Timothy Matthews v Bulhari Holdings Pty Ltd T/A the Freemasons Hotel
[2019] FWCFB 467
•31 JANUARY 2019
| [2019] FWCFB 467 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Timothy Matthews
v
Bulhari Holdings Pty Ltd T/A The Freemasons Hotel
(C2018/6850)
VICE PRESIDENT CATANZARITI | SYDNEY, 31 JANUARY 2019 |
Appeal against decision [2018] FWC 6857 of Commissioner Cribb at Melbourne on 15 November 2018 in matter number U2018/1509.
[1] Timothy Matthews has lodged an appeal, for which permission to appeal is required, against a decision 1 (“the Decision”) and order2 of Commissioner Cribb on 15 November 2018. The Decision concerned an application by Mr Matthews for an unfair dismissal remedy in respect of his dismissal by Bulhari Holdings Pty Ltd T/A The Freemasons Hotel (“the Hotel”). In the Decision, the Commissioner accepted the Hotel’s contention that Mr Matthews’ application for an unfair dismissal remedy, made pursuant to s.394 of the Fair Work Act 2009 (“the Act”), should be dismissed for want of jurisdiction. The Decision relevantly concluded as follows:
“[50] On the basis of the findings above, I am satisfied that, in addition to the nine employees identified by the Respondent as counting towards a number of employees employed at the relevant time, there are an additional five casual employees who meet the criteria for being included in the calculations (the Applicant, KC, LW, HP and IW). This comes to a total of 14 employees who were employed as at the date of Mr Matthews’ dismissal.
[51] As the definition of small business employer requires the employment of fewer than 15 employees at the relevant time, I am satisfied that the Respondent was a small business employer at the time of Mr Matthews’ dismissal.
[52] It was Mr Matthews’ evidence that he commenced employment with the Respondent on 6 February 2017 and was dismissed on 5 February 2018. It would appear that Mr Matthews’ employment was one day short of the required one year where the employer is a small business employer. The respondent’s jurisdictional objection is therefore upheld, as Mr Matthews has not met the minimum employment period requirement in order to make an application so as to be protected from unfair dismissal.
[53] Accordingly, Mr Matthews’ application is dismissed. An order to this effect will be issued separately.” (references omitted)
[2] In proceedings on 10 January 2019, we heard the matter solely in relation to permission to appeal.
Appellant’s submissions
[3] Mr Matthews’ notice of appeal and associated submissions on permission to appeal addressed six grounds for appeal, which broadly fell into in three principal tranches.
[4] The first tranche concerns substantive merits-related matters (albeit the Decision dealt only with threshold jurisdictional matters).
[5] The second tranche contends that the effective date of dismissal should be treated as 6 February 2018, not 5 February 2018 as the Commissioner determined, in circumstances where notification of the dismissal was outside business hours, namely at 8.00pm 3, on 5 February 2018.
[6] The third tranche challenges the Commissioner’s conclusions in the Decision with respect to the number of employees employed by the Hotel for the purposes of determining whether the Hotel is a small business.
Permission to appeal principles
[7] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. 4 There is no right to appeal and an appeal may be made only with the permission of the Commission, given the operation of s.400 of the Act.
[8] Section 400 of the Act applies to this appeal. It 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.”
[9] 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 of the Act as “a stringent one”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 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.” 7
[10] 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. 8
Consideration
[11] Having considered Mr Matthews’ submissions and all the materials filed on appeal, we are not satisfied there is an arguable case of error. It is clear that the basis on which the Commissioner reached her conclusions, the Decision discloses an orthodox approach to the determination of the jurisdictional objections raised at first instance.
[12] The Commissioner dealt with each of the jurisdictional objections that had been raised by the Hotel. Relevantly, the Decision addressed whether the application was made within time (referencing what had unfolded in proceedings on 15 June 2018) and whether Mr Matthews was, within the meaning of s.382 of the Act, a person protected from unfair dismissal.
[13] Having reviewed the transcript of the proceedings at first instance, 9 we note that Mr Matthews, for the first time in the appeal, contends for a date of dismissal different from that which was raised and agreed to as a consent position at first instance. As the Commissioner noted in the proceedings on 15 June 2018, “we’ve all landed on 5 February [2018] as the date of dismissal”. 10 There was no demur from either party in this respect – and nor would it be expected there would have been given that 5 February 2018 was the date ultimately propounded by each of the parties. No arguable case of error is disclosed in relation to the date of dismissal for the purposes of permission to appeal.
[14] The Commissioner dealt in some detail in the Decision with the parties’ competing contentions as to the disputed employment status of certain persons (including the bookkeeper) who were either employed by the Hotel and/or who had other forms of contractual arrangements involving the performance of work at the Hotel. 11 The Commissioner assessed each of the disputed persons “to determine whether or not they should be counted for the purpose of determining whether the [Hotel] is a small business employer.”12 In that assessment, the Commissioner made findings concerning the status of those individuals. In some instances, the Commissioner’s conclusions favoured Mr Matthews’ contentions as to whether employees should be counted; and in other instances, the Commissioner’s conclusions favoured the Hotel’s contentions. As to one individual, the Decision noted there was “conflicting evidence” in relation to that individual - with particular dispute between the parties as to the nature of the working relationship concerning the individual and the Hotel. No arguable case of error appears from this part, or any other part, of the Decision in relation to the question of permission to appeal
[15] In this appeal, it appears that Mr Matthews seeks to persuade us that the Commissioner should have reached different conclusions upon her consideration of what was before her by way of evidence and submissions as to the employment status of various individuals “such as would put the employee numbers over the 15 threshold”. 13 It is noteworthy to mention that an appeal is not the place to re-agitate the matters that have been considered at first instance. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.14 The fact that a Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal and, here, no arguable case of error has been made-out by Mr Matthews such as to favour the grant of permission to appeal.15
[16] In considering whether this appeal attracts the public interest, we are not satisfied that:
• there is a diversity of decisions of this kind at first instance for which guidance from a Full Bench is required;
• the appeal raises issues of importance and/or general application to the Commission’s unfair dismissal jurisdiction;
• the Decision manifests an injustice, or the result is counter-intuitive; or
• the legal principles applied by the Commissioner were disharmonious when compared with other Commission decisions dealing with similar matters.
[17] Separately, we note that in email correspondence on 7 and 10 January 2019 the managing director of the corporate entity of the Hotel (Bulhari Holdings Pty Ltd) wrote to the chambers of the presiding member of this Full Bench. The effect of that correspondence appeared to involve the foreshadowing of a costs application against Mr Matthews. It is not entirely clear, but, to the extent the correspondence may have referred to the proceedings at first instance before the Commissioner, the Decision of the Commissioner was delivered on 15 November 2018, together with the associated order dismissing Mr Matthews’ application for an unfair dismissal remedy; and, accordingly, we note the operation of s.402 of the Act requiring such application to be made within 14 days after the Commission determines the matter. If, on the other hand, the correspondence refers to costs associated with the appeal, we otherwise note that the Hotel did not (perhaps because it was not required to participate, given the nature of permission to appeal proceedings) participate in any way in the appeal proceedings through the making on its behalf of either written or oral submissions.
Conclusion
[18] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[19] Permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr T. Matthews on his own behalf.
No appearance for Bulhari Hotels Pty Ltd T/A The Freemasons Hotel
Hearing details:
2019.
Sydney, with videolink to Perth.
10 January.
Printed by authority of the Commonwealth Government Printer
<PR704305>
1 [2018] FWC 6857.
2 PR702134.
3 Note, however, that the appeal book materials refer to “8.34pm”; nothing turns on the difference between 8.00pm and 8.34pm.
4 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
6 O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46].
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
9 Transcript 15 June 2018, including at PN53-PN60, PN63, and PN79.
10 Transcript 15 June 2018, PN94.
11 Decision at [16]-[49].
12 Decision – paragraph [15]
13 Appeal transcript, 10 January 2919 at PN19-PN22.
14 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
15 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; (2014) 241 IR 177 at [28].
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