Roger Tull v Allied Express Transport Pty Ltd T/A Allied Express
[2015] FWCFB 6227
•9 SEPTEMBER 2015
| [2015] FWCFB 6227 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Allied Express Transport Pty Ltd T/A Allied Express
(C2015/4233)
VICE PRESIDENT CATANZARITI | SYDNEY, 9 SEPTEMBER 2015 |
Appeal against decision [2015] FWC 3319 of Commissioner Williams at Perth on 19 May 2015 in matter number U2014/15405 – Application for permission to appeal – Permission to appeal refused - Fair Work Act ss. 394, 400 and 604.
[1] This decision concerns an application for permission to appeal against a Decision and Order of Commissioner Williams issued on 19 May 2015. 1 The Decision concerned an unfair dismissal application lodged by Mr Roger Tull on 24 November 2014pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the cessation of his relationship with by the Allied Express Transport Pty Ltd trading as Allied Express (Allied Express) on 10 November 2014.
[2] Mr Tull represented himself. Mr Murphy of counsel represented Allied Express.
Background
[3] Mr Tull’s relationship with Allied Express ended on 10 November 2014.
[4] Commissioner Williams considered the history between the parties and made relevant findings of fact. When applying the relevant criteria for determining whether an employment relationship existed he engaged in a detailed consideration of the party’s history and his factual findings.
[5] Having considered this material Commissioner Williams determined that there was not a relationship of employer and employee and dismissed the application.
Grounds of Appeal
[6] Mr Tull provided a very detailed statement of his grounds of appeal with many references to the transcript. In essence however his grounds of appeal amount to a dispute concerning the factual findings of the Commissioner.
Permission to Appeal
[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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 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 as ‘a stringent one’. 2 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[9] The test for determining the public interest has been described as follows: 3
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[10] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 4 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:5
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Conclusion
[11] It is clear that Mr Tull disagrees with the conclusions reached by Commissioner Williams. That disappointment or disagreement cannot be the basis of a successful appeal.
[12] However before the Appeal Bench Mr Tull referred to the references by Commissioner Williams to piecework. Mr Tull quite correctly stated that he could not be an independent contractor and a pieceworker.
[13] We have considered the transcript of these proceedings and the Commissioner’s findings. We are satisfied that, when considered in the context of the decision as a whole, the Commissioner’s references to piecework were inadvertent. There is no indication that the Commissioner intended to make a finding that the applicant was a pieceworker as defined by the Act. Such a finding would be inconsistent with the other detailed findings in the Commissioners decision.
[14] Commissioner Williams’ decision contains a detailed and comprehensive consideration of the conflicting evidence and the application of the Act. All of his findings of fact were open to the Commissioner on the material before him. There is no identifiable and significant error in those findings. The public interest is not enlivened by dissatisfaction with an outcome where there is no appealable error.
[15] We are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is refused and the application to appeal is dismissed.
VICE PRESIDENT
Appearances:
R. Tull, on his own behalf.
J. Murphy, of counsel, with J Richardson for Allied Express Transport Pty Ltd Trading As Allied Express.
Hearing details:
2015.
July 15.
Sydney – Video Conference Link to Perth.
1 [2015] FWC 3319.
2 (2011) 192 FCR 78 at paragraph 43.
3 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343
4 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
5 Ibid.
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