San Remo Fisherman's Co Operative v Mr Gary Matthews

[2019] FWC 5422

[2019] FWC 5422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

San Remo Fisherman's Co Operative
v
Mr Gary Matthews
(C2019/4652)

VICE PRESIDENT HATCHER SYDNEY, 5 AUGUST 2019

Appeal against decision [2019] FWC 4877 of Commissioner Gregory at Melbourne on 12 July 2019 in matter number U2018/9902 – stay decision.

[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 on 31 July 2019.

[2] San Remo Fisherman’s Co-operative has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Gregory issued on 12 July 2019. 1 The decision concerned the dismissal of Mr Gary Matthews from his employment with the appellant for one hour a week to feed pelicans. His total weekly remuneration in that employment was $29.00. He was dismissed after a verbal altercation with a manager. Mr Matthews filed an application for an unfair dismissal remedy and sought that he be reinstated to his employment. In his decision, the Commissioner determined that he was not satisfied that there was a valid reason for the dismissal and that the dismissal was unfair, and he ordered reinstatement. The order,2 which was also dated 12 July 2019, was to take effect within 14 days, that is, by 26 July 2019. The appeal was filed on 29 July 2019, which was after the order had taken effect. The appellant seeks a stay of the decision and order pending the hearing and determination of the appeal. This decision is concerned with whether that stay application should be granted.

[3] The principles applying to the determination of stay applications which are applied by this Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 3 Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[4] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity properly to peruse the case materials. 4 In respect of this stay application, I can indicate that I have been able to read the decision under appeal and the notice of appeal, and in addition I have heard the oral submissions on behalf of the appellant concerning what it contends are the merits of the appeal and why it has reasonable prospects of success.

[5] My preliminary assessment, based upon the materials I have identified, is that I am not satisfied that the appeal is arguable with some reasonable prospects of success. My reasons for that conclusion are as follows. Being an appeal from an unfair dismissal decision, this is a case to which s 400 of the Fair Work Act 2009 (FW Act) applies. Subsection (1) of s 400 provides that the Commission must not grant permission to appeal from a decision made under Pt 3-2 of the FW Act unless the Commission considers it to be in the public interest to do so. I am not currently persuaded that there are reasonable prospects that the Commission would be persuaded that the granting of permission to appeal in respect of this appeal would be in the public interest. I emphasise that in respect of the public interest, we are considering interests that are broader than those of the parties directly. In that respect, I note the following matters.

[6] Firstly, with the greatest respect to all those involved, this decision has an unusually and perhaps uniquely insignificant subject matter. As I have indicated, it involved employment to which attached some $29.00 in remuneration per week. I consider that having regard to the subject matter of the case, it is intrinsically unlikely that it would attract the public interest.

[7] Secondly, in its notice of appeal, the appellant contends in various ways that this case raises for consideration the principles and the correct approach to be taken to reinstatement in the case of small regional employers. Assuming for present purposes that the appellant can be characterised as a small regional employer, nothing has been put to me that indicates the appeal raises any issues of principle, novelty or general application. There are numerous and frequent decisions of the Commission which deal with unfair dismissal and reinstatement in the context of small and regional employers, and there is nothing in the notice of appeal which indicates that this appeal gives rise to any issue of novelty or importance in that respect.

[8] Thirdly, the other issue raised in connection with permission to appeal and the public interest is the fact that there was a delay of about 5 or 6 months between the hearing of the matter and the date the decision was issued. It is said that this raises an issue of procedural fairness in the consideration of the remedy of reinstatement, and that the issue that the appeal gives rise to is whether the appellant had a right to be heard again in relation to remedy given the time period that had elapsed. That consideration might raise some issue of importance or principle if it were the case that the employer had not been fully heard on the issue of remedy at the hearing and there had been some significant change of circumstances between the date of hearing and the date of the decision over that time period. However, having heard the appellant this afternoon and having tested that proposition, I cannot identify that there was any denial of an opportunity at the hearing to address on the question of remedy, nor was there any change of circumstances of relevance which would have required the appellant to be heard again. It appears to me from the appellant’s submission that the issue they raise is that over that period, that is from the date of the hearing to the date of the decision, Mr Matthews had continued not to perform any work and that other casual employees had been engaged in his place. However it is apparent that those circumstances were circumstances that existed at the date of the hearing. Mr Matthews had of course been dismissed and, unsurprisingly and as was explained to the Commissioner at the hearing, other persons had been engaged in his place. That position seems not to have altered in any relevant way between the period of the hearing and the decision having regard to the answers to my questions given by the advocate for the appellant. That is, while the precise number or identities of the employees might have changed, it remained the case, as is usually the case and unsurprisingly, that the dismissed employee had been replaced in his employment.

[9] For these reasons, I do not consider based on my preliminary assessment of the materials that it is reasonably arguable that permission to appeal would be granted in the public interest.

[10] I have also had regard to the grounds of appeal. There are twelve grounds of appeal. Grounds 1-9 deal with what are said to be significant errors of fact. That categorisation appears to seek to invoke s 400(2) of the FW Act, which provides that an appeal from a decision made under Part 3-2 can only be appealed in relation to a question of fact on the ground that the decision involved a significant error of fact. I have perused grounds 1-9 of the appeal and I have tested those grounds with the advocate for the appellant this afternoon. I do not consider that any of those grounds actually disclose any error of fact let alone a significant error of fact. Rather, they criticise and seek to challenge various evaluative judgments or value judgments made by the Commissioner in his exercise of his discretion. Accordingly, they are not grounds of appeal which would meet the test under s 400(2) nor on their face do they appear to constitute any arguable contention of appealable error.

[11] Ground 10 alleges that the Commissioner failed to give sufficient reasons. I have read the decision. It is lengthy, and my preliminary view is that it gives a very clear indication of the basis upon which the Commissioner decided the case and allows one to understand his reasoning process. Ground 11 alleges that the Commissioner in various ways failed to properly weigh the evidence, but it is well established that the weight to be assigned to particular considerations in a case does not amount to a proper contention of appealable error unless it can be demonstrated that the evidence was simply not taken into account at all. It has not been made apparent to me that this was the case here. Ground 12 goes to the procedural fairness ground which I have identified earlier, and it does not appear to me based on the preliminary submissions that it has merit for the reasons I have identified.

[12] I should also add this. The appellant has indicated its intention to seek leave to adduce further evidence at the hearing of the appeal. The entirety of that evidence was not identified but an example was given to me. That example was evidence of events which are said to have occurred after the Commissioner issued his decision. I can simply say that I do not consider there is any merit to the proposition that appealable error in a decision can be demonstrated by reference to matters of fact which occurred after the decision was issued. The general approach of the appellant with respect to its intention to seek leave to adduce further evidence appears to be, not that this evidence will demonstrate genuine appealable error in the decision, but rather that the appellant seeks to persuade the Full Bench that a different result ought to have pertained.

[13] Those are my reasons for concluding that I am not satisfied at this point that the appeal is arguable and with reasonable prospects of success. It is not necessary for me in those circumstances to deal with the issue of the balance of convenience. I will simply note this. The appellant offered as a condition of the stay order that it would pay the employee his remuneration for the period until the determination of the appeal. That is often a matter in stay applications which will tip the balance of convenience in favour of the appellant. However I observe that this unusual case is probably an exception to that principle in that both parties have explicitly recognised before me today that this case is not about the remuneration, which as I have indicated amounts to only $29.00 per week, but the value to Mr Matthews of his occupation of feeding the pelicans, which appears to be of deep personal interest to him. However that is merely an observation and, as I have said, it is not necessary for me to reach a final view in respect of the balance of convenience consideration.

[14] For the reasons I have given, I dismiss the application for a stay.

VICE PRESIDENT

Appearances:

Mr P Cavanagh on behalf of San Remo Fisherman’s Co-operative

Ms J Matthews on behalf of Mr Matthews

Hearing details:

2019.

Sydney:

31 July.

Printed by authority of the Commonwealth Government Printer

<PR711016>

 1   [2019] FWC 4877

 2   PR710292

 3   [2000] AIRC 785, Print S2639

 4  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]