Stuart Humphrey v Catholic Education, Archdiocese of Brisbane
[2018] FWCFB 5644
•11 SEPTEMBER 2018
| [2018] FWC 5644 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 Appeal of decisions
Stuart Humphrey
v
Catholic Education, Archdiocese of Brisbane
(C2018/4155)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 11 SEPTEMBER 2018 |
Appeal against decision [2018] FWC 4111 of Deputy President Dean at Sydney on 11 July 2018 in matter number U2018/2637 – extension of time – permission to appeal refused.
Introduction
[1] Mr Stuart Humphrey has applied for permission to appeal and has appealed against a decision 1 made by Deputy President Dean on 11 July 2018 (the Decision), in which the Deputy President refused his application for an extension of time to lodge an application for an unfair dismissal remedy.
[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the 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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
[3] We propose to say something about s.394 first, before turning to the Decision and the grounds of appeal.
[4] Section 394(2) of the Fair Work Act 2009 (the Act) provides that an application for an unfair dismissal remedy (an unfair dismissal application) must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
[5] Whether Mr Humphrey’s application was lodged out of time; his employment status and the date on which his ‘dismissal’ took effect were all disputed in the proceedings at first instance; we return to those issues later.
[6] Section 394(3) sets out the circumstances in which the Commission may grant an extension of time, as follows:
‘394 Application for unfair dismissal remedy
…
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.’
[7] A decision whether to extend time under s.394(3) involves the exercise of a discretion, so much is clear from the use of the word ‘may’ in s.394(3). The discretion is only enlivened if the Commission is satisfied ‘that there are exceptional circumstances’. The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time. 3
[8] In determining whether there are ‘exceptional circumstances’ the Commission is required to ‘take into account’ the matters set out in s.394(3)(a)-(f). To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend 4 sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.394(3)(a)-(f) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.5 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:6
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
[9] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366 was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
‘[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.’ 7 (emphasis added)
[10] Generally speaking, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be regarded as exceptional. 8
[11] We now turn to the Decision which is the subject of the appeal.
The Decision
[12] In the proceedings at first instance there was a dispute about the nature of the relationship between Mr Humphrey and Brisbane Catholic Education and when that relationship ceased.
[13] Brisbane Catholic Education contended that Mr Humphrey was not an employee; there was no ‘dismissal’ and that his application had been made more than 21 days after the relationship between Mr Humphrey and Brisbane Catholic Education had ended. The case put by Brisbane Catholic Education was that Mr Humphrey had at all times been a private music teacher, operating as a separate business, who contracted directly with parents of children at St Brigid’s primary school to conduct private music lessons. Brisbane Catholic Education contended that its ‘relationship’ with Mr Humphrey ended on 1 December 2017. Mr Humphrey argued that he only received notification of his ‘dismissal’ on 28 February 2018, some 14 days prior to lodging the application.
[14] The relationship between Mr Humphrey and Brisbane Catholic Education is set out in a ‘Deed of Agreement’ (the Agreement) dated 24 January 2017. A copy of the Agreement is attached to this decision (Attachment A).
[15] The Agreement concerns the use of school facilities by non-school related organisations, as noted in the recitals:
‘b) Stuart Humphrey (Mr Humphrey) desires to utilise facilities at the above premises for the purpose of private guitar lessons for children. These lessons will only be open to students enrolled at St Brigid’s Primary School;
c) Mr Humphrey will contract with the parents of individual children of the school, to undertake private guitar lessons for children on Corporation property on the conditions and terms as described herein.’
[16] The Agreement goes on to provide the arrangements by which Mr Humphrey would be able to utilise the school ‘facilities’ to provide music instruction. The ‘facilities’ are defined as ‘Instrumental Music Room in the Eco-Enquiry at St Brigid’s Primary School as available’. Other clauses in the Agreement provided that:
• access to the facilities was only to be between 8:00 am and 3:00 pm on Fridays during school term (clause 2.1);
• the only equipment Mr Humphrey was allowed to use was the school’s tables and chairs within the Instrument Music Room (clause 2.2);
• Mr Humphrey would pay a hiring charge for the use of the facilities, being 10% of the fees he charged parents for music lessons conducted at the school, with invoices generated monthly (clause 3);
• Mr Humphrey indemnified Brisbane Catholic Education and the Principal of the school in relation to any loss, action, claim etc arising from the performance or non-performance of any obligation under the Agreement (clause 5); and
• Mr Humphrey would take out his own public liability insurance, personal accident insurance and workers compensation insurance (clause 6).
[17] Clause 7.1 deals with the duration of the Agreement:
‘The terms and conditions of the use of facilities are effective for the period 24 January 2017 to 1 December 2017.
This Agreement may be extended by completion of a new deed or by written agreement signed by the signatories to this Agreement. The period of the extension will not exceed 12 months.’
[18] On 25 January 2018, Mr David Sewell, the Principal of St Brigid’s primary school, sent Mr Humphrey an email which read:
‘Dear Stuart,
Your email of 23 January 2018 to Maryanne Sandstrom has been brought to my attention.
Given your behaviour at the school in the latter part of 2017, I have determined not to enter into a Deed of Agreement to permit you to offer music instruction at St Brigid’s in 2018.’
[19] In February 2018 Mr Humphrey responded to Mr Sewell’s email in a letter to Brisbane Catholic Education complaining about his treatment by Mr Sewell and raising an issue of unfair dismissal.
[20] A written response from Mr Neville MacDonald (Senior Leader – School Operations of Catholic Education) dated 26 February 2018 was sent to Mr Humphrey. The letter rejected Mr Humphrey’s claim of any bullying or harassment by Mr Sewell towards him and indicated that ‘as you were not an employee of either Brisbane Catholic Education or St Brigid’s School you were not unfairly dismissed when a room was not made available for you at the school for you to conduct private lessons in 2018’.
[21] Mr Humphrey submitted that his relationship with Brisbane Catholic Education ended on 28 February 2018, when he received the written response from Mr McDonald. In support of this submission, Mr Humphrey relied on clause 8 of the Agreement which states:
‘8. NOTICES
8.1 IN WRITING
Any notice, claim demand or other communication (“notice”) under or in connection with this Agreement, must be in writing and may be given or posted by registered letter or sent by facsimile transmission to:-
(a) The addresses of the parties set out on the execution page of this Agreement; or
(b) Another address notified by a party to the [other/others] by not less than seven days’ notice given in accordance with this clause.’
[22] Mr Humphrey submitted that the email of 25 January 2018 was not an acceptable form of communication within the meaning of clause 8, which does not provide for communication via email.
[23] Mr Humphrey gave evidence that in practice, a new agreement was generally entered into after he had commenced work at the start of the first term in each year. He assumed that the same process would take place for the 2018 school year until he received the email from Mr Sewell on 25 January 2018.
[24] Brisbane Catholic Education contended that the relationship between the parties ended on 1 December 2017. It submitted that under clause 7.1 of the Agreement, the arrangement in its entirety concluded on this date and any extension was subject to the parties entering into a new agreement and, in the alternative, if the relationship extended beyond 1 December 2017, it ended on 25 January 2018 when Mr Sewell sent the email to Mr Humphrey notifying him that no new agreement would be entered into.
[25] At [22] – [24] of the Decision the Deputy President sets out her conclusion in relation to the date of termination of the relationship:
‘As the Agreement entered into by the parties clearly specifies that the Agreement ends on 1 December 2017 and sets out the process for renewing the Agreement, I find that the relationship ended on 1 December 2017. The Agreement clearly and unambiguously provided that the arrangement between the parties ended on this date, and set out a process by which a new Agreement would be entered into. This process did not take place.
If I were wrong about the relationship ending on 1 December 2017, then I would have found that the relationship ended on 25 January 2018 when Mr Sewell sent an email to Mr Humphrey stating that no new Agreement would be entered into for 2018. Mr Humphrey conceded during the hearing that he was clear that this email meant no new Agreement would be entered into, and that the relationship between the parties had clearly ended by this date.
Given my finding above, Mr Humphrey’s application filed on 14 March 2018 has not been made within the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Mr Humphrey should be granted an extension of time.’
[26] We discern no error in the approach adopted by the Deputy President.
[27] Mr Humphrey’s application for an unfair dismissal remedy was lodged on 14 March 2018. It is beyond doubt that the relationship ended on either 1 December 2017 or 25 January 2018 and on that basis the application was at least about 4 weeks out of time.
[28] In the Decision the Deputy President considered each of the matters specified in s.394 (3)(a) to (f). At paragraphs [29] – [33] of the Decision the Deputy President dealt with the reasons advanced by Mr Humphrey for the delay in lodging his unfair dismissal application.
[29] Mr Humphrey contended that he only became aware of his ‘dismissal’ after it had taken effect and that he was significantly affected by the sudden death of his father-in-law, became severely depressed and this impacted on his capacity to make the application. No medical evidence was advanced in support of Mr Humphrey’s contention and in the period during which he claimed to be incapacitated he lodged a complaint against Mr Sewell (the Principal of St Brigid’s primary school) and disputed his ‘unfair dismissal’ in extensive correspondence to Brisbane Catholic Education.
[30] The Deputy President’s ultimate conclusion as to the reasons for the delay is set out at paragraph [33]:
‘While I am sympathetic to Mr Humphrey’s circumstances, there was no satisfactory explanation as to why he could not lodge his unfair dismissal application within the statutory time limit. His conduct in disputing the alleged unfair dismissal directly with Catholic Education following the death of his father-in-law indicates that he had sufficient capacity to lodge his application during this period. This weighs against the granting of an extension of time.’
[31] The Deputy President then dealt with the other relevant considerations and made the following findings:
• As to whether Mr Humphrey first became aware of the dismissal after it had taken effect (s.394(3)(a)) the Deputy President held (at [35]):
‘If Mr Humphrey was not clear that the relationship had ended on 1 December 2017, then he was certainly aware of it by 25 January 2018, given his concession during the hearing that he understood he would not be offered a new agreement on receipt of the email of 25 January 2018. This weighs against the granting of an extension of time.’
• Mr Humphrey took steps to dispute his ‘dismissal’ by lodging a complaint with Brisbane Catholic Education upon receipt of the 25 January 2018 email from Mr Sewell (s.394(3)(c)). The Deputy President concluded (at [36]) that this factor ‘weighs in favour of a conclusion that there are exceptional circumstances.’
• As to prejudice to the employer (s.394(3)(d)) the Deputy President (at [39]) did not consider that Brisbane Catholic Education would be prejudiced if time were extended and that this factor weighed in favour of a finding of exceptional circumstances.
• As to the merits of the substantive application (s.394(3)(e)) the Deputy President noted that if an extension of time was granted another significant jurisdictional issue would need to be determined – whether there was an employment relationship between Brisbane Catholic Education and Mr Humphrey. The Deputy President dealt with the merits as follows:
‘While I have not made a final determination of the merits in this matter, in my view, based on the material before me, Mr Humphrey does not have a strong case. I consider that this weighs against a finding of exceptional circumstances.’
• There was nothing to indicate that fairness as between the applicant and other persons in a similar position was a relevant factor in this case (s.394(3)(f)) and the Deputy President regarded this matter as a ‘neutral consideration’ (see [46]).
[32] The Deputy President’s conclusion is set out at paragraph [47] of the Decision:
‘Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Mr Humphrey are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.’
The Appeal
[33] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 9 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[34] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 10 In GlaxoSmithKline Australia Pty Ltd v Makin 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.’ 11
[35] 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. 12 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.13
[36] This matter was listed for hearing on Tuesday 4 September 2018. Mr O’Neill appeared with Ms Cartlidge on behalf of the Respondent; Mr Humphrey did not appear and nor did anyone appear on his behalf. The Commission attempted to contact Mr Humphrey by phone three times (at 2.04pm, 2.08pm and 2.28pm) but was unable to speak with him. An email was sent to Mr Humphrey at 2.24pm and no response was received. We decided to adjourn the hearing until the following day and at 2.56pm, the President’s Chambers emailed Mr Humphrey the following:
‘Dear Mr Humphrey,
I refer to the above matter (your appeal), which was listed before a Full Bench for hearing today at 2pm (Notice of Listing attached).
At today’s hearing, Mr C O’Neill and Ms A Cartlidge appeared for Brisbane Catholic Education (the Respondent). You did not attend the hearing and no one appeared on your behalf.
The Full Bench has decided to relist the appeal for hearing at 4pm, Wednesday 5 September 2018. A notice of listing will be issued shortly.
If you fail to attend the hearing tomorrow, without reasonable cause, the Full Bench will proceed to determine your appeal on the basis of your written submissions and any written and oral submissions of the Respondent.
If for any reason you are unable to attend tomorrow’s hearing, you must advise Chambers by no later than 12 noon Wednesday, 5 September 2018.’
[37] A Notice of Listing was subsequently sent to both parties, at 4.17pm. The Commission attempted to contact Mr Humphrey by phone again at 5.36pm but was unable to speak with him.
[38] The following day, the Commission attempted to contact Mr Humphrey by phone three times (at 10.43am, 12.39pm and 1.46pm) but was unable to speak with him. Two emails were sent to Mr Humphrey (at 10.55am and 1.56pm) drawing his attention to the hearing that afternoon. Mr Humphrey was again advised that if he failed to attend the hearing at 4pm without reasonable cause the Full Bench would hear and determine the matter on the basis of his written submissions and any written and oral submissions of the Respondent.
[39] Mr O’Neill appeared for the Respondent at the hearing at 4pm on Wednesday 5 September; Mr Humphrey did not appear and nor did anyone appear on his behalf. Mr O’Neill advised the Respondent was content for the matter to be determined on the written submissions filed and that is what we decided to do.
[40] In his written submissions the Appellant contends that the Deputy President made three significant errors of fact, at paragraphs [15], [22], [33] and [35] of the Decision. We deal with each of the alleged errors of fact in turn. The Appellant submitted that the matters dealt with at paragraphs [33] and [35] of the Decision weighed against granting an extension and that the Deputy President made significant errors of fact in her consideration of these matters. It is contended that if the Deputy President had not made significant factual errors in her consideration of these matters they would have weighed in favour of granting an extension of time. It is on that basis that it is put that the Decision manifests an injustice and that the result is counter intuitive. Further, the Appellant submitted the Decision is attended with sufficient doubt to warrant its reconsideration on appeal.
[41] The Appellant contends that it is in the public interest to grant permission to appeal:
‘The decision at first instance manifests an injustice and the result counter intuitive.
There are important issues concerning the need for Fair Work Australia, where an employee’s employment is terminated for unfair dismissal. This is in breach of employees rights and to be treated fairly and with due consideration’.
[42] Alleged errors 1 and 3 are related and it is convenient to deal with them together.
[43] The Appellant contends that the Deputy President erred in her consideration of the letter he sent to the Respondent in February 2018. These errors are said to be manifest in paragraphs [15] and [33] of the Decision, which state:
‘[15] In or about February 2018 Mr Humphrey wrote an extensive letter to Catholic Education complaining about his treatment by Mr Sewell and raising an issue of unfair dismissal…
[33] While I am sympathetic to Mr Humphrey’s circumstances, there was no satisfactory explanation as to why he could not lodge his unfair dismissal application within the statutory time limit. His conduct in disputing the alleged unfair dismissal directly with Catholic Education following the death of his father-in-law indicates that he had sufficient capacity to lodge his application during this period. This weighs against the granting of an extension of time.’
[44] The Appellant submits that the letter referred to was in fact substantially written at the end of 2017 and he only wrote the last paragraph of his letter in late January:
‘I specifically stated in the hearing that I wrote only the last paragraph in late January. DP Dean must have misheard what I stated and has made a significant error of fact that impacts on my case…
In point [33] Dp Dean states that I had sufficient capacity to lodge my application during this period. She based this decision on the fact that both I and my partner attended Brisbane Catholic Offices together and handed complaint letter to the front office. I specifically explained during the hearing that we went together for support. I specifically stated during the hearing that the only thing that I had done during this time was write the final paragraph and print out the document.
I specifically explained during the hearing that this letter was in the main written at the end of 2017 after one disgusting incident of bullying by Mr Sewell in Term 4, 2017. I specifically stated in the hearing that I wrote only the last paragraph in late January. Dp Dean must have misheard what I stated and has made a significant error of fact that impacts on my case.’
[45] We accept that in the proceedings at first instance Mr Humphrey’s evidence was that his letter to Brisbane Catholic Education, dated ‘7 February January 2018’, was substantially written ‘in the Christmas holidays and …’ was ready to hand in before 25 January 14 and that he ‘completed one paragraph at the end’ in 2018.15
[46] However, the Deputy President’s observation, at [15], that ‘In or about February 2018, Mr Humphrey wrote an extensive letter to Catholic Education’, is of little moment. That passage appears in a part of the Decision in which the Deputy President is considering when the relationship between the parties came to an end. The more significant passage is at [33] where the Deputy President sets out her conclusion in respect of whether there was a satisfactory reason for the delay in filing the substantive application. In our view the Appellant has failed to demonstrate any error of fact in paragraph [33] of the Decision. The relevant finding in [33] is:
‘[Mr Humphrey’s] conduct in disputing the alleged unfair dismissal directly with Catholic Education following the death of his father-in-law indicates that he had sufficient capacity to lodge his application during this period.’
[47] Mr Humphrey’s father-in-law died on 2 February 2018 and the unfair dismissal application was lodged on 14 March 2018. In the proceedings at first instance one of the exceptional circumstances which Mr Humphrey contended warranted an extension of time was:
‘My father-in-law passed away suddenly and very unexpectedly on the 2 February 2018. Both my partner and myself were extremely shocked and were in mourning for a number of weeks as neither of us had lost an immediate family member or parent before. I became severely depressed and experienced a form of caregiver’s burden. I was dealing with the death of a close family member as well as supporting my partner full-time through this difficult period.’
[48] In the passage at [33] the Deputy President makes no express mention of the letter sent by Mr Humphrey to the Respondent, rather she refers to his ‘conduct in disputing the alleged unfair dismissal directly with Catholic Education’. The ‘conduct’ referred to is evident from an examination of Mr Humphrey’s letter dated ‘7 February 2018’ and his evidence in the proceedings.
[49] A copy of the letter is set out at Attachment 3 to the Respondent’s written submissions at first instance. Relevantly, paragraph 12 states:
‘I attended Dutton Park BCE office to lodge a Formal Complaint and raise an issue of Unfair Dismissal on the 31"1 of January. I was told by the lady in front reception,that the Southside command would handle this and she emailed Dr Annette Duffy's office a copy of my sister's Formal Complaint and my own request to lodge a formal complaint and unfair dismissal. I was called by southside BCE office that Dr Annette Duffy would on long service leave until the 7th of February. I said then that yes I would wait until then to speak with her. I received no phone call from her on either the 7th or 8th of February. I then phones Southside BCE myself on the 8th of February. I relayed my request again to Dr Annette Duffy's secretary Claire. Claire on the 8th February, said she would rely this message to Dr Annette Duffy to call myself back. I have not had any phone call back from Dr Annette Duffy and it is now the 14th of February. I am struggling financially because of this dismissal with absolutely no warning being given to myself by Dave Sewell, and had wanted to lodge this Formal Complaint and Unfair Dismissal much earlier than today. I feel Dr Annette Duffy is not being at all caring or supportive to me and I wish to lodge my Complaint here at Dutton Park today.’ (emphasis added).
[50] In his evidence in chief Mr Humphrey said that he had completed the letter prior to the death of his father-in-law. 16 This aspect of his evidence was challenged during cross examination:
‘Do you recall when you submitted this letter?---I don't recall the exact date. I think I went to the Dutton Park BCE office and handed it to the lady at the front office. That's all I remember.
Can I check what I thought I heard in your evidence is that you typed this letter up before and submitted it before Lisa's dad passed away?---Correct, 99 per cent of it. All I did was add on that point 12 at the end of it.
Can I just confirm, Mr Humphrey, are you saying that this was submitted prior to 2 February?---I think on point 12, I attended Dutton Park BCE on 31 January, so I believe 31 January is before.
Did you submit this letter on 31 January? Is that what you're saying?---I think that's what I typed in, so unless my memory's faulty, I handed it to the lady in front reception as per point 12 on attachment 3.
You are saying this was submitted prior to 2 February, this letter?---Yes, because I wrote there 31 January.
Can I ask then about the date? You indicated - the date there seems to be 7 February/January 2018.’
…
Mr Humphrey, just on the date there, can you just confirm the date of the letter, please?---The date of attachment 3?
Correct?---7 February 2018.
I'm just trying to connect it then with the date that you say you submitted this to Dutton Park?---I gave a photocopy, yes, to the lady at the front office.
If we could turn then to point 12. I think you just mentioned it before and the Deputy President also was referring to it. Notwithstanding there that you say that you submitted this letter on 31 January and there's the anomaly then obviously with the date of this letter, but can I take you to about halfway through, please, where you indicate - can I get you just to read that paragraph just so that you understand it, please?---I'm reading it and I can understand it. Which part of point 12?
Can I ask you about the steps that you took on 7 February, or 7 or 8 February, please?---I think I tried phoning Southside BCE on 8 February. That's what I said.
Did you submit this letter after that date?---I think I submitted a copy of this letter minus point 12 to the lady in the front reception and then I sent - it was emailed because of all this point 12 later, because it wouldn't be in written form if it wasn't emailed, so yes.
Certainly and that's - - -?---I remember giving a copy of my sister's complaint and my complaint to the lady in the front reception on 31 January, but it wouldn't have had point 12 on it because that's got later dates, so when you say "this letter", the one you're talking about, the attachment 3, including point 12, that was emailed later.
Emailed later, okay. Could I suggest that that was emailed by virtue of the reference to, at the end of that paragraph, you've not had any phone call back from Dr Annette Duffy and it's now 14 February, so could I suggest to you that that was emailed after 14 February?---I'd have to look at my emails, but it was later, yes.
Mr Humphrey, can I put it to you that from what you have said there, certainly on or about 7 or 8 February and some time after 14 February, you took steps to attempt to seek answers from BCE in relation to this matter?---Yes, I think I made one phone call, correct.
And submitted an email?---Later. I'd have to check the date.’ 17
[51] In the course of his closing submissions in the proceedings at first instance Mr O’Neill, on behalf of the Brisbane Catholic Education, summarised this aspect of Mr Humphrey’s evidence in the following terms:
‘Mr Humphrey has indicated there, without any medical evidence or medical confirmation, that from the period from 2 February through to 14 March that he was incapacitated, due to grieving, to the extent that he couldn't pursue the unfair dismissal application. Again, I reiterate there that there was no medical evidence provided from Mr Humphrey of this. Then if were to look at the series of events, it's clear there, from Mr Humphrey's evidence, that post 2 February, that on the 7th or 8th and then at some stage, it appears, after 14 February, Mr Humphrey did take steps, which is contrary to what he had indicated, about his level of incapacity. So, again, it probably suggests, very strongly, that the exceptional circumstances that he's relying on is not sufficient.’ 18
[52] Mr O’Neill’s submission accurately summarises Mr Humphrey’s evidence. It is clear that in the period between 2 February and 14 March Mr Humphrey disputed his alleged unfair dismissal by:
• completing paragraph 12 of the letter (so much is clear from the statement in the letter that ‘it is now the 14th of February’);
• made a telephone call to Southside Brisbane Catholic Education on 8 February; and
• emailed the letter to the Respondent at some time between 14 February and 26 February (given the reference to 14 February in the letter and the fact that the Respondent’s reply is dated 26 February).
[53] It follows, in our view, that there was a proper evidentiary basis for the Deputy President’s factual finding in [33] of the Decision and that, contrary to the Appellant’s submission, the Deputy President did not make a significant error of fact.
[54] The second alleged error is said to arise in [22] and [23] of the Decision, which states:
‘[22] As the Agreement entered into by the parties clearly specifies that the Agreement ends on 1 December 2017 and sets out the process for renewing the Agreement, I find that the relationship ended on 1 December 2017. The Agreement clearly and unambiguously provided that the arrangement between the parties ended on this date, and set out a process by which a new Agreement would be entered into. This process did not take place.
[23]If I were wrong about the relationship ending on 1 December 2017, then I would have found that the relationship ended on 25 January 2018 when Mr Sewell sent an email to Mr Humphrey stating that no new Agreement would be entered into for 2018. Mr Humphrey conceded during the hearing that he was clear that this email meant no new Agreement would be entered into, and that the relationship between the parties had clearly ended by this date.’ (emphasis added)
[55] Mr Humphrey advances the following submission in relation to these passages:
‘I specifically stated in the hearing that while I received this Mr Sewell’s email in January 2018 that he would not be renewing our Agreement, I understood that this was only part of the process of terminating an employee’s employment with the school. Due to his constant bullying, I explained to Dp Dean that this did not constitute an ending to the ‘relationship’. An employee is allowed to seek remedy with Mr Sewell’s superiors about bullying. Which I did. I receive a letter confirming the relationship had end on the 28 February 2018.
Dp Dean must have misheard what I stated and has made a significant error of fact that impacts on my case.’
[56] In the course of his introductory statement in the first instance proceedings Mr Humphrey made it clear that he regarded the letter of 28 February 2018 as the only valid instrument informing him that the relationship had ended (as it was received in writing and in the post). 19 But during the course of Mr Humphrey’s evidence the following exchange took place with the Deputy President:
‘So the email you got on 25 January, were you clear from that email that you weren't going to be offered a new agreement?---It says, "I have determined" - David Sewell, the principal says:
I have determined not to enter into a deed of agreement to continue to offer music instruction.
It wasn't given to me by hand or either posted to me.
But that wasn't my question, Mr Humphrey, my question was were you clear from that email that you weren't going to be offered another agreement?---Yes, well, it was clear from the intention from the principal that I would not be offered, yes, your Honour.’ 20
[57] Later, at [68] in the transcript, Mr Humphrey says:
‘I didn't really accept the email from the principal. I thought it was just a continuation of the bullying that he started in 2017 and I thought that I would be able to show the BCE leadership team some of the things that he had done to me and they would reinstate me or let me continue teaching or however you say that. Yes, the only - when I finally felt it was real was when I got that letter from Neville McDonald that they supported the principal of the school and not myself after everything he'd done to me.’
[58] Finally, at [231] in the transcript, Mr Humphrey submits:
‘So I guess you could say I disagreed with his decision, but that decision was confirmed by the leadership team, in that letter. So I (indistinct) I guess there's a point to be made for 25 January and also a point to be made for that confirmation letter that I would be terminated, by the whole leadership team.’ (emphasis added)
[59] Reviewing the transcript as a whole, it is not entirely clear what Mr Humphrey’s position was in relation to the email of 25 January 2018. But, in any event, it does not matter. In our view the relationship between Mr Humphrey and the Respondent plainly ended on either 1 December 2017 or 25 January 2018, as found by the Deputy President. That conclusion does not rest on Mr Humphrey’s subjective belief but on an objective assessment of the terms of the Agreement and the terms of the email of 25 January 2018.
Conclusion
[60] We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. The Deputy President addressed the relevant statutory criteria and we are not persuaded that the Decision discloses any error of principle or any significant error of fact. Nor are we persuaded that the Appellant has established an arguable case of error in relation to any aspect of the Decision subject to appeal.
[61] This is not a case where there is a diversity of decisions at first instance so that guidance from a Full Bench is required; the Decision at first instance does not manifest an injustice; the result is not counter intuitive; and the legal principles applied do not appear disharmonious when compared with other decisions dealing with similar matters.
[62] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
PRESIDENT
Appearances:
Mr C O’Neill and Ms A Cartlidge for the Respondent
Hearing details:
Melbourne.
2018.
4 September.
Melbourne.
2018.
5 September.
ATTACHMENT A
1 [2018] FWC 4111.
2 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
4 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.
5 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd (1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail Association v Fair Work Commission [2014] FCAFC 118.
6 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.
7 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.
8 See Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).
9 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at paragraph 43.
10 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].
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
12 Wan v AIRC (2001) 116 FCR 481 at [30].
13 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].
14 Transcript 25 June 2018 at [65].
15 Ibid at [69].
16 Ibid.
17 Ibid at [111] – [116] and [120] – [129].
18 Ibid at [242].
19 Ibid at [23].
20 Ibid at [52] – [55]
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