Titles Strata Management Pty Ltd T/A Titles Strata Management v Nicole Finch
[2021] FWCFB 1808
•1 APRIL 2021
| [2021] FWCFB 1808 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Titles Strata Management Pty Ltd T/A Titles Strata Management
v
Nicole Finch
(C2020/9290)
| DEPUTY PRESIDENT MASSON DEPUTY PRESIDENT BEAUMONT | MELBOURNE, 1 APRIL 2021 |
Appeal against decision of Commissioner Cambridge at Sydney on 14 July 2020 in [2020] FWC 3675 and appeal against decision and order of Commissioner Cambridge at Sydney on 9 December 2020 in [2020] FWC 6565 and PR725200 in matter number U2019/13842.
Titles Strata Management Pty Ltd T/A Titles Strata Management (Appellant) has applied under s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal, and if granted, appeals two decisions and an order of Commissioner Cambridge issued on 14 July 2020 and 9 December 2020 respectively.
The following outlines the context to the two appeals presently before us.
On 10 December 2019, Ms Finch applied to the Commission for an unfair dismissal remedy pursuant to s 394 of the Act. She had worked for the Appellant as a Business Development Manager for ten months before her dismissal on 29 November 2019.[1]
The Appellant objected to Ms Finch’s unfair dismissal application on the basis that (a) the dismissal was a case of genuine redundancy, (b) the Appellant is a small business employer and it complied with the Small Business Fair Dismissal Code, and (c) Ms Finch had not completed the minimum employment period.[2]
On 14 July 2020, the Commissioner issued a decision on the papers[3] (First Decision) which dealt with the issue of whether Ms Finch had met the minimum employment period. The Commissioner found that the Appellant had 16 employees at the time of Ms Finch’s dismissal, it was not a small business employer within the meaning of s 23 of the Act, and Ms Finch had completed the minimum employment period of six months pursuant to s 383.
The Commissioner issued a further decision on 9 December 2020 which dealt with the merits of Ms Finch’s application for an unfair dismissal remedy, including whether the dismissal was a case of genuine redundancy. The Commissioner determined that Ms Finch had been unfairly dismissed (Second Decision).[4] The Commissioner ordered that Ms Finch be paid $21,850 (gross) in compensation for her unfair dismissal.[5]
By a notice of appeal dated 30 December 2020, the Appellant made an application to appeal both the First Decision and the Second Decision (and related order).[6]
Background
In the First Decision the Commissioner framed the jurisdictional issue before the Commission, noting that resolution of the minimum employment period objection would require determination of the number of employees employed by the Appellant at the time of Ms Finch’s dismissal. The Commissioner then stated:[7]
[8] Further, the Commission has confirmed that it was the agreed position of the Parties that the determination of the contested minimum employment period objection would be made upon the filed documentary material and without the requirement for any formal Hearing.
The Commissioner’s view that there was a contest as to whether Ms Finch had satisfied the minimum employment period is borne out from the parties’ respective submissions. In summary:
(a)Ms Finch contended that the Appellant had 19 employees at the time of her dismissal. Ms Finch’s position was that 14 persons were employed by the Appellant, and five were employed by associated entities of the Appellant within the meaning of s 50AAA of the Corporations Act 2001 (Cth) (Corporations Act), being Gearwest Pty Ltd t/a Blacktown Real Estate (Blacktown Real Estate) and Strata Support Pty Ltd (Strata Support).[8]
(b)The Appellant submitted that it had 11 personnel, including full-time, part-time and casual employees who were employed on a regular basis, and as such, it was a ‘small business employer’ pursuant to the Act.[9]
The Commissioner proceeded by summarising the evidence advanced by the parties and determined that the Appellant and Blacktown Real Estate are associated entities within the meaning of s 50AAA of the Corporations Act. The Commissioner found that at the time of Ms Finch’s dismissal, the Appellant had 16 employees, comprised of 13 persons employed by the Appellant and three persons employed by Blacktown Real Estate. Accordingly, the Commissioner concluded as follows:[10]
[41] Consequently, for the purposes of s. 23 of the Act, at the time of the alleged unfair dismissal of the applicant, 29 November 2019, the employer employed 16 employees. Therefore, the employer was not a small business employer at the time of the applicant’s alleged unfair dismissal, and as the applicant had completed the relevant minimum employment period of 6 months, she was a person protected from unfair dismissal. The minimum employment period objection raised by the employer must be rejected, and the application for unfair dismissal remedy must be permitted to proceed.
The Second Decision dealt with the Appellant’s contentions that the dismissal of Ms Finch was not unfair and, in the alternative, the dismissal was a case of genuine redundancy.
The Commissioner considered whether the dismissal was a case of genuine redundancy at [37] to [45] of the Second Decision. In respect of s 389(1)(a) of the Act, it was determined as follows:[11]
[42]…It appeared that the employer essentially reconsidered its decision to engage any person in a BDM position. However, given the timing of the engagement of Mr Varian and the redistribution of work undertaken by Mr B Koprivnjak to Mr Varian which allowed Mr B Koprivnjak to undertake more BDM work, the dismissal of the applicant may not have satisfied the notion that the BDM position was actually lost due to operational requirements.
[43] However, even if the first element of s.389 of the Act had been established, that is, the employer no longer required the job of the applicant as a BDM to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, there was a total absence of any evidence that the employer engaged in any consultation about any asserted redundancy. Further, there was no mention of redundancy in either the text message advice of dismissal or the subsequent letter of termination of employment.
As to the question of compliance with any consultation obligations as required by s 389(1)(b) of the Act, the Commissioner stated:[12]
[44] The second element contained in s. 389 of the Act requires a positive finding that the employer had complied with any Award or Agreement obligations to consult about the redundancy. In this instance, there was no evidence or submission made that the employer had complied with any Award or Agreement obligations in respect of the asserted redundancy of the applicant.
[45] Consequently, there was a manifest absence of compliance with the second element identified in s. 389 of the Act, and therefore the dismissal of the applicant could not satisfy the meaning of genuine redundancy. In such circumstances it is unnecessary to consider the reasonable redeployment element contained in subsection 389 (2) of the Act. The dismissal of the applicant was not a case of genuine redundancy, and the Commission must therefore turn to consideration of whether the dismissal of the applicant was harsh, unjust or unreasonable.
Having found that Ms Finch’s dismissal was not a genuine redundancy, the Commissioner turned to consider the question of whether Ms Finch’s dismissal was harsh, unjust or unreasonable by reference to the criteria in s 387 of the Act.
The Commissioner first considered whether there was a valid reason for Ms Finch’s dismissal under s 387(a) having regard to the matters set out in the termination letter, namely that Ms Finch had failed to:[13]
(a) adhere to company policies and procedures;
(b) maintain a Strata agents’ licence or certificate of registration;
(c) meet key performance indicators; and
(d)attend work as required, by failing to arrive at 8:30am and by leaving at 3:30pm on a regular basis without proper reason.
The Commissioner found that the Appellant did not have a valid reason for the dismissal and concluded as follows:[14]
[48] Notwithstanding the lack of specificity in respect of the first and third reasons for dismissal that were mentioned in the termination of employment letter, any reason(s) for dismissal of the nature relied upon by the employer could only represent valid reason for dismissal if there was evidence that the applicant had been adequately warned that the conduct or performance in question may lead to dismissal if not rectified. The evidence has established that the matters that were relied upon as valid reasons for dismissal of the applicant were not the subject of any clear warning and therefore could not represent sound, well-founded and defensible reasons for the dismissal of the applicant.
[49] Conduct such as that which involved the applicant’s consistent late arrival at work could establish a valid reason for her dismissal only if there was evidence to establish that the applicant had been warned that if she continued to arrive late for work her employment may be terminated...
[50] Similarly, to be a valid reason for dismissal, any failure on the part of the applicant to meet reasonable key performance indicators would require evidence of warning that such failure might lead to dismissal unless performance improved. In this case, the absence of any evidence of warning regarding the performance and conduct issues that the employer subsequently relied upon as reasons for dismissal, has established that those reasons could not be sound, well-founded and defensible.
[51] Consequently, the particular reasons relied upon by the employer for the applicant’s dismissal which involved her alleged inadequate performance and conduct matters such as her late arrival at work, could not represent valid reasons for her dismissal.
In respect of s 387(b), the Commissioner determined that Ms Finch was notified of her dismissal by way of a text message. The Commissioner concluded that such matters should be conveyed personally to an employee and stated:[15]
[54] …An employer who provides advice of dismissal by text message or email without reasonable justification, will often risk an outcome of a finding that the dismissal was unfair even though there was valid reason for dismissal which, together with other considerations, would have otherwise avoided any finding of unfairness.
This led the Commissioner to conclude that the dismissal had been ‘implemented improperly.’[16]
In respect of ss 387(c) to (g), the Commissioner determined that:
(a)Ms Finch was not provided with any opportunity to respond to the reasons the Appellant sought to rely upon for the dismissal;[17]
(b)there was no opportunity for Ms Finch to be provided with assistance from a support person at a performance meeting on 19 November 2019;[18]
(c)there was no evidence that Ms Finch had been given a warning about any unsatisfactory performance;[19]
(d)the Appellant is not a business of significant size and appropriate recognition for a degree of informality and inflexibility had been provided;[20] and
(e)while there was no evidence that the Appellant had dedicated human resource management specialists, such evidence could not justify the manner in which Ms Finch was advised of the termination of her employment by text message.[21]
As to other relevant matters under s 387(h) of the Act, the Commissioner had regard to the Appellant’s failure to pay Ms Finch her outstanding annual leave payments for almost a year after the dismissal.[22]
Having considered the statutory criteria, the Commissioner concluded that Ms Finch’s dismissal was ‘unjust, unreasonable and unnecessarily harsh.’[23] This conclusion was reached on the basis that there was not a valid reason for the dismissal, Ms Finch was not afforded an opportunity to be heard before the decision to dismiss was made, the dismissal was implemented with haste and was exacerbated by a failure to pay to Ms Finch her outstanding entitlements.[24]
In the assessment of remedy, the Commissioner found that reinstatement was inappropriate. Having determined that an order for compensation was appropriate, the Commissioner made an order for the payment of $21,850 (gross) in compensation to Ms Finch.[25]
The nature of unfair dismissal appeals
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.[26] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Under s 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal matters unless it considers it is in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
The test under s 400 has been characterised as ‘a stringent one.’[27] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[28] In GlaxoSmithKline Australia Pty Ltd v Makin,[29] 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.”
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is because an appeal cannot succeed in the absence of appealable error.[30] 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.[31]
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.[32] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
First Decision
Appeal grounds
Appeal grounds one and two concern the First Decision. The Appellant contends that the Commissioner erred by determining that:[33]
1.the Appellant was not a small business employer for the purposes of the Act; and
2.the Appellant was not a small business employer for the purposes of the Act by finding that John Koprivnjak and Timothy Webb were employees of the Appellant.
In respect of the public interest, the Appellant submits that the First Decision manifests an injustice on the basis that the Commissioner did not properly assess the evidence.[34]
Is an extension of time required to appeal the First Decision?
We first address whether the appeal of the First Decision is competent. The First Decision was issued on 14 July 2020. The appeal was lodged on 30 December 2020, being 169 days after the First Decision was issued. Rule 56(2) of the Fair Work Commission Rules 2013 requires that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such time as is allowed by the Commission on application.
The Appellant contends that because the First Decision was interlocutory in nature, in the sense that it did not finally determine the rights of the parties, and the appeal against the Second Decision was brought within the 21-day statutory timeframe, an extension of time for the filing of the appeal against the First Decision is unwarranted.[35] In support of its position, the Appellant relies on the decision of a Full Bench in Glenn Ferguson v Path Transit Pty Ltd[36] (Ferguson) which observed:
[19] …the lateness of the filing of the first appeal does not matter all that much because, as the second decision was the final and operative decision in the matter, Mr Ferguson is entitled in his second appeal (which was filed in time) to challenge any interlocutory decision which affected the final decision.
The principle relied upon by the Full Bench had been previously expressed in the following terms in United Firefighters’ Union of Australia v Country Fire Authority (United Firefighters Union):[37]
“…on appeal from a final decision or order, an appellate court can correct any interlocutory decision or order which affected the final result.”
It was a principle which had been derived from the High Court’s decision in Gerlach v Clifton Bricks Pty Limited (Gerlach),[38] the relevant paragraphs of which are as follows:[39]
[4] In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of a trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.
[5] It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example. As was said, in a very early judgment of this court:
There is only one judgment of the Court appealed from … and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him.
As Griffith CJ had said earlier, in the course of argument in Nolan v Clifford:
On appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it.
…[6] The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted by Spence Bower, Turner and Handley where it is said that “on appeal from the final order an appellate court can correct any interlocutory order which affected the final result” (emphasis added).
…
[8] Further, it may be that there are some kinds of interlocutory decisions made, other than in the course of the hearing which leads to entry of final judgment in the proceeding, which may present some other issues for consideration. There are circumstances in which an interlocutory decision must be treated as concluding an issue between the parties. Whether all decisions of that kind may be challenged in an appeal against the final judgment in the proceeding is a question to which a general answer need not be attempted. It is enough to notice in this regard the decision of the Court of Appeal in New South Wales, in David Syme & Co v Lloyd. It was held there that a ruling made in the separate trial or an issue (that the article published was capable of bearing the imputations pleaded in a claim for defamation) was open to challenge on appeal against a subsequent jury verdict. This conclusion is consistent with the qualified formulation of the relevant principle. It is, as we say, unnecessary to explore the limits of the principle.
Notwithstanding the above, a Full Bench in Spinifex Australia Pty Ltd t/a Spinifex Recruiting v Patrice Tait[40] (Spinifex) rejected the proposition that a jurisdictional decision concerning satisfaction of the minimum employment period was in the nature of a preliminary or interlocutory decision. In Spinifex it was said:
[12] A decision of the Commission on whether a dismissed employee has satisfied the minimum employment period for the purposes of ss 382 and 383 of the Act is a fundamental prerequisite to the exercise of the Commission’s jurisdiction which determines whether or not a dismissed employee has been unfairly dismissed under s 385 of the Act. It is trite that if the dismissed employee has not met the minimum employment period, then his/her unfair dismissal application must be dismissed and that is the end of the matter. When viewed in this way, a decision determining this question cannot be characterised as being of a preliminary or interlocutory nature. This is so because a finding that an employee has not met the minimum employment period will bring finality to the application and completely extinguish the dismissed employee’s access to the Commission’s unfair dismissal jurisdiction. We would add that it is difficult to reconcile the appellant’s submission that the appeal of the jurisdictional decision has strong prospects of success, when the appellant decided not to institute an appeal of that decision within time, as success at that early stage would have brought finality.
The Appellant contends that the characterisation of the jurisdictional decision as a final decision in Spinifex is incorrect and submits that Spinifex should not be followed.[41] However, Ms Finch submits that this Full Bench should apply Spinifex and decline to grant an extension of time for the filing of the appeal against the First Decision.[42] There is perhaps an evident tension between Spinifex and the High Court decision of Gerlach. However, we consider it unnecessary to resolve this tension having regard to the circumstances before us. If Spinifex is correct, we would in any case grant an extension of time for filing the appeal in respect of the First Decision for the reasons that follow.
The following matters are relevant in considering whether to exercise the Commission’s discretion to extend time under Rule 56(2)(c):[43]
(1) whether there is a satisfactory reason for the delay;
(2) the length of the delay;
(3) the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
(4) any prejudice to the respondent if time were extended.
Taking these matters into account, the exercise of the discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour the Appellant being granted an extension of the time within which to lodge an appeal of the First Decision.
As to whether there is a satisfactory reason for the delay, we accept the Appellant’s submission that it was reasonable for it to hold the view that the First Decision was interlocutory in nature.[44] The complexity associated with the characterisation of the First Decision as an interlocutory or a final decision given the positions adopted in Gerlach and Spinifex bears this out. The appeal was lodged 169 days after the First Decision issued, which is a significant period of time. However, we accept that it was made concurrently with the appeal of the Second Decision and the whole of the period of the delay is attributable to the Appellant’s belief that an appeal did not lie until the matter had been determined by a final decision.[45] Having regard to the circumstances before us and the fact that the appeal of the Second Decision was lodged within the statutory timeframe, we consider that these matters weigh in favour of allowing a further period of time to lodge the appeal of the First Decision.
The merits of the appeal of the First Decision also weigh in favour of an extension of time. To determine if Ms Finch had completed the minimum employment period, it was necessary for the Commissioner to decide whether the Appellant was a ‘small business employer’ pursuant to s 23 of the Act. The issue was a salient one. If the Appellant was not a small business employer the minimum employment period was six months, and if it was, the period was 12 months. As Ms Finch had worked less than 12 months but greater than six months, a determination that the Appellant was a ‘small business employer’ at the relevant time, would have seen Ms Finch’s application for an unfair dismissal remedy dismissed.
The determination of this point required the Commissioner to consider several matters, including:
(a) whether Mr Koprivnjak was an employee of the Appellant;
(b) whether Mr Webb was an employee of the Appellant;
(c) whether Blacktown Real Estate was an ‘associated entity’ of the Appellant;
(d) whether Strata Support was an ‘associated entity’ of the Appellant; and
(e) the number of employees to be counted for the purpose of s 23 of the Act.
As earlier noted, it is apparent from the submissions filed that the parties were in dispute about these matters. Section 397 of the Act provides that where a matter arising under Part 3-2 involves contested fact(s), the Commission must either hold a conference or conduct a hearing in relation to the contested fact(s). Notwithstanding the contested facts, a conference or hearing was not held, and the matter was determined by the Commissioner ‘on the papers.’ While the matter had been the subject of a ‘Pre-Hearing Conference/Conciliation’ on 30 March 2020, it was not the case that the conference was determinative, such that the parties made submissions and called evidence in relation to the contested facts.[46]
We accept the Appellant’s submissions that non-compliance with s 397 was not only an error that warrants correction on appeal, but it is one that enlivens the public interest.[47] The requirements of s 397 are clear, and the statutory obligation upon the Commission cannot be abrogated by the consent or acquiescence of the parties.[48] To the extent that it is necessary to do so, we would amend the Appellant’s notice of appeal to include this matter as a ground of appeal.
As to the question of any prejudice occasioned to Ms Finch if time were to be extended, we accept the submission that the grant of an extension of time will protract the matter further in circumstances where Ms Finch has suffered the loss of a relative, has had to take time off work to prepare her materials (having been self-represented), has incurred some legal costs and the matter has been on foot for a not insignificant period.[49] These are not inconsequential or trifling factors. However, Ms Finch will again be given the opportunity to present her case and in doing so may seek to rely on materials that have already been filed. On balance, we accept that Ms Finch will suffer prejudice, and this is a matter that weighs against an extension of time.
Having regard to these matters and the conclusions reached, the reasons for and length of the delay (which is wholly explained), and the likelihood of the appeal being upheld in light of the non-compliance with s 397 of the Act weigh in favour of allowing a further period of time within which to lodge the appeal of the First Decision. While the issue of prejudice weighs against allowing a further period, it does not outweigh the merits considerations we have identified. We have therefore concluded that, in all the circumstances, the interests of justice favour the Appellant being granted an extension of the time within which to lodge the appeal of the First Decision to the date that it was actually made.
It follows that, for the reasons earlier given, we:
(a) grant permission to appeal the First Decision having regard to the non-compliance with s 397 of the Act;
(b) uphold the appeal; and
(c) quash the First Decision.
Second Decision
Having concluded that it is appropriate to quash the First Decision on the basis that it is attended by appealable error, it follows that the Second Decision was also infected by error. While the appeal of the Second Decision might be disposed of absent consideration of the grounds of appeal relied upon by the Appellant,[50] we consider it appropriate to make some observations regarding appeal grounds three and four.
Firstly, by appeal ground four the Appellant contends that the Commissioner erred in finding that there could only be a valid reason if there was evidence that Ms Finch had been adequately warned that the conduct or performance may lead to dismissal if not rectified.[51]
Section 387 of the Act requires that in considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the matters set out in paragraphs (a)-(h) of the section. Relevantly, s 387(a) requires the Commission to have regard to whether there was a valid reason for dismissal related to a person’s capacity or conduct. If the dismissal relates to unsatisfactory performance, s 387(e) requires consideration of whether the person had been warned about that unsatisfactory performance before the dismissal.
At paragraphs [48], [49], [50] and [63] of the Second Decision, the Commissioner made findings on the question of valid reason. In summary, the Commissioner found that there could only be a valid reason if there was evidence that Ms Finch had been adequately warned that the conduct or performance in question may lead to dismissal if not rectified. In the absence of evidence of Ms Finch being warned about the performance and conduct issues raised by the Appellant, the Commissioner concluded that the matters relied upon as valid reasons could not represent sound, well-founded and defensible reasons for the dismissal.[52]
We are of the view that the Commissioner’s approach to the assessment of s 387(a) was attended by appealable error. The Commissioner appears to have conflated the factors that are to be taken into account under s 387(a) with those in s 387(e). Whether Ms Finch was warned about unsatisfactory performance or conduct issues is irrelevant in the consideration of whether there was a valid reason for Ms Finch’s dismissal. That is not to say that the absence of a warning or warnings is immaterial to the assessment under s 387. Clearly, it remains a relevant factor to be taken into account under s 387(e).
It is apparent that the Commissioner based his conclusion that there was no valid reason for Ms Finch’s dismissal on the absence of Ms Finch receiving a warning or warnings. The Commissioner’s conclusion did not concern Ms Finch’s conduct or performance, but rather the Appellant’s procedural and substantive disciplinary response to a conduct or performance issue. We consider that by focussing on these matters, the Commissioner had regard to an irrelevant consideration and misapprehended the statutory task under s 387(a). This gives rise to appealable error. We therefore find that the Commissioner miscarried his discretion in the application of this statutory criterion. Accordingly, we would uphold appeal ground four in respect of the Second Decision.
Secondly, by appeal ground three the Appellant alleges that the Commissioner erred in the assessment of compliance with s 389(1)(b) of the Act concerning genuine redundancy, in circumstances where there was no finding made as to whether any consultation obligation in a modern award or enterprise agreement applied to Ms Finch in her employment.[53]
Section 389(1)(b) contains the second limb of the definition of genuine redundancy. It requires an employer to comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. The requirement that consultation occur in relation to the redundancy only arises, for the purposes of the definition, if a modern award or enterprise agreement applied to Ms Finch’s employment. Therefore, the Commissioner was first required to determine whether there was a relevant modern award or agreement that applied to Ms Finch in her employment with the Appellant.
We accept that the Commissioner did not make a finding as to whether a modern award or enterprise agreement applied to Ms Finch. The Form F3 employer response that had been filed in the proceedings detailed a ‘yes’ in response to whether an award applied to Ms Finch. However, the title of the industrial instrument was said to be ‘Business Development Management, Private Employment Contract.’
In the absence of such a finding, the Commissioner’s conclusion that there was a ‘manifest absence of compliance’ with s 389(1)(b)[54] was not open to be made. We accept that the Commissioner failed to take into account a relevant consideration in his assessment of s 389(1)(b) and this gives rise to appealable error. Accordingly, we would uphold appeal ground three in respect of the Second Decision.
Conclusion and disposition
For the reasons stated and having regard to the conclusions reached, we:
(a) extend the time for filing the notice of appeal for the First Decision to the date it was filed, being 30 December 2020;
(b) grant permission to appeal the First Decision having regard to the non-compliance with s 397 of the Act;
(c) uphold the appeal of the First Decision;
(d) quash the First Decision [2020] FWC 3675, the Second Decision [2020] FWC 6565, and order PR725200;
(e) set aside the stay order PR725995; and
(f) remit Ms Finch’s application for an unfair dismissal remedy in U2019/13842 to the Regional Co-ordinator, Vice President Catanzariti, for allocation to a Member for rehearing.
DEPUTY PRESIDENT
Appearances:
Mr Macinnis for the Appellant
Ms Finch for the Respondent
Hearing details:
2021
Melbourne (via video hearing)
February 9
[1] Appeal book pp.180 and 360.
[2] Form F3 employer response at 2.2.
[3] Nicole Finch v Titles Strata Management Pty Ltd T/A Titles Strata Management[2020] FWC 3675 (First Decision).
[4] Nicole Finch v Titles Strata Management Pty Ltd T/A Titles Strata Management[2020] FWC 6565 (Second Decision).
[5] PR725200.
[6] Form 7 Notice of Appeal dated 30 December 2020 at 1.2.
[7] First Decision at [8].
[8] Appeal book pp.192 to 195.
[9] Appeal book pp.112 to 114.
[10] First Decision at [41].
[11] Second Decision at [42] and [43].
[12] Ibid at [44] and [45].
[13] Appeal book p.360.
[14] Second Decision at [48] to [51].
[15] Ibid at [54].
[16] Second Decision at [64].
[17] Ibid at [55].
[18] Ibid at [56].
[19] Ibid at [57].
[20] Ibid at [58].
[21] Ibid at [59].
[22] Ibid at [60].
[23] Ibid at [64]
[24] Ibid at [64] and [65].
[25] Ibid at [80] and [81], PR725200.
[26] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[27] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [43] (Buchanan, Marshall and Cowdroy JJ).
[28] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [44]-[46].
[29] [2010] FWAFB 5343, 197 IR 266 [27].
[30] Wan v AIRC [2001] FCA 1803, 116 FCR 481 [30].
[31] 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].
[32] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[33] Notice of appeal 2.1 at [1] and [2].
[34] Ibid 3.1 at [4].
[35] Appellant’s outline of submissions – permission to appeal and merits of the appeal dated 21 January 2021 (Appellant’s submissions) at [1](a).
[36] [2020] FWCFB 6615.
[37] United Firefighters’ Union of Australia v Country Fire Authority[2013] FWCFB 8165 at [19].
[38] Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478.
[39] Ibid at [4]-[6] and [8].
[40] [2018] FWCFB 6267.
[41] Appellant’s outline of submissions – extension of time dated 4 March 2021 at [2](a) and [5].
[42] Respondent’s outline of submissions – extension of time dated 12 March 2021 at [2] and [32].
[43] See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410 and Logan City Electrical Services Division Pty Ltd t/as Logan City Electrical v Christopher Antonarkis[2018] FWCFB 3815
[44] Appellant’s outline of submissions – extension of time dated 4 March 2021 at [23](a).
[45] Ibid at [23](b).
[46] Mrs Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland)[2015] FWCFB 1257 at [20].
[47] Appellant’s outline of submissions – extension of time dated 4 March 2021 at [20] to [22]; see Shields v The Trustee for the Jell Discretionary Trust[2015] FWCFB 2945 at [27]; Mades Efemo v SouthLink Pty Ltd[2019] FWCFB 5291 at [14].
[48] Stif Sekirski v Scope (Vic) Ltd[2017] FWCFB 2736 at [12].
[49] Respondent’s outline of submissions – extension of time dated 12 March 2021 at [26] to [31].
[50] Notice of appeal 2.1, appeal grounds [3] to [12].
[51] Ibid 2.1 at [4].
[52] Ibid; Second Decision at [63].
[53] Notice of appeal 2.1 at [3].
[54] Second Decision at [45].
Printed by authority of the Commonwealth Government Printer
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