WCH Services Pty Ltd T/A WCH Services v Mr Kim Shortland
[2016] FWCFB 5060
•1 AUGUST 2016
| [2016] FWCFB 5060 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Kim Shortland
(C2016/3679)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 1 AUGUST 2016 |
Appeal against decision [[2016] FWC 2454] and Order PR579204 of Commissioner Wilson at Melbourne on 19 April 2016 in matter number U2015/15379.
Introduction
[1] This Decision concerns an appeal against the Decision 1 and Order2 of Commissioner Wilson both dated 19 April 2016. Commissioner Wilson’s Decision arose from an application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act) lodged by Mr Kim Shortland on 14 July 2015.
[2] Commissioner Wilson found that the dismissal of Mr Shortland was harsh, unjust or unreasonable and awarded compensation of $17,392.96 to be paid to Mr Shortland within 14 days from the date of his decision.
Background
[3] The background to this application was extensively summarised by Commissioner Wilson in the Decision. The circumstances were unusual in that the arbitration before Commissioner Wilson proceeded in the absence of the respondent. Of this, Commissioner Wilson said:
“[5] The matter proceeded in the absence of the Respondent. As was discussed at the commencement of the proceedings, contact was endeavoured to be made with the Respondent, and following the commencement of the proceedings was actually made with the Respondent. However, in the course of that conversation the Respondent did not either ask for an adjournment of the proceedings or request that it be given an opportunity to provide material for me to take into account in making my decision under the Act.
[6] As a result of that, the matter proceeded without the Respondent and I made the decision on the basis of the material provided by the Applicant alone, which includes witness statements, not only of the Applicant but also of two other people as well.”
(Our emphasis)
[4] A Notice of Appeal was lodged on 6 May 2016. The Grounds of Appeal were:
“I believe I was treated unfairly regarding this matter with justified circumstances of not been able to have it heard on the day.”
[5] In essence the appellant has appealed because Commissioner Wilson proceeded to hear the application when Mr Bill Hancock, for the respondent, did not appear.
[6] The appellant sought a stay of the Decision and Order of Commissioner Wilson. The stay application was heard by the Presiding Member by telephone on 13 May 2016. Mr Hancock, for the appellant, appeared by telephone although seemed somewhat distracted. He stated that he was collecting someone’s children from kindergarten at the same time. He made no persuasive submissions and his application for a stay was refused.
[7] The permission to appeal application was again listed before the Presiding Member on 3 June 2016 to consider the dismissal of the appeal because of the failure of the appellant to lodge an Appeal Book and submissions in support of its appeal.
[8] Following much correspondence and many telephone conversations, the details of which it is not necessary to set out, the appellant eventually provided some materials to the Members of the Full Bench. Those materials predominantly related to merit matters at issue in the original proceedings. Very little material relevant to the issues for determination in the permission to appeal hearing was provided.
[9] The application for permission to appeal was heard on 15 June 2016. Mr Hancock appeared for the appellant with a support person. Mr Shortland appeared in person.
Permission to Appeal
[10] This appeal is one to which s.400 of the Act applies. Section 400 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.”
[11] 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”. 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
[12] 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 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.7
The Appellant’s Submissions regarding permission to appeal
[13] Mr Hancock made the following submissions:
● Mr Hancock’s sister-in-law, who is in charge of administration with the respondent, had a major operation at Monash Hospital just prior to the hearing before Commissioner Wilson;
● Mr Hancock’s family struggled emotionally due to the seriousness of the operation;
● Commissioner Wilson’s Associate called Mr Hancock regarding his non-attendance. Mr Hancock requested a re-hearing on the telephone;
● Mr Hancock had contacted the Fair Work Commission a week before the hearing seeking an adjournment but he could not recall who he spoke to;
● Mr Hancock did not attend the unfair dismissal hearing before Commissioner Wilson because he had no confidence that he could recall all details;
● Mr Shortland would not provide fuel money when filling up a utility that was paid to him by the company for that purpose;
● Commissioner Wilson might have rung Mr Hancock’s brother-in-law; and
● Mr Hancock has not paid the Order for compensation issued by Commissioner Wilson because he does not have enough money.
Respondent’s Submissions regarding permission to appeal and costs
[14] Mr Shortland submitted that he:
● has experienced financial hardship as a result of the process;
● has spent many hours on the process;
● has spent a week preparing for the appeal;
● has an ongoing job;
● did not have time off work preparing material for appeal;
● seeks to recover administrative costs and the costs of telephone calls; and
● he has made an application to the Ombudsman in relation to the appellant’s non-compliance with Commissioner Wilson’s Order.
Also:
● the Ombudsman made many attempts to contact the appellant without success;
● the appellant has not engaged with the process prior to appealing;
● William Hancock has multiple Fair Work cases against him and in all cases he has made no attempt to show up to conciliation or even to submit his responses to court stated due dates;
● this appeal process is a means to delay the payment required by Commissioner Wilson’s Order;
● the appellant’s defence of “illiteracy” is contradicted by his ability to file material during the appeal process;
● the appellant’s business still operates without the administration manager, Mr Hancock sister-in-law, being available;
● there is no error of fact;
● the appellant did not file an Appeal Book within 7 days; and
● the Full Bench should stop this abuse of process.
Conclusion Regarding Permission to Appeal
[15] At the permission to appeal hearing Mr Hancock was questioned about his failure to attend the hearing before Commissioner Wilson.
[16] We have considered the submissions of Mr Hancock. We have also considered the proceedings before Commissioner Wilson and the contact between Commissioner Wilson’s chambers and Mr Hancock. We are satisfied that Mr Hancock, representing the appellant:
● indicated before the listed hearing and before his sisters-in-law’s illness that he did not want to come to the hearing and that he would not be coming to the hearing;
● was told by Commissioner Wilson’s staff that he needed to file submissions and, even if he did not file submissions, he needed to attend the hearing because the Commissioner would have some questions for him;
● did not provide submissions to Commissioner Wilson before the listed hearing;
● made no application for adjournment before the listed hearing;
● made no attempt to attend the listed hearing before Commissioner Wilson;
● when contacted by Commissioner Wilson’s staff made no application for adjournment;
● would not have had any contact with the chambers of Commissioner Wilson regarding his alleged difficulties except that Commissioner Wilson’s Associate telephoned Mr Hancock;
● despite being told to attend the Commission hearing, he “…didn’t really understand that it was like a real court”; and
● was capable of attending the listed hearing or at least providing submissions.
[17] The conduct of the appellant in preparing and conducting his appeal has been wilfully uncooperative and tardy. This conduct is consistent with the conduct of the appellant in the application before Commissioner Wilson.
[18] Although Mr Hancock submitted that he could not attend the hearing before Commissioner Wilson because of his sister-in-law’s illness he simultaneously submitted that he could not attend because he could not recall all the details relevant to the application.
[19] Mr Hancock claims that he has difficulty reading, writing and using a computer. However, in our view, he is adept at delay and obfuscation. This Bench is in a position to take note of Mr Hancock’s correspondence and responses in hearing his application for permission to appeal. We reject his submission that he was incapable of representing himself before Commissioner Wilson and was entirely reliant on his sister-in-law’s appearance. The matters in dispute before Commissioner Wilson did not require Mr Hancock’s sister-in-law to attend. They required him to attend.
[20] We are satisfied that Mr Hancock’s grounds of appeal have no merit. We are satisfied and find that his submissions are self-serving and we reject them. We are satisfied that Mr Hancock’s conduct in not appearing before Commissioner Wilson and in lodging this appeal was intended to prevent or delay an outcome for Mr Shortland.
[21] We can identify no significant error of fact in Commissioner Wilson’s Decision. We can identify no error of law. We can identify no failure to provide procedural fairness.
[22] We are not satisfied that there is any public interest in granting permission to appeal. There are no matters of importance or general application raised by the appeal. There is no diversity of decisions at first instance requiring appellant guidance. The outcome of Mr Shortland’s application was not counterintuitive. The legal principles applied by the Commissioner followed Full Bench decisions and are harmonious with those decisions.
[23] We refuse permission to appeal and dismiss the appeal.
Application for Costs
[24] On 16 May 2016 the respondent lodged an Application for Costs and an Application for Security of Costs. He pressed his application for costs at the permission to appeal hearing.
Conclusion regarding application for costs
[25] We have decided not to order that the appellant pay the respondent’s costs incurred in relation to this appeal. We gave the respondent an opportunity to provide an itemised list of disbursements. The respondent declined to provide an itemised list. We decline to order costs.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr W Hancock on his own behalf
Mr K Shortland on his own behalf
Hearing details:
2016
Melbourne
June 15
1 [[2016] FWC 2454]
2 PR579204
3 (2011) 192 FCR 78 at [43]
4 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]
5 [2010] FWAFB 5343 at [27], 197 IR 266
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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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