Twomey v Que 5 Pty Ltd

Case [2023] FCA 1155

FEDERAL COURT OF AUSTRALIA

Twomey v Que 5 Pty Ltd [2023] FCA 1155

File number: WAD 137 of 2023
Judgment of: JACKSON J
Date of judgment: 27 September 2023
Catchwords: INDUSTRIAL LAW - judicial review of decisions of Fair Work Commission - permission to appeal to Full Bench of Fair Work Commission refused - unfair dismissal - minimum employment period - small business employer - application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3, Schedule 1

Fair Work Act 2009 (Cth) ss 23, 382, 383, 384, 400, 570, 607

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules 2011 (Cth) rr 31.01, 31.11
Cases cited:

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Gregory v Qantas Airways Ltd [2016] FCAFC 7; (2016) 241 FCR 72

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102
Division: Fair Work Division
Registry: Western Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 41
Date of hearing: 14 September 2023
Counsel for the Applicant: The applicant appeared in person
Counsel for the First Respondent: Mr S Young
Solicitor for the First Respondent: Baldwin Legal
Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

ORDERS

WAD 137 of 2023
BETWEEN:

RHYS JUNIOR HUIRAU TWOMEY

Applicant
AND:

QUE 5 PTY LTD (ACN 109 339 924)

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

27 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.By 4.00 pm on 11 October 2023, the first respondent must file and serve any submissions on the costs of the proceeding, of not more than three pages in length.

3.By 4.00 pm on 25 October 2023, the applicant must file and serve any submissions on the costs of the proceeding, of not more than three pages in length.

4.The question of whether the first respondent is entitled to its costs of the proceeding will be determined on the papers.

5.Liberty to apply in relation to paragraphs 2-4.

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


REASONS FOR JUDGMENT

JACKSON J:

  1. The applicant, Mr Twomey, claimed in the Fair Work Commission that the first respondent, Que 5 Pty Ltd, unfairly dismissed him from his employment. At first instance, the Commission dismissed the application on the basis that Mr Twomey did not meet the minimum employment period required in order for him to be a person who is protected from unfair dismissal under s 382 of the Fair Work Act 2009 (Cth) (FWA).  Mr Twomey then applied to the Full Bench of the Commission for permission to appeal, which was refused.  Mr Twomey now seeks judicial review of the Commission's decisions.

  2. Mr Twomey has been self-represented throughout. His application for judicial review was filed as a Form 66 under r 31.01(1) of the Federal Court…

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Details
AGLC
Twomey v Que 5 Pty Ltd [2023] FCA 1155
Case
[2023] FCA 1155
Decision Date

CaseChat Overview and Summary

The applicant, Mr Twomey, sought judicial review of decisions made by the Fair Work Commission (FWC) concerning an unfair dismissal claim. Mr Twomey was employed by Que 5 Pty Ltd, a small business with fewer than 15 employees, and was dismissed after less than a year of employment. The FWC dismissed Mr Twomey's claim on the basis that he had not completed the requisite 12-month minimum employment period to be protected from unfair dismissal. Mr Twomey then applied to the Full Bench of the FWC for permission to appeal this decision, which was refused. Dissatisfied with this outcome, Mr Twomey sought judicial review of the Full Bench's decision in the Federal Circuit and Family Court of Australia.

The central legal issue in this case was whether the Full Bench of the FWC erred in refusing Mr Twomey permission to appeal the original decision dismissing his unfair dismissal claim. Mr Twomey's grounds of appeal included allegations that the Deputy President gave permission for an incorrect appeal procedure, did not properly investigate the evidence, and failed to acknowledge or examine his complaints. The Federal Circuit and Family Court of Australia considered these grounds in light of the principles governing permission to appeal, which require a showing that the appeal is in the public interest and involves an arguable case of appealable error.

The Court found Mr Twomey's grounds of appeal to be without foundation. It determined that the Deputy President's approach at first instance was conventional and proper, and that the referral of the matter to the Deputy President for hearing after failed conciliation was not an appeal process. The Court also rejected Mr Twomey's contention that the Deputy President contradicted the conciliator's findings, noting that conciliation is confidential and does not result in established findings. The Full Bench's decision to refuse permission to appeal was found to be in the public interest and not based on an arguable error.

In light of the above, the Court dismissed Mr Twomey's application for judicial review. The Court noted that it would be futile to grant relief in respect of the original decision when the appellate decision stands and is conclusive. The Court also highlighted that it would not be in the interests of the administration of justice to reach conclusions contrary to the Full Bench's decision-making in its appellate jurisdiction. Consequently, the application was dismissed, and the matter was referred to the parties to address the issue of costs.

The Court ordered that the first respondent must file and serve any submissions on the costs of the proceeding by a specified date, followed by the applicant. The question of whether the first respondent is entitled to its costs of the proceeding will be determined on the papers, and there is liberty to apply in relation to the costs submissions.

Orders

Orders of the court

1. The application is dismissed.

2. By 4.00 pm on 11 October 2023, the first respondent must file and serve any submissions on the costs of the proceeding, of not more than three pages in length.

3. By 4.00 pm on 25 October 2023, the applicant must file and serve any submissions on the costs of the proceeding, of not more than three pages in length.

4. The question of whether the first respondent is entitled to its costs of the proceeding will be determined on the papers.

5. Liberty to apply in relation to paragraphs 2-4.

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

Background

Background to the litigation

The application was heard on the papers. The Full Bench summarised Mr Twomey's grounds of appeal as follows (para 11, emphasis in original):1.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 in the matter.2.The Deputy President refused 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.'3.The Deputy President failed to acknowledge or examine further complaints or 'apply the appropriate legislation. s789FD, s105-(l)(a)(b), s19-(1)(a)(b), s530.' The Full Bench then outlined Mr Twomey's submissions regarding permission to appeal (para 12):The Appellant submits that the grant of permission to appeal would be in the public interest. The Appellant's position, as we apprehend it, is that the legislation has not been correctly applied and if the Deputy President's actions are deliberate or lacking in capacity, it would be 'detrimental' for the matter not to be the subject of reconsideration. The Full Bench outlined the principles of law relating to permission to appeal including that:(a)there is no right to appeal from a decision of the Commission;(b)the Commission must not grant permission to appeal unless the Commission considers that it is in the public interest to do so (FWA s 400(1));(c)whether granting permission to appeal is in the public interest is a matter of discretion involving a broad value judgment;(d)the test is not satisfied simply by the identification of an error or a preference for a different result, but it might be satisfied if a matter raises issues of importance and general application, or where guidance from an appellate court is required or where the decision manifests an injustice;(e)it will rarely be appropriate to grant permission to appeal if there is not an arguable case of appealable error; and(f)in determining whether an appellant should be granted leave to appeal it is inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. The Full Bench briefly considered each ground of appeal. On Mr Twomey's first ground it found that the Deputy President's approach at first instance was 'both conventional and entirely unremarkable' and there was nothing in the correspondence with the parties which could be regarded as incorrect or improper, nor could the proceeding in the Commission at first instance be regarded as an 'appeal procedure' (para 21). The Full Bench also rejected what it perceived was Mr Twomey's contention that the Deputy President's decision 'blatantly contradicted' the conciliator's findings. The Full Bench pointed out that conciliation was a confidential process for the purposes of exploring the possibility of reaching an agreed settlement and so the conciliator could not make 'established findings', to use Mr Twomey's words. The referral of the matter to the Deputy President for hearing when conciliation failed to result in settlement was not an appeal process. The contention that the Deputy President was capable of 'blatantly contradicting' a conciliator's 'findings' was rejected by the Full Bench as 'unsustainable' (para 22). The Full Bench found that no arguable contention of error was disclosed by Mr Twomey's first ground of appeal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It has proved difficult to understand the basis on which Mr Twomey seeks judicial review in this Court. However, conscious that he is self-represented, and doing my best to identify his true grounds of review, a handful of intelligible complaints did emerge from his evidence and submissions, as will be described. However while intelligible the complaints are, regrettably, misconceived or without foundation. For the following reasons, the application for judicial review will be dismissed.The Commission's decision at first instance Before the Commission it was accepted by both parties that Que 5 was a small business employer within the meaning of s 23 of the FWA, as it only had six employees at the relevant time. The evidence to that effect given by the director of the company, Phillip Coulter, was unchallenged. This meant that, for an employee of that company, the 'minimum employment period' to be completed before an employee was protected from unfair dismissal was one year: FWA s 382, s 383. It was also accepted by both parties before the Commission at first instance that Mr Twomey had commenced employment with Que 5 on 3 January 2022. This was consistent with payslips that he tendered. The first payslip had a payment date of 9 January 2022 and indicated a pay period of 3 January 2022 to 9 January 2022. The parties also agreed that Mr Twomey's dismissal took effect on 1 September 2022. The Commission therefore dismissed Mr Twomey's application because, having been employed by Que 5 for less than one year, he did not meet the minimum employment period and therefore was not a person who was protected from unfair dismissal. The Commission noted that the period of employment that counted towards protection needed to be a 'period of continuous service': FWA s 384(1). It also considered the definitions that make up the meaning of that term and how, under s 384(2) (in broad terms), a period of service would only count if the employee's employment was on a regular and systematic basis, where the employee had a reasonable expectation of continuing employment by the employer on such a basis. However, because of its finding that, however characterised, Mr Twomey's period of employment was less than 12 months, the Commission did not see it necessary to examine his payslips to determine whether his engagement as a casual worker was regular for the purposes of these provisions.The application to the Full Bench The Full Bench of the Commission's decision concerned whether Mr Twomey should be granted permission to appeal from the first instance decision. The application was heard on the papers. The Full Bench summarised Mr Twomey's grounds of appeal as follows (para 11, emphasis in original):1.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 in the matter.2.The Deputy President refused 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.'3.The Deputy President failed to acknowledge or examine further complaints or 'apply the appropriate legislation. s789FD, s105-(l)(a)(b), s19-(1)(a)(b), s530.'

Ratio Decidendi

Legal Principle Established

Also, the originating application refers to Deputy President Beaumont, who was the Deputy President who constituted the Commission at first instance. To the extent that Mr Twomey seeks to challenge the first instance decision, the following observations of Wigney J in Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102 at [67] are relevant:Where an applicant challenges both a first instance decision of the Commission and a decision of the Full Bench which either refused permission to appeal or dismissed an appeal, the Court would ordinarily refuse relief in respect of the first instance decision unless it was also established that the Full Bench had made a jurisdictional error. That is because 'it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operate': [Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148] at [176]. It would also not be 'in the interests of the administration of justice for this Court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error': Dafallah [v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328] at [54].I also tried to explain this to Mr Twomey at the first case management hearing.Consideration of Mr Twomey's contentions Within these constraints of the Court's jurisdiction to review decisions of the Commission, I will now consider Mr Twomey's contentions, as best as I can make them out. In his first contention, Mr Twomey appears to say that under s 23(2)(b) of the FWA he meets the requirements to be a person who is protected from unfair dismissal. He says that the payslips which were in evidence for the period of 3 January 2022 to 30 August 2022 show that he was employed on a regular basis throughout that time. At the hearing I explained that this only shows an employment period of eight months and that he needs 12 months to be a person protected from unfair dismissal. It appeared from the ensuing discussion that Mr Twomey was relying on his understanding of s 23(2)(b) that, Que 5 being a small business, 'a casual employee is not to be counted unless at the time the employee is a regular casual employee …' (transcript (ts) 12). He says he meets this requirement. While in essence that is what s 23(2)(b) says, it does not follow that Mr Twomey is a person protected from unfair dismissal. Section 23 concerns the definition of a 'small business employer' (being an employer that employs less than 15 employees at a particular time). Section 23(2) relates to calculating how many employees an employer has. Regardless of whether Mr Twomey is a person who is counted for the purpose of determining whether Que 5 was a small business employer, the Full Bench was correct to find that Que 5 still had less than 15 employees at the relevant time.