Sumont Pty Ltd t/a Brisbane Motorcycles v Stephen Hohns
[2020] FWCFB 5983
•13 NOVEMBER 2020
| [2020] FWCFB 5983 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Sumont Pty Ltd t/a Brisbane Motorcycles
v
Stephen Hohns
(C2020/4656)
VICE PRESIDENT HATCHER | SYDNEY, 13 NOVEMBER 2020 |
Appeal against decision [2020] FWC 1400 of Deputy President Asbury at Brisbane on 14 April 2020 in matter number U2019/4050
Introduction
[1] On 16 June 2020, Sumont Pty Ltd (Sumont) lodged an appeal against a decision of Deputy President Asbury published on 14 April 2020 1. The decision concerned an application by Mr Stephen Hohns, made pursuant to s 394 of the Fair Work Act 2009 (FW Act), for an unfair dismissal remedy against Sumont. In the decision, the Deputy President determined that Mr Hohns’ dismissal by Sumont was unfair, and that Sumont should pay Mr Hohns compensation to the amount of $10,364.84 for lost wages (less applicable tax), with a further $529.90 to be paid into his superannuation fund. The Deputy President issued an order the same day to give effect to the decision2 (order). The order required payment to be made by 28 April 2020.
[2] Rule 56(2) of the Fair Work Commission Rules (FW Rules) requires that an appeal must be filed within 21 calendar days after the date of the decision appealed against, or such time as is allowed by the Commission on application. The 21-day time period in this case ended on 5 May 2020, so the appeal was filed six weeks late. An extension of time is therefore required in order for the appeal to be competent.
[3] As is frequently noted, most recently by a Full Bench of the Commission in Synder v Helena College Council, Inc. t/a Helena College, 3time limits of the kind in rule 56(2) of the FW Rules should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
[4] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision of Jobs Australia v Eland4as follows (footnotes omitted):
“[5]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”
Length and reason for the delay
[5] In this case, the length of the delay is substantial when considered in proportion to the 21-day time period allowed for bringing appeals. The explanation advanced by Sumont for the delay is as follows:
“Mr. Brett Mutton is suffering chronic health issues. The decision was a 28 [page] document of which was unable to be read or comprehended by Brett Mutton. It was at this stage that Gay Mutton was left to dictate to him the background notes 1-144.
We have also limited access to computers and have had a very difficult time in obtaining the recordings of conferences/hearings conducted by the FWC of which we were waiting for to verify our opinions. The audio recordings were received on the 29th May. We have made our application within 21 days of that point in time. We did not want to make it prior to hearing the recordings in case we were in fact wrong in our opinion which would have caused a further inconvenience to all parties including the FWC.
The delay was in the best interests of the FWC and all relevant parties. It is on these grounds that we request an extension of time to file the appeal.”
[6] Brett Mutton and Gay Mutton are the directors of Sumont. The circumstances of their involvement in the proceedings requires some explanation. The decision indicates that the Form F3 Response filed by Sumont in the proceedings below on 2 May 2019 stated that the contact person for Sumont was Mr James Mutton, and was signed by him in his capacity as General Manager of Sumont. Mr James Mutton is the son of Brett Mutton and Gay Mutton. James Mutton appeared for Sumont in the early stages of the proceedings, and made a witness statement on behalf of Sumont. However, at some time prior to the hearing, Sumont sold its business, Brisbane Motorcycles, to Motorcycle Trading Pty Ltd (MT). James Mutton is the sole director of MT, which has the same registered address as Sumont. After advising of the sale, James Mutton attempted to withdraw from the proceedings on the basis that he was now employed by MT, and no alternative contact person for Sumont was nominated. Mr Hohns then made an application to join MT as a respondent to the proceedings. The Deputy President rejected an application made by James Mutton to strike out the joinder application.
[7] The Deputy President went on to record in the decision that Brett Mutton had initially resisted involvement in the proceedings. After the original hearing date of 25 September 2019 was vacated because of James Mutton’s unavailability, the matter was then listed for hearing on 4 October 2019 on the basis that James Mutton would be available to attend. However, and contrary to previous advice regarding his involvement in the proceedings, Brett Mutton then advised the Deputy President’s chambers that he had made arrangements to attend the hearing listed for 25 September 2019, and was unavailable to attend on 4 October 2019. The matter was subsequently listed for hearing on 31 October 2019 on the basis that both Brett Mutton and James Mutton would be available to attend. James Mutton continued to act as the contact person for Sumont in dealings with the Commission, contrary to previous advice, and, at the hearing on 31 October 2019, James Mutton appeared for both Sumont and MT and also gave evidence. Brett Mutton attended, but did not appear in, the hearing.
[8] As earlier stated, the Deputy President’s decision was issued on 14 April 2020. As well as awarding an unfair dismissal remedy to Mr Hohns, the Deputy President rejected Mr Hohns’ application to join MT to the proceedings. The decision was sent by email to Sumont’s contact addresses. On the same day the decision was issued, James Mutton sent two emails to the Commission challenging particular aspects of the decision. The Commission replied to the emails the following day as well as sending a copy of the decision, the accompanying order, James Mutton’s emails and the Commission’s response to Brett Mutton and Gay Mutton by registered post. On 15 April 2020, James Mutton requested access to the recordings of the proceedings, and the Deputy President’s chambers advised that it would make this available to the parties. He was also advised by way of email twice that day, and again on 16 April 2020, that the Deputy President’s chambers would not deal with any further communications from him because the matter was now closed and, because MT had not been joined in the proceedings, he had no further legitimate interest in the matter.
[9] On 29 April 2020, the Deputy President’s chambers received an email from Mr Hohns complaining that the order for compensation had not been complied with by Sumont. A response was sent referring Mr Hohns to the office of the Fair Work Ombudsman. These emails, together with a further email from James Mutton seeking copies of recordings of conversations he had with the Commission prior to the hearing, were sent by registered post to Brett Mutton. On 21 May 2020, Brett Mutton made an application for access to the audio recording, and it was provided to him on 29 May 2020.
[10] The explanation advanced for the delay by Sumont must be assessed in the context of the circumstances described above. The following matters we consider to be pertinent:
(1) Notwithstanding the sale of the Brisbane Motorcycles business to MT and his directorship and employment with MT, James Mutton remained the contact person, advocate and principal witness for Sumont in the proceedings before the Deputy President. He was in contact with the Commission, protesting the decision and requesting recordings of the proceedings, immediately after the decision was issued. It could reasonably be expected in those circumstances that he could have assisted in the filing of any appeal on behalf of Sumont. However, the explanation advanced for the delay is entirely silent about his role.
(2) Brett and Gay Mutton were sent the decision and order by registered post, and information concerning access to the audio recording of the hearing, on 15 April 2020. To the extent that it was necessary for Gay Mutton to dictate the content of the decision and order to Brett Mutton (and discounting for present purposes the capacity of James Mutton to assist), there is no apparent reason why that could not have occurred immediately after the receipt of the decision. It does not explain why the appeal was lodged almost nine weeks later.
(3) There is no factual support for the proposition that Brett and Gay Mutton had difficulty in obtaining the audio recording of the hearing. As earlier stated, Brett Mutton did not make a request for the audio recording until 21 May 2020, well after the 21-day time period for filing an appeal had expired. The audio was provided on 29 May 2020. Even then, the appeal was not filed until a further 18 days later.
(4) To the extent that Brett and Gay Mutton say they had difficulty accessing a computer, that does not serve to explain the delay. The appeal notice that was eventually filed was completed by hand and filed by post. There is no apparent reason why that could not have been done within 21 days of the date of the decision.
[11] For the above reasons, we are not satisfied that Sumont has advanced a satisfactory explanation for the delay.
Nature and merit of the grounds of appeal
[12] The matters raised in the grounds of appeal may be summarised as follows:
(1) There were many significant errors of fact made in the decision, as evidenced by the audio recording of the hearing.
(2) The Deputy President had acted and formed opinions based on irrelevant matters and has acted on wrong principles of law.
(3) The Deputy President referred to the fact that James Mutton was the son of Brett and Gay Mutton, which was not relevant to the fairness of the dismissal.
(4) James Mutton’s participation in the early stage of the proceedings on behalf of Sumont, as noted in paragraph [4] of the decision, was not relevant to the fairness of the dismissal. Brett Mutton was ill at the time.
(5) James Mutton, who was a former employee of Sumont and was in the middle of a “heated settlement negotiation” between his own entity and Sumont, had repeatedly told the Commission that he was not the appropriate person to speak to about the matter. At no point did the Commission write to or inform a director of Sumont about this, nor was it explained to him that he needed to fill out a form to remove himself as representative. If this had been done and James Mutton had been “left alone as requested”, the findings made by the Deputy President about his credibility as a witness would have been irrelevant.
(6) The audio recording showed that the comment attributed to Mr Mutton in paragraph [6] of the decision that there had been a “transfer” of the Brisbane Motorcycles business on 1 August 2019 was incorrect. James Mutton told the Commission that the business had been sold and he no longer worked for Sumont.
(7) It was not correct, as stated in paragraph [8] of the decision, that the Deputy President asked Mr Hohns if he wished to join MT to the matter. The Deputy President instead asserted to Mr Hohns that he would like to join MT to the matter, and Mr Hohns agreed. This was a clear display of bias towards Mr Hohns.
(8) The Deputy President’s statement in paragraph [8] of the decision that James Mutton had been disingenuous was irrelevant, and the comments made by James Mutton were truthful and genuine. This was based on an incorrect principle of law because liability for Mr Hohns’ dismissal remained with Sumont. This again shows bias against James Mutton.
(9) As to paragraph [10] of the decision, if the appropriate process had been followed and the directors of Sumont had been contacted in the first instance, all parts of the decision relating to the conduct of James Mutton would have been irrelevant. Sumont’s witness’ credibility should not have been damaged by the Commission’s lack of procedural fairness and bias.
(10) Paragraph [11] of the decision was irrelevant.
(11) Paragraph [12] of the decision was irrelevant and involved a significant error of fact.
(12) In paragraph [13], the Deputy President stated that there was insufficient evidence to determine if MT should be joined or not. However, no further evidence about this issue was adduced, demonstrating that there was sufficient evidence to determine it. It was also irrelevant to whether Mr Hohns was unfairly dismissed.
(13) In paragraph [14] of the decision, while Brett Mutton was unhappy about attending the hearing, at no point did he refuse to communicate with the Commission. He made a significant effort to assist the Commission to the best of his ability given his illness and mental state.
(14) Paragraph [15] of the decision was irrelevant.
(15) The finding about James Mutton’s credibility could have been avoided if the Commission had contacted the directors of Sumont when James Mutton had advised he was not the correct person to talk to.
(16) As to paragraph [19] of the decision, it was the Commission’s conduct that caused significant inconvenience to Mr Hohns and James Mutton by not contacting the directors of Sumont when they were informed by James Mutton what had taken place.
(17) As to paragraph [20] of the decision, James Mutton was working 12-hour days, 6 days a week looking after 45 staff at the time, and James Mutton was at no point ingenuine or lying to the Commission.
(18) Most of paragraphs [21]-[51] of the decision refer to James Mutton’s actions at a time that he had requested not to be contacted about the matter. If the Commission had contacted the directors of Sumont, his character and credibility would have remained intact.
(19) In relation to paragraphs [52]-[63] of the decision, while there were many inconveniences and disruptions throughout the process, it was unfair to class James Mutton as disingenuous when he continuously asserted that there was no jurisdiction to join MT to the matter. He provided evidence in a timely manner when the context of his working hours was considered.
(20) In relation to paragraphs [82]-[84] of the decision, Mr Hohns’ evidence demonstrated that he was knowingly underperforming and had been warned about it. He specifically said during the hearing that “If I had been doing my job properly” he would have met the performance targets set for him.
(21) As to paragraph [96] of the decision, James Mutton acted genuinely and assisted the Commission to the best of his ability even though he was being wrongly pursued.
(22) As to paragraph [98], James Mutton was only given 24 hours to submit the requested statutory declaration, which was inconsistent with timeframes offered to parties in other stages of the matter.
(23) As to paragraph [102] of the decision, the Deputy President asserted that Mr Hohns should join MT to the matter. This constitutes legal advice and therefore undermines the procedural fairness offered to both parties.
(24) Paragraphs [107]-[144] demonstrated a bias against James Mutton and in favour of Mr Hohns. Mr Hohns made multiple false statements none of which were supported by factual evidence. James Mutton was unfairly treated from the outset and Sumont’s case subsequently damaged.
[13] If an extension of time were granted, the appeal would be subject to s 400(1) of the FW Act, which 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.
[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 5Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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
[15] 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 at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
[16] We do not consider that the appeal grounds disclose any reasonably arguable contention of appealable error. The large majority of the grounds (grounds 3-19) relate to the introductory part of the decision (paragraphs [1]-[63]) in which the Deputy President dealt in detail with the procedural difficulties associated with the representation of Sumont and subsequently MT by James Mutton, the difficulties which arose due to James Mutton’s failure to provide timely and accurate information concerning the status of MT and the date of the sale of the Brisbane Motorcycles business to MT (which potentially affected the identity of the proper employer respondent to Mr Hohns’ application), and the failure of Sumont to clearly identify who its point of contact and representative was after James Mutton asserted that he no longer had an association with Sumont. None of these matters was material to the subsequent findings concerning Mr Hohns’ dismissal save that James Mutton’s conduct was such as to cause the Deputy President to make an adverse credit finding against him. The appeal grounds seek to challenge this credit ground primarily on the spurious ground that James Mutton would not have conducted himself the way he did had the Commission contacted Brett Mutton concerning the representation of Sumont once James Mutton advised he was no longer employed by Sumont. However, it was not the obligation of the Commission to determine or arrange for the representation of Sumont and, in any event, it is clear that Brett Mutton kept himself informed of the progress of the proceedings. He applied for the hearing date to be re-arranged so that he could attend. He then did attend the hearing although James Mutton appeared for Sumont at the hearing. In those circumstances, the Commission was entitled to presume that James Mutton was authorised to represent Sumont. The fact that the conduct of Sumont and James Mutton in responding to the application made it necessary for the Deputy President to deal with the procedural matters at length is not even arguably indicative of bias or a denial of procedural fairness on her part.
[17] Grounds 1 and 2 contain merely generalised and unparticularised assertions of error. Grounds 21, 22 and 23 raise peripheral matters or revert to the issue of the conduct of James Mutton. Only grounds 20 and 24 touch at all upon the findings that caused the Deputy President to find that Mr Hohns’ dismissal was unfair. Ground 20 seeks to take one line of Mr Hohns’ evidence out of context to support the contention that Mr Hohns was “knowingly underperforming” as a motorcycle salesperson. Mr Hohns evidence, taken as a whole, was that he was able to meet the sales targets except where Sumont had placed another salesperson with him who was competing for sales. Ground 20 does not challenge the finding made by the Deputy President in paragraph [113] of the decision, namely:
“I also do not accept that Mr Hohns’ sales performance was a valid reason for dismissal. During the period he was employed by Sumont Mr Hohns sold numbers of motorcycles sufficient to earn an amount that was in excess of his base salary and on average resulted in total earnings of double the amount of his base salary.”
[18] This finding was critical to the Deputy President’s conclusion that there was no valid reason for Mr Hohns’ dismissal. As to ground 24, it merely asserts without particularisation that Mr Hohns made “multiple false statements” and then returns to the treatment of James Mutton.
[19] Because the appeal grounds do not disclose any reasonably arguable contention of error, we do not consider that the grant of permission to appeal would be in the public interest were an extension of time to be granted.
Prejudice to the respondent
[20] We consider that there would be prejudice to Mr Hohns if an extension of time were granted. Sumont has, on the last information available to us, not complied with the order. Sumont sought a stay of the decision and order in its appeal notice but, when the stay application was listed for hearing on an urgent basis on 19 June 2020, Sumont was not ready to proceed and the matter was adjourned. No subsequent date for a hearing of the stay could subsequently be arranged which met Sumont’s convenience. The continuation of these proceedings would only serve to potentially frustrate Mr Hohns’ capacity to seek enforcement of the order.
Conclusion
[21] We refuse an extension of time to file the appeal. The proceedings are therefore incompetent and are dismissed.
VICE PRESIDENT
Appearances:
Ms G Mutton accompanied by Mr B Mutton for the Appellant.
Mr S Hohns for the Respondent.
Hearing details:
2020
Sydney (video-link)
3 August.
Printed by authority of the Commonwealth Government Printer
<PR724371>
1 [2020] FWC 1400
2 PR718173
3 [2019] FWCFB 815
4 [2014] FWCFB 4822
5 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
6 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
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