Sean Fogarty v Gett Asia Ltd
[2019] FWCFB 1177
•25 FEBRUARY 2019
| [2019] FWCFB 1177 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sean Fogarty
v
GETT Asia Ltd; GETT Gerätetechnik GmbH
(C2019/181)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 25 FEBRUARY 2019 |
Appeal against decision [[2018] FWC 7756] of Commissioner Harper-Greenwell at Melbourne on 20 December 2018 in matter number C2018/190 – general protections claim lodged out of time – no error – permission to appeal refused
[1] Mr Sean Fogarty has applied for permission to appeal and has appealed against a decision of Commissioner Harper-Greenwell made on 20 December 2018 1 (Decision), in which she refused to grant an extension of time to file a general protections dismissal application under s 365 of the Fair Work Act 2009 (Cth) (Act). The matter was listed for hearing before us in respect of both permission to appeal and the appeal.
[2] Mr Fogarty filed his general protections dismissal application in the Commission on 10 April 2018. He named both himself and his business, Lion Global Pty Ltd (Lion Global), as the applicants, and GETT Asia Ltd (GETT Asia) and GETT Gerätetechnik GmbH (GETT Germany) as the respondents. Mr Fogarty’s application contended that he was dismissed from his employment with GETT Germany because he was owed money by the respondents, and also that he was engaged under a sham contracting arrangement. It alleged that the companies contravened sections 340, 343, 344 and 358 of the Act.
[3] The respondents denied having contravened the Act and objected to Mr Fogarty’s application on jurisdictional grounds. They contended that Mr Fogarty was not employed by GETT Germany. Rather, they said that Mr Fogarty’s company had a contract with GETT Germany to promote GETT’s products, and that on 14 December 2017 GETT Germany terminated that contract on six weeks’ notice, effective on 31 January 2018. They said that, if there was any employment relationship between GETT Germany and Mr Fogarty, it ended on 31 January 2018, and that Mr Fogarty’s application was therefore lodged outside the 21 day period prescribed by s 366(1)(a).
[4] The respondents further contended that, after the termination of Mr Fogarty’s contract with GETT Germany, GETT Asia negotiated with him about possible future cooperation, but that no agreement was reached. They said that on 20 March 2018 GETT Asia advised Mr Fogarty that the negotiations would cease.
[5] Mr Fogarty’s position was that his employment with GETT Germany ‘rolled over’ into a new contract with GETT Asia. He argued that both companies are controlled by the same persons, and that his employment ended on 20 March 2018. Mr Fogarty contended that his application was therefore filed within the 21 day period and that he did not need to seek an extension of time from the Commission.
[6] The respondents’ objection to Mr Fogarty’s application, and his request for an extension of time if one were needed, were heard by the Commissioner on 22 August 2018. In her decision, the Commissioner referred to Mr Fogarty’s ‘employment’ and his ‘dismissal’, but noted that she would not be making a determination as to whether Mr Fogarty had been an employee or whether he had been dismissed. She stated, correctly, that the Commission is not required to be satisfied that an applicant has been dismissed from employment before holding a conference or issuing a certificate under section 368 of the Act. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. 2 The fact that there may be real doubt as to whether there was any employment relationship is not an impediment to the Commission dealing with an application under s 365.
[7] The Commissioner found that Mr Fogarty’s ‘employment’ with GETT Germany was terminated on 31 January 2018. She concluded that the application was therefore made 48 days outside the 21 day period, and that it was necessary for Mr Fogarty to obtain an extension of time under s 366(2) in order to make his application. After taking into account the considerations in s 366(2), the Commissioner concluded that she was not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s 366(2).
The appeal
[8] An appeal under s 604 is 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[9] Subsection 604(2) requires the Commission to grant permission to appeal if it 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. 4 The public interest is not satisfied simply by the identification of error or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench identified some of the considerations that may enliven 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...’ 6
[10] Aside from the special case in s 604(2), the grounds for granting permission to appeal are not confined. Considerations traditionally adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration, and that substantial injustice may result if leave is refused. 7 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.8 However, the fact that the member made an error is not necessarily a sufficient basis to grant permission to appeal.9
[11] We make some observations about the provisions that are relevant to this appeal. Section 366(1) provides that an application under s 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) sets out the circumstances in which the Commission may grant an extension of time. It states:
‘The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
[12] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. 10 The meaning of ‘exceptional circumstances’ in s 366(1) was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty),11where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.
[13] Mr Fogarty raised 16 grounds of appeal. We will first consider grounds 1, 2 and 16, which variously contended that the Commissioner made significant errors of fact and failed to take into account relevant considerations.
[14] Mr Fogarty contends that the Commissioner was wrong to reject his evidence and submissions that the termination of his employment occurred on 20 March 2018 and that his application was therefore filed within the 21 day period required by s 366(1)(a). He contends that the Commissioner failed properly to consider the relationship between GETT Germany and GETT Asia, and whether he had been an employee of each of these entities. He submits that the Commissioner confused the relationships between the respondents, and did not take into account what he considers were the ‘elaborate means’ they adopted to construct new employment contracts. 12 He contends that ‘numerous statements and findings’ of the Commissioner are unsubstantiated and at odds with the evidence.13
[15] We reject these contentions. The Commissioner’s analysis of the effective date of ‘dismissal’ is set out in her decision from [45] to [64]. She examined the evidence surrounding GETT Germany’s termination of the contract with Lion Global, and noted the reference in the termination letter to a ‘possible future collaboration’ between Mr Fogarty and GETT Asia’. She found that Mr Fogarty was notified by GETT Germany on 14 December 2017 that his contract would end on 31 January 2018, and that the following day Mr Fogarty acknowledged that the contract had been terminated. She considered the evidence about the negotiations between Mr Fogarty and GETT Asia, noting that Mr Fogarty had provided GETT Asia with his preferred terms and requested a contract similar to the one he had had with GETT Germany. However, she found that no contract was entered into, and also that Mr Fogarty was aware that this was the case. She also found that Mr Fogarty was not instructed to perform work after the termination of the contract with GETT Germany. 14
[16] In our view the Commissioner considered Mr Fogarty’s contentions in a thorough and orthodox way and made findings that were reasonably open to her on the evidence. Further, we consider that her analysis of the contractual positions between Mr Fogarty and each of the two companies was correct. As to the relationship between Mr Fogarty and GETT Asia, we note that, even if it were accepted that Mr Fogarty performed certain work for GETT Asia during the period of the negotiations, this is simply not enough to establish a contract at common law. Further, we see no error in the Commissioner’s consideration of Mr Fogarty’s arguments about the relationship between the two companies and their owners. We reject appeal grounds 1, 2 and 16.
[17] By grounds 3 and 6 Mr Fogarty contended that the Commissioner erred by not requiring the ‘officeholders and controlling minds’ of the respondents to participate in the proceeding and that he was denied the opportunity to cross-examine them. However, Mr Fogarty did not seek an order under rule 53 for the Commission to require the attendance of these persons. We note that, in opposing the request from the companies’ lawyer for permission to continue to appear (leave had initially been granted for interlocutory purposes), Mr Fogarty filed written submissions contending, among other things, that granting permission would ‘shield the respondents’, and that certain ‘statements made, emails, correspondence, forms and submissions have not been properly and fairly cross examined or challenged …’ 15 However, this was not a request that the Commission order persons to attend the Commission. It was an argument about why Mr Fogarty contended that permission to appear should not be granted to the companies’ lawyer.
[18] It may be that Mr Fogarty was under the misapprehension that if permission to appear were granted to the companies’ lawyer, the relevant individuals could not be compelled to attend the proceedings. If he did think this, he was wrong. Whether to grant permission to the companies to be represented by a lawyer is an entirely separate question from whether a person should be ordered to attend the Commission. The Commission will provide reasonable assistance to an unrepresented party in order to fulfil its obligation under s 577 to perform its functions in a manner that is fair and just. However, we do not consider that the Commissioner ought to have gleaned from the submission above that Mr Fogarty wanted to compel by order the attendance of particular individuals. He was objecting to an application for permission to appear. We also note that Mr Fogarty was sufficiently familiar with the Commission’s rules and procedures to be able prosecute not only his s 365 application but also several interlocutory matters, including by seeking orders under rule 54 for the production of documents. In this regard, information about orders for attendance of persons at the Commission is located on the same page of the Commission’s website as the information on orders for production of documents. Further, in earlier correspondence to the Commissioner’s chambers, Mr Fogarty had said that he intended to request the opportunity to cross-examine all of the respondents. However no such request was ever made. We reject the contentions in grounds 3 and 6 of the notice of appeal.
[19] Ground 4 alleges that the Commissioner erred by asking irrelevant questions and making ‘possibly incorrect references regarding the implications of tax’ in respect of his company structure. These assertions do not reveal any error in the Commissioner’s decision.
[20] Ground 5 contended that the Commissioner erred by allowing the legal representative of the respondents to participate in a directions hearing even though he had not filed a notice of representative commencing to act under rule 11 prior to the hearing, and did not serve him with the form F53. However, the respondents’ representative sought and was granted permission by the Commission to represent his clients at the directions hearing on 6 July 2018. 16 Mr Fogarty had actual notice of the respondents’ representative commencing to act. We do not consider that Mr Fogarty suffered any disadvantage. Mr Fogarty also contended that the participation of the company’s legal representative made the proceedings overly technical. Having reviewed the transcript, we do not agree. We note that Mr Fogarty did not appeal the Commissioner’s decision to grant the respondents’ representative permission to appear under s 596. Ground 5 does not speak to error in the decision of the Commissioner.
[21] In ground 7, Mr Fogarty submitted generally that the Commissioner erred by receiving evidence from Mr Wong. We do not agree. Mr Wong is a director of GETT Asia and was called by the company to give evidence. He also said that the Commissioner ought to have acknowledged his own evidence about the ‘20 March 2018 termination notice email’; he appears to mean the email from GETT Asia confirming that it was ceasing negotiations with Mr Fogarty for a new contract. But the Commissioner does refer to this. She cites it as part of her reasoning in rejecting Mr Fogarty’s contention that there was a contract between him and GETT Asia, and appropriately so. The email said that the company was ‘not able to go further with you for new contract topic with GETT ASIA limited’ (sic).
[22] Mr Fogarty also submitted that the Commissioner should have referred to a ‘WhatsApp’ message from GETT Asia to customers on 21 March 2018 stating that ‘we have terminated the sales representative service from Sean Fogarty’, which he sees as evidence that GETT Asia terminated his employment with that company. However, we do not consider the message to be inconsistent with the Commission’s conclusion that there was no contract between Mr Fogarty and GETT Asia. In the message, Mr Wong tells clients that he would ‘like to share some update from GETT side (sic)’, namely that ‘we have terminated the sales representative service from Sean Fogarty’. The message refers to ‘GETT’ generally. It does not say that GETT Asia had terminated Mr Fogarty. We do not consider that the Commissioner erred by not referring to the message in her decision.
[23] Ground 7 also contended that Mr Fogarty was denied procedural fairness in connection with his ‘offer’ to present more evidence, which was ‘seemingly objected to’ by the Commissioner. The contention is not particularised. However, we note that the proceedings before the Commissioner ran from 3.30pm to 8.40pm, albeit with some breaks. A very large volume of evidence was filed by Mr Fogarty and addressed in the proceeding. In our view the Commissioner afforded Mr Fogarty a fair and reasonable opportunity to put his case.
[24] At the hearing of the appeal, Mr Fogarty contended that the Commissioner ought to have granted his application for the respondents to produce certain other documents. The Commissioner considered Mr Fogarty’s application for an order that the respondents produce documents and advised him by email on 27 July 2018 that she was not inclined to grant the order sought. She conducted a telephone mention on 13 August 2018 and heard further from Mr Fogarty about why he sought the relevant documents. During the mention, the respondents agreed to produce certain documents, and the Commissioner ultimately declined to order the production of other documents for reasons related to relevance, privilege, and whether Mr Fogarty actually possessed the documents. 17 Mr Fogarty did not appeal this decision. If he had appealed, we do not see any basis on which the appeal would have been upheld; the Commissioner’s consideration of the request for the documents concerned was orthodox and does not reveal any error.
[25] Ground 8 contains generalised allegations of errors of reasoning, as well as contentions that the Commissioner was ‘biased and prejudiced’. Mr Fogarty was asked during the appeal hearing what the basis of these latter allegations was, to which he responded that he was aggrieved by the way the decision was written and believed that his account of events was not sufficiently reflected in the decision. But this is not a proper basis for making allegations of bias and prejudice. We reject the contentions in ground 8.
[26] By grounds 9, 12, 13 and 14, Mr Fogarty contended that the Commissioner erred in her analysis of the considerations to which she was required by s 366 to have regard. He said that the Commissioner erred by not weighing the various factors together and by failing to conclude that there were exceptional circumstances in this case. However, from paragraphs 65 to 90 of her decision, the Commissioner considered each of the matters identified in s 366(2). Her approach to the consideration of each of these matters and the question of whether there were exceptional circumstances does not reveal any appealable error.
[27] We note that, in examining Mr Fogarty’s reason for the delay in filing his application (s 366(2)(a)), the Commissioner stated that ‘for this consideration there must be an acceptable reason for the delay’. 18 It is clear from a reading of the decision as a whole that the Commissioner recognised that this consideration does not positively require there to be an acceptable reason, but is rather concerned with whether there is an acceptable reason for the delay. In particular, in the following paragraph of her decision, the Commissioner refers to the passage from the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd19which explains that, if an applicant is able to provide a credible explanation for the entirety of the delay, this will weigh more heavily towards a finding of exceptional circumstances; and that conversely, if the applicant fails to provide a credible explanation for any part of the delay (i.e. provides an acceptable reason for no part of the delay), that would weigh against a finding of exceptional circumstances.20
[28] The Commissioner concluded that Mr Fogarty, who had said that any delay arose because he was negotiating with GETT Asia, had not provided an acceptable reason for the delay in filing his application. She noted that it was open to Mr Fogarty to file his application at any time after the termination of his contract by GETT Germany on 31 January 2018. In this the Commissioner made no error.
[29] The Commissioner considered and attributed weight to each of the matters she was required by the Act to take into account and concluded that she was not satisfied that there were exceptional circumstances warranting the granting of a further period to make an application under s 366. We do not identify any error in the Commissioner’s approach to the considerations in s 366(2), or in her conclusion that there were no exceptional circumstances warranting an extension of time. Moreover, we agree with her conclusion.
[30] Grounds 10, 11 and 15 contain references to previous decisions of the Commission in relation to extension of time applications. These cases turn on their own facts. These appeal grounds to not speak to error on the part of the Commissioner.
Conclusion
[31] We are not persuaded that Mr Fogarty has established any appealable error in the Commissioner’s decision, or that there are any other considerations that warrant the grant of permission to appeal. Accordingly permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
S. Fogarty for himself
M. Kobras of counsel for the respondents
Hearing details:
2019.
Melbourne:
7 February.
Printed by authority of the Commonwealth Government Printer
<PR705218>
1 [2018] FWC 7756; PR703382
2 Hewitt v Topero Nominees Pty Ltd t/a Michaels Camera and Video Digital[2013] FWCFB 6321 at [50]
3 See Coal and Allied v AIRC (2000) 203 CLR 194 at [17]
4 Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
5 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 NSW Bar Association v Brett McAuliffe; Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
10 Lombardo v Department of Education Employment and Workplace Relations[2014] FWCFB 2288 at [21]
11 [2011] FWAFB 975
12 Appeal ground 16(e)
13 Appeal ground 16(i)
14 At [62] and [63]
15 See Mr Fogarty’s submissions on permission to appear, email dated 6 August 2018
16 PN46
17 PN171-415, transcript of proceedings of 13 August 2018
18 At [70]
19 [2018] FWCFB 901
20 At [45]
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9
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