The Trustee for the Tom Hamer Family Trust T/A Reliable Signs & Refinishing Pty Ltd v Kevin Clark
[2023] FWCFB 110
•14 JULY 2023
| [2023] FWCFB 110 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
The Trustee for The Tom Hamer Family Trust T/A Reliable Signs & Refinishing Pty Ltd
v
Kevin Clark
(C2023/1476)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 JULY 2023 |
Appeal against decision [2023] FWC 276 on 8 February 2023, decision [2023] FWC 612 and order PR760285 on 16 March 2023 of Commissioner Bissett at Melbourne in matter number U2022/9502 – permission to appeal refused– application remitted.
The Trustee for The Tom Hamer Family Trust, trading as Reliable Signs & Refinishing Pty Ltd (Appellant), has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against an order[1] and two decisions[2] of Commissioner Bissett, for which permission to appeal is required. The matter concerned an application, brought by Mr Kevin Clark (the respondent to the application for appeal) for an unfair dismissal remedy against the Appellant pursuant to s 394 of the Act.
The decisions and order under appeal
In two decisions, Commissioner Bissett firstly decided that the Appellant had unfairly dismissed Mr Clark (liability decision)[3] and, after hearing further from the parties on the question of relief, decided that compensation in the amount of $27,664.00 plus 10.5% superannuation was appropriate (remedy decision).[4] The decision for compensation was specified in the order.
Having regard to the grounds raised in the Notice of Appeal (which are set out below), it is not necessary to set out in detail all aspects of the decisions and order under appeal.
In summary, the liability decision shows that the Commissioner was firstly required to determine whether Mr Clark had been “dismissed” by the Appellant or, as the Appellant contended, he had resigned his employment by not attending to work or contacting the workplace on 5 or 6 September 2022. The Commissioner concluded that Mr Clark was dismissed and her reasons for that conclusion are set out in detail between paragraphs [9]-[57] of the liability decision. The finding that there was a “dismissal” is relevant to one of the grounds of the appeal.
At the heart of the Commissioner’s conclusion that there was a dismissal (as opposed to a resignation) were her findings regarding a heated discussion on 3 September 2022 between Mr Clark and a director of the Appellant, Mr Hamer. The background to that discussion was that Mr Hamer was unhappy that Mr Clark had failed to ensure certain preparatory work was complete for a customer pick-up scheduled for 5 September 2022. During that heated discussion, and as found by the Commissioner, Mr Hamer told Mr Clark to “get the fuck out of my life” and also told Mr Clark to return a company motor vehicle. We note there were other factors the Commissioner had regard to in support of that conclusion, but none are presently relevant for the Notice of Appeal.
Having found that there was a dismissal, the Commissioner proceeded to consider the various factors under s 387 of the Act to determine whether the dismissal was harsh, unjust or unreasonable. There are two specific aspects of those findings that are the focus of the Notice of Appeal. The first concerned the findings that Mr Hamer said, “get the fuck out of my life,” described above. The second appears to concern a proposition that Mr Clark’s personal use of a company car was not permitted, and that factor was a further ground to support the termination of Mr Clark’s employment. We will return to this below.
For the remedy decision, it is also unnecessary to recite the full detail of that decision having regard to the specific complaints in the Notice of Appeal. The findings in the remedy decision pertinent to the Notice of Appeal include the following:
(a) The first was a finding that Mr Clark would have remained in employment for a further period of 12 months, but for his dismissal. The Appellant’s position at first instance was that Mr Clark would not have remained employed for more than 3-6 months. Mr Clark’s position was that it would have been longer than 12 months and he had “no plans of leaving at all.”
(b) The second concerns long service leave. The Commissioner included in her compensation calculations a further 2.308 weeks on account of long service leave, which was quantified as $2,455.71.
(c) The third matter concerns whether there ought to have been reductions in the amount of compensation due to misconduct on behalf of Mr Clark. The Commissioner did not make any findings of misconduct (although we note she did conclude that Mr Clark was wrong to say that a particular job had not been completed when it hadn’t - but that this was not misconduct warranting any reduction in compensation). In a possibly related aspect, we also note that the Commissioner rejected the Appellant’s evidence regarding alleged previous verbal warnings.[5]
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission.
By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the Act. As the order for compensation under s 390 of the Act was a decision made under Part 3-2 of the Act, this appeal is one to which s 400 of the Act applies. The test under s 400 is “a stringent one.”[6]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error,[8] or a preference for a different result.[9] 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...”[10]
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.[11] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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.[12]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences: Fox v Percy.[13]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[14]
“"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
(citations omitted)
For there to be legal error, it would need to be shown that the Commissioner acted on a wrong principle, took into account irrelevant matters, mistook facts,[15] or is manifestly wrong: House v The King.[16] It is not enough that a different member or an appellant body might have reached a different conclusion.
Grounds of appeal
In the section of the Form F7 Notice of Appeal addressing public interest, no matters were listed.
For the grounds of appeal, the Notice of Appeal lists two items of appeal, each with sub-categories. Broadly, all the complaints assert that the Commissioner used “irrelevant factors” (grounds 1a-1c described below) to form her decision or that she “did not consider” material facts (grounds 2a-2d described below).
Grounds 1a-1c of the Notice of Appeal are as follows:
(Ground 1a) “1a) The commission Decision of unfair dismissal findings (43) on the 8th of February states that they were satisfied Tom told Kevin to get the fuck out of his life, however there is no factual evidence from either the applicant or respondent to confirm this.”
(Ground 1b) “1b) The decision on 16 March 2023 states finding (15) that the commission is satisfied the applicant would have remained employed for a further 12 months. This is an assumption, and the applicant was originally only seeking compensation for the weeks of missed employment and difference of that approximately 13k. We have now been ordered to pay the maximum compensation based on this assumption. According to the fair work website only 0.4% of cases result in the maximum compensation. This potential employment length fact is irrelevant and cannot be proven by either party and seems unfair to respondent.”
(Ground 1c) “1c) There is findings by the commission during since August 2022 to September 2022 of 2 counts of misconduct by the employee and although employee was found to have been to have been reckless and disregarding company policy there was no reduction on compensation and therefore even though 2 counts of misconduct over 2 months and no written warning previously it seems as though it has been assumed the employee was exemplary for the total 12 years of employment and applicant word vs respondent has been taken advantageously”
Grounds 2a-2d of the Notice of Appeal are as follows:
(Ground 2a) “2a) no merit was given to the evidence of the respondent and the commission heavily relied on the applicant evidence and preferred the evidence of the applicant to the respondent even where no factual evidence was available on both parties’ sides and the compensation amount is unfairly calculated based on a further 52 weeks of potential employment.”
(Ground 2b) “2b) Reliable signs contract and code of conduct signed by Applicant had little to no regard and raises concern over relevance of having a workplace contract in place if it is never going to be taken in to consideration during a process such as this. This contract is heavily based on the award MA000089 and respondent does not understand how this had no weight at all in supporting respondent. Contract clearly states all vehicles are a company car and no updated contract was ever signed to say this was approved for personal use however applicant evidence was preferred again.”
(Ground 2c) “2c) The compensation amount does not take into consideration that the applicant was paid out long service leave entitlements and even if the respondent did work for another 12 months you are not allowed to work whilst on long service leave so shouldn’t this reduce the compensation amounts.”
(Ground 2d) “2d) Commission received covid hardship letters however stated it had little evidence. Respondent is concerned about this statement as this evidence was good enough to be able to get government grants for our business to survive during the pandemic but not good enough for commission?”
Consideration
We do not consider that it is appropriate to grant permission to appeal. We hold this view for two reasons. First, the Appellant has not specified any matters in either its Notice of Appeal or its oral submissions before the Full Bench which address the public interest. Nor can we discern any issue which enlivens the public interest. Second, the grounds of appeal fall broadly into two categories: the first being concerned with a finding of fact; the second concerning an exercise of a discretion. None of the grounds of appeal give rise to an arguable contention of appealable error. The basis for reaching this conclusion is explained briefly as follows, by reference to each appeal ground.
We observe, in broad terms, that the matters that the Appellant says were not “considered,” or where “irrelevant factors” were considered, were all matters addressed in the decision. The Commissioner simply arrived at conclusions the Appellant does not agree with.
Appeal ground 1a concerns the Commissioner’s factual finding that Mr Hamer told Mr Clark to “get the fuck out of my life.” Ground 1a asserts this was a legal error, based on “no factual evidence” from either witness or anyone else to confirm. We disagree. The Commissioner preferred the evidence of Mr Clark to the Appellant witnesses. She set out her reasons for doing so at [38]-[41] of the liability decision. In short, the Commissioner was faced with competing testimony by two key witnesses. She preferred the evidence of Mr Clark.
It is not alleged in the Notice of Appeal that the Commissioner’s finding were contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences, in the sense described in Fox v Percy. In this case, they appear to be directly supported by Mr Clark’s evidence. The Commissioner’s findings of fact accorded to the weight of lay evidence and to the range of permissible inferences. Ground 1a discloses no arguable error of law.
For ground 1b, the nature of the finding involved a conclusion about future matters – namely, the length of expected future employment by Mr Clark but for him being dismissed. The assessment of how long an employee would have remained in employment for, but for an unfair dismissal event, does not yield to a single right or wrong answer. The assessment is necessarily future-looking and requires a broad evaluation of a number of factors.
The Appellant itself suggested a range up to 6 months. Mr Clark advanced a period longer than 12 months. Having regard to the nature of the finding, which necessarily imports elements of a global assessment and value judgment, there is no aspect of this finding that discloses an arguable error. Ground 1b does not allege an error of the kind in House v The King but, rather, goes no further than saying that the different conclusion should have been reached. No arguable error of law is disclosed.
Ground 1c alleges irrelevant factors were relied upon regarding the absence of findings of misconduct and recklessness, so far as those matters ought to have warranted a reduction in compensation. The Appellant relied upon previous warnings that were issued. We do not consider it to be reasonably arguable that the Commissioner relied upon irrelevant factors. Rather, she did not agree with the Appellant’s position.[17]
The Commissioner clearly appeared to doubt the evidence of Mr Hamer about alleged warnings. For all of the matters raised by Ground 1c, we repeat our observations regarding Fox v Percy, at [23] above. The Commissioner rejected any conclusion of misconduct. What appears to be sought in the Notice of Appeal is a rehearing of that aspect of the case, not a demonstration of an arguable appealable error of a recognised kind. Ground 1c discloses no arguable error.
Ground 2a is a variant to ground 1c, in that it appears to allege error with the Commissioner’s finding that Mr Clark would have remained in employment with the Appellant for a further year. Ground 2a complains that the Commissioner “heavily relied” on Mr Clark’s evidence in preference to the Appellant’s evidence, even where “no factual evidence” was available. We repeat our observations above and note that the Commissioner preferred the evidence of Mr Clark and made factual findings within the range of permissible inferences. Ground 2a discloses no arguable error of law.
Ground 2b appears to be related to the contention that Mr Clark was not permitted to use the company car for personal purposes. The Appellant appears to assert that the Commissioner failed to consider this matter on the questions of liability and remedy. The Commissioner plainly considered this issue and, evidently, preferred the evidence of Mr Clark.[18] What the Appellant’s complaint appears directed at is that the Commissioner did not give the matter the weight or importance the Appellant considered it should be given. This is not an error. Ground 2b is not reasonably arguable.
Ground 2c appears to allege that the compensation remedy double-counted long service leave. We disagree. At paragraphs [23]-[26] of the remedy decision, that amount was calculated to be 2.308 weeks. That amount was said to be additional to the amount the Commissioner found would have been earnt through work. No error in calculation or principle is disclosed and, therefore, ground 2c discloses no arguable error.
Ground 2d concerns an alleged failure by the Commissioner to consider evidence of the Appellant’s alleged inability to pay a compensation amount. Specifically, the Appellant refers to “covid hardship letters” it tendered. The Commissioner plainly considered such information in some detail at paragraphs [45]-[49] of the remedy decision. Again, what appears to be sought in the Notice of Appeal is a rehearing of that aspect of the case, not a demonstration of arguable appealable error. We also note that the order made by the Commissioner specifically provided for the period of payment to be determined in a subsequent order. Ground 2d discloses no arguable error.
Conclusion
We are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that a reasonably arguable case has been advanced that the decisions of the Commissioner were attended by appealable error.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400 that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decisions manifest an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Permission to appeal is refused.
Disposition
Application U2022/9502 is remitted to Commissioner Bissett.
DEPUTY PRESIDENT
Appearances:
T. Hamer and K. Hamer on behalf of the Appellant
K. Clark on his own behalf
Hearing details:
2023.
Melbourne (by video via Microsoft Teams):
July 5.
[1] PR760285, 16 March 2023.
[2] [2023] FWC 276 and [2023] FWC 612.
[3] [2023] FWC 276.
[4] [2023] FWC 612.
[5] Liability decision at [39].
[6] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34], [43].
[7] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] – [46].h
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27].
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28].
[10] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[11] Wan v AIRC (2001) 116 FCR 481 at [30].
[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[13] (2003) 214 CLR 118; [2003] HCA 22 at [27] – [29].
[14] [2000] HCA 47; 203 CLR 194 at [19].
[15] And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a “significant error of fact”: s 400(2) of the Act.
[16] (1936) 55 CLR 499 at 505.
[17] Liability decision at [37] – [38].
[18] Liability decision at [72] – [80].
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