O'Loughlin Executive Search v Swan
[2011] QCATA 77
•4 April 2011
| CITATION: | O’Loughlin Executive Search v Swan [2011] QCATA 077 |
| PARTIES: | O’Loughlin Executive Search (Applicant/Appellant) |
| v | |
| Tracey Swan (Respondent) |
| APPLICATION NUMBER: | APL332-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Andrew McLean Williams, Member |
| DELIVERED ON: | 4 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – EMPLOYER/EMPLOYEE – CLAIM FOR UNPAID COMMISSIONS – where the employer refused to pay commissions collected after date of resignation – where the Adjudicator found at first instance that the amendment by consent to the calculation date for commissions was a permanent change to the employment agreement – where the Adjudicator at first instance ordered that $24,095.43 be paid to Ms Swan – where the employer now seeks leave to appeal that decision on the grounds that the Adjudicator made errors of law and fact – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142 Fox v Percy [2003] HCA 22 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
President:
I have had the advantage of reading the reasons of Mr McLean Williams in draft. I agree with them, and the order he proposes.
McLean Williams:Member Andrew
On 12 October 2009 the respondent to the appeal, Ms Tracey Swan, was employed by the appellant, O’Loughlin Executive Search (‘OES’). (O’Loughlin Executive Search is the business trading name of The O’Loughlin Group Pty Ltd, an employment recruitment company, and Ms Swan was employed as an executive recruitment consultant.)
By an agreement between the parties Ms Swan was to be paid an annual gross salary of $140,000 (inclusive of 9% superannuation), and had, in addition to that base salary, an entitlement to further commissions, calculated on the basis of 40% of revenue to OES that was attributable to her efforts each financial quarter, over and above the base salary. The quarterly component of an annual base salary of $140,000 is $35,000. Accordingly Ms Swan was entitled to commission on the basis of 40% of any revenue generated for OES by her endeavours that was in excess of $35,000 each financial quarter.
On 5 July 2010 Ms Swan tendered her resignation, giving 4 weeks notice of her intention to resign. As things transpired Ms Swan’s last day at OES was earlier than that, and she left her employment on 16 July 2010. Ms Swan contended that, at the date of her departure, $24,095.43 was still owed to her by OES in unpaid commissions.
OES denied that Ms Swan was entitled to any commission by reason of the timing of her resignation, which they say triggered clause 6.3 of the employment agreement. Clause 6.3 provided, relevantly:
…Should any income producer leave OES prior to the end of the billing period, the employee will forfeit their entitlement to any commission earned during that period.
It seems that the parties were in agreement that Ms Swan qualified as an ‘income producer’, as that term is used in clause 6.3. In any event, it does not appear to have been in dispute before the QCAT Adjudicator who heard the matter.
Nowhere in the employment agreement is the term ‘billing period’, which also appears in clause 6.3, defined. However, in an accompanying ‘Commission Schedule’ annexed to the agreement (and forming part of it), the entitlement to commission is said to be a matter that is referable to ‘invoices paid in a quarterly period’, and commission was expressed to be calculable on the ‘15th of the month following the completion of the quarter and paid on the 20th of every month’.
It seems tolerably clear, therefore, that the parties were working on an understanding that the ‘billing period’ referred to in clause 6.3 was intended as a reference to each financial quarter.
Later, in or about March 2010, it seems that the calculation date for commissions was changed by an agreement between the parties so that commission would instead be calculated on the 30th day of the month (in lieu of the 15th) and then paid on the 4th day of the following month. There was a dispute about whether this was to become a permanent arrangement, or whether it was a ‘one-off’ arrangement for that quarter only, so as to assist Ms Swan with a finance application for a home loan.
Ultimately, the learned Adjudicator resolved that dispute in favour of Ms Swan, finding that the amendment by consent to the calculation date for commissions was a permanent change to the employment agreement. On the evidence before him, the learned Adjudicator was entitled to make that factual finding.
On 30 July 2010 Ms Swan commenced her claim before QCAT, claiming the sum of $24,095.43 as unpaid commissions then due and owing to her.
At the hearing OES contended that as a consequence of Ms Swan having left their employ on 16 July 2010, the final billing cycle for which she was then entitled to claim commission under clause 6.3 became 30 June 2010, and that commission was then only calculable by reference to invoices that had actually been paid by OES clients before 30 June 2010, such that any invoices raised during that billing period, yet paid afterwards (even if paid within the ‘terms 14 days’ period allowed on the face of the invoices sent to clients) were not to be included in any calculation of commission owing to Ms Swan.
The learned Adjudicator found in favour of Ms Swan, holding that commissions were to be calculated on the basis of 40 per cent of invoices collected on or before the 30th of the month following the end of the financial quarter, which in this instance meant on any invoices collected by 30 July 2010.
Whilst attempting to reconcile the words used in the commission schedule with those used in clause 6.3 of the employment agreement the learned Adjudicator said, in part:
… Now, to read clause 6.3 with the Commission Schedule, commission is earned under 6.3 when it is invoiced during the period and paid during the period and/or paid up until 30 days following the period. … It is clear on the contract that [the appellant] entered into with [the respondent] that the [respondent] would have earned commission on each of these invoices because she invoiced them and they were paid.
Having construed clause 6.3 in this manner in order to reconcile it with the words used in the commission schedule, and having accepted the calculation of commissions alleged to be owing – as was put forward by the respondent on this appeal – the learned Adjudicator then ordered that the full sum claimed by Ms Swan of $24,095.43 be paid to her by OES within 45 days. It is this decision that is now appealed against.
Pursuant to s 142(3) of the QCAT Act, an appeal may only be commenced with the leave of this Appeal Tribunal.
The question whether (or not) leave should be granted is usually one to be addressed in accordance with established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary in order to correct a substantial injustice to the applicant caused by some error?[3] Is there some question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to general public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Greech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Leave to appeal will ordinarily only be obtained in circumstances wherein there is some question of general importance upon which further argument, and a decision of the appellate tribunal would be to the public advantage; or, where there is a reasonably arguable case of error in the decision at first instance, and a reasonable prospect that the applicant would obtain further substantive relief.
For reasons that are set out in the following paragraphs, this case is not one that falls under any of these criteria.
As was recognised by the High Court in Fox v Percy[5] the duty of this Appeal Tribunal is solely to determine whether there is some error in the primary decision. It is not our task to decide where the truth lay as between the competing versions given by the parties.
[5] [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby J.
Here, paraphrasing a little for reasons of convenience, the appeal grounds advanced for OES are:
(a)The learned Adjudicator who heard the matter was the same person allocated to convene an earlier conciliation in the matter, yet the decision-maker did not then afford the parties any right to object to his also constituting the Tribunal for the substantive hearing, in breach of the dictates set forth in ss 73(2) & 73(3) of the QCAT Act;
(b)The Respondent (Ms Swan) had a support person at the hearing, who took an active part in proceedings, in violation of ss 91(5) and 217 of the QCAT Act;
(c)The learned Adjudicator made a factual error regarding his finding that the parties had agreed to extend the billing period to 30 days after the end of each financial quarter on a permanent basis, rather than for the March 2010 quarter, only;
(d)The learned Adjudicator erred in his decision that invoices raised in the period 1 April 2010-30 June 2010, yet paid in July 2010 were to be included as part of the pool of revenues from which commission was to be calculated; and, finally
(e)Errors were made by the learned Adjudicator in the calculation of Ms Swan’s commission.
I will address each submission.
The Adjudicator was the same person who conducted the earlier conciliation
I am satisfied that this appeal ground is entirely without merit. The ‘certificate of mediation outcome’ recorded on the QCAT file in this matter indicates that the conciliation was conducted by Mr Luke Tilley, a QCAT officer, who is not the same person as the learned Adjudicator who made the decision that is now under appeal.
The Respondent had a support person at the hearing, who took an active part in proceedings
It is true that the respondent Ms Swan had the support of her husband during the conduct of the matter before the learned Adjudicator, below. That is permissible, in the manner allowed under the QCAT Act.
The transcript of proceedings does not, in any event, reveal any level of participation in those proceedings by Mr Swan in his role as support person that might now be said to comprise a breach of either of s 91(5)(b), or s 217 of the QCAT Act. Mr Swan’s presence at the hearing did not give the respondent any unfair advantage.
The learned Adjudicator made a factual error regarding his finding that the parties had agreed to extend the billing period to 30 days after the end of each quarter on a permanent basis
Consistent with the observations of the High Court in Fox v Percy,[6] the learned Adjudicator was entitled to find in the manner that he did. There is no demonstrable error of fact in his so finding.
[6] [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
It is not sufficient in an appeal such as this one for the appellant to simply re-make the same submissions that did not previously find favour before the learned Adjudicator at the original hearing. In this sense it bears observing that mere repetition – in and of itself – does not (and cannot) serve as any sufficient substitute for the necessary requirement imposed on an appellant to reveal actual error in the process of reasoning adopted by the decision-maker who is now under attack. An appellant must point to actual evidence that goes some way towards showing that the original decision-maker has adopted a wrong approach. In this instance the appellant has not discharged that obligation.
The learned Adjudicator erred in his decision that invoices raised in the period 1 April 2010-30 June 2010, yet paid in July 2010 were to be included as part of the pool of revenues from which commission was to be calculated
Once the learned Adjudicator found (as he was entitled to do) that the period for receipt of invoices from which commission was calculable had been extended to 30 days beyond the end of the billing period, he was equally entitled to find that invoices raised in the financial quarter ending 30 June 2010 – yet paid by OES clientele during the first 30 days of July 2010 – were to be brought to account in the calculation of Ms Swan’s commission entitlements.
Again, there is no demonstrable error on the face of the record.
The judgment is infected by arithmetical uncertainty
The Appellant alleges that the Adjudicator was uncertain as to the calculation of the quantum of the claim, and now cites as its basis for that contention certain passages drawn from page four of the transcript of the ex tempore reasons of decision, wherein the learned Adjudicator made some passing reference to his having roughly calculated the sum owing to be in the order of $29,480.
In my view, no valid criticism can be levelled at the learned Adjudicator in this regard. It was part and parcel of the course of conversational exchange between the Adjudicator and litigants-in-person. Allowance must also be made for the pressure upon Adjudicators in this busy jurisdiction.
The reference to an initial calculation of damages by the learned Adjudicator in the order of $29,480 was, ultimately, a matter of no consequence. This conclusion then becomes all the more compelling from a proper reading of the transcript, which reveals that, ultimately, the learned Adjudicator accepted instead Ms Swan’s calculation of the outstanding commission as being $24,095.43. That conclusion is then further galvanised by the fact that the order ultimately recorded by the Adjudicator on the file in this proceeding was for final judgment in that specific sum.
As the applicant has been unable to demonstrate any error on the part of the learned Adjudicator, and nor is any error apparent on the face of the record, leave to appeal must be refused.
1