Vicky Woo v Ferrier Hodgson
[2015] FWCFB 3993
•25 JUNE 2015
| [2015] FWCFB 3993 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Ferrier Hodgson
(C2015/3703)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against decision [[2015] FWC 2282] of Deputy President Gooley at Melbourne on 1 April 2015 in matter number U2014/14487.
Introduction
[1] On 27 April 2015 Ms Vicky Woo filed a notice of appeal in which she sought permission to appeal against a decision of Deputy President Gooley issued on 1 April 2015 1 (Decision). In the Decision the Deputy President dismissed an application made by Ms Woo under s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy on the basis that the employer nominated by Ms Woo against which the remedy was sought, Ferrier Hodgson, had not in fact been Ms Woo’s employer and therefore that the application had no reasonable prospects of success.
[2] After Ms Woo had filed her notice of appeal, the Commission on 12 May 2015 issued a notice of listing and directions concerning the conduct of the appeal. The notice of listing informed the parties that the matter would be listed for hearing on the issue of permission to appeal only before this Full Bench at 9.00am on 17 June 2015. The directions required Ms Woo to file an outline of submissions by 3 June 2015, not exceeding three pages in length, setting out why it was in the public interest to grant permission to appeal and, if the appeal was on a question of fact, what was the significant error of fact involved in the decision under appeal. The directions issued also reminded Ms Woo of her obligation under rules 52 and 56(3) of the Fair Work Commission Rules 2013 (FW Rules) to file an appeal book within seven days of filing the notice of appeal and set out rule 56(3), which specifies the required content of an appeal book, in full.
[3] Ms Woo did not file the required outline of submissions or the appeal book in accordance with the directions and the FW Rules. An issue arose about her seeking access to the audio recording of a short hearing which occurred before the Deputy President on 23 March 2015 (which Ms Woo failed to attend). There were some regrettable delays in the provision of this audio recording, and it was not ultimately provided to Ms Woo until 16 June 2015, the day before the hearing. However, we do not consider that this prevented Ms Woo from substantially complying with the requirements upon her to provide an outline of submissions and an appeal book.
[4] After various reminders from members of the Commission’s staff about her failure to comply with the requirements of the directions and rule 56(3), Ms Woo on 9 June 2015 requested in writing an extension of time to file her appeal book. After she was asked in writing on 10 June 2015 to specify the length of the extension sought, she replied on 12 June 2015 that she sought an adjournment of the hearing and sought an extension of time of one week. In an email sent to her the same day, the Associate to the presiding member of this Full Bench informed Ms Woo that the request for an adjournment had been refused and the hearing would proceed as listed, but Ms Woo was granted an extension of time to file her appeal book and submissions to 5.00pm on 15 June 2015. Ms Woo did not however file any submissions or her appeal book within the extended time period or at all.
[5] During the afternoon of 16 June 2015 the parties were sent an email confirmation that the hearing would proceed as listed at 9.00am on 17 June 2015. At 8.14am on the morning of the hearing the respondent’s representative, Ms Luci Palaghia, contacted the Associate to the presiding member and asked whether there was an option to attend the hearing via telephone. This email was not copied to Ms Woo. At 8.35am the presiding member’s Associate emailed Ms Palaghia advising that a telephone link could be arranged if she was able to provide a telephone number on which she could be contacted at 9.00am. This email was copied to Ms Woo. The respondent provided a telephone number, and the telephone link was arranged in accordance with the respondent’s request.
[6] When the matter was due to commence at 9.00am, Ms Palaghia was in attendance via the telephone link, but there was no attendance by Ms Woo at the Commission’s premises in Melbourne. 2 The presiding member’s Associate attempted twice to contact Ms Woo in order to ascertain her whereabouts, but the first phone call went unanswered and the second was diverted to voicemail. The matter was then called. Ms Palaghia entered her appearance, but there was no appearance by or on behalf of Ms Woo. In those circumstances, and with no submission having been filed to which the respondent could respond, we announced that we would treat the matter as having been dealt with and reserved our decision. The next matter in the Full Bench’s list was then called and proceeded to be heard.
[7] While this was occurring, at 9.06am Ms Woo telephoned the Chambers of the presiding member advising that she was calling to attend her “conference” and that she was of the opinion that it was a “telephone conference”. Ms Woo was informed that she had made no arrangement to attend by telephone, that she had been expected to attend the hearing in person and the Full Bench had proceeded to hear another matter. She was also informed that she would be advised of any potential rescheduling of the matter when the Full Bench adjourned.
[8] At 10.42am the parties were advised via email that Ms Woo’s matter was likely to be placed in the 2.00pm group of matters in the Full Bench’s list for that day, and that the parties would be contacted via telephone to confirm these arrangements. However at 10.58am Ms Woo called the Chambers of the presiding member advising that she could wait no longer and “had no choice but to discontinue”. Ms Woo was told that if she wished to discontinue her appeal she would need to file a notice of discontinuance, and a copy of the relevant form was subsequently emailed to her. However no notice of discontinuance or any further communication has been received from Ms Woo.
[9] In those circumstances, we will proceed to determine Ms Woo’s application for permission to appeal.
Consideration
[10] Rule 56(2) of the FW Rules relevantly provides that a notice of appeal under s.604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Ms Woo’s notice of appeal was filed five days after the prescribed 21-day time period had expired. She explained in her notice of appeal she had encountered a family medical crisis involving a member of her family being admitted to hospital with a serious illness on two occasions which necessitated her attendance there. We accept that it is a reasonable explanation for the delay. We grant Ms Woo an extension of time to file her notice of appeal to the date it was actually filed.
[11] This appeal is one to which s.400(1) of the FW Act applies 3. Section 400(1) 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.
[12] In the Federal Court Full Court decision 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 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. 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.” 6
[13] 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. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[14] The facts of this matter, as gleaned from the Decision and Ms Woo’s unfair dismissal remedy application, may briefly be stated. Ms Woo was employed by Greater Vision Enterprises Pty Ltd (Greater Vision). Mr George Georges and Mr Brendan Richards of Ferrier Hodgson were appointed receivers and manager of Greater Vision on 6 August 2014. Greater Vision continued to trade. On 3 October 2014, Mr Georges advised Ms Woo in writing (under the letterhead of Ferrier Hodgson) that a contract for the sale of the business and assets of Greater Vision had been entered into, that Ms Woo would not be offered employment by the purchaser, and accordingly she would be terminated because of redundancy on 12 October 2014.
[15] Ms Woo filed her unfair dismissal remedy application on 22 October 2014, naming Ferrier Hodgson as the respondent. After Ferrier Hodgson advised that it had not been Ms Woo’s employer, Ms Woo on 25 November 2014 applied to vary the name of the respondent to Greater Vision. Ferrier Hodgson consented to this change, but advised that the creditors of Greater Vision had resolved to place the company into liquidation on 11 November 2014.
[16] On 20 January 2015 Ms Woo was advised in writing that Greater Vision had been placed in liquidation, and accordingly that she would need to obtain leave from a relevant court to proceed further with her unfair dismissal remedy application. On 21 January 2015 the Commission issued a consent order varying the name of the respondent in the application to Greater Vision. After being reminded again by letter on 11 February 2015 that Greater Vision had been placed into liquidation and that the leave of the court was necessary to proceed further, Ms Woo sought to revert to the position that in fact Ferrier Hodgson was her employer. In correspondence sent to the Commission on 19 February 2015, Ms Woo requested that the Commission reconsider the order naming Greater Vision as the respondent. She contended that her employment with Greater Vision ended when liquidators were appointed, and that from that time Ferrier Hodgson became her employer.
[17] In an email sent to the parties on 3 March 2015, the Deputy President advised that she proposed on her own motion to set aside the order issued on 21 January 2015 varying the name of the respondent, and also indicated she had formed the preliminary view that Ms Woo’s application had no reasonable prospects of success. The parties were directed to file evidence and submissions on that question. What then followed is described in the Decision in the following terms:
“[15] Ferrier Hodgson provided material on 4 March 2015 and a copy was provided to Ms Woo. On 9 March 2015 Ms Woo sought an extension of time to file material and she was given until 13 March 2015 to file her material. On 15 March 2015, Ms Woo advised that she was still awaiting material from the Victorian WorkCover Authority and the Australia Taxation Office. She asked the hearing proceed as scheduled. On 16 March 2015 the parties were advised that the matter would be heard on 23 March 2015. On the same day, I set aside the order made on 21 January 2015.
[16] On 18 March 2015, Ferrier Hodgson forwarded a copy of an email sent to Ms Woo outlining their reason why it submitted it was not her employer. On 19 March 2015, Ms Woo sought an adjournment to permit settlement discussions to occur. I acceded this request however on the same day Ferrier Hodgson advised that there had been no recent discussions between the parties and if the matter could not be resolved, they had no objection to the matter proceeding as scheduled as they were in the process of finalising the receivership and retiring as receivers. Consequently at 9am on 20 March 2015 the parties were advised that the hearing would proceed on 23 March 2015.
[17] Ms Woo did not attend the hearing. Ms Kristy Goulden and Ms Luci Palaghia appeared on behalf of Ferrier Hodgson.
[18] On 23 March 2015, Ms Woo sent an email to the Commission in which she advised that she had not received the notice relisting the matter until that morning. She said she had been at a three day intensive training course. As a result, Ms Woo was provided with an opportunity to file any submissions and evidence to support her claim that Ferrier Hodgson was her employer. She was advised that at the hearing Ferrier Hodgson relied upon its written submissions and further advised that the Receivers and Managers appointed were Mr Georges and Mr Richards. Ms Woo did not file any further material on this issue.”
[18] Ms Woo’s notice of appeal stated the following grounds:
(1) The Commission has relied on false information to reverse a cancelled listing.
(2) The Commission has not provided the applicant an opportunity to appear at the jurisdictional hearing.
(3) The Commission has accepted statements and evidence from the respondent that the applicant would have reasonably been able to contest and refute at hearing. There was an error in the facts presented by the respondent.
(4) The applicant had accrued significant expenses preparing for her opportunity to address the FWC hearing.
(5) The Commission has not provided the applicant sufficient notice to appear at the hearing (only 1 business day).
(6) The Commission should not have the power to reverse a cancellation decision (requested by the applicant) without reasonably attempting to communicate with the applicant.
[19] Her notice of appeal also stated that permission to appeal should be granted in the public interest for the following reasons:
“This matter has been lodged for reasons of public interest from the very beginning.
I am a highly regarded health care professional (pharmacist) and I see the results of negligent management action more than anyone. I firmly believe that administrators acting under a new employment relationship (after the liquidation) have an significant obligation to ensure that an already vulnerable worker is not further mistreated during termination. The risk of suicide is significantly magnified and it is something that our nations employment tribunal (FWA) should have been permitted to adjudicate. It is without doubt in the public interest.
The focus of my argument was for FWA to determine whether a company acting as administrators and having an employment obligation under most other legislation, also have a legal obligation for the termination of an employee. This again is in the public interest.
I was never permitted to address FWA or attend a hearing. I was also forbidden to speak during a phone conciliation when the respondent refused to participate only after having their own say. I was provided no natural justice or procedural fairness during my dealings with FWA leading up to the hearing.
In the interest of public justice I should have been given an opportunity to attend the hearing.
In the interest of public justice I should have been able to have a matter cancelled and it not be rescheduled by the respondent less than 1 business day later (not allowing me to be notified)
In the public interest the respondents objection to a matter being cancelled should not have been accepted above an employee’s. (the respondent provided false information)”.
[20] It is clear, we consider, that there was no basis to the proposition that Ferrier Hodgson at any time became the employer of Ms Woo. She was employed by Greater Vision. Mr Georges and Mr Richards were appointed receivers and manager of Greater Vision. In that capacity, they managed the business and, in doing so, decided to terminate Ms Woo’s employment with Greater Vision. None of those events could have the effect of making Ferrier Hodgson the employer. The proposition that Ferrier Hodgson took over Ms Woo’s employment when liquidators were appointed is untenable for a number of reasons, not least because Ms Woo’s employment relationship had already been terminated well before that event. The Deputy President was correct in concluding in those circumstances that Ms Woo’s application for an unfair dismissal remedy against Ferrier Hodgson had no reasonable prospects of success.
[21] Ms Woo’s notice of appeal appears to us to raise two issues. The first is that the Deputy President made an error of fact as a result of her reliance upon the evidence and submissions of Ferrier Hodgson. However the nature of that factual error is not identified. We cannot identify any possibility that the Deputy President erred in relation to the facts that compelled the conclusion that Ferrier Hodgson was not Ms Woo’s employer.
[22] The second issue was that Ms Woo was denied procedural fairness as a result of her claimed late receipt of the notice of listing for the hearing on 23 March 2015 and consequent inability to attend the hearing. We have considerable doubt about the credibility of this claim, but in any event we do not consider that there was any denial of procedural fairness. The audio tape of the hearing on 23 March 2015 reveals that, in Ms Woo’s absence, the hearing only lasted about four minutes and nothing of substance occurred beyond a very brief restatement of matters already communicated to Ms Woo. Ms Woo was then given an opportunity to file further evidence and submissions to support her contention that Ferrier Hodgson was her employer, but did not avail herself of this opportunity.
[23] In any event, even if there was a denial of procedural fairness, it did not lead to Ms Woo being denied the opportunity of a successful outcome. The proposition that Ferrier Hodgson became Ms Woo’s employer was entirely without merit, and nothing she could have put at the hearing on 23 March 2015 could have altered the outcome.
[24] Ms Woo’s appeal has no prospects of success. It does not raise any issue of a nature that would attract the public interest. We do not consider that it would be in the public interest to grant permission to appeal, in which case s.400(1) requires that it not be granted.
[25] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
L. Palaghia for Ferrier Hodgson.
Hearing details:
2015.
Sydney:
17 June.
1 [2015] FWC 2282
2 The Full Bench was physically sitting in Sydney with a video-link to Melbourne.
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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]
6 [2010] FWAFB 5343 at [27], 197 IR 266
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
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