reasons for her interlocutory ruling permitting Whitech to be represented by a lawyer at the hearing. We are not satisfied that there is an arguable case of error in relation to the Senior Deputy President’s decision to grant permission for Whitech to be represented by a lawyer pursuant to s.596 of the FW Act.
[12] We have had regard to the other grounds of appeal and submissions made by Mr Baychkov, both in writing and orally, in support of his application for permission to appeal. We are not satisfied that there is an arguable case of error in relation to any aspect of the Decision.
[13] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required in an appeal of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Senior Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[14] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the FW Act, that it would be in the public interest to grant permission to appeal. Accordingly, we dismiss the appeal.
DEPUTY PRESIDENT
Appearances:
Mr Sergey Baychkov on his own behalf.
Ms Judith Healy, solicitor, on behalf of the respondent.
Hearing details:
2016.
Sydney:
July, 13.
1 [2016] FWC 3405
2 PR580198
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
4 (2011) 192 FCR 78 at [43]
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 288, 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 (2014) 253 CLR 169
10 See Commonwealth Bank v Barker at [43]
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