United Media Group Pty Ltd v Bonita Sullivan
[2024] FWCFB 337
•21 AUGUST 2024
| [2024] FWCFB 337 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
United Media Group Pty Ltd
v
Bonita Sullivan
(C2024/4887)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 21 AUGUST 2024 |
Appeal against decision [2024] FWC 1719 of Commissioner Lim at Perth on 1 July 2024 in matter number U2023/10261 - permission to appeal refused.
United Media Group Pty Ltd (appellant / employer) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] (the merits decision) and order[2] of Commissioner Lim (Commissioner) issued on 1 July 2024, for which permission to appeal is required. The decision concerned the Commissioner’s finding that the appellant had unfairly dismissed the respondent, Ms Sullivan, and made an order for compensation in the sum of $3,741.16, less applicable tax, payable within 14 days. The appeal grounds also connect with an earlier jurisdictional decision in the same matter in which the Commissioner found the respondent had been dismissed (the dismissal decision).[3]
This 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, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. Accordingly, the parties were advised that the Full Bench would determine the application for leave to appeal on the basis of the appellant’s Notice of Appeal and the written submissions filed in accordance with the directions.
For the reasons that follow, permission to appeal is refused.
Grounds of appeal
It is convenient to begin with the appellant’s grounds of appeal. The appellant’s Notice of Appeal asserts two grounds of appeal, although we have treated them as three grounds.
· The first ground alleges the Commissioner was biased.
· The second ground arises from the bias complaint. A manifestation of the Commissioner’s alleged bias was she listed the jurisdictional argument that the respondent had not been dismissed for hearing on a date that the appellant’s Chief Executive Officer, Mr Dirk Fielding, was on leave and living on a boat. We understand that the appellant is alleging a denial of a fair hearing, given the Notice of Appeal says that the hearing date “limited my access to files and files on the company server and ability to mount a defence.”
· The third ground of appeal asserts that the respondent was not “dismissed”.
For the third ground of appeal, the appellant’s Notice of Appeal states:
“Commissioner Lim initially made a mistake in fact. Having grounds is having a belief. It is not actualy [sic] taking action. Based on this mistake in fact I could not defend my company. I had not terminated Sullivan’s employment and therefore I could not give evidence for something I did not do. If I was demanded to prove I had dismissed Sullivan for a reason I would be committing perjury as I had not dismissed her in fact or in my mind.
Had I dismissed Sullivan then I would have been able to provide evidence as to why she had been dismissed. Evidence I didn’t provide and Lim ruled against me because I didn’t provide the evidence.”
Decision under appeal
Having regard to the confined grounds of appeal, it is unnecessary to set out in detail the Commissioner’s wider findings and reasons. The only aspect of her decision that requires any brief summary is the Commissioner’s findings that the respondent was dismissed by the appellant. This issue was resolved by the Commissioner in the dismissal decision. The Commissioner relied upon the dismissal decision at paragraph [7] of her merits decision.
In the dismissal decision, the Commissioner’s chronology of events relevantly commenced on 2 October 2023, which is the date when there was a telephone call between Ms Sullivan and Mr Sam Fielding (who is the son of the CEO). There was disputed evidence about this event. The Commissioner generally preferred the evidence of Ms Sullivan, which included Ms Sullivan’s account that Mr Sam Fielding yelled at her and told her she was the worst performer in the company before he hung up.
On 3 October 2023, Ms Sullivan received an email from Mr Dirk Fielding.[4] The email was unnecessarily inflammatory and Ms Sullivan responded in kind by email on the same day.[5] Despite the tenor of the emails, there was no dispute that Ms Sullivan continued to work for the remainder of the day. Of relevance in the email exchange is that Mr Dirk Fielding concluded by stating his view about Ms Sullivan’s alleged “refusal to work” (a matter Ms Sullivan denied and explained in her response that clearly indicated to the contrary).
The following day, being Wednesday, 4 October 2023, Ms Sullivan sent an email to Mr Dirk Fielding, advising that she would be seeing her doctor later that day. Ms Sullivan did see that doctor, who issued a certificate stating that Ms Sullivan was unfit to work from 4 October 2023 to 11 October 2023, inclusive.
Ms Sullivan was generally paid on Wednesdays. That particular day, Ms Sullivan was not paid.
On Thursday, 5 October 2023, Ms Sullivan had noticed she had not been paid. She promptly wrote to Mr Sam Fielding that day about it. Ms Sullivan asked, if it was the case that the pay was running late, when she would be paid. Ms Sullivan also stated “If you do not intend paying me please advise why.”
The Commissioner’s dismissal decision records that there was a deliberate decision by Mr Dirk Fielding not to pay Ms Sullivan, purportedly on the basis that she had not worked that week and was refusing to work.
Mr Sam Fielding did not respond to Ms Sullivan’s email but forwarded the email to Mr Dirk Fielding. Dirk Fielding responded on 6 October 2023. It is not necessary to set out the email in full[6] but it is sufficient to record Mr Dirk Fielding again conveyed his view that Ms Sullivan was an “employee who refuses to work”. Mr Fielding asserted that Ms Sullivan’s email sent on 3 October 2023 constituted “grounds for imefiste [scil., immediate] termination of employment.” Critically, in the penultimate sentence, Mr Fielding states “Any further contact with employees of umg [sic] will not be tolirated [sic].” The email did not state any payroll error or delay nor provide any assurance Ms Sullivan would be paid – the matter was not referred to. From this email, Ms Sullivan understood her employment had been terminated.
Ms Sullivan then sent a further email to “confirm” that her employment had been terminated. No response was received.[7] Ms Sullivan then continued her communications with the employer with the assistance of the Fair Work Ombudsman. Relevantly, those communications referred to Ms Sullivan’s belief that she had been dismissed on 6 October 2023.
The Commissioner’s dismissal decision then records her assessment of the parties’ competing positions. Ms Sullivan’s position was that she had been dismissed on 6 October 2023. The appellant’s position was that Ms Sullivan was not dismissed (although it had grounds to dismiss her) and that Ms Sullivan resigned. The dismissal decision then set out the relevant principles she would apply, by reference to applicable case law.
Finally, the Commissioner stated that the question of whether there was a dismissal or not was to be assessed “objectively”. The Commissioner’s critical finding in the dismissal decision was as follows:
“[45] In his email on 6 October 2023, Mr Dirk Fielding clearly communicated that he viewed Ms Sullivan’s behaviour as “grounds for immediate termination of employment”. Further, he communicated that he would not tolerate her making “any further contact with employees of UMG” and that the Respondent would pursue Ms Sullivan for any “slander and defamation”. It is hard to see how an email containing these words could be interpreted as anything other than a termination of the employment relationship.
[46] I further find that the Respondent’s deliberate decision not to pay Ms Sullivan her wages for that week, is also inconsistent with the continuation of employment. This supports my finding that the termination of Ms Sullivan’s employment was on the Respondent’s initiative.
[47] I do not find that Ms Sullivan’s email to Ms [Kaye] Fielding asking for confirmation that she had been terminated negates my finding above.”
Principles on Appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission. By s 604(2), and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] 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 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.[9]
An appeal against a decision granting an unfair dismissal remedy application under s 604 of the Act is one to which s 400(1) of the Act applies. Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[10]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[11] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[12]
Consideration
The first ground of appeal – the bias ground – discloses no arguable error. This ground rises no higher than assertion on the appellant’s behalf and is informed by no more than speculation and baseless conjecture.
The second ground of appeal concerns the Commissioner’s decision to list the dismissal matter for hearing on 25 January 2024. There is no issue that the Commission is generally required to act judicially and that the principles of natural justice are applicable to proceedings before the Commission. Section 577 of the Act relevantly requires the Commission to perform its functions and exercise its powers in a manner that is: fair and just; quick, informal and avoids unnecessary technicalities; and open and transparent. Section 589(1) empowers the Commission to make procedural and interim decisions in relation to how, when and where a matter is to be dealt with. The Commissioner did so. The Directions and Notice of Listing for the disputed hearing were issued on 27 November 2023 explicitly stating the date and venue of the in person hearing. The appellant had sufficient time to make a timely application for an adjournment, properly supported by relevant evidence. It did not do so.
The appellant contends its ability to “mount a defence” was compromised and yet it identifies no material, evidence or submission it might have led or made had the hearing date been different, let alone whether that material could possibly have led to a different result. A court or tribunal should refuse relief only when it is confident that the breach could not have affected the outcome. The Notice of Appeal provides no particularisation of the alleged disadvantage. The second ground of appeal discloses no arguable error.
The third ground of appeal concerns whether Ms Sullivan was dismissed or not. The Notice of Appeal asserts no error of principle but, as we understand it, contends that the Commissioner wrongly concluded that Ms Sullivan was dismissed. We have reviewed the Commissioners’ dismissal decision. The Commissioner correctly approached the resolution of that issue as to what was conveyed objectively by the conduct of the appellant, particularly with its email dated 6 October 2023.
The Commissioner’s conclusion discloses no arguable error and is, respectfully, clearly correct. In circumstances where Ms Sullivan had been told in clear terms not to make “any” further contact with employees of the appellant, she had not been paid, and was accused of refusing to work, it is inconceivable to objectively conclude that the employment relationship could continue, especially in circumstances where Ms Sullivan’s requests to ascertain if her wages would be paid were met with silence.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400 that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· 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 decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
The appeal having now been determined, it follows that order [1] of the stay of the Commissioner’s order made by Vice President Gibian[13] ceases to have effect and, in accordance with order [2](b) of the Vice President’s orders, the sum of $3,741.16 plus interest, together with superannuation, is payable forthwith.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
[1] [2024] FWC 1719.
[2] PR776563.
[3] [2024] FWC 205.
[4] Sullivan v United Media Group Pty Ltd[2024] FWC 205 at [15].
[5] Sullivan v United Media Group Pty Ltd[2024] FWC 205 at [17].
[6] A copy is in Sullivan v United Media Group Pty Ltd[2024] FWC 205 at [28].
[7] Sullivan v United Media Group Pty Ltd[2024] FWC 205 at [30].
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[10] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[11] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[12] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[13] PR777591.
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