Solar Station Alpha Pty Ltd T/A Solar Backup v Mr Ambrose von Erkel
[2016] FWCFB 8722
•15 DECEMBER 2016
| [2016] FWCFB 8722 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Ambrose von Erkel
(C2016/6254)
VICE PRESIDENT CATANZARITI | BRISBANE, 15 DECEMBER 2016 |
Appeal against decision [2016] FWC 7112 of Deputy President Kovacic at Melbourne on 5 October 2016 in U2016/2082.
[1] Solar Station Alpha Pty Ltd T/A Solar Backup (Solar Station) has applied for permission to appeal against a decision of Deputy President Kovacic issued on 5 October 2016 1 (the Decision). The Decision concerned an application by Mr von Erkel for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act)in respect of the termination of his employment with Solar Station.
[2] Solar Station objected to the application on the basis that the application was lodged outside of the 21 day statutory time frame for lodgement of such applications. Solar Station submitted that Mr von Erkel’s employment had been terminated on 9 March 2016. Rejecting that submission Deputy President Kovacic found that Mr von Erkel had been dismissed on 13 April 2016 and that therefore his application was within the 21 day statutory time limit. 2 Deputy President Kovacic dismissed Solar Station’s jurisdictional objection.
[3] Deputy President Kovacic found:
“[20]The documentation before the Commission, i.e. the offer of employment, pay slip and Employment Separation Certificate, all point to the Respondent and not Arvio being Mr von Erkel’s employer. This in turn supports a finding that the termination letter given to Mr von Erkel on 9 March 2016 was ineffective as it was not issued by his actual employer, i.e. the Respondent. While the revised termination letter given to Mr von Erkel on 13 April 2016 potentially suffers from the same error, Mr von Erkel’s conduct in not presenting for work reflects his acceptance of the termination of his employment from that date.”
[4] Solar Station contends that the Decision was attended by appealable error and that permission to appeal should be granted in the public interest.
[5] Pursuant to s.596 of the Act permission to appear at the hearing of the application for permission to appeal was sought by both parties and, absent any opposition, permission was granted.
[6] Solar Station submitted that the grant of permission to appeal was in the public interest because the Decision manifested appealable errors of fact and law, including those outlined below:
(1) The Deputy President erred in law by misconstruing s 386(1)(a) of the Act in that, despite accepting that the individuals who dismissed the Applicant on 9 March 2016 were doing so as “agents for the Respondent” (at [18] of the reasons), the Deputy President found that dismissal to be ineffective.
(2) In the alternative to ground 1, the Deputy President made a significant error in fact in finding (at [21] of the reasons) that the Applicant had not presented for work after 13 April 2016, when all the evidence was that he ceased attending work after 9 March 2016.
[7] Solar Station submitted that the finding that the dismissal on 9 March 2016 was ineffective is so contrary to law, and so counter-intuitive, that it is in the public interest to correct such an obvious error and, that it would be manifestly unjust for Solar Station to be put to the time, effort and expenditure required to prepare for and attend the further hearing of the proceedings. Solar Station submitted that permission to appeal must therefore be granted.
Consideration
[8] This appeal is one to which s.400 of the Act applies 3. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC 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.
[9] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) described the test under s.400 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 The Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the instances when the public interest might be attracted:
“... 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.” 6
[10] In order to grant permission to appeal, an arguable case of appealable error should be demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, an error made by the Member at first instance is not necessarily a sufficient ground for the grant of permission to appeal.8 In respect to Solar Station’s application for permission to appeal, the first consideration is whether or not an arguable case of error is demonstrated.
[11] In an appeal from a decision involving an exercise of discretion an error in that exercise of discretion must be demonstrated 9:
“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.”
Conclusion
[12] In its application for permission to appeal, Solar Station only pressed its first proposed Ground of Appeal. That is, Solar Station contends that despite accepting that the individuals who dismissed the Applicant on 9 March 2016 were doing so as agents for Solar Station, the Deputy President erred in finding the dismissal to be ineffective.
[13] Deputy President Kovacic referred to the evidence of Mr Robertson in his witness statement to the effect that Solar Station and Arvio Pty Ltd (Arvio) work under the same roof and that representatives of Arvio acted as agents for Solar Station in dismissing Mr von Erkel. 10 Whilst he did not specifically reject that evidence we do not accept the submission that Deputy President Kovacic accepted, or otherwise made a positive finding, that at the meeting of 9 April 2016 Arvio or any particular individual was acting as the agent of Solar Station. Because the premise of the first proposed Ground of Appeal is not made out, we are satisfied there is no arguable error in relation to this ground.
[14] We can identify no arguable significant error of fact in the Decision. Although Deputy President Kovacic took into account the fact that Mr von Erkel did not to return to work after 13 April 2016, and Solar Station submits that the applicant did not return to work after 9 April 2016, we are not satisfied that that finding was determinative of the matters before Deputy President Kovacic.
[15] It is not open to an Appeal Bench to substitute its view of the matters that fell for determination before Deputy President Kovacic in the absence of error of an appealable nature in the decision at first instance and we cannot identify any arguable appealable error in Deputy President Kovacic’s decision.
[16] In any event, had the date of termination been found to be 9 March 2016, an extension of time for lodgement would have been required. When considering the public interest, we are satisfied that, applying the relevant considerations set out in the Act, an extension of time was likely to have been granted. If that application was before this Full Bench for determination we would grant that extension of time, taking into account the circumstances surrounding the termination of Mr von Erkel’s employment, particularly the ambiguity surrounding the identification of the entity purporting to terminate the employment of Mr von Erkel.
[17] We have not been able to identify any matter in the appeal that might enliven the public interest. We are not persuaded that the appeal raises any issues of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the Decision manifests an injustice, or that the result is counterintuitive. The legal principles applied do not appear to us to be disharmonious when compared with other recent decisions dealing with similar matters.
[18] Permission to appeal is refused. The appeal is dismissed.
VICE PRESIDENT
Appearances:
P.Hull for the Applicant.
J.Fetter for the Respondent.
Hearing details:
2016.
Sydney:
8 November.
1 [2016] FWC 7112
2 Decision at [19] – [20]
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]; (2011) 282 ALR 561
4 [2011] FCAFC 54 at [43]; (2011) 192 FCR 78
5 O’Sullivan v Farrer (1989) 168 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]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 House v The King (1936) 55 CLR 499 at 505
10 Decision at [18]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR588217>
1
8
0