Venture West Holdings Pty Ltd ATF the DJ Bovell Family Trust T/A Corica Pastries v Samih Rahimi
[2021] FWCFB 6016
•27 SEPTEMBER 2021
| [2021] FWCFB 6016 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Venture West Holdings Pty Ltd ATF the DJ Bovell Family Trust T/A Corica Pastries
v
Samih Rahimi
(C2021/4306)
VICE PRESIDENT CATANZARITI | SYDNEY, 27 SEPTEMBER 2021 |
Appeal against decision [2021] FWC 3619 of Commissioner Williams at Perth on 29 June 2021 in matter number U2020/14274 - appeal filed out of time - application to extend time dismissed.
[1] Venture West Holdings Pty Ltd ATF the DJ Bovell Family Trust T/A Corica Pastries (the Appellant/Employer) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1(the Decision) and order2 (the Order) of Commissioner Williams (the Commissioner) issued on 29 June 2021.
[2] In the Decision, the Commissioner found the Appellant’s termination of Ms Samih Rahimi’s (Respondent/Ms Rahimi) employment was unfair and ordered the Appellant to pay the Respondent compensation in the amount of $9,064. On 26 July 2021, the Appellant lodged a Notice of appeal and sought a stay of the Decision and order pending the hearing and determination of the appeal. On 28 July 2021, a stay was granted by the Presiding Member pending the determination of the appeal or until further order of the Commission. 3
[3] An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Commission. 4 When the Appellant lodged the Form F7 – Notice of appeal (Form F7) on 26 July 2021, it was six days after the expiry of the prescribed 21-day time period. Accordingly, the appeal cannot proceed unless the Commission grants the Appellant an extension of time.
[4] The matter on appeal was listed for a hearing concerning the issues of the necessary extension of time to lodge the appeal and permission to appeal. Directions were set for the filing of material by the Appellant addressing these requirements. The Respondent was not required to file material.
[5] Prior to the hearing of the appeal, the Appellant indicated it did not require a formal hearing to be held and would be content to have the matter determined on the basis of written submissions. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on that basis.
[6] For the reasons that follow, we decline the Appellant’s application for an extension of time within which to lodge the appeal.
The Decision Under Appeal
[7] At the time of her dismissal, Ms Rahimi was employed as a pastry cook assistant by the Appellant. In the matter below, Ms Rahimi’s evidence was that she was first employed by the Appellant in 2012.
[8] On 17 September 2020, Ms Rahimi took some cake from the Appellant’s bakery without paying for it. On that day, Ms Rahimi entered the cake decorating room and spoke with Marco, the employee in charge of decorating all cakes, before taking some cake home at the end of her shift.
[9] In finding that there was not valid reason for Ms Rahimi’s dismissal, the Commissioner:
• Observed the Ms Rahimi was entirely open with the Appellant about the practice of staff taking produce without paying for it being common practice. 5
• Accepted Ms Rahimi’s evidence that she asked Marco if she could take some cake and he said that she could. 6
• Observed video evidence over a period of seven minutes showing Marco and Ms Rahimi discussing how she wanted the cake cut, Marco cutting cake accordingly and that throughout that process and the course of her shift that day, neither Marco nor any other staff member showed any interest in her taking the cake. 7
• Observed there was nothing in her actions to suggest Ms. Rahimi knew she was doing something that she could be disciplined for. 8
• Accepted Ms Rahimi’s evidence that she genuinely believed Marco was authorised to give her permission to take the cake without payment. 9
[10] While the Commissioner accepted evidence from the Appellant that Ms Rahimi did not have permission from a person with authority to take the cake, 10 the Commissioner ultimately accepted Ms Rahimi’s evidence that her actions “were based on her honestly held but mistaken belief that Marco had the authority to permit her to take the cake without paying.”11
[11] After considering all the evidence, the Commissioner found that there was not a valid reason to dismiss Ms Rahimi.
[12] The Commissioner then considered ss.387 (b) – (h) of the Act and concluded that the Ms Rahimi’s dismissal was unfair.
[13] In considering whether to order a remedy, and having found that reinstatement was inappropriate, the Commissioner found an order for the payment of compensation was appropriate.
[14] In determining the amount of compensation, the relevant findings of the Commissioner are at paragraphs [136]-[148] of the Decision:
[136] I will now apply the provisions of section 392 of the Act as follows.
[137] Whilst I am conscious that the Respondent’s enterprise is relatively small there is no evidence that an order of compensation would impact on the viability of the enterprise.
[138] The Applicant was employed since 2012.
[139] The Applicant’s annual income at the time of her termination was $42,484. This equates to $824 per week.
[140] It is apparent that recently the Applicant had received a number of disciplinary warnings for a range of issues. It seems overall there had been some decline in the Applicant’s commitment to her work and the Respondent had been frequently taking her to task for a range of reasons.
[141] Considering all the circumstances, my view is that the Applicant’s employment would not have continued for more than 20 weeks from the time of her dismissal, had she not been dismissed when she was. Consequently, the remuneration she would have received if she had not been dismissed is $16,480.
[142] I accept the Applicant has been making appropriate efforts to mitigate her loss.
[143] The Applicant has not earned any remuneration from employment since her dismissal.
[144] At the time of the dismissal, the Applicant was paid five weeks’ wages in lieu of notice, notwithstanding the dismissal was summary for serious misconduct. This amount will be deducted from the amount of compensation ordered.
[145] I note the Applicant does not appear to have insight into the fact that her actions that the Respondent criticised went beyond simply taking a piece of sponge cake after she had asked Marco if she could. She also spent some time with Marco whilst he cut the cake at her directions. This was time both she and Marco were paid for by the Respondent. But during this time neither of them were doing work for the Respondent. This itself was misconduct which contributed to the Respondent’s decision to dismiss the Applicant.
[146] An appropriate reduction in the amount that would otherwise be ordered is a deduction of four weeks’ wages.
[147] Total deductions are nine weeks’ wages which equals $7,416.
[148] The final amount of compensation to be ordered is $16,480 – $7,416 = $9,064 gross.
Appeal Grounds
[15] The Appellant’s notice of appeal and appeal submissions advance two grounds of appeal. They are (in summary):
• Ground 1 – The finding by the Commissioner that the Respondent would have remained employed by the Appellant for a period of 20 weeks was a significant error of fact.
• Ground 2 – The Commissioner failed to apply a deduction to the compensation amount on the basis of misconduct identified by the Commissioner at paragraph [145] of the Decision as required under s.392 (3) of the Act.
[16] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 12 as follows (footnotes omitted):
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay
• the nature of the grounds of appeal and the likelihood that one or more of these grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”
[17] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
Consideration
Reason for the delay
[18] In the notice of appeal and appeal submissions, the Appellant submits the reasons for the delay were:
(i) that its legal representatives (who are based in New South Wales) were adversely affected by the COVID-19 lockdown and associated public health orders in New South Wales; and
(ii) the unavailability of counsel.
[19] The Respondent contends that an extension of time should be refused on the basis that COVID-19 lockdown is not, in isolation, a novel or unique circumstance.
[20] We agree. We are not satisfied that the COVID-19 lockdown and associated public health orders is, of itself, a satisfactory explanation for the delay filing the notice of appeal. The Appellant’s submissions lack sufficient detail and supporting material to demonstrate a probative evidentiary connection between the public health orders and the inability to institute the appeal within the prescribed period.
[21] Furthermore, the unavailability of counsel is not a satisfactory explanation for the delay.
[22] We are not satisfied that these reasons, individually or collectively, are a satisfactory explanation provided for the delay in lodgement. The absence of an acceptable reason for the delay weighs against the grant of an extension of time in respect of the appeal.
Length of delay
[23] The Appellant’s appeal was lodged six days outside the statutory timeframe for instituting an appeal. While the delay cannot be characterised as a lengthy one, it is not insignificant in the context of the 21-day time period for instituting an appeal prescribed by rule 56 (2).
The nature of the grounds of appeal and the likelihood that one or more would be upheld if time were extended
[24] In the assessment of whether to extend time, it is necessary to consider the nature of the grounds of appeal and the likelihood that one or more grounds would be upheld if time was extended.
[25] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[26] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 13
[27] Appeal ground 1 deals with section 392(2)(c) of the Act, which requires the Commission to consider the remuneration that a person would have received, or would have been likely to receive if the person had not been dismissed when determining a compensation amount. By this ground, the Appellant asserts that the Commissioner failed to apply sufficient weight to Ms. Rahimi’s history of poor performance and misconduct during the period of 18 months prior to her dismissal. The Appellant submits this was a significant error of fact.
[28] The question of remuneration that Ms Rahimi would have received, or would have been likely to receive, is not a question of fact. It is a question directed to the hypothetical scenario of a likely period of employment that would have ensued had the dismissal not occurred. When making this assessment, the Commission is required to turn its mind to the whole of the evidence and make an evaluative judgment about relevant matters, including the state of the relationship between the parties and other surrounding circumstances.
[29] The Commissioner approached the matter in precisely those terms. The Commissioner took into account all of the evidence, including the disciplinary warnings, Ms Rahimi’s declining commitment to her work and that the Appellant had been frequently taking Ms Rahimi to task for a range of reasons.
[30] We are not persuaded that the decision discloses any arguable case of appealable error in the assessment of this criterion by the Commissioner. We reject the submission that the Commissioner’s finding in this regard amounted to a significant error of fact. It was not a factual finding.
[31] Appeal ground 2 contends that the Commissioner failed to apply a deduction to the compensation amount on the basis of misconduct identified by the Commission at paragraph [145] of the Decision.
[32] The misconduct identified at paragraph [145] of the Decision was the time spent by Ms Rahimi in the cake decorating room with Marco. The Commissioner found that this was time Ms Rahimi was paid for, but did not perform work for the Appellant, and was misconduct which contributed to the Appellant’s decision to dismiss her. The Commissioner then proceeded to deduct four weeks’ wages from the amount that would otherwise be ordered. 14 We cannot discern any error with the approach of the Commissioner in applying a deduction pursuant to s.392 (3) of the Act for the misconduct identified.15Accordingly, we are not satisfied that appeal ground 2 is reasonably arguable.
[33] Finally, we are not persuaded the Appellant has identified any public interest considerations that would support the granting of permission to appeal.
[34] Having regard to the nature of the appeal grounds, we are satisfied that they are not reasonably arguable and would not attract the grant of permission to appeal in the public interest. This weighs against the grant of an extension of time to lodge the appeal.
Conclusion and Disposition
[35] After considering all the circumstances, we are not persuaded that it is in the interests of justice to extend time for the Appellant to lodge the appeal.
[36] For the reasons stated and having regard to the conclusion reached, we:
(a) refuse an extension of time to file the appeal and refuse permission to appeal on that basis; and
(b) set aside the stay order PR732225.
VICE PRESIDENT
Hearing details:
Matter determined on the basis of written submissions.
Final written submissions:
Appellant’s written submissions dated 23 August 2021.
Respondent’s written submissions dated 25 August 2021.
Printed by authority of the Commonwealth Government Printer
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1 Samih Rahimi v Venture West Holdings Pty Ltd ATF the DJ Bovell Family Trust T/A Corica Pastries[2021] FWC 3619.2 PR730985.
3 PR732225.
4 Rule 56(2) of the Fair Work Commission Rules 2013.
5 Decision at [105].
6 Ibid at [106].
7 Ibid at [107].
8 Ibid at [108].
9 Ibid at [110].
10 Ibid at [104].
11 Ibid at [112].
12 [2014] FWCFB 4822.
13 (2010) 197 IR 266 at [27].
14 Decision at [146].
15 See Fair Work
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