Rainbow Wholefoods Pty Ltd v Daniel Leigh Marriott-Heath and Catherine Lister
[2022] FWCFB 206
•16 NOVEMBER 2022
| [2022] FWCFB 206 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rainbow Wholefoods Pty Ltd
v
Daniel Leigh Marriott-Heath and Catherine Lister
(C2022/6037 & C2022/6038)
| VICE PRESIDENT CATANZARITI | SYDNEY, 16 NOVEMBER 2022 |
Appeal against decision [2021] FWC 1676 of Commissioner Cambridge at Sydney on 1 April 2021 in matter number U2020/11314 and U2020/11315 – permission to appeal refused.
Rainbow Wholefoods Pty Ltd (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against the decision[1] (the Decision) and associated orders[2] of Commissioner Cambridge issued on 1 April 2021. The Decision concerned an application brought by Mr Marriott-Heath and Ms Lister (the Respondents) for an unfair dismissal remedy pursuant to s.394 of the Act.
At first instance, the Commissioner found that the Respondents dismissals had no valid reason, there were significant procedural errors, and they were harsh, unjust and unreasonable. The Commissioner ordered compensation to be paid by the Appellant to both Respondents.
An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Fair Work Commission (the Commission).[3] The Form F7 – Notice of Appeal was lodged on 1 September 2022, 512 days outside of the time limit as prescribed in the Fair Work Commission Rules 2013 (the Rules). Accordingly, the appeal cannot proceed unless the Commission grants the Appellant an extension of time.
This matter was listed for hearing concerning the issues of the necessary extension of time to lodge the application and permission to appeal. Directions were set for the filing of material by the Appellant. Despite not being directed to file any material, the Respondents filed short written submissions. Accordingly, the matter was heard on 10 October 2022.
For the reasons that follow, extension of time and permission to appeal are refused.
Background
The Appellant operated a retail health food shop in Lismore for about 20 years. The Respondents both worked in this shop. Mr Marriot-Heath was employed for approximately one year and nine months and Ms Lister was employed for approximately 13 years. From 2010, Ms Lister was engaged as a joint manager of the shop. Mr and Ms Stillone are both directors of the Respondent.
On 16 July 2020, the Respondent issued a public notice to its customers which advised that it had decided to close the shop effective 1 September 2020. This was posted on their Facebook site and displayed at the front of the shop. The decision to close the shop came as a result of a directive from the Lismore City Council that the shop was non-compliant with the relevant development approval requirements.
On 26 July 2020, Mr Stillone was hospitalised. Around the same time, the Respondent received advice from their Agent, Mr Oshlack, that the council directive could be challenged and would be found to be invalid. This meant that the shop could remain open. Mr Oshlack informed Ms Lister of this advice, however she was not persuaded that his information provided a proper basis to alter the publicised closure notice and she did not believe that she had authority to alter the position that had been publicised by the Respondent.
On 30 July 2020, Mr Marriot-Heath had a disagreeable text exchange with Mr Stillone. Mr Marriot-Heath advised that as part of the preparations for the shop closure he would be taking leave from the following day. Mr Stillone therefore advised his wife, Ms Stillone, to attend the store the following day in place of Mr Marriot-Heath. During this time Mr Stillone’s health further deteriorated and it was contended that he experienced significant stress during these events.
As a result of Ms Stillone’s heightened anxiety regarding her husband’s health, Ms Stillone decided to advise all staff that from 31 July 2020 the shop would close. Ms Stillone advised Mr Marriot-Heath of this decision via telephone. The following post was then uploaded to the shops Facebook page: “We have made the following decision to close our store today. We understand this is a great inconvenience but unfortunately Tony’s health is worsening due to stress.”
On 31 July 2020, there was a disagreeable exchange between the joint managers, including Ms Lister, and Ms Stillone. In essence, Ms Stillone believed that they had contributed to her husband’s ill health as earlier that day Mr Marriot-Heath had called Mr Stillone and enquired about the termination of employment arrangements for employees when the shop closed. Ms Lister subsequently prepared termination letters for the staff and went to get the letters signed by Ms Stillone who refused. Ms Stillone sent a text later that evening requesting that they meet at 3pm the next day to which Ms Lister declined.
On 3 August 2020, the Respondents noticed that the shop had reopened, and the following message was posted on the shop’s Facebook page: “the shop is closing down, but we are trying to stay open as long as possible … Hope to see you in the store while we are open.” The store operated until 8 January 2021 by some of the old staff, volunteers and some new employees. There was no further contact between the Respondents and the Appellant.
On 20 August 2020, the Respondents filed their unfair dismissal applications. The Commissioner noted that the employer had not provided any documentation or payment regarding the finalisation of the employment of the Respondents other than a payment of $724.00 to Mr Marriot-Heath.
At first instance, the Appellant brought an objection to the Respondents applications submitting that there was no dismissal pursuant to s.386 of the Act. The Appellant submitted that the Respondents would have remained in employment had they met with Appellant immediately after the temporary closure of the shop. Further, the Appellant submitted that the shop closed on 31 July 2020 because Ms Lister insisted on it or because Mr Stillone was dangerously ill. Further, the Appellant alleged that the Respondents may have been planning their dismissal by drafting up their own letters of dismissal and presenting them to Mr Stillone.
The Respondents asserted that they had been terminated by Ms Stillone based upon her words and actions on the afternoon and evening of the 31 July 2020. Mr Marriot-Heath submitted that he received a phone call from Ms Stillone indicating that he should not come back into work as the shop was shutting from then. He submitted that after this call he received no further contact from the Appellant. Mr Marriot-Heath sought payment in respect of his notice and annual leave. Ms Lister submitted that Ms Stillone had asked her not to work at the shop anymore and she did not receive a termination letter. She submitted she had not been paid for her last three days of employment nor had she received notice of termination or accrued leave entitlements.
The Commissioner examined the events of the days preceding the Respondents terminations in order to determine whether there was a dismissal, especially as neither Respondent was provided with written or verbal resignation but instead treated the words and actions of Ms Stillone on 31 July 2020 as their respective dismissal. The Commissioner made the following findings at [38] – [42] of the Decision:
“[38] Upon careful consideration of the totality of the evidence given by all witnesses and having the benefit of observing these individuals during the Hearing, the Commission has adopted a preference for the evidence provided by the applicants wherever that differed from the testimony given by Ms Stillone. Unfortunately, the evidence provided by Ms Stillone appeared to suffer as a result of her propensity on occasions, become excited and somewhat anxious.
[39] … The evidence clearly established that Ms Stillone had decided to shut up shop at 6 pm on 31 July 2020, and although she subsequently suggested that the shop closure was only for a few days until her husband came out of hospital, there was no suggestion of any qualification of this nature at the time. On 31 July 2020, all employees and customers would have understood from the actions and words of Ms Stillone, and the accompanying information provided on the employers Facebook page, that the shop had shut earlier than had previously been anticipated, 1 September, and that it had shut permanently.
[40] It appeared that after a short period of reflection and by about 7:13 pm, Ms Stillone had reconsidered her decision to shut the shop, and she unsuccessfully endeavoured to invite Ms Lister and Mr Gibbs to meet with her at 3 pm on the following day at the shop. Given the evidence of the nature and extent of the disagreeable conversations that occurred between Ms Stillone and Ms Lister on the afternoon and evening of 31 July 2020, it was understandable and reasonable for Ms Lister to feel that there was no capacity for any restoration of the employment relationship at that time.
[41] In the case of Mr Marriott-Heath, there was simply no attempt by the employer to pursue the restoration of the employment relationship. Further, in the week commencing 3 August 2020, it was clear to the employer that the applicants, (and Mr Gibbs), were treating the circumstances of 31 July 2020, and the actions and words of Ms Stillone, as their dismissals from employment. However, unfortunately, the employer made no further attempts to restore the employment relationships that had been severed on 31 July 2020. There would seem to have been some prospect for reconciliation with Mr Marriott-Heath and perhaps Ms Lister, but regrettably it appeared that there was little motivation from any of the Parties for any appeasement of the damage that was done on 31 July 2020.
[42] Consequently, the evidence has established that the applicants were dismissed on 31 July 2020. The words and actions of Ms Stillone on that day represented the termination of each of the applicant’s employment on the employer’s initiative, and in satisfaction of the meaning of dismissed contained in subsection 386(1)(a) of the Act…”
The Commissioner then turned to consider s.387 of the Act and on a balanced evaluation of all the factors concluded that there was a compelling basis that the Respondents dismissals were harsh unjust and unreasonable. The Commissioner found there was no valid reason, no notification and no opportunity to respond to the dismissals. Further, the Commissioner identified that various aspects of the Respondents dismissals involved defective procedure. Further, the Commissioner also noted in his consideration under s.387(g), that the Appellant had taken no steps at the date of hearing to pay accumulated entitlements to the Respondents, despite having had the benefit of legal advice from an early stage of the proceedings. This was seen by the Commissioner as being particularly troubling given that the Appellant recognised that these entitlements would be payable to the Respondents even if it was established that the termination of their employment was not at the Appellant’s initiative.
Following this the Commissioner considered an appropriate remedy and noted that the Respondents did not seek reinstatement as the relationship between the Appellant and Respondents had been irreparably damaged. He therefore determined that compensation should be awarded and applied the Sprigg formula[4] in a conventional manner. Accordingly, the Commissioner made orders for compensation to the Respondents.
Grounds of Appeal
The Appellant’s grounds of appeal as set out in the F7 – Notice of Appeal are as follows:
1. The Commissioner failed to consider a relevant matter before him that Ms Nghi Stillone, a director of the Appellant did not have the authority to dismiss an employee of the company.
2. The Commissioner erred by finding despite the probative evidence to the contrary that the Respondent was dismissed.
3. The Commissioner erred by identifying a wrong issue or made an irrelevant consideration in the exercise of his discretionary power by rejecting the oral evidence of Ms Stillone.
4. The Commissioner erred in making a decision that was induced or affected by fraud.
5. The Commissioner erred by not applying Part 2 of the Spriggs formula to correctly reach the amount of compensation to be paid.
The Appellant also asserts that the first instance decision is counter intuitive, and it is not harmonious with the current espoused law and therefore it is in the public interest to allow the Appeal.
Extension of time to file the appeal
It is necessary at the outset to consider whether the Appellant should be granted an extension of time to file the appeal. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised by the Full Bench in Jobs Australia v Elandas follows:[5]
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.” (footnote omitted)
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour the Appellant being granted an extension of time within which to lodge their appeal.[6]
Whether there is a satisfactory reason for the delay
The Appellant contended that they always intended on lodging an appeal upon receiving the Decision. The Appellant submits that on or about 5 April 2020 they instructed their solicitor to file an appeal, and that on 15 June 2020, their solicitor informed them that he did not file the appeal and that they were now out of time. The Appellant also submits there were matters involving the Fair Work Ombudsman and Federal Circuit and Family Court which prevented them from lodging the appeal. Further, the Appellant submits that their prior solicitor had a mental breakdown and a flooding incident in February and March 2022 which destroyed all the relevant files. We note that the Appellant did not provide any evidence to the Full Bench to support these contentions.
We have considered these submissions and find that the Appellant has failed to provide persuasive a reason to justify the delay. We find that this weighs against the assessment of whether an extension of time should be granted.
Length of the delay
The extent of the delay in this case is 512 days. This is a significant delay and we find that this weighs against allowing further time to bring the appeal.
Nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended
We have considered the Appellant’s grounds of appeal and note they are not particularly strong. Our examination of the Decision reveals an orthodox approach by the Commissioner and no obvious errors in his application of the law. Nonetheless, we will briefly consider each of the Appellant’s grounds of appeal as follows:
We will discuss Grounds 1 and 2 together as they both go to the Commissioner’s finding that the Respondents were dismissed by the Appellant. Ground 1 alleges that the Commissioner failed to consider that Ms Stillone lacked the authority to dismiss the Respondents and Ground 2 alleges that Commissioner erred in finding that the Respondents were dismissed. We note that paragraphs [38] – [42] of the Decision set out above, detail the Commissioner’s findings in respect of the Respondents’ dismissal. Given the lack of written or verbal resignations, the Commissioner undertook a comprehensive analysis of the conduct of the parties in respect of the events leading to the alleged dismissal and was ultimately satisfied that the Respondents had been dismissed pursuant ss.386(1)(a) of the Act. We find no error in the Commissioner’s approach or assessment as to whether the Respondents were dismissed. These findings were open to him on the evidence and we find that he took into account the relevant considerations as required. These grounds disclose no appealable error.
Ground 3 alleges that the Commissioner erred by rejecting the oral evidence of Ms Stillone. At first instance, the Commissioner weighed the totality of the evidence and observations of the witnesses and adopted a preference for the Respondents evidence where it differed from the Appellant’s. The Commissioner formed the view that Ms Stillone became quite excitable and anxious when giving evidence. He also noted that the testimony provided by the Respondents, in particular Mr Marriot-Heath, was succinct, consistent and believable. We find no error in respect of the Commissioner’s assessment of Ms Stillone’s evidence and are satisfied that these findings were reasonably open to him on the evidence. We also note that the Commissioner was able to observe the witnesses giving evidence at a hearing that was conducted in Lismore, where the witnesses were located. The Commissioner’s advantage in having seen and heard the witnesses give their evidence, should be respected[7], and the Appellant has not established a basis for us to depart from this principle.
Ground 4 alleges that the Commissioner erred in making a decision that was induced or affected by fraud. The Appellant submits that the Commissioner failed to consider that Ms Lister damaged shop equipment and destroyed documentary evidence, including computer, ABN, tax and payroll records, prior to her termination. Allegations of fraud are serious and should not be accepted lightly. We note that the Appellant has provided no further evidence in support of this allegation, nor have they commenced separate civil litigation regarding the alleged fraud. Further, we note that the Commissioner did not have had any evidence of the alleged fraud at first instance as the fraud has only recently been discovered. Accordingly, we dismiss this ground of appeal as it is misconceived.
Ground 5 alleges that the Commissioner incorrectly applied the Sprigg formula. We have reviewed the Commissioner’s application of the formula and find it reveals no obvious errors and further the Appellants did not point to anything that would not be considered a standard or orthodox approach to the matters. Therefore, we are not satisfied that this ground discloses any appealable error.
Prejudice to the respondent if time were extended
The Respondents in this matter would be prejudiced if a further period for the appeal was allowed, given the significant period that has elapsed, and we find that this weighs against the granting of an extension of time.
Conclusion
Overall, we are not persuaded that the approach and conclusions of the Commissioner reveal any shortcomings and nor do the grounds of appeal. It is clear the Appellant disagrees with the conclusion and the orders that the Commissioner reached, so much so that he has refused to pay the compensation ordered by the Commissioner in April 2021 which is currently the subject of proceeding brought by the Fair Work Ombudsman and before the Federal Circuit and Family Court.
The long and tortuous path of this matter, since the Decision in April 2021, has largely been because of the Appellants inaction and or lack of knowledge and perhaps purported representative error. The events the agent contends delayed the appeal being lodged are not supported by credible or probative material. The appeal in this matter was lodged significantly out of time, 512 days, and the likelihood that the appeal grounds would not be upheld if time was extended, and the prejudice to the Respondents in this matter all weigh against allowing a further period of time within which to lodge the appeal. Therefore, the Full Bench is not persuaded to grant an extension of time.
The appeal was filed beyond the time prescribed by r.56(2)(a), and an extension of time has been refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
Mr A Oshlack, for the Appellant.
Ms Lister and Mr Marriot-Heath, on their own behalf.
Hearing details:
2022.
Microsoft Teams (Video).
10 October.
[1] [2021] FWC 1676.
[2] PR728152; PR728232.
[3] Rule 56(2) of the Fair Work Commission Rules 2013.
[4] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.
[5] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8].
[6] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541.
[7] Fox v Percy [2003] HCA 22, 214 CLR 118 at [23] per Gleeson CJ, Gummow and Kirby JJ.
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