Umer Farooq v Mmcs Group Pty Ltd
[2024] FWCFB 358
•28 AUGUST 2024
| [2024] FWCFB 358 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Umer Farooq
v
Mmcs Group Pty Ltd
(C2024/4891)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 28 AUGUST 2024 |
Appeal against decision [2024] FWC 1734 of Deputy President Slevin at Sydney on 1 July 2024 in matter number C2024/2932 – permission to appeal refused.
Mr Umer Farooq has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Slevin issued on 1 July 2024, for which permission to appeal is required.
The decision records that Mr Farooq was employed by the respondent, Mmcs Group Pty Ltd, as an assistant property manager, a role he held for one week. Following a disagreement between Mr Farooq and the owner and principal of the respondent, Mr Stojanovic on 15 April 2024, Mr Farooq left the office and did not return. The conversation was witnessed by another employee, Ms Novello.
Mr Farooq made an application to the Commission pursuant to s 365 of the Act seeking that the Commission deal with a general protections dispute involving a dismissal. The threshold question for resolution before the Deputy President was whether Mr Farooq was dismissed within the meaning of s 386 of the Act. The Deputy President relevantly concluded as follows, before dismissing the application:[2]
“[7] On the material provided, I prefer the account of the conversation on 15 April 2024 given by Mr Stojanovic and Ms Novello. I find that Mr Farooq did resign. I also find that his resignation was not in the heat of the moment. I further find that he was not forced to resign due to the conduct of Mr Stojanovic or anyone else at MMCS.
[8] As Mr Farooq resigned and his resignation was neither in the heat of the moment nor forced I find that Mr Farooq was not dismissed for the purposes of s. 368 of the Act. As Mr Farooq was not dismissed he cannot bring an application under s. 365 of the Act.”
Mr Farooq appealed the Deputy President’s decision. The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Grounds of appeal and public interest
By his Form F7 Notice of Appeal, Mr Farooq contends that the decision does not consider the following matters:
(a)an alleged breach of s 125 of the Act (requiring the issuance of a Fair Work Information Statement);
(b)that Mr Farooq was forced to resign;
(c)a video recording of the contested conversation;
(d)that the respondent made irrelevant claims in the matter, leading to a “biased and unfocused evaluation” of the case;
(e)that Mr Stojanovic failed to respond to Mr Farooq’s email or telephone calls;
(f)that Mr Farooq was the subject of “continuous discrimination”; and
(g)that Mr Farooq “is only claiming two weeks’ wages” to settle the application.
In addition to the above matters, Mr Farooq’s written submissions contend that “there is no registered licence” in Mr Stojanovic’s name and this should have been considered. Further, it is submitted that the respondent’s website is misleading as it lists the names of persons who are no longer employed by it. As to the public interest, Mr Farooq restates the concern summarised at [5](a) above.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 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 preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
Having regard to the Notice of Appeal and written submissions, it appears that Mr Farooq holds the mistaken view that his substantive general protections application has been determined by the Deputy President absent any considered analysis. This is not the case. Consistent with the Directions issued by the Deputy President on 3 June 2024, a jurisdictional hearing was convened for the purposes of determining a threshold issue, being whether Mr Farooq was dismissed from his employment. In the absence of a finding that Mr Farooq was dismissed within the meaning of the Act, Mr Farooq’s general protections dismissal application involving dismissal could not proceed. The Deputy President’s approach to determining this contest as a preliminary matter was legally correct.
In this context, the contention that the Deputy President erred by undertaking a “biased and unfocused evaluation” of the case including by failing to consider Mr Farooq’s broad (and unparticularised) discrimination and s 125 contravention arguments does not disclose any arguable appealable error. The Deputy President was not required to – and did not – determine these matters at this preliminary stage of the proceeding.
The contention that the Deputy President did not consider that Mr Farooq was forced to resign appears to be at odds with Mr Farooq’s position at first instance. Regardless, the Deputy President considered and rejected, at [7] of the decision, any suggestion that Mr Farooq’s resignation was forced or given in the heat of the moment. Faced with competing testimony by two key witnesses, the Deputy President preferred the evidence of Mr Stojanovic that Mr Farooq voluntarily resigned his employment on 15 April 2024, which was supported by the respondent’s witness. Mr Farooq’s disagreement with this conclusion does not disclose an arguable case of error.
The allegations that the respondent made irrelevant claims, failed to respond to Mr Farooq’s correspondence, is not appropriately licensed, or has misleading information on its website are not matters that point to any error by the Deputy President. As to the video recording, a perusal of the Commission’s file also demonstrates that there was no video recording in evidence. No arguable appealable error arises from the contention that the Deputy President did not consider material or arguments that were not before him.
It is apparent that Mr Farooq considers his application should proceed because he is only claiming two weeks’ wages to settle the matter. However, the appeal does not disclose any arguable errors in the decision, and nor do we consider that the appeal raises any genuine issue of law, principle or wider application so as to enliven the public interest. It follows that we have decided to refuse permission to appeal.
Order and disposition
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2024] FWC 1734
[2] Ibid at [7]-[8]
[3] 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]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
Printed by authority of the Commonwealth Government Printer
<PR778712>
0
0
0