Paul Passehl v Link SA Pty Ltd
[2015] FWCFB 3499
•12 JUNE 2015
| [2015] FWCFB 3499 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Link SA Pty Ltd
(C2015/2497)
VICE PRESIDENT HATCHER | SYDNEY, 12 JUNE 2015 |
Appeal against decision [2015] FWC 2001 of Deputy President Gooley at Melbourne on 23 March 2015 in matter number U2014/5016.
Introduction
[1] Mr Paul Passehl has applied for permission to appeal an order issued by Deputy President Gooley on 23 March 20151 (Order). The Order dismissed Mr Passehl’s application for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Order was made pursuant to s.587(1)(c) of the FW Act. The Deputy President concluded that the application had no reasonable prospects of success. Also on 23 March 2015 the Deputy President published reasons for the decision embodied in the Order2 (Decision).
[2] Section 587(1)(c) of the FW Act invests the Fair Work Commission (Commission) with power to “dismiss an application if … the application has no reasonable prospects of success.”
[3] The relevant factual background is as follows:
a) On 5 February 2014 Mr Passehl’s employment was terminated by Link SA Pty Ltd (Respondent);
b) On 26 February 2014 Mr Passehl lodged an application for an unfair dismissal remedy;
c) On 7 April 2014 a conciliation conference was conducted. A settlement was reached and the file was closed;
d) The settlement provided for a 3 day cooling-off period. Mr Passehl did not withdraw from the settlement agreement during this time;
e) On 10 April 2014 the Respondent paid Mr Passehl moneys due to him under the terms of the settlement agreement;
f) On 28 April 2014 the Respondent provided Mr Passehl with a statement of service. Further, in accordance with the terms of the settlement the termination of Mr Passehl’s employment was converted into a resignation;
g) The settlement agreement contained a release in favour of the Respondent;
h) On 10 December 2014 (i.e. 8 months, 4 days after settlement was reached) Mr Passehl made an application to have his case re-opened; and
i) Following the receipt of material in support of his application, on 23 March 2014 the Deputy President dismissed his application under s.587(1)(c).
[4] In the Decision, the Deputy President referred to the decision of the Federal Court of Australia in Australia Postal Corporation v Gorman3 and noted that “an accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement”4 and, further, that the “continued pursuit of an application based on [an extinguished pre-existing cause of action] is clearly capable of being considered to be … without reasonable prospects of success.”5 We discern no error in the Deputy President’s approach.
[5] The Deputy President accepted that Mr Passehl signed the settlement agreement “at a time when he had financial difficulties”, but did not consider “that this [was] a sufficient reason to overlook the settlement reached by the parties”.6 The Deputy President decided not “to ignore the signed terms of settlement and permit [the] matter to proceed further.”7 The Deputy President was satisfied “that Mr Passehl’s claim [had] no reasonable prospects of success as he settled his unfair dismissal claim and he … received the benefits of that settlement.”8
[6] In deciding not to reopen the case the Deputy President expressed no judgment about the merits of Mr Passehl’s unfair dismissal claim.
Consideration
[7] 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.
[8] 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(1) as “a stringent one”.9 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment10. 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.”11
[9] 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.12 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.13
[10] The submissions attached to Mr Passehl’s Notice of Appeal substantially addressed the merits of his unfair dismissal application. Mr Passehl says he wants his case reopened because he has been treated unfairly and he wants to clear his name. Nothing in the materials filed with the Notice of Appeal identified any error in the Decision or addressed why it was in the public interest for the Commission to grant permission to appeal. The material filed with the Notice of Appeal was not relevant to the appeal. Mr Passehl conceded that “all the information is not relevant [until his] case is reopened”.
[11] In his submissions filed on 7 May 2015 Mr Passehl asserted that public interest in the matter was to be found in a range of issues that are best described as matters relating to the merits of the unfair dismissal matter. No issues of importance or general application were identified. In a further submission filed on 10 June 2015 (without the permission of the Commission and after his application for permission to appeal had been heard and the decision reserved), Mr Passehl raised further issues concerning the merits of his unfair dismissal matter and various post-dismissal events. Again there was nothing in those further submissions which advanced his case for permission to appeal.
[12] To the extent that Mr Passehl was able to identify any error in the Decision it seems to be a submission that he signed the agreement “under extreme duress”. This was not an argument that he ran before the Deputy President. Before the Deputy President Mr Passehl said he “accepted the offer because he was broke and needed the money to pay his bills and buy food.”14 The Deputy President accepted this evidence and said that “Mr Passehl signed the deed at a time when he had financial difficulties”.15 However, the Deputy President did not consider Mr Passehl’s financial circumstances justified setting aside the settlement agreement. We discern no error in the approach adopted by the Deputy President.
[13] Before this Full Bench Mr Passehl also sought to argue the merits of his claim that he was unfairly dismissal. In this regard his approach to the appeal misunderstood the task before the Full Bench. When expressly invited by the Full Bench to identify any error in the Decision he was unable to do so. We discern no error in the Decision.
[14] Further, we are not satisfied that this matter:
a) raises issues of importance and or general application;
b) is in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;
c) is one 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.
[15] In deciding not to disturb the Decision this Full Bench expresses no judgment about the merits of Mr Passehl’s unfair dismissal claim. The point is that Mr Passehl’s claim of unfair dismissal was extinguished by the settlement agreement which he entered into. That provided a proper basis for his application to be dismissed under s.587(1)(c).16
Conclusion
[16] We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
P. Passehl on his own behalf.
V.Hinton from Business SA for Link SA Pty Ltd.
Hearing details:
2015.
Sydney:
21 May.
1 PR562333
2 [2015] FWC 2001
3 (2011) 196 FCR 126 per Besanko J
4 Ibid at [31]
5 Ibid at [33]
6 [2015] FWC 2001 at [12]
7 Ibid
8 Ibid at [13]
9 (2011) 192 FCR 78 at [43]
10 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]
11 [2010] FWAFB 5343 at [27], 197 IR 266
12 Wan v AIRC (2001) 116 FCR 481 at [30]
13 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]
14 [2015] FWC 2001 at [6]
15 Ibid [12]
16 Coleman v Logic Australia Pty Ltd[2012] FWAFB 9876 at [11]
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