Pang Enterprises Pty Ltd ATF Pang Family Trust T/A Bakers Delight Newport v Vicki Sawtell

[2016] FWCFB 4438

[2016] FWCFB 4438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Pang Enterprises Pty Ltd ATF Pang Family Trust T/A Bakers Delight Newport
v
Vicki Sawtell
(C2016/3651)

SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER BISSETT SYDNEY, 11 JULY 2016

Appeal against decision [2016] FWC 2786] and order [PR579987] of Senior Deputy President Hamberger at Sydney on 4 May 2016 in matter number U2016/4070.

[1] Pang Enterprises Pty Ltd ATF Pang Family Trust T/A Bakers Delight Newport (Pang Enterprises) has appealed a Decision 1 and Order2 of Senior Deputy President Hamberger issued on 4 May 2016.

[2] The Decision related to an application for relief from unfair dismissal made by Ms Vicki Sawtell in which the Senior Deputy President found that Ms Sawtell was protected from unfair dismissal as she was a regular and systematic casual employee with a reasonable expectation of continuing employment. Following from this conclusion he found that the Small Business Fair Dismissal Code had not been complied with. He then proceeded to consider if the dismissal was unfair. He found that there was no valid reason for the dismissal and that the dismissal was harsh, unjust or unreasonable. He awarded compensation of $6,000 plus superannuation having found reinstatement inappropriate.

[3] In its appeal, Pang Enterprises claimed that there were significant errors of fact in the Senior Deputy President’s decision in that Ms Sawtell, whilst a casual employee, had not been employed on a regular and systematic basis. It further submitted that the decision was unfair to small businesses.

Consideration

[4] An appeal under s.604 of the Fair Work Act 2009 (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. 3 An appeal may only be made with the permission of the Commission.

[5] This appeal is one to which s.400 of the FW Act applies. 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 judgment.5 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

[8] On appeal, Pang Enterprises provided the Commission with an Appeal Book. It contained substantial materials including the appeal submissions of Pang Enterprises, sign in and out sheets for Ms Sawtell for the period 2011 - 2016, 9 Ms Sawtell’s engagement letter,10 the store roster for the week ending 23 December 2015 and 30 December 201511, a copy of a completed questionnaire sent to a staff member on 31 May 2016, completed questionnaires of two other staff members dated 27 May 201612 and 22 May 2016,13 and pay slips for Ms Sawtell for 2013, 2014, 2015 and 2016.14

[9] This material, with one exception, was not before the Senior Deputy President. The exception is one page of the material at Appeal Book 55-90. This showed the time and hours worked by Ms Sawtell from 1 December 2015 to 18 January 2016. Other material before the Senior Deputy President in relation to sales from the store was not included in the Appeal Book.

[10] The Appeal Book is not in compliance with the requirements of the Fair Work Commission Rules 15 but is rather an attempt to introduce new evidence to the Commission for the purpose of determining the appeal. As was advised to the representative of Pang Enterprises during the hearing on permission to appeal, the new evidence that it sought to introduce was readily available to be provided at the hearing before the Senior Deputy President. Permission was refused during the hearing of permission to appeal for the admission of the additional evidence and we have therefore not had regard to it.

[11] Very little material was put before the Senior Deputy President in relation to Ms Sawtell’s status as a casual employee. Ms Sawtell’s uncontested statement was that she was employed as a casual employee since July 2011. She worked variable hours in the beginning but as time when on she worked regular shifts and hours of ‘24+ for at least 3 years’. 16 Ms Pang, representing Pang Enterprises put to the Senior Deputy President that:

If someone work for you for a long time and it’s not on regular basis, it’s sometimes in the morning, sometime is in the afternoon, sometimes on a weekend, do you consider that is systematical? 17

I don’t think that it’s systematical. 18

[12] The Senior Deputy President found, on a consideration of the evidence before him that Ms Sawtell had been engaged on a regular and systematic basis and that she had a reasonable expectation of continuing employment.

[13] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed the minimum period of employment specified in the Act and other relevant criteria is met. The minimum period of employment is six months if the employer is not a small business and one year if the business is a small business.

[14] The period of employment is determined in accordance with s.384 of the Act:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis;

[15] ‘Regular and systematic employment’ was considered by the Court of Appeal of the Australian Capital Territory in Yaraka Holdings Pty Ltd v Giljevic 19 where the majority found that:

in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. 20

[16] The majority also found that:

The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”. 21

[17] It is apparent that the Senior Deputy President applied these principles to the material before him in reaching his conclusion that Ms Sawtell had been employed on a regular and systematic basis.

[18] Pang Enterprises’ submission on appeal appears to be based on a false understanding that because Ms Sawtell worked differing hours each day that her employment was not regular and systematic. It is not necessary that Ms Sawtell’s hours be the same each day or be of a uniform pattern.

[19] The Senior Deputy President applied the correct principles and the conclusion he reached was reasonably open to him.

[20] We do not discern any error in the decision of the Senior Deputy President.

[21] Whilst we have not had regard to the additional material provided by Pang Enterprises in reaching this decision, we note that the additional material would not have altered our conclusion and does in fact reinforce the correctness of the decision reached by the Senior Deputy President.

[22] For this reason, we are not satisfied that it is in the public interest to grant permission to appeal. In accordance with s.400(1) of the Act permission to appeal must be refused.

SENIOR DEPUTY PRESIDENT

Appearances:

P. Pang for Pang Enterprises Pty Ltd ATF Pang Family Trust T/A Bakers Delight Newport.

V. Sawtell on her own behalf.

Hearing details:

2016.

Melbourne and Sydney (via video link)

June 16.

Final written submissions:

Respondent, 21 June 2016.

 1  [2016] FWC 2786.

 2  PR579987.

 3   Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 4   (2011) 192 FCR 78 at [43].

 5   O’Sullivan v Farrer and Another (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 Australian Industrial Relations Commission (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   Appeal Book 55-90.

 10   Appeal Book 91.

 11   Appeal Book 92-93.

 12   Appeal Book 166.

 13   Appeal Book 167.

 14   Appeal Book 96-165.

 15   Rule 56(3).

 16   Exhibit S1, page 1.

 17   Transcript (from 4 May 2016 hearing) PN302.

 18   Transcript (from 4 May 2016 hearing) PN304.

 19   [2006] ACTCA 6 (Crispin P, Gray and Madgwick JJ).

 20   Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6 (per Crispin P and Gray J), at [64].

 21   Ibid, at [68].

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