Rhys Junior Huirau Twomey v Que 5 Refrigerated Transport T/A Que 5 Pty Ltd
[2023] FWCFB 34
•13 FEBRUARY 2023
| [2023] FWCFB 34 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rhys Junior Huirau Twomey
v
Que 5 Refrigerated Transport T/A Que 5 Pty Ltd
(C2022/7768)
| DEPUTY PRESIDENT MILLHOUSE Commissioner BissetT COmmissioner Harper-Greenwell | MELBOURNE, 13 FEBRUARY 2023 |
Appeal against decision [2022] FWC 2945 of Deputy President Beaumont at Perth on 18 November 2022 in matter U2022/9132 – permission to appeal refused
Mr Rhys Junior Hairau Twomey (Appellant) has applied for permission to appeal a decision[1] and order[2] of Deputy President Beaumont issued on 18 November 2022. The decision concerned an application by the Appellant for an unfair dismissal remedy in respect of his employment with Que 5 Refrigerated Transport T/A Que 5 Pty Ltd (Respondent).
The Deputy President dismissed the application on the basis that the Appellant had not met the minimum employment period in s 383(b) of the Fair Work Act 2009 (Cth) (FW Act).
The application was listed for permission to appeal only. The Appellant consented to the application being determined without a hearing pursuant to s 607(1)(b) of the FW Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. Accordingly, the parties were advised that the Full Bench would determine the appeal on the basis of the Appellant’s notice of appeal[3] and the written submissions[4] filed in accordance with the Directions.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
It was not in dispute in the proceedings before the Deputy President that (a) the Appellant commenced employment with the Respondent on 3 January 2022 and his dismissal took effect on 1 September 2022 (that is, he was employed for two days short of eight months); and (b) the Respondent employed fewer than 15 employees at all relevant times, such that it met the definition of a “small business employer” pursuant to s 23(1) of the FW Act.
In the Decision, the Deputy President commenced by setting out the steps taken to explain to the parties the “implications” arising from the Respondent’s status as a small business employer. The Deputy President advised the parties that she would first determine if the Appellant met the minimum employment period prior to any consideration of the merits of the application.[5]
After describing the circumstances that led to the Appellant’s dismissal,[6] the Deputy President set out the evidence relied upon by the Appellant to demonstrate his employment period and his pattern of work. The evidence consisted of approximately 40 payslips. The Deputy President observed that while the final payslip indicated that the employment terminated on 30 August 2022, it was not in dispute between the parties that the dismissal took effect on 1 September 2022.[7] Further, the Deputy President noted that the Respondent’s evidence that it employed six employees was unchallenged.[8]
Having regard to these matters, the Deputy President found that the Respondent was a small business, and it was therefore necessary for the Appellant to have completed a minimum employment period of one year in order to be a person protected from unfair dismissal.[9]
The Deputy President found, on the uncontested evidence, that the Appellant’s casual employment ended on 1 September 2022. Accordingly, the Deputy President was satisfied that the Appellant had been employed with the Respondent for less than one year. The Deputy President did not, in these circumstances, consider it necessary to determine if the Appellant had performed casual work on a regular and systematic basis.[10]
The Deputy President concluded that the Appellant had not served contiguous periods of service amounting to one-year preceding his dismissal on 1 September 2022. Accordingly, the Appellant had not met the minimum employment period necessary to be protected from unfair dismissal by a small business employer under the FW Act. On that basis, the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy[11] and issued an order to that effect.
Grounds of appeal
We discern from the matters set out in the Appellant’s notice of appeal and his written submissions that the Appellant raises three grounds of appeal, which we summarise as follows:
1. The Deputy President “gave permission for an incorrect appeal procedure” in respect of which the Appellant was not notified or present until the phone hearing was in process and “blatantly contradicted” the established findings of the staff member of the Commission who conducted the conciliation conference in the matter.
2. The Deputy President refused to alter the Decision “without reading, or properly investigating appropriate evidence [9] (Deputy President Beaumont’s, Decision, Background, Consideration, Conclusion, 18th November 2022) or my payslips.”
3. The Deputy President failed to acknowledge or examine further complaints or “apply the appropriate legislation. s789FD, s105 - (1)(a)(b), s19 – (1)(a)(b), s530.”
(emphasis in original)
The Appellant submits that the grant of permission to appeal would be in the public interest. The Appellant’s position, as we apprehend it, is that the legislation has not been correctly applied and if the Deputy President’s actions are deliberate or lacking in capacity, it would be “detrimental” for the matter not to be the subject of reconsideration.
Principles – permission to appeal
An appeal under s 604 of the FW 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.[12] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the FW Act applies. Section 400(1) provides that despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the FW Act.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error,[14] or a preference for a different result.[15] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the relevant considerations:
“... 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...”[16]
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.[17] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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.[18] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
The first ground of appeal
We understand that appeal ground one is comprised of two components, which we address in turn.
First, the Appellant appears to contend that the Deputy President conducted a proceeding by telephone on 20 October 2022 at 16:00 AWST, which was attended by the Respondent, but which the Appellant was not advised of.
A review of the Commission’s file does not indicate that a hearing, conference or any other procedural event was held on 20 October 2022 in the application. Rather, on 13 October 2022 the Deputy President corresponded with the parties by email, setting out a series of preliminary questions to assist the Deputy President in future programming of the matter. This email requested a response from the parties by 16:00 (AWST) on 20 October 2022. Furthermore, the 13 October 2022 email directed the Respondent to file and serve its Form F3 – employer response to application for unfair dismissal (Form F3) by the same deadline.
The Deputy President’s approach appears to have been both conventional and entirely unremarkable. The correspondence did not engage with the parties in a manner that may be regarded as “incorrect” or improper, and nor could the communication be regarded as an “appeal procedure” as contended. The direction given to the Respondent to file and serve its Form F3 reflects the requirement imposed upon a respondent to an unfair dismissal application by the Fair Work Commission Rules 2013.[19]
Second, the Appellant contends that the Deputy President “blatantly contradicted” the findings reached in the conciliation conference that took place on 7 October 2022. Consistent with the Commission’s standard procedures, the conference provided the parties with a confidential process for the purposes of exploring the possibility of reaching an agreed settlement. It is apparent that the application was not resolved during the conference. We reject the proposition that the conciliator made “established findings” in relation to the Appellant’s application during the conference. Nor was the onward allocation of the application to the chambers of the Deputy President an “appeal” process, as the Appellant appears to misapprehend. The contention that the Decision is capable of blatantly contradicting a conciliator’s “findings” is unsustainable, and we reject it.
No arguable contention of error is disclosed in respect of the matters raised by the first ground of appeal.
The second ground of appeal
We discern from the second ground of appeal that it is contended the Deputy President erred by refusing to take into account the Appellant’s payslips,[20] or a statement purportedly given by the Respondent’s owner, Mr Phillip James Coulter, to the police.[21]
The Appellant’s payslips in the period between 3 January 2022 to the time of his dismissal were before the Deputy President in the proceedings at first instance. We understand that the Appellant relies upon these payslips in support of his contention that he was employed as a casual employee, and he held a reasonable expectation of continuing employment on a regular and systematic basis within the meaning of s 384(2)(a) of the FW Act.
As it was not in dispute that the Respondent was a small business employer, the pertinent issue before the Deputy President was whether the Appellant had completed the minimum employment period of one year in s 383(b) of the FW Act. The Deputy President was satisfied, on a simple calculation of the time between 3 January and 1 September 2022, that the Appellant’s period of employment was less than one year. Accordingly, the Appellant could not have been a person protected from unfair dismissal for the purposes of s 382(a) of the FW Act. The Appellant does not challenge this conclusion in the appeal before us.
As to the Appellant’s contention that the Deputy President failed to have regard to his payslips, this is rejected. It is apparent from the Deputy President’s observations at [9] and the conclusion at [21] of the Decision, that the Deputy President had specific regard to the Appellant’s payslips. However, as stated at [21] of the Decision, the Deputy President considered it to be unnecessary, in light of the Appellant’s period of approximately eight months’ service, to engage in a further examination of the payslips for the specific purpose of ascertaining whether the Appellant’s casual employment was regular and systematic. Whether or not the Appellant was a regular casual employee does not bear upon the fact that he had not completed one year of service. No error is disclosed in the Deputy President’s approach to the payslips.
With respect to the Appellant’s submission that the Deputy President failed to have regard to a statement given by Mr Coulter to the police, this contention fails. Mr Coulter’s police statement was not in evidence before the Deputy President at first instance. It follows that it could not be taken into account in the decision.
To the extent that the Appellant seeks to rely upon Mr Coulter’s police statement as fresh evidence in this appeal proceeding,[22] we decline to accept it. As observed in Curtis v Darwin City Council,[23] the appeal process is not an avenue for an unsuccessful party to seek to cure shortcomings in the way the case was run at first instance. In any event, the well-settled principles governing the discretion to admit new evidence or to consider further material do not satisfy us that the new evidence should be admitted.[24] Relevantly, we are not satisfied that Mr Coulter’s police statement discloses any relevant material such that there is a high degree of probability that it would lead to a different decision.[25]
To the extent that the Appellant contends, by his written submission that “[t]he payslips demonstrate that s23(2)(a)(b) is apparent” we also reject this contention. Even if the Appellant were excluded from the calculation of the Respondent’s employees by reason of s 23(2)(b) of the FW Act (observing that this would seem to be at odds with the Appellant’s primary contention), this would have no bearing upon the conclusion that the Respondent is a small business employer, employing fewer than 15 employees at the relevant time. The Deputy President’s ultimate conclusion that the Appellant had not met the minimum employment period would remain undisturbed.
Having regard to the above matters, the second appeal ground is rejected.
The third ground of appeal
By appeal ground three, it is contended that the Deputy President failed to consider other complaints advanced by the Appellant pursuant to s 789FD of the FW Act (concerning contentions of bullying), s 105(1)(a) and (b) of the Work Health and Safety Act 2011 (Cth) (WHS Act) (definition of discriminatory conduct) and s 19(1)(a) and (b) of the WHS Act (primary duty of care).
The Appellant raised, in his application for an unfair dismissal remedy, that he had been bullied at work. However, consistent with the position expressed by the Deputy President at [3] of the Decision, the parties were advised that the Deputy President would first need to resolve the question concerning whether the Appellant was a person protected from unfair dismissal before the merits could be considered. Having found that the Appellant was not a person protected from unfair dismissal because he had not met the minimum employment period, the Commission was not empowered to further consider the Appellant’s case.
The third ground of appeal is dismissed.
Public interest
The Deputy President has taken an entirely orthodox approach to the determination of the relevant facts in the matter and the application of the law to those facts. Nothing in the material before us indicates that it would be in the public interest to grant permission to appeal. There is no issue of importance or general application arising in the matter and the legal principles applied are not disharmonious when compared with other decisions dealing with similar matters. We do not consider that the Decision manifests an injustice and nor is the result counter intuitive.
Accordingly, we are not satisfied that it would be in the public interest to grant permission to appeal. Having reached this conclusion, permission to appeal must be refused in accordance with s 400(1) of the FW Act.
Order and disposition
For the reasons given, permission to appeal is refused and the appeal is dismissed.
DEPUTY PRESIDENT
Final written submissions: 20 January 2023
[1] Twomey v Que 5 Refrigerated Transport T/A Que 5 Pty Ltd[2022] FWC 2945
[2] PR748073
[3] Dated 24 November 2022
[4] Dated 20 January 2023
[5] Decision at [3]
[6] Decision at [5]-[8]
[7] Decision at [9]-[10]
[8] Decision at [11]
[9] Decision at [19]
[10] Decision at [20]-[21]
[11] Decision at [22]
[12] 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)
[13] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[15] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[16] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[17] Wan v AIRC [2001] FCA 1803, (2001) 116 FCR 481 at [30]
[18] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[19] Fair Work Commission Rules 2013, r 8(2), 19 and 46
[20] “Exhibit A” to the Appellant’s submissions on appeal
[21] “Exhibit B” to the Appellant’s submissions on appeal
[22] Fair Work Act 2009 (Cth) s 607(2)
[23] Curtis v Darwin City Council[2012] FWAFB 8021 at [80] citing KA Murphy v SF Finance Pty, Print P1395, 29 May 1997
[24] Zahar Levin v Douglas and Mann Pty Ltd T/A Histopath Diagnostic Specialists[2022] FWCFB 39 at [17] citing Akins v National Australia Bank [1994] 34 NSWLR 155 at 160
[25] Akins v National Australia Bank [1994] 34 NSWLR 155 at 160
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