The Church of Ubuntu Inc v Lainie Chait
[2023] FWCFB 198
•9 NOVEMBER 2023
| [2023] FWCFB 198 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
The Church Of Ubuntu Inc
v
Lainie Chait
(C2023/5941)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 9 NOVEMBER 2023 |
Appeal against decision [2023] FWC 2405 of Vice President Asbury at Brisbane on 18 September 2023 in matter number U2021/9704 – permission to appeal refused.
The Church of Ubuntu Inc (Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] (the decision) and order[2] of Vice President Asbury issued on 18 September 2023, for which permission to appeal is required. The decision concerned whether any extension of time was necessary and, if so, should be granted for an application, brought by Ms Chait, in relation to her claim for an unfair dismissal remedy made pursuant to s 394 of the Act.
This matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. Accordingly, the application has been determined on the basis of the Appellant’s Notice of Appeal and the written submissions filed in accordance with the directions.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
As noted in a related decision[3] considering a stay application made in respect of the present application to appeal, the matter has a significant procedural history. It will be necessary to refer to aspects of that history to explain the Notice of Appeal.
The starting point is, relevantly, 11 October 2021. On that date, Ms Chait was dismissed from her employment with the Appellant. While the Appellant has disputed (and continues to dispute) it engaged Ms Chait at all – whether as an employee or a contractor – there is no dispute that 11 October 2021 was the date that the termination of any relevant engagements took effect.
The effective letter of termination was sent on letterhead describing the “Church of Ubuntu”, at 97 Hunter St, Newcastle. Confusingly, it stated that Ms Chait has been a “subcontractor” with the “Ubuntu Wellness Clinic Newcastle” and the letter was signed by Karen Burge, in her capacity as “Vice President Church of Ubuntu and Owner Operator/Manager The Ubuntu Wellness Clinic”.
On 29 October 2021, Ms Chait filed a ‘Form F2’ application for an unfair dismissal remedy and then, about four hours later the same day, filed a second version. A third version of Ms Chait’s ‘Form F2’ was filed on 9 November 2021. Relevantly, the differences with these versions concerned the description given to the putative employer. In the first two versions, the employer identified by Ms Chait was “Karen Margaret Burge and/or Ubuntu Wellness Clinic”. In the version filed on 9 November 2021, the employer Ms Chait identified was the “Church of Ubuntu”.
In its ‘Form F3’ response dated 17 February 2022, the Appellant raised two jurisdictional objections: whether Ms Chait was an employee and, if so, whether she was employed by the Church of Ubuntu. Those two issues were resolved by Deputy President Asbury (as the Vice President then was) in Ms Chait’s favour.[4] The Church of Ubuntu made an application to appeal that decision. A differently constituted Full Bench granted permission to appeal but dismissed the appeal (the Full Bench decision).[5]
In addition to dismissing the Church of Ubuntu’s appeal, the Full Bench identified a potential disconformity between the date of dismissal (i.e. 11 October 2021) and the date of the final ‘Form F3’ lodged by Ms Chait (i.e. 9 November 2021). The potential disconformity was identified because, by s 394(2) of the Act, a person is required to make an application for unfair dismissal within 21 days after the dismissal took effect or within such period as the Commission allows under s 394(3). The period from 11 October 2021 to 9 November 2021 was 29 days, being 8 days longer than the 21-day period in s 394(2)(a). The Full Bench ordered that:
“1. The matter is referred to Deputy President Asbury to determine whether [Ms Chait’s] unfair dismissal application was filed within the time required in s.394(2) of the Act.”
Section 394(2) states:
“(2) The 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).”
Upon being remitted to the Vice President, she determined that:
1. The operative date of dismissal was 11 October 2021;[6]
2. Ms Chait first made an unfair dismissal application on 28 October 2021;
3. The second and third Form F2 applications respectively lodged by Ms Chait on 28 October 2021 and 9 November 2021 were amendments to Ms Chait’s first application[7] – and not new applications – and were accordingly within the 21-day time period. It followed that no extension of time was required.
4. However, in the event that her conclusion that Ms Chait’s application being in time was incorrect, the Vice President considered whether she should exercise her discretion to grant a further period as provided for by s 394(2)(b).[8]
5. Upon consideration of the factors in s 394(3), the Vice President was satisfied that exceptional circumstances were present and she exercised her discretion to grant a further period of time for Ms Chait to make an unfair dismissal application. The further period granted was until 9 November 2021.[9]
While the above summary is a truncated synopsis of the Vice President’s decision, it is unnecessary to provide further detail because, other than the conclusion that the application was made within time, the Appellant’s grounds of appeal do not allege error made in respect of those essential matters.
Grounds of appeal and public interest
The errors alleged by the Appellant are not expressed clearly but they are summarised as follows. There is some overlap between the various grounds.
First, the Vice President’s order is a “Void Order “ab initio” at law”.
Second, the Appellant contends that the original matter was heard by the Commission “out of time and without being granted an extension of time until the 18th September 2023”, which means the Vice President’s decision – as well as her earlier decision and the earlier decision of the Full Bench – are “void”.
The grounds of appeal set out in some detail what the effect of a “void” decision or order means, as well as authorities said to be in support of those contentions, which are unnecessary to summarise. In short, the Appellant contends that the various “void” orders do “not have to be obeyed”.
Third, the Appellant contends that the Vice President “erred in Law by changing the order” of the Full Bench decision. The Full Bench decision remitted the matter to the Vice President to determine whether Ms Chait’s unfair dismissal application “was filed within the time required in s.394(2) of the Act”. The Appellant complains that rather than merely determining whether the application “was filed within the time required”, the Vice President “determined that the application was filed out of time” and also considered whether an extension of time should be granted. We note from the decision that the Appellant contended at first instance that it relied upon the Full Bench decision in Herc v Hays Specialist Recruitment (Australia) Pty Ltd[10] (Herc) in support of its contention.[11]
Fourth, the Appellant contends the Vice President “did not have the jurisdiction to then grant an extension” and, by doing so, committed an error of law. As we understand the point, the error in law is said to arise because the “law of void orders applies” and that the Vice President failed to take into account correct principles at law – namely, the absence of jurisdiction - in granting the extension of time.
On the issue of public interest, the Appellant relies upon its position that the matter is void “ab initio”. The Appellant also contends that the matters of jurisdiction are in the public interest, which we understand is a reference to the Appellant’s position that the matter is “void”.
The Appellant had the benefit of a substantially similar summary of its grounds of appeal to that provided above, which was set out in the decision issued on 11 October 2023 regarding the Appellant’s stay application on appeal.[12] In its subsequent written submissions in support of permission to appeal, no additional relevant material was provided, although we note that the Appellant stated again that Ms Chait was “never terminated” and was a “subcontractor”[13].
Principles for permission to appeal
An appeal under s 604 of 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.[14] There is no right to appeal, and an appeal may only be made with the permission of the Commission. As the appeal is one to which s 400 of the Act applies, the Commission must not grant permission to appeal unless it considers that it is in the public interest to do so.
A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:[15]
“… 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.”
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[16] This is so because an appeal cannot succeed in the absence of appealable error.[17] 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.[18]
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.[19] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
None of the grounds of appeal raised by the Appellant describe any arguable error of law. The Appellant’s grounds of appeal rest upon a mistaken understanding of the Commission’s jurisdiction and other various logical fallacies.
As to jurisdiction, the Appellant’s contention that the matter is “void” appears to reside upon the proposition that Ms Chait was not an employee of the Appellant. This was a matter determined initially against the Appellant at first instance on 7 November 2022[20] and affirmed on appeal.[21] As the Full Court of the Federal Court has stated in Coles Supply Chain Pty Ltd v Milford and Another[22] (Coles v Milford), “The FWC was entitled to determine the limits of its authority to deal with a dispute under s 368 of the FW Act, although it had no authority to conclusively determine those limits.”[23] The same observation applies to authority under s 394 and this is what has occurred in the present case.
The decision issued by the Vice President on 18 September 2023 did not purport to readdress those initial matters and, quite clearly, there is no arguable error with the Vice President’s decision in that respect.
As to the logical fallacies concerning the grounds of appeal, a central tenet of those grounds assert that the Vice President was not permitted to determine the ‘extension of time’ issue following the dismissal by the Full Bench of the initial appeal. Having been unsuccessful on the issue of whether the Appellant was Ms Chait’s employer, the Appellant now wants to assert that the application was made out of time and also that the Commission cannot now determine whether an extension of time should be granted.
The Appellant’s position is unarguable. It amounts to relying upon limb (a) of s 394(2) for the 21-day period as having not been met but, at the same time, asserting that limb (b) cannot even be considered. There is also nothing in the Full Bench decision in Herc that supports the Appellant’s position. We respectfully agree with the Vice President’s observation at [18] of the decision that:
“Contrary to the Respondent’s submissions in the present case, Herc is not authority for the proposition that an application made outside the time required in s. 394(2)(a), can never be validly made. Neither does Herc establish that a hearing and a decision in relation to a jurisdictional objection, prior to a further period being granted, are null and void. If the Respondent’s proposition to the contrary was correct, the Full Bench in the present case would have quashed the entire Jurisdictional Decision and referred all matters to me to determine rather than simply the question of whether the application was made within the time required in s. 394(2).”
Further to the Vice President’s observations, the Full Court in Coles v Milford has stated in relation to the Commission’s powers to deal with certain disputes where jurisdictional issues arise regarding whether a person was “dismissed”[24]:
“[54] The second observation that may be made is that s 365 contains two criteria conditioning a person’s entitlement to make an application. The first criterion is expressed in objective terms: the person has been dismissed. …”
…
“[67] To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. …”
While the Court’s statements were made in respect of s 365, we consider they are applicable to s 394. For a person to be “dismissed”, it is necessary that their “employment” be terminated: s 386(1)(a) and (b). It follows that if a person is not an employee, they are not “dismissed” within the meaning of s 386(1).
In Coles v Milford, the Court was considering a dispute as to (primarily) whether Mr Milford had been “dismissed” or not in circumstances where his casual employment had come to an end by operation of an enterprise agreement.[25] While those circumstances did not concern the question of whether Mr Milford was an employee, we do not consider the Court’s observations to be limited to the particular dispute about “dismissal” before the Court.
It follows that, in the procedural history of Ms Chait’s matter, it does not matter that the status of her engagement as an employee was determined before the ‘out of time’ issue was determined. Indeed, consistent with Coles v Milford, it was a matter concerning a jurisdictional fact of whether she even was a “person who has been dismissed” under s 394(1). Having regard to the circumstances of this matter, the Appellant’s grounds of appeal raise no arguable error in this respect.
In any event, there is no arguable error regarding the extension of time question at all because the Vice President permitted Ms Chait to amend her application so as to name the Appellant as the respondent. No discernible error of principle or fact is alleged other than a recitation of the Appellant’s contention that Ms Chait was not an employee. For avoidance of doubt, we have considered the Vice President’s reasons concerning this aspect of her decision, including the confusion regarding the proper identity of the employer, and respectfully agree that the amendment was permissible and appropriate pursuant to s 586 of the Act.
The above matters address the first, second and fourth general grounds of appeal, as summarised above. The third general ground of appeal asserted that the Vice President erred by acting inconsistently with the Full Bench’s order upon remittal. We do not consider that any sensible reading of the Full Bench’s decision or the Vice President’s decision allows such a ground to be arguable.
The Full Bench ordered the Vice President to determine whether Ms Chait’s unfair dismissal application was filed within the time required in s 394(2) of the Act. The Vice President determined that matter in favour of Ms Chait for the 21-day period and no disconformity with the Full Bench’s order exists. There is no arguable error disclosed by the Appellant’s third ground.
For further avoidance of doubt, we have considered the Vice President’s reasons as to why “exceptional circumstances” exist that would warrant an extension of time. While no specific error is alleged regarding the exercise of that discretion, there is no arguable error with that aspect of the decision nor any disconformity with the Full Bench’s order. It is plain that, once the issue of whether Ms Chait filed within the time required under s 394 was determined, the matter was to be dealt in the usual way. That is what the Vice President has done.
Conclusion
We have considered whether this appeal attracts the public interest, and we are not satisfied for the purposes of s 400 that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· the decision manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Vice President were disharmonious when compared with other decisions dealing with similar matters.
Accordingly, permission to appeal is refused. It follows that the matter is to continue in the usual course with the Vice President for determination of the unfair dismissal application.
DEPUTY PRESIDENT
Hearing details:
Matter decided on the papers.
[1] [2023] FWC 2405
[2] PR766345
[3] [2023] FWC 2618
[4] [2022] FWC 2947
[5] [2023] FWCFB 20, as corrected (Catanzariti VP, Cross DP, P Ryan C)
[6] Decision at [2], with reference also to the Vice President’s earlier decision on the matter
[7] Decision at [58]
[8] Decision at [63]
[9] Decision at [64] – [76]
[10] [2022] FWCFB 234
[11] Decision at [58]
[12] [2023] FWC 2618
[13] Appeal Book at page 5
[14] This is so because on appeal FWC has the 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
[15] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[16] Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 275
[17] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[18] 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]
[19] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[20] [2022] FWC 2947
[21] [2023] FWCFB 20 (as corrected)
[22] Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591
[23] Ibid at [43]
[24] Coles v Milford at [43]
[25] Ibid at [4]
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