Vicki Lavery v Cedar Hospitality Supplies
[2019] FWCFB 1250
•14 MARCH 2019
| [2019] FWCFB 1250 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Vicki Lavery
v
Cedar Hospitality Supplies
(C2019/709)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 MARCH 2019 |
Appeal against decision [2019] FWC 502 of Deputy President Clancy at Melbourne on 30 January 2019 in matter number U2019/240.
Introduction
[1] Ms Vicki Lavery (Appellant) has applied for permission to appeal against a decision issued by Deputy President Clancy on 30 January 2019 (Decision). 1 In that Decision, the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy having found that the Appellant had not met the minimum employment period set out in s.383 of the Fair Work Act 2009 (Cth) (Act) and therefore her application had no reasonable prospects of success.
[2] The Appellant now seeks permission to appeal the Decision.
[3] The Appellant commenced employment with Cedar Hospitality Supplies (Respondent) on 22 October 2018 and was notified of her dismissal on 3 December 2018, with the dismissal taking effect on the same day.
[4] On 4 March 2019 at 11am, the matter was listed for permission to appeal. The Appellant was not present at this time, and the Commission was unsuccessful in contacting her via telephone. Mr D Henderson applied for permission to appear on behalf of the Respondent pursuant to s 596 of the Act. We declined permission to appear at this time, as the matter was listed for permission to appeal only, no prior request to appear had been filed with the Commission, there was no appearance from the Appellant and there did not appear to be a sufficient basis to grant legal representation to the Respondent.
[5] At 11:26 am, after the hearing had commenced, the Commission received notification that the Appellant had been involved in an accident. In those circumstances, we decided that the matter be adjourned. In adjourning the hearing, we directed that:
• The Appellant file in the Commission submissions as outlined in the Appellant’s email of 2 March 2019; and
• The Appellant file in the Commission a medical certificate relating to the accident which the Appellant indicated prevented her from attending the hearing on 4 March 2019 by 5.00pm (AEDT) Tuesday 5 March 2019.
[6] Unless we considered it necessary, we would thereafter determine the matter ‘on the papers’.
[7] The Appellant responded to the above correspondence after 5.00pm on 5 March, noting that the email had just been received and a medical certificate is now attached. No documents were attached to the email. The Commission emailed the Appellant noting that no attachments had been received and requested materials to be sent by 5.00pm 6 March 2019. No further correspondence has been received from the Appellant.
Appellant’s submissions
[8] In the absence of any written or oral submissions of the Appellant, we are left only with the initiating Notice of Appeal (Form F7).
[9] The Appellant lists six grounds of appeal:
“• I [the Appellant] was never given a signed employment contract from my employer although I did sign one.
• I was advised I was being dismissed for not meeting KPI's (sic) (I was never given any KPI's (sic).
• I was advised I was being dismissed at 4.00pm and the person who dismissed was distancing (sic) and ran out as she had an appointment to go to when I asked for management I was advised that they were not available and yet when I went to leave they were downstairs.
• The so called KPI's (sic) I was given did not match the amount of work I was given which means even If I was given them I would not have been able to meet them.
• I was meeting and excelling at my work to that of other employees in the same role
• I was never given any documentation regarding my dismissal and made several attempts to havew (sic) management get back to me of which they never did.”
[10] Further, it was submitted in support of permission to appeal that the Decision “affects all other employees at the company as I [the Appellant] am not the only one to have been unfairly dismissed and as this is a small business they cannot treat people in this manner”.
Permission to appeal principles
[11] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] Section 400 of the Act applies to this appeal. It provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[13] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin 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 the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 5
[14] 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. 6
Consideration
[15] In considering the Appellant’s Notice of Appeal, we are not satisfied that there is an arguable case of error or any other basis warranting the grant of permission to appeal. The Decision discloses an orthodox approach by the Deputy President to the Appellant’s unfair dismissal application.
[16] The Appellant’s grounds of appeal do not address the Deputy President’s primary conclusion relating to the minimum employment period. The Appellant has not disputed that her period of employment with the Respondent is different to that which was accepted by the Deputy President as meaning her unfair dismissal application had no reasonable prospects of success. In addition, we are of the view that the Appellant’s submission regarding permission to appeal does not enliven any matter which would attract the public interest.
[17] We are not satisfied that there is an arguable case of error and we are not satisfied for the purposes of determining whether this permission to appeal attracts the public interest that:
• there is a diversity of decisions at first instance for which guidance from a Full Bench is required;
• the appeal raises issues of importance and/or general application to the Commission’s unfair dismissal jurisdiction;
• the Decision manifests an injustice, or the result is counter-intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other Commission decisions dealing with similar matters.
Conclusion
[18] For the reasons set out above we are not satisfied for the purposes of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[19] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
No appearance for the Appellant.
No appearance for the Respondent.
Hearing details:
2019.
Sydney with videolink to Brisbane and Melbourne.
4 March.
Printed by authority of the Commonwealth Government Printer
<PR705307>
1 [2019] FWC 502 (Decision).
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
4 O’Sullivan v Farrer and another (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; (2011) 207 IR 177 at [44]-[46].
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [(2010) 197 IR 266].
6 Wan v AIRC (2001) 116 FCR 481 at [30].
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