Rodney Smith v Reward Interiors Pty Ltd
[2021] FWCFB 6031
•22 OCTOBER 2021
| [2021] FWCFB 6031 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Rodney Smith
v
Reward Interiors Pty Ltd
(C2021/6810)
VICE PRESIDENT HATCHER | SYDNEY, 22 OCTOBER 2021 |
Appeal against interim and/or procedural decision of Commissioner McKenna at Sydney on 6 October 2021 in matter number C2021/6588 – adjournment of first conference/directions – permission to appeal refused
[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter earlier today.
[2] On 29 September 2021, Mr Rodney Smith filed an application pursuant to s 526 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute concerning his stand down from his employment with Reward Interiors Pty Ltd, which trades as the Reward Group. The matter was allocated to Commissioner McKenna. The Commissioner initially attempted to list the matter for a first conference/directions hearing on 1 October 2021, but there was an issue about the parties’ mutual availabilities at various times during that day. The Commissioner eventually listed the matter for conference/directions on 6 October 2021 at 2.00pm.
[3] At 10:12am on 6 October 2021 the respondent sent an email to the Commissioner’s chambers asking that the conference be adjourned. The email stated that “the reason for the adjournment is due to a Covid-19 outbreak within one of our construction sites which [Mr Lee – Project Director] must urgently attend to, to ensure the wellbeing of all personnel on site, and to ensure public health is maintained.” The request included three suggested alternative dates within one week of the listing, and was sent to the Commissioner’s associate and to Mr Smith. Within one hour the Commissioner’s chambers sent an email to both parties advising that the Commissioner had rescheduled the conference/directions to 3.00pm on Tuesday, 12 October 2021 – being 6 days later. Mr Smith subsequently asked for written reasons as to why the adjournment was granted, and his request was denied.
[4] On 11 October 2021, being the day before the rescheduled conference/directions hearing, Mr Smith filed an appeal against the Commissioner’s original decision to grant the adjournment. Because of the lodgment of the appeal, the rescheduled conference did not take place.
[5] This decision is concerned with Mr Smith’s appeal, for which permission to appeal is required. Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
[6] Mr Smith’s grounds of appeal are that there was an absence of admissible evidence to support the adjournment application, he was denied procedural fairness and the Commissioner failed to give reasons for her decision.
[7] For the reasons which follow, we are not satisfied that the grant of permission to appeal would be in the public interest, nor do we consider that there are discretionary grounds justifying the grant of permission.
[8] First, the appeal is against an interlocutory procedural decision of a discretionary nature. Appeals against decisions of this nature are to be deprecated and will rarely be the subject of the grant of permission to appeal. 1 In Galloway v Molina and Zhai,2 the Full Bench said:
“[29] Decisions on adjournments and the re-opening of cases are within the discretion of the Commission member. Members have some latitude as to the decision to be made and the correctness of the decision can only be challenged by showing error in the decision-making process. Appeal benches should rarely interfere with decisions on matters of practice and procedure such as refusals of adjournments.”
[9] Second, there is no arguable basis to consider that the decision was attended by appealable error. The adjournment application was made by the respondent less than four hours before the scheduled conference. The basis of the adjournment application was the fact that the respondent needed to deal with a Covid outbreak on one of its sites on that very day. In those circumstances it would have been unreasonable for the Commissioner to insist that the respondent provide formal evidence supporting the basis for the adjournment. In the same urgent and extraordinary context, we do not consider that the Commissioner erred by not seeking the view of Mr Smith as to the adjournment, noting that he does not contend that he had some relevant knowledge of the circumstances which might have borne upon the adjournment application having regard to the minimal delay that would (but for Mr Smith’s appeal) have been caused by the adjournment. Nor do we consider that a decision of this nature required the provision of reasons beyond an indication that the basis for the request for the adjournment was accepted.
[10] Third, the decision did not cause any prejudice to Mr Smith. Mr Smith complains that he feels aggrieved by the Commissioner’s “failure to perform her statutory duties properly” and had consequently lost all confidence in her. However, his subjective feelings about the matter are not demonstrative of any objective prejudice.
[11] Fourth, the appeal lacks utility. 3 Even if permission were granted and the appeal upheld, there is no relief which we could now grant to overcome any consequence of the adjournment. Mr Smith seeks that “an independent, impartial Commissioner be appointed to have stand down matter heard following the outcome of this appeal of decision” [sic], but this claimed relief does not properly arise from the grounds of the appeal.
[12] Fifth, the appeal raises no legal or policy issue of importance or general application.
[13] Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr R Smith on his own behalf.
No appearance for respondent.
Hearing details:
2021.
Sydney (by video-link):
22 October.
Printed by authority of the Commonwealth Government Printer
<PR735129>
1 You v CSIRO[2020] FWCFB 3804 at [23]; Kennedy v Qantas Ground Services Pty Ltd[2019] FWCFB 6094 at [29]; Hutton v Sykes Australia Pty Ltd[2014] FWCFB 3384 at [3]
2 [2021] FWCFB 5419
3 See e.g. New South Wales Bar Association v McAuliffe[2014] FWCFB 1663, 241 IR 177 at [28]; Singh v Sydney Trains [2020] FWCFB 884 at [29]; Clermont Coal Operations Pty Ltd v Brown and Others[2015] FWCFB 2460 at [18]
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