Sean Fogarty v Cybernet Australia Pty Ltd
[2021] FWCFB 5021
•13 AUGUST 2021
| [2021] FWCFB 5021 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lion Global Pty Ltd; Sean Fogarty
v
Cybernet Australia Pty Ltd; Cybernet Manufacturing Incorporated
(C2021/3130)
VICE PRESIDENT CATANZARITI | SYDNEY, 13 AUGUST 2021 |
Appeal against decision [2021] FWC 2512 of Deputy President Anderson at Adelaide on 12 May 2021 in matter number C2021/360 – permission to appeal refused.
[1] Mr Sean Fogarty and his company, Lion Global Pty Ltd (the Appellants) have lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a decision 1 (the Decision) of Deputy President Anderson (the Deputy President) issued on 12 May 2021. The Decision dealt with an application brought by the Appellants under s 365 of the Act for the Commission to deal with a general protections dispute involving dismissal.
[2] In the matter at first instance, the Appellants alleged that either of them had been dismissed by either Cybernet Australia Pty Ltd or Cybernet Manufacturing Incorporated (the Respondents). Each of the Respondents filed responses to the Appellants’ application raising a jurisdictional issue. The jurisdictional issue was that neither of the Appellants were dismissed within the meaning of the Act and therefore, the Commission had no jurisdiction to deal with the s 365 application. The Deputy President found that the Appellants were not dismissed within the meaning of the Act and dismissed the s 365 application.
[3] The matter on appeal was listed for permission to appeal only. Directions were set for the filing of material by the Appellants regarding the grant of permission to appeal. The Respondents were not required to file material. Accordingly, the Respondents did not file any written submissions in relation to permission to appeal. At the time the Appellants lodged the appeal, they requested that the matter be dealt with on the papers without the need for a formal hearing. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on the basis of written submissions only.
[4] For the reasons that follow, permission to appeal is refused.
The Decision under appeal
[5] In the Decision, the Deputy President dealt first with a number of procedural matters concerning amendments to the application at first instance, representation, production of documents, the nature of the proceedings and his own observations of the evidence. We will outline only the procedural matters relevant to this appeal.
Production
[6] In the matter at first instance, the Appellants made two applications seeking orders for production of nineteen categories of documents from each Respondent. The Deputy President heard both parties on the issue of production and for reasons set out in the audio recording of proceedings, declined to make the orders sought. Leave was reserved for the making of a more limited application. Subsequently, on 12 April 2021, the Appellants made two further applications seeking orders for production of eleven categories of documents from each Respondent. The Deputy President considered the submissions by the parties and declined to make the orders sought. In an email to the parties, dated 23 April 2021, the Deputy President set out the reasons for declining to make the orders sought as follows: 2
“I am not satisfised that an order to produce the documents sought should be made. Even though Mr Fogarty has sought to refine his request from that made earlier, it remains a substantial list of documents he seeks. They may be of interest, but I am not satisfied that they are of direct relevance. Some may be, but others may only have tangential relevance. For example, the orders sought seek various information relating to the Respondents’ businesses both here and internationally, including but not limited to, legal advice provided to the Respondents, sale orders for the past 20 years, APAC sales forecasts and copies of FDA, TGA or other certifications. There is also a significant element of ‘fishing’ in the application rather than a clear indication of how each document sought advances the jurisdictional issues in circumstances where a substantial volume of documents are already before the Commission. Overall, at this late stage of proceedings an order (were it made) would be likely to be oppressive in terms of compliance and not in the interests of justice or the efficient administration of the matter.
I have considered the applications and submissions and conclude that it is not appropriate to make Orders in the terms sought.
The matter will proceed, as listed, on 28 April 2021 based upon the material already filed.”
Proceedings
[7] The Deputy President made a number of observations about the conduct of the proceedings before him. Relevantly, the Deputy President noted that he provided general assistance to Mr Fogarty to frame questions of the Respondents’ witnesses rather than make statements and explained to both parties why he did not allow questions on subject matters that dealt with issues of merit rather than jurisdiction. 3
[8] The Deputy President also noted that proceedings were disorderly during the evidence of Mr Hossein, given in the late afternoon of 28 April 2021, who is a director of Cybernet Australia and Chief Executive Officer of Cybernet Manufacturing. The Deputy President noted that instead of simply answering relevant questions as required, Mr Hossein, contrary to the Deputy President’s direction, made gratuitous and condescending comments directed at Mr Fogarty who was asking questions. Mr Hossein also commented on the relevance of questions despite being made aware that it was the Commission’s and not Mr Hossein’s role to rule on relevance. Towards the conclusion of his evidence, Mr Hossein claimed to no longer have access to materials in the court book. 4 The Deputy President advised Mr Fogarty that should there be a specific relevant document he wished to put to Mr Hossein that Mr Hossein could not access, it would be again made available to Mr Hossein to assist cross-examination.
[9] Prior to proceedings commencing on 29 April 2021, Mr Fogarty emailed the Commission to raise a complaint that he was not able to properly cross examine the Respondents’ witnesses due to the witnesses claiming not to have the court book. Mr Fogarty also complained of what he considered to be “harassing, defamatory and bullying behaviour” whilst asking questions. 5
[10] When proceedings resumed, Mr Fogarty asked for Mr Ali, director and Global Senior Vice President of Cybernet Manufacturing, and Mr Hossein to be recalled to allow further questions. The Respondents objected to this course. The Deputy President indicated his provisional view that Mr Hossein should be recalled in the interests of fairness, and being satisfied that he had the court book, Mr Hossein agreed to do so. Mr Hossein was then further cross examined. Mr Fogarty did not press his request that Mr Ali be recalled.
[11] The Deputy President then considered the Appellants’ claims against the Respondents. The Deputy President was not satisfied that there was a contract between either Mr Fogarty or Lion Global and Cybernet Australia which could underpin a claim under Part 3-1 of the Act 6 and therefore, dismissed the application brought against Cybernet Australia as it was not within the Commission’s jurisdiction.7
[12] Regarding Lion Global’s claim against Cybernet Manufacturing, the Deputy President found that Lion Global did not have standing to bring an application under s 365. This is because a contract of employment could not have existed between Lion Global and Cybernet Manufacturing for the reason that Lion Global is an incorporated entity and not a person, meaning it could not be an employee. 8 Accordingly, the application by Lion Global against Cybernet Manufacturing was dismissed.
[13] The Deputy President turned to Mr Fogarty’s claim against Cybernet Manufacturing and weighed up the factors relevant to a determination of whether an employment relationship exists between Mr Fogarty and Cybernet Manufacturing. The Deputy President’s consideration of the factors was lengthy and detailed; we will not repeat them here. Ultimately, the Deputy President determined that Mr Fogarty was not an employee of Cybernet Manufacturing and accordingly, was not dismissed within the meaning of s 365 of the Act. 9 The Deputy President dismissed Mr Fogarty’s s 365 application.10
Principles of Appeal
[14] 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. 11 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[15] 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. 12 The public interest is not satisfied simply by the identification of error,13 or a preference for a different result.14 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia 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...” 15
[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. 16 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[17] 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. 17 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of Appeal
[18] The Appellants advanced numerous grounds of appeal, numbering 44 in total. Many of them are not proper appeal grounds in that they do not point to an appealable error or significant error of fact and are just mere statements proffered by the Appellants. We have taken the Appellants’ grounds of appeal and written submissions into account.
[19] The Appellant’s submissions can broadly be summarised as follows:
• Contentions that the Deputy President at various times, failed to adhere to the Fair Work Commission Practice Notes or the Fair Work Commission Benchbook.
• Contentions that the Deputy President failed to inform himself.
• Contentions that the Deputy President did not take into account case law the Appellants deem to be relevant.
• The Deputy President erred in not making the orders for production sought by the Appellants in the matter at first instance.
• The Deputy President erred in his analysis of the factors relevant to the determination of whether an employment relationship existed between any of the Appellants and the Respondents.
• The Deputy President erred in accepting evidence and statements adduced by the Respondents which the Appellants assert are false and misleading.
• General complaints about the conduct of Mr Hossein on the day of the hearing.
Consideration
[20] The Appellants’ grounds of appeal have not identified an appealable error, nor have they identified a significant error of fact on the part of the Deputy President. We do not accept that the Deputy President failed to adhere to the Fair Work Commission Practice Notes or Benchbook. Furthermore, the Appellants have failed to identify how any such failure to adhere has resulted in an error in the Deputy President’s analysis of whether an employment relationship existed between the parties.
[21] We do not accept that the Deputy President failed to inform himself or take into account relevant case law. The Deputy President correctly identified and applied the relevant law in his analysis of the relationship between the parties. We also see no error in the Deputy President’s decision to refuse the Appellants’ application for orders for production.
[22] The Deputy President has detailed at length, the conduct of Mr Hossein in the matter at first instance. The Appellants are entitled to be dissatisfied with Mr Hossein’s conduct, but this does not in itself disclose an appealable error. We are also not satisfied that the Deputy President accepted false or misleading evidence from the Respondents. The Deputy President explained at length his treatment of the evidence and why he prefers the evidence of some witnesses over others’. As the Member at first instance, the Deputy President is best placed to weigh up the evidence and we do not find any error in the conclusions he reached based on the evidence.
Public Interest
[23] The Appellants’ F7 Notice of Appeal does not disclose any public interest grounds. The Appellants have merely copied and pasted a large extract of Aster Home Nursing Service Pty Ltd v Peel [2020] FWCFB 6760 into the form. The Appellants’ written submissions briefly contend that it is in the public interest to allow the appeal to “look more closely allowing an appeal of the Members decision and the continued usage of deliberate sham contracts of many Multinationals ‘doing business in Australia’ and avoiding their many Australian obligations…” 18.
[24] In his decision, the Deputy President explicitly rejected the submission that the arrangement between the Appellants and the Respondents was a sham contract. We do not find any error in how the Deputy President reached this conclusion. Accordingly, the Appellants have not identified any public interest grounds upon which permission to appeal should be granted.
[25] For completeness, we are also not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[26] As we are not persuaded that the Appellants have established any appealable error in the Deputy President’s decision, or that there are any other considerations that warrant the grant of permission to appeal, permission to appeal is refused.
VICE PRESIDENT
Hearing details:
By consent, on the papers.
Final written submissions:
Appellants’ written submissions dated 28 June 2021.
Printed by authority of the Commonwealth Government Printer
<PR732830>
1 Sean Fogarty and Lion Global Pty Ltd v Cybernet Australia Pty Ltd and Cybernet Manufacturing Incorporated [2021] FWC 2512.
2 Ibid at [16].
3 Ibid at [19].
4 Ibid at [20].
5 Ibid at [21].
6 Ibid at [68].
7 Ibid at [72].
8 Ibid [73] – [79].
9 Ibid at [167].
10 Ibid at [173].
11 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).
12 O’Sullivan v Farrer (1989) 160 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 & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
13 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
14 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].
15 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
16 Wan v AIRC (2001) 116 FCR 481 at [30].
17 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
18 Appellants’ written submissions dated 28 June 2021.
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