Stephen Pyther v Riviera Taxis & Hire Cars Pty Ltd
[2020] FWCFB 5747
•28 OCTOBER 2020
| [2020] FWCFB 5747 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
Stephen Pyther
v
Riviera Taxis & Hire Cars Pty Ltd
(C2020/6786)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 28 OCTOBER 2020 |
Appeal against decision [2020] FWC 1893 of Deputy President Mansini at Melbourne on 17 August 2020 in matter number U2019/14259 – permission to appeal refused.
[1] Stephen Pyther was the General Manager of Riviera Taxis & Hire Cars Pty Ltd, a business operating in the Gippsland region and based in Bairnsdale, Victoria. He has applied for permission to appeal a decision of Deputy President Mansini on 17 August 2020 1 (the Decision) dismissing his application for an unfair dismissal remedy on the basis that his dismissal was consistent with the Small Business Fair Dismissal Code (the Code).
[2] The appeal is primarily concerned with the Code, and whether the Deputy President erred in finding that Riviera Taxis & Hire Cars believed, on reasonable grounds, that Mr Pyther was guilty of serious misconduct when it dismissed him. The relevant belief was said to arise from Mr Pyther’s refusal to follow directions. Mr Pyther submits, and submitted below, that the instructions given to him by Riviera Taxis & Hire Cars were not reasonable and lawful directions.
[3] For the reasons that follow, we have decided not to grant permission to appeal.
The nature of unfair dismissal appeals
[4] An appeal under section 604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing. 2 An appeal may only be made with the permission of the Commission.
[5] This appeal is one to which section 400 of the Act also applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
[6] The test under section 400 is “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin5 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... 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.”
[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. 6
[8] 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. 7 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal
[9] There are six grounds of appeal. The first five of these can be dealt with together because they all concern whether a belief held by Riviera Taxis & Hire Cars about Mr Pyther having engaged in serious misconduct was, objectively speaking, based on reasonable grounds. The sixth ground relates to whether the Deputy President was required to consider the merits of Mr Pyther’s application.
Was the belief held by Riviera Taxis & Hire Cars, objectively speaking, based on reasonable grounds?
[10] The relevant findings of the Deputy President are summarised below:
1. At paragraph [36] of the Decision: Riviera Taxis & Hire Cars held a belief that Mr Pyther had failed to follow, and threatened not to follow, its reasonable and lawful directions, and this presented serious and imminent risks to its income, profitability and commercial relationship with 13CABS;
2. At paragraph [38] of the Decision: Mr Pyther’s refusal to be ready for an expansion into the Lakes Entrance area was clear and presented a serious and imminent risk to the business;
3. At paragraph [39] of the Decision: Mr Pyther’s concerns about the validity of a fee charged to taxi drivers for access to a “second network” were without foundation, because the fee was optional or voluntary and because section 162L of the Transport (Compliance and Miscellaneous) Act 1983 (Vic)(the Transport Act) had been repealed many months prior;
4. At paragraph [40] of the Decision: Mr Pyther’s conduct in meetings on 29 November 2019 and 3 December 2019 constituted a serious and imminent risk to the business as contemplated by Regulation 1.07 of the Fair Work Regulations 2009 (Cth); and
5. Also at paragraph [40] of the Decision: Mr Pyther had admitted his “critical conduct” on 4 December 2019.
[11] Mr Pyther submits that the Deputy President erred in failing to consider the full details of section 162L of the Transport Act and in determining that Mr Pyther’s concerns about the affiliation fee were without foundation. He submits that it was reasonable for him to rely on information provided by Commercial Passenger Vehicles Victoria on its website with regards to specific conditions implied into all taxi driver Bailment Agreements in Victoria.
[12] Mr Pyther also submits that counsel for Riviera Taxis and Hire Cabs misled the Commission by representing that section 162L of the TransportActhad been repealed, when it is authorised by section 97(3) of the Commercial Passenger Vehicle Industry Act 2017 (Vic) (the Commercial Passenger Act).
[13] It does not appear to be in dispute that Mr Pyther refused to follow certain directions given to him by Riviera Taxis and Hire Cabs. The directions required him, in general terms:
1. To extend the company’s range by expanding operations into the Lakes Entrance region by 9 December 2019 at the latest; and
2. To not act in a way that interfered with its practice of charging drivers a “second network affiliation fee.”
[14] It is the second of these directions that is the primary focus of the appeal. It, in turn, is partly concerned with the operation of section 162L of the TransportAct, which provided as follows:
“162L Conditions of driver agreement
(1) The TSC may, by notice published in the Government Gazette, specify conditions that are to be implied in every driver agreement.
(2) Without limiting subsection (1), it is an implied condition of every driver agreement that at least 55% of the gross fares that accrue when a taxi-cab is under the control of a driver are to be retained by, or paid to, the driver.”
[15] Section 162L was repealed in 2017 by the Commercial Passenger Act. In its place, section 97 of the Commercial Passenger Act now provides as follows:
“97 Implied conditions of driver agreement
(1) The regulator, by notice published in the Government Gazette, may specify conditions to be implied in every driver agreement.
(2) Without limiting subsection (1), it is an implied condition of every driver agreement that at least the specified percentage of the gross fares that accrue when a commercial passenger vehicle is in the possession of a driver under the agreement are to be retained by, or paid to, the driver.
(3) An implied condition specified under section 162L(1) of the Transport (Compliance and Miscellaneous) Act 1983and in force immediately before the commencement of this section is to be taken to have been specified by the regulator under subsection (1).
(4) In subsection (2)—
specified percentage means—
(a) the percentage specified for the purpose of subsection (2) in a notice published under subsection (1); or
(b) 55%, if a percentage is not so specified.”
[16] We are persuaded that there is an arguable case of appealable error in the Decision in relation to section 162L of the Transport Act. The Deputy President found at paragraph [39] that Mr Pyther’s concerns about the network affiliation fee were underscored by the operation of section 162L of the Transport Act, which had been “repealed many months prior” and were without foundation. In reaching this conclusion, it appears that the Deputy President did not have regard to section 97 of the Commercial Passenger Act which continued the operation of an implied condition specified under section 162L(1) of the Transport Act as an implied condition of driver agreements.
[17] The Deputy President was not assisted by the case run by counsel for Riviera Taxis & Hire Cars, who submitted that section 162L “no longer exists” and “wasn’t in operation” – a state of play said to have existed since at least July 2019 and “maybe earlier”. It is regrettable that the operation of the Commercial Passenger Act was not brought to the Deputy President’s attention directly.
[18] Mr Pyther gave evidence before the Deputy President that the implied condition imposed by section 162L of the Transport Act still applied and was on the website of Commercial Passenger Vehicles Victoria (at transcript, PN 1091-1093). Michael Donelly gave evidence on behalf of Riviera Taxis & Hire Cabs that “the legislation says that the operator may not charge and they don’t”. His evidence is hard to reconcile with the position adopted by Riviera Taxis & Hire Cabs that no such legislation existed.
[19] Had the Deputy President been aware of section 97 of the Commercial Passenger Act, it is likely that her finding about the repeal of section 162L of the Transport Act and whether directions given to Mr Pyther about the network affiliation fee were reasonable would have been different.
[20] Instead, the effect of the Deputy President’s finding at paragraph [39] was that section 162L of the Transport Act had no continuing operation. The finding gives rise to an arguable case of appealable error as identified in grounds 1-5 of the Notice of Appeal for the reasons set out above.
Was the Deputy President required to consider the merits of Mr Pyther’s application?
[21] At paragraph [42] of the Decision, the Deputy President found that Mr Pyther’s summary dismissal was consistent with the Code and the Deputy President was not required to consider the merits of his application.
[22] Mr Pyther submits that the Deputy President erred in finding that the merits of the application did not require consideration and in dismissing the application. To the extent that this ground of appeal is consequential upon error in relation to the network affiliation fee, we have dealt with it above.
[23] Section 396 of the Actrequires the Commission to deal with certain matters in relation to unfair dismissal applications before considering the merits of the case. One of those is whether the dismissal was consistent with the Code. Under section 385, a person has been unfairly dismissed if the Commission is satisfied that, among other things, the dismissal was not consistent with the Code.
[24] It follows that if the Commission is satisfied that a dismissal was consistent with the Code, it is not an unfair dismissal and there is no requirement to deal further with the merits of the application. We discern no arguable case of appealable error on this basis.
Should permission to appeal be granted?
[25] While there is an arguable case of appealable error in the Decision in relation to the direction concerning the network affiliation fee, the difficulty is that no appeal is made against the Deputy President’s separate findings about Mr Pyther’s refusal to follow directions in relation to expansion into the Lakes Entrance region. We do not accept the contention in Mr Pyther’s submission on appeal that expansion into the Lakes Entrance region was funded by the network affiliation fee such that the two matters are necessarily intertwined. It is a proposition unsupported by the materials and not consistent with the case run at first instance.
[26] As noted above, the Deputy President found at paragraph [38] of the Decision that Mr Pyther’s refusal to be ready for an expansion into the Lakes Entrance area was clear. The Deputy President also found that Mr Donelly, on behalf of Riviera Taxis & Hire Cabs, genuinely held the belief that Mr Pyther’s conduct in this regard constituted a failure to follow its reasonable and lawful directions and presented a serious and imminent risk to its business (Decision at paragraph [36]). The nature of the risk was to its precarious financial state (at paragraph [37]) – a matter relevant both to business viability and profitability. Left alone, these findings are sufficient to dispose of Mr Pyther’s application for an unfair dismissal remedy because they permit a finding that his dismissal was consistent with the Code.
[27] As we noted at the outset, an appeal of an unfair dismissal decision can only proceed if the Commission is satisfied that the grant of permission is in the public interest.
[28] This is not a matter that raises any issues of general importance or application. To the extent that it is necessary to correct the record in relation to the continuing operation of section 162L of the Transport Act, we have done so above. The matter otherwise turns on its own facts and circumstances. No injustice or counter intuitive result is manifest. The Decision is not attended with sufficient doubt to warrant its reconsideration.
[29] In the circumstances, we are not persuaded that it would be in the public interest to grant permission to appeal.
Conclusion and disposition
[30] Permission to appeal is refused.
DEPUTY PRESIDENT
Determined on the papers by consent of the parties
Written submissions
Appellant: 18 September 2020; 6 October 2020 (in reply)
Respondent: 28 September 2020
Printed by authority of the Commonwealth Government Printer
<PR724023>
1 Pyther v Riviera Taxis & Hire Cars Pty Ltd [2020] FWC 1893
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to section 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 Coal & Allied Mining Services Pty Ltd v Lawler and others (Buchanan, Marshall and Cowdroy JJ) (2011) 192 FCR 78 at [43]
4 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; (2011) 192 FCR 78 at [44] -[46]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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