Reece Storme Ferrara v Medical Rescue Pty Ltd, 24-7 Assistance Pty Ltd T/A Medical Rescue
[2021] FWCFB 6014
•22 OCTOBER 2021
| [2021] FWCFB 6014 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Reece Storme Ferrara
v
Medical Rescue Pty Ltd, 24-7 Assistance Pty Ltd T/A Medical Rescue
(C2021/4710)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 OCTOBER 2021 |
Appeal against decision [2021] FWC 4913 of Commissioner McKinnon at Melbourne on 10 August 2021 in matter number C2021/3009 - whether employee was dismissed - no public interest identified - permission to appeal refused.
[1] Mr Reece Storme Ferrara has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision (the Decision) of Commissioner McKinnon issued on 10 August 2021. 1 The Decision dealt with a general protections application involving dismissal that was filed by Mr Ferrara under s.365 of the Act.
[2] Mr Ferrara alleges that he was dismissed from his employment with 24-7 Assistance Pty Ltd T/A Medical Rescue (Medical Rescue) as a casual paramedic because he exercised a workplace right and because of his disability. At first instance, the Commissioner found that Mr Ferrara was not dismissed, and therefore the Fair Work Commission (the Commission) did not have jurisdiction to deal with the matter and the application was dismissed on this basis.
[3] Mr Ferrara’s appeal against the Decision has been dealt with on the papers, 2 and for the reasons that follow, permission to appeal is refused and the appeal is dismissed.
The Decision under appeal
[4] On 26 April 2021, Mr Ferrara, responded to an unsolicited email from Medical Rescue, concerning an opportunity for employment as a paramedic or registered nurse on the Snowy Hydro project in the NSW Snowy Mountains.
[5] Mr Ferrara responded to the effect that he was available to commence at the earliest opportunity.
[6] Mr Ferrara then received the following response from the HR Recruitment Division of Medical Rescue:
“Hi Reece,
Thank you for your swift reply and interest in the available opportunity at Snowy &
also at RQ.
The immediate short-term placement we have available is from this Wednesday 28 April - Thursday 13 May at our Snowy Hydro base in the Snowy Mountains. You would need to attend an 8am Induction onsite on Wednesday morning & you would move out on the Thursday 13 May. This position is FIFO however dependant on where you are located we may require you to travel on the Tuesday 27 via car or flight. The remuneration for this project is excellent and the daily rate determined as per your position and experience. There is also potential for this position to be ongoing, joining our fantastic existing team on a 14 day on/14 day off rotation. You will also need to have a white card to accept this placement.
These positions are very popular so please can you confirm ASAP if you are interested and state your position & if you hold a White Card & attach your CV for our records.
Looking forward to hearing from you.
Kind regards,
HR Recruitment Division”
(Our underline)
[7] Following the email chain, a discussion between Mr Ferrara and Ms Samantha Pitura, Human Resources Officer, took place that day. At 2:58pm, Ms Pitura wrote to Mr Ferrara offering him a “placement at our Snowy Hydro project commencing this Wednesday.” The email also foreshadowed sending a casual contract of employment and welcome email that afternoon and sought information for the purposes of booking his induction on 28 April 2021 in Cooma, NSW.
[8] Flights were booked for Mr Ferrara to fly to Canberra for the role on 28 April 2021, and to return to Melbourne on 13 May 2021.
[9] On 28 April 2021 Mr Ferrara commenced employment as a casual paramedic with Medical Rescue on the Snowy Hydro Project (the Project).
[10] On 1 May 2021, the appellant wrote to Ms Stevi Rokosuka, Clinical Operations Manager, asking about his contract of employment, as it had not yet been received. Ms Rokosuka responded to the effect that Ms Pitura would send Mr Ferrara the employment contract the following Monday. Ms Rokosuka is not involved in or authorised to deal with employment of staff or their terms and conditions of employment.
[11] On 3 May 2021, after no employment contract had been received, Mr Ferrara spoke with Ms Rokosuka stating words to the following effect:
Ferrara: “I am really enjoying this job.”
Rokosuka: “Do you want to go full time?”
Ferrara: “Oh umm yeah that would be awesome.”
Rokosuka: “You’ll need to talk to Sam, she’ll deal with it.” 3
[12] On 4 May 2021, Mr Ferrara sent follow up emails to Ms Pitura, the second of which stated:
“I advised Stevi that I’m happy to commit entirely to the Snowy Hydro project and she did talk about “full time” Whether that is casual full time or permanent fulltime I am not sure.”
[13] On 5 May 2021, after not receiving a reply, Mr Ferrara again followed up about his employment contract. Ms Pitura replied via email, apologising for the delay and explaining that she wanted to discuss future employment opportunities with him. A telephone conversation then followed, where Ms Pitura asked for the details of at least two current references.
[14] On the same day at 9:49am, Mr Ferrara sent an email to Ms Pitura stating:
“As per conversation.
Super excited to sign up full time on the 26th May pending reference checks here are my references…”
[15] Ms Pitura thanked Mr Ferrara for the information and advised that she would send them off that day.
[16] On 12 May 2021, Mr Ferrara emailed Ms Pitura, stating:
“Goodmorning (sic) Sam,
Just checking in about what to do from here.
2 of my references have said they have not received anything from Medical Rescue to date wondering if perhaps workload had more pressing issues to attend to? Today is my fly out day and I have had wonderful time here.
I have received and developed good repore [sic] with the workers around the site and Lee the supervisor had me run warm ups regularly taking advantage of my additional energy in the morning which made pre-start fun and had lots of positive responses from it. I lost count how many hours I spent reviewing the Drug and Alcohol material for my own learning, possibly in excess of 80 hrs. I gave the material to Bec and Cath for use with the site.
I distributed health education material and also assisted the client in mitigating any issues by providing copies of the DOA policy to help facilitate a transparent process to the goal that the client will sit in a stronger position should anyone make a challenge. I would very much love to come back, and if anything I could be guilty of doing a lot in a short amount of time that I find it difficult not to do as from what I am told is a neurological thing.
At this point it was indicated to come back full time on the 26th May for 2:2. If there is a delay with the contract thats ok i think, but would like to have any kind of assurance if that will happen or not because I am mad trying to get a 4x4 drive course done before that time.
…”
[17] Ms Pitura replied:
“Hi Reece,
Thank you for your email and letting us know that you enjoyed your placement at Snowy.
At this stage, the permanent position commencing 26 May at our Snowy Hydro project has been secured and for this reason, we have not yet reached out to your referees.
We are however aware that you are available and will keep you in mind moving forward.
Kind regards,
Sam”
[18] On 13 May 2021, Mr Ferrara replied to Ms Pitura, copying in Ms Rokosuka and referred to Ms Rokosuka as having offered him “the full time job”. Mr Ferrara then flew home to Melbourne that evening on a pre-arranged flight that was booked on commencement of his short term placement.
[19] In dismissing Mr Ferrara’s application, the Commissioner found that Mr Ferrara was casually employed on a fixed term basis, and was therefore not dismissed:
“[28] It is clear on the evidence that Mr Ferrara was casually employed on the Project for a fixed term of approximately two weeks, from 28 April 2021 until 13 May 2021. While the parties discussed the opportunity for further full-time employment, I am not satisfied that the discussion was anything more than exploratory. No firm commitment was made to Mr Ferrara about becoming employed on a full-time basis. Certainly, he was hopeful that the opportunity would materialise, but it did not. In the meantime, Mr Ferrara remained of the understanding that his placement would come to an end on his ‘fly out day’, just as it did.
[29] The consequence of these findings is that Mr Ferrara was not dismissed by Medical Rescue. His employment came to an end on 13 May 2021 when the agreed period of fixed term employment expired.” 4
Principles of appeal
[20] An appeal under s.604 of 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.5 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[21] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 6 The public interest is not satisfied simply by the identification of error, or a preference for a different result.
[22] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia (now the Fair Work Commission) identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 7
[23] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration, that a substantial injustice may result if leave is refused, or a clear case of error has been demonstrated.
[24] 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.8 However, that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 9
[25] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 10 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Appeal Grounds and Submissions
[26] Regarding the establishment of the public interest in his appeal, Mr Ferrara submits:
• the matter raises issues of importance and general application,
• the result is counter-intuitive, and
• the legal principles applied appear disharmonious compared with other recent decisions dealing with similar matters.
[27] This contention appears to be supported by Mr Ferrara’s reference to various reports and documents, such as the
• Victorian Inquiry into the Labour Hire Industry and Insecure Work Final Report (2016),
• Inquiry into wage theft in Queensland (2018), and
• Corporate avoidance of the Fair Work Act 2009 (2017) Senate Inquiry. 11
[28] It is also alleged that Medical Rescue engaged in conduct to avoid its obligations under the Act, pursuant to s.386(3). 12
[29] Mr Ferrara’s appeal grounds do not clearly point to any specific aspects of the Decision where an error is said to have been made. Rather, Mr Ferrara submits that the Commissioner erred by failing to consider relevant principles in various authorities that examine the employment relationship and termination of employment at the initiative of the employer. 13 It is submitted that these authorities were highlighted in the case in the first instance, however the Commissioner made no reference to them.14
[30] It is further submitted by Mr Ferrara that the Commissioner established that Mr Michael Smith, a Directorof Medical Rescue, was engaged in leading the witnesses and raises doubt about the authenticity of the witness submissions being their own true words. Mr Ferrara also submitted that Mr Smith and Ms Pitura conceded that the employment relationship was still active and intact after 13 May 2021, as Mr Ferrara was placed in a ‘casual pool’. 15
[31] In opposing the appeal, Medical Rescue submitted that Mr Ferrara was not dismissed within the meaning under s.386 of the Act because:
• the employment was for a specified period, and terminated at the end of the period being on or as of 13 May 2021, in accordance with the fixed short-term agreement (s.386(2)(a) of the Act); and/or
• further or alternatively, the employment was not terminated at the initiative of the employer as required by sub-s. 386(1)(a) of the Act, it ended on or as of 13 May 2021 as a matter of law or by effluxion or expiry of the fixed short-term agreement. 16
[32] Medical Rescue pointed to the High Court authority Victoria v the Commonwealth 17 and the Full Bench decision in Khayam v Navitas English Pty Ltd t/a Navitas English18 in support of their submissions.
[33] It was also submitted by Medical Rescue that Mr Ferrara has failed to demonstrate why it is in the public interest to allow the appeal and that Mr Ferrara has failed to demonstrate where the Commissioner has made a significant error of fact in the decision. 19
Consideration
[34] We have had full regard to all of the written submissions and material filed. As previously stated, Mr Ferrara’s appeal grounds are not patently clear, however Mr Ferrara’s primary contention appears to be that the Commissioner did not consider and apply the principles as set out in the authorities Mr Ferrara had referred the Commission to during the proceedings. 20
[35] Mr Ferrara submits that he “wishes to seek clarification if Commissioner McKinnon perhaps did not consider the principals [sic] set out in authorities listed below and, in the absence of these guiding principals [sic], made an error of law on the face of the record.” 21
[36] We accept that the Decision did not specifically address the authorities referred to by Mr Ferrara, however this is not to say they were not considered by the Commissioner, as in our view, after having considered each of the authorities referred to by Mr Ferrara, the authorities are either not applicable to his particular circumstances or do not support his position.
[37] Mr Ferrara’s submissions do not go to the required extent of identifying any error in the Decision and relevance to the grounds of his appeal and do not set out how the listed authorities support his case having regard to his own factual circumstances.
[38] On the evidence before the Commission, there is no ambiguity that Mr Ferrara was a casual employee on a fixed term placement for the period of 28 April to 13 May. This was clearly expressed in the email sent to Mr Ferrara on 26 April 2021 from the HR Recruitment Division of Medical Rescue, which stated:
“The immediate short-term placement we have available is from this Wednesday 28 April – Thursday 13 May at our Snowy Hydro base in the Snowy Mountains. Youwould need to attend an 8am Induction onsite on Wednesday morning & you would move out on the Thursday 13 May… There is also potential for this position to be ongoing, joining our fantastic existing team on a 14 day on/14 day off rotation…”
(Our underline)
[39] As aforementioned, the Commissioner found that the discussions about future ongoing employment between Mr Ferrara, Ms Pitura and Ms Rokosuka were no more than exploratory and that no firm commitment was made to Mr Ferrara about employment on a full-time basis. This finding was open to the Commissioner to make and we find no error in her having done so.
[40] The evidence in this matter clearly demonstrates that Mr Ferrara was hopeful for a full-time position, however unfortunately this expectation was not realised. There was no offer made for full-time work, and his casual fixed term employment ended upon completion of the short term placement on the nominated date of 13 May 2021, upon which Mr Ferrara left the work site and returned to Melbourne.
[41] There was nothing put before the Commission that supported the contention that in employing Mr Ferrara under a short-term placement, the Medical Rescue engaged in conduct to avoid its obligations under the Act pursuant to s.386(3).
[42] Further, we do not accept that the Commissioner “established that Mr Michael Smith was engaged in leading the witnesses”. Regarding the authenticity of the witness evidence, we are of the view that the Commissioner correctly dealt with and gave the appropriate weight to the evidence, which included preferring Mr Ferrara’s evidence over some of the evidence of Medical rescue. 22
Permission to appeal
[43] Having considered the submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Commissioner reached her decision correctly determined that there was no dismissal, and therefore the Commission did not have the jurisdiction to deal with the application. The Commissioner considered and dealt with the evidence that was before her, and made a finding of fact based on that evidence.
[44] Further, we have considered Mr Ferrara’s submissions regarding public interest. Mr Ferrara refers to various reports and documents, 23 although it is not clear to this Full Bench the relevance of this material to Mr Ferrara’s appeal.
[45] In conclusion we are not satisfied that the public interest is engaged in this appeal as:
• there is no diversity of decisions at first instance so that guidance from an appellate body is required;
• the appeal does not raise issues of importance and/or general application;
• the decision at first instance does not manifests an injustice, nor is the Decision counter intuitive; and
• the legal principles applied by the Commissioner were not disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[46] Mr Ferrara has not established any appealable error in the Decision, nor are we able to identify any other consideration that warrants the grant of permission to appeal.
[47] Permission to appeal is refused.
[48] Finally, we note that as the Commissioner identified in her Decision, 24 Mr Ferrara’s ability to pursue a general protections claim under s.372 of the Act would appear to remain available, despite the dismissal of his s.365 application.
VICE PRESIDENT
Final written submissions:
2021
Mr Ferrara
20 August
Medical Rescue
1 October
Printed by authority of the Commonwealth Government Printer
<PR734292>
1 Reece Storme Ferrara v Medical Rescue Pty Ltd; 24-7 Assistance Pty Ltd[2021] FWC 4913.
2 See email from the appellant of 20 September 2021, and email from the Commission of 22 September 2021.
3 Note: Ms Rokosuka’s version of this conversation is different. Ms Rokosuka says that it was Mr Ferrara who asked if he could “go full time” and that she told him they could look at his going full-time at the end of the contracted 14-day period. In the decision, the Commissioner preferred the version as put by the appellant.
4 Reece Storme Ferrara v Medical Rescue Pty Ltd; 24-7 Assistance Pty Ltd[2021] FWC 4913 at [28-29].
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
6 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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
7 [2010] FWAFB 5343, 197 IR 266 at [27].
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089at [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, 241 IR 177 at [28].
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
11 Form F7 – Notice of Appeal at 3.1; Submissions at [1-6].
12 Ibid.
13 Ibid; submissions at [7-142].
14 Ibid at 2.1.
15 Submissions at [8-9].
16 Respondent’s submissions of 1 October 2021 at [11].
17 187 CLR 416 at [140].
18 [2017] FWCFB 5162 at [147].
19 Respondent’s submissions of 1 October 2021 at [12].
20 Form F7 at 2.1 (9).
21 Appeal submissions at [7].
22 Reece Storme Ferrara v Medical Rescue Pty Ltd; 24-7 Assistance Pty Ltd[2021] FWC 4913 at [14].
23 Victorian Inquiry into the Labour Hire Industry and Insecure Work Final Report (2016); Inquiry into the practices of labour hire industry in Queensland Report No. 25, 55 the Parliament Finance and Administration Committee (2016); Inquiry into wage theft in Queensland (2018); The Senate Education and Employment References Committee Wage Theft? What wage theft?! (2018); Corporate avoidance of the Fair Work Act 2009 (2017) Senate Inquiry.
24 Reece Storme Ferrara v Medical Rescue Pty Ltd; 24-7 Assistance Pty Ltd[2021] FWC 4913 at [30].
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