Twomey v Que 5 Pty Ltd

Case [2024] FCAFC 30

FEDERAL COURT OF AUSTRALIA

Twomey v Que 5 Pty Ltd [2024] FCAFC 30

Appeal from: Twomey v Que 5 Pty Ltd [2023] FCA 1155
File number: WAD 257 of 2023
Judgment of: SARAH C DERRINGTON, GOODMAN AND RAPER JJ
Date of judgment: 8 March 2024
Catchwords: ADMINISTRATIVE LAW – appeal from judgment of the Federal Court of Australia dismissing an application for judicial review of decision of the Full Bench of the Fair Work Commission – whether the decision was affected by jurisdictional error because it failed to find that the Commission erroneously found that the appellant had not completed the minimum employment period under s 383(b) of the Fair Work Act 2009 (Cth) – appeal dismissed
Legislation:

Fair Work Act 2009 (Cth) Pt 3-2, ss 23, 23(1), 23(2)(b), 382(a), 383(a), 383(b), 384, 384(2)(a), 400(1), 570, 570(2)(a), 604(1), 618, 619

Federal Court Rules 2011 (Cth) r 12.01
Cases cited:

Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166; 145 ALD 548

Chandler v Bed Bath n’ Table Pty Ltd [2020] FWCFB 306

Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 338

Kennedy v D Petrie & DC Petrie [2021] FWC 5411

Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221

Twomey v Que 5 Pty Ltd (No 2) [2023] FCA 1481
Division: Fair Work Division
Registry: Western Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 53
Date of hearing: 20 February 2024
Counsel for the appellant: The appellant appeared in person
Counsel for the first respondent: Mr S Young
Solicitor for the first respondent: Baldwin Legal
Counsel for the second respondent: Mr T Lettenmaier
Solicitor for the second respondent: Australian Government Solicitor

ORDERS

WAD 257 of 2023
BETWEEN:

RHYS JUNIOR HUIRAU TWOMEY

Appellant
AND:

QUE 5 PTY LTD ACN 109 339 924

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

SARAH C DERRINGTON, GOODMAN AND RAPER JJ

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal from a judgment of this Court (J) in which the primary judge dismissed an application for judicial review of two decisions of the second respondent (Commission). The Commission at first instance (Deputy President) dismissed an application by the appellant (Mr Twomey) in which Mr Twomey sought an unfair dismissal remedy under the Fair Work Act 2009 (Cth) against the first respondent (Que 5). Mr Twomey then applied to the Full Bench of the Commission for permission to appeal, which was refused (FBD) (J[1]).

  2. The appellant advances two grounds of appeal. First, that the primary judge did not specifically identify how he…

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AGLC
Twomey v Que 5 Pty Ltd [2024] FCAFC 30
Case
[2024] FCAFC 30
Decision Date

CaseChat Overview and Summary

In the matter of Twomey v Que 5 Pty Ltd, the appellant, Mr Twomey, sought judicial review of a decision by the Full Bench of the Fair Work Commission, which dismissed his application for permission to appeal against a decision of the Deputy President. The Full Bench's decision dismissed Mr Twomey's application, finding that he had not met the jurisdictional threshold of one year of employment with Que 5 Pty Ltd, a small business employer, as required by section 383(b) of the Fair Work Act 2009 (Cth). This case raises questions regarding the procedural correctness and jurisdictional findings of the Full Bench, as well as the availability of judicial review of the Commission's decisions.

The primary legal issues before the court were whether the Full Bench's decision was affected by jurisdictional error and if the appeal was made with reasonable cause. The court was required to determine if the Full Bench correctly exercised its discretion in refusing Mr Twomey's application for permission to appeal, and whether the Full Bench's reasoning was flawed in a way that warranted judicial intervention. In considering these issues, the court needed to examine the Full Bench's approach to the evidence provided by Mr Twomey, including his payslips and a police statement, and assess whether the Full Bench's decision was influenced by jurisdictional error or procedural unfairness.

The court found that the Full Bench's decision was not affected by jurisdictional error, and the appeal was not made with reasonable cause. The Full Bench had correctly applied the law and exercised its discretion in accordance with the statutory framework. The court found that Mr Twomey's payslips did not establish the requisite minimum employment period, and the Full Bench's refusal to consider the police statement was not a jurisdictional error. Furthermore, the court held that the Full Bench's refusal to grant permission to appeal was in accordance with the relevant statutory provisions and did not manifest injustice or result in a counter-intuitive outcome. The court also found that Mr Twomey's appeal was not made with reasonable cause, and therefore, he was liable for the costs of the appeal.

The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs as agreed or taxed. The court's decision confirmed the Full Bench's jurisdictional findings and procedural correctness in dismissing Mr Twomey's application for permission to appeal. The court found that the Full Bench had exercised its discretion appropriately, and the appeal was not made with reasonable cause.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

As to the second appeal ground, Mr Twomey submitted that the Deputy President had erred by (FBD[11]): .. refus[ing] to alter the Decision “without reading, or properly investigating appropriate evidence [9] (Deputy President Beaumont’s, Decision, Background, Consideration, Conclusion, 18th November 2022) or my payslips.”(Emphasis in original). The Full Bench understood that, by this ground, Mr Twomey was asserting that the Deputy President had refused to take into account Mr Twomey’s payslips and the police statement given by Que 5’s owner, Mr Coulter. Mr Twomey had sought to rely on these two forms of evidence to assist his argument that the Commission did have jurisdiction. With respect to the payslips, as is apparent from both the Deputy President’s reasons (extracted at [15] above), Mr Twomey had produced 40 payslips evidencing the hours that he had worked between 3 January and 1 September 2022: DP[21]. The Full Bench understood that Mr Twomey relied upon those payslips to support his contention that he was employed as a casual employee, and he held a reasonable expectation of continuing employment on a regular and systematic basis within the meaning of s 384(2)(a) of the FW Act: FBD[25]. The Full Bench could discern no error arising from this ground because it was not in dispute that Que 5 was a small business employer and the pertinent issue before the Deputy President was whether Mr Twomey had completed the minimum employment period of one year in s 383(b): FBD[26]. A simple calculation revealed that the period between 3 January and 1 September 2022 was less than one year. Accordingly, by operation of s 382(a), Mr Twomey was not a person who, under the FW Act, was protected from unfair dismissal. Whilst finding that the Deputy President had had regard to those payslips, the Full Bench ultimately agreed with the Deputy President that any consideration of them was unnecessary given Mr Twomey was not employed for the minimum employment period: FBD[27]. Mr Twomey’s reliance on them was misguided: the Full Bench reasoned that whether his casual employment was regular and systematic had no bearing on the determination of this issue. Similarly, to the extent that Mr Twomey tried to argue that he was a “regular casual” for the purpose of s 23(2)(b), again this did not cure the defect in his application by operation of s 23(1): FBD[30]. In regard to Mr Twomey’s attempt to rely on appeal on the police statement, the Full Bench noted that the police statement had not been relied upon at first instance, referred to orthodox principle regarding the appeal process not being an avenue for an unsuccessful party to seek to cure shortcomings below and found that they were not satisfied that Mr Coulter’s police statement disclosed any relevant material such that there was a high degree of probability that it would lead to a different decision: FBD[29]. After considering the other grounds, the Full Bench refused to grant Mr Twomey permission to appeal, finding as follows (at FBD[35]): The Deputy President has taken an entirely orthodox approach to the determination of the relevant facts in the matter and the application of the law to those facts. Nothing in the material before us indicates that it would be in the public interest to grant permission to appeal. There is no issue of importance or general application arising in the matter and the legal principles applied are not disharmonious when compared with other decisions dealing with similar matters. We do not consider that the Decision manifests an injustice and nor is the result counter intuitive.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the primary judge’s subsequent costs decision, in which Mr Twomey appears to have elected not to participate: Twomey v Que 5 Pty Ltd (No 2) [2023] FCA 1481 at [12] (Costs Decision), his Honour concluded that the application was not made with reasonable cause, and ordered that Mr Twomey pay $8,000 in fixed costs by reason of the following (at [9]): (1)Mr Twomey's originating application did not identify any coherent grounds of judicial review: at [22], [25].(2)It was not in dispute that Que 5 met the definition of a small business employer, meaning that the minimum period of employment to be a person protected from unfair dismissal was one year. It was also not in dispute that Mr Twomey was employed by Que 5 for a period of about eight months, having commenced employment on 3 January 2022 and been dismissed on 1 September 2022: at [5]-[7], [30]-[31].(3)Contrary to Mr Twomey's contention, s 23(2)(b) of the FWA does not mean that Mr Twomey was a person who was protected from unfair dismissal. Section 23(2)(b) concerns counting how many employees an employer has for the purpose of the definition of a “small business employer”. Whether or not Mr Twomey was a person protected from unfair dismissal turned on other provisions of the FWA, namely s 382 -s 384. Mr Twomey's reliance on s 23(2)(b) was misconceived: at [30]-[32].(4)Mr Twomey's contention that a conciliator in the FWC said Mr Twomey had a case, but then the Deputy President said he did not have a case, had no reasonable prospects of success in disclosing a jurisdictional error, given that the conciliation process can have no bearing on the decision that the FWC makes after the hearing, and there was no evidence that it did or that it resulted in any denial of procedural fairness: at [33]-[34].(5)As for his contention about Mr Coulter's police statement, Mr Twomey did not suggest that the police statement was before the Deputy President, or that it should have been, or that the Full Bench's refusal to receive the police statement into evidence was a jurisdictional error. Further, and in any event, the police statement would not have established that Mr Twomey's service with Que 5 was continuous, such that Mr Twomey had been employed for at least one year at the time of his dismissal: at [35]-[36].The appeal to this Court Mr Twomey advances two grounds of appeal, which are extracted as follows (all errors as in original): 1.Justice Jackson conclusion is not specific to where my or Appellant Rhys Twomey failures are when presenting my case but relies on 34 paragraphs attempting to establish any jurisdictional error on behalf of Respondent 2. 2.Justice Jackson obvious errors are within the whole Federal Judicial print out and or Intro – Orders – Reasons for Judgement – Conclusion – plus inconsistencies within. Mr Twomey seeks orders from the Full Court to overturn “all previous decisions”, including that of the primary judge, “compensation” from both Que 5 and the Commission, and a “fair reference” from Que 5 “from January 2022 till present”. For the reasons stated above, this Court’s jurisdiction is limited. It has no power to award compensation or order that Que 5 provide Mr Twomey with a reference.

Ratio Decidendi

Legal Principle Established

The Deputy President’s conclusions as to why the Commission did not have jurisdiction are encapsulated in the final four (4) paragraphs of her reasons, which were as follows:Consideration [19]It is not in contest in this case that the Respondent is a small business employer and was at the relevant time. It follows that the minimum employment period for the Applicant was one year.[20]Furthermore, it is not in dispute that the Applicant commenced employment with the Respondent on a casual basis on 3 January 2022, notwithstanding the information provided by the Respondent initially in its Form F3. Further, both parties agree that the Applicant’s dismissal took effect on 1 September 2022.[21]Whilst the Applicant has provided 40 payslips evincing the number of hours worked each week during the period of his employment, it has proven unnecessary to examine those for the purpose of ascertaining whether the Applicant’s engagement as casual worker was ‘regular’ as understood by reference to the judgment in Yaraka Holdings Pty Ltd v Giljevic. However, those same payslips have illuminated that, consistent with both the Applicant’s account and that of the Respondent, his period of employment was less than one year.Conclusion [22]To be protected from unfair dismissal, it must be established that the Applicant served contiguous periods of service amounting to one-year preceding dismissal. That requirement has not been met given the Applicant’s dismissal came into effect on 1 September 2022 and he commenced employment on 3 January 2022. Therefore, the Applicant has not met the minimal employment period. (Citations omitted.) Mr Twomey then applied to the Full Bench for permission to appeal from the decision and order of the Deputy President. A person must seek “permission” to appeal because a person is not entitled, when bringing a case of Mr Twomey’s kind, as of right, to appeal to the Full Bench. As a consequence, the Commission must not grant permission to appeal unless it is in the public interest to do so: ss 400(1), 604(1) of the FW Act. Mr Twomey advanced three grounds of appeal before the Full Bench, which the Full Bench briefly considered and dismissed. To the extent that we can decipher, the first and second grounds were re-agitated as part of Mr Twomey’s application for judicial review before the primary judge, and form part of his grounds on appeal. By the first ground (FBD[11]):The Deputy President “gave permission for an incorrect appeal procedure” in respect of which the Appellant was not notified or present until the phone hearing was in process and “blatantly contradicted” the established findings of the staff member of the Commission who conducted the conciliation conference on the matter. (Emphasis in original). The Full Bench understood this ground had two components, the second of which has some bearing on this appeal. The second component was that the Deputy President had “blatantly contradicted” the findings reached in the conciliation conference (FBD[22]). The Full Bench found that, consistent with its ordinary processes, the conference comprised a confidential process which explored the possibility of reaching an agreed settlement, and no conciliator could make “findings”.