Wins Australia Pty Ltd v Kim Winning
[2022] FWCFB 13
•14 FEBRUARY 2022
| [2022] FWCFB 13 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Wins Australia Pty Ltd
v
Kim Winning
(C2021/8205)
| VICE PRESIDENT CATANZARITI | SYDNEY, 14 FEBRUARY 2022 |
Appeal against decision [2021] FWC 6403 of Commissioner Matheson at Sydney on 19 November 2021 in matter number U2021/6256 - permission to appeal refused
Wins Australia Pty Ltd trading as Kevin Joyce Pest Management (the Appellant) has lodged an appeal on 3 December 2021 pursuant to s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required, against a decision[1] (Decision) of Commissioner Matheson (Commissioner) issued on 19 November 2021. The Decision dealt with an application made pursuant to s 394 of the Act for an unfair dismissal remedy. The Form F7 Notice of Appeal also sought a stay of the Decision at first instance.
On 3 December 2021, correspondence was sent by the Fair Work Commission (Commission) to the parties advising that the Appellant had seven days to lodge three copies of an appeal book with the Commission and to serve a copy on the Respondent.
On 13 December 2021, pursuant to s 606(1) of the Act and with the consent of the parties, Deputy President Asbury issued an Order[2] (the Stay Order) that the Decision of the Commissioner be stayed until the hearing and determination of the appeal or further order, subject to the Appellant meeting certain conditions including that the Appellant establish an interest bearing account for the benefit of the Respondent into which the net amount that would have been payable to the Respondent under Decision at first instance, was to be paid. The Full Bench understands the Appellant has complied with the terms of the Stay Order.
On 15 December 2021, the matter was listed for permission to appeal only, and Directions were issued directing the Appellant to file written submissions and to serve those submissions on the Respondent. The Directions also provided for the Respondent to file written submissions in response to those of the Appellant.
On 7 January 2022 in accordance with the Directions, Just Relations Consultants on behalf of the Respondent filed submissions in support of an application by the Respondent to be represented by a paid agent. The Full Bench granted permission for Mr T Kolestos of Just Relations Consultants to represent the Respondent at the Hearing on 10 February 2022.
The Appellant did not comply with the Directions and did not file and serve an appeal book, or outline of submissions by 7 January 2022. On 27 January 2022 Mr Dircks on behalf the Respondent sent correspondence to the Commission and the Appellant, stating the Respondent did not appear to have received any submissions from the Appellant and requesting that any material received by the Commission be forwarded to the Respondent.
Later that day email correspondence was sent from the chambers of Vice President Catanzariti to the parties referring to the Directions of 15 December 2021, and the requirement to file and serve submissions by 5:00pm Friday, 7 January 2022. The email correspondence advised that the Commission had yet to receive submissions, and that if the Appellant failed to file its submissions by 5:00pm Monday, 31 January 2022, the Full Bench would proceed to dismiss the appeal on the basis of non-compliance with the Directions.
On 31 January 2022 the Appellant filed submissions.
For the reasons that follow, permission to appeal is refused.
The Decision under appeal
The Decision records that the Respondent was employed by the Appellant on 29 October 2019 on a full-time basis and was dismissed by the Appellant and notified of the dismissal on 30 June 2021.
In the Decision at first instance, after considering all the submissions and evidence before her, the Commissioner found that the Respondent’s dismissal was not consistent with the Small Business Fair Dismissal Code, that the Respondent was unfairly dismissed from her employment with the Appellant, and the Appellant was ordered to pay the Respondent compensation in the sum of $6,762.12.
Principles of appeal
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.
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 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[3]
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.[4] 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.[5] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal and submissions
The grounds for appeal set out in the Form F7 Notice of Appeal merely recited the terms of s 387 of the Act. However, the public interest grounds set out in the Form F7 Notice of Appeal provide some basis to apprehend why the Appellant submits it is aggrieved by the decision at first instance. A summary of the public interest grounds contained in the Form F7 application is as follows:
The decision was based on the Respondent’s evidence that she was shocked and stressed because she was terminated, and the Respondent was not stressed or shocked;
The Appellant warned the Respondent at least more than twice before terminating her employment with the first warning being given when a new employee (Zachery Bedoya) resigned on 18 March 2021 because of the Respondent bullying and harassing him;
The Respondent was warned on another occasion when a new employee (Fatima Hassan) resigned on 14 May 2021 because of the Appellant bullying and harassing that employee;
The Respondent was warned on another occasion when a serious complaint was received from the Appellant’s technician Byron Katz during June 2021 to the effect that he would resign because of the Respondent and her rude behaviour with him;
At that time the Appellant’s Managing Director Mr Mostafa Mohammed, had a meeting with the Respondent in his office and warned her, asking her to write a statement and to confirm to be kind with everyone, even new employees or technicians or customers. The Appellant alleges that the Respondent’s statement given at that time had been stolen by her before leaving the Appellant;
The Appellant made the Respondent lose customers, as well as money for employment advertising as the Appellant didn’t accept any new employees;
The Appellant disrespected Mostafa Mohammed at the office one day during June 2021 when Mostafa Mohammed was trying to check the paperwork on the Appellants desk, and asked Mostafa Mohammed to leave the office by saying “Go Mostafa go out” in front of another employee;
The amount of $6762.12 is not fair when the Respondent had worked for the Appellant for less than three years.
The submissions filed by the Appellant on 31 January 2022 included two documents. The first document reads as follows:
“Kim winning was employed as tele marker for KJPM.
We trained her to employer (sic)to get her back into the workforce, which took time over 1 year under management.
When the office manager left, she wanted to take over her role to manage the office which became an issue and she cannot take pressure.
When she was training other staff, she very abrupt, and there was a lot problems that caused.
We spoke to her and advised her of this in addition to her several warnings about her conduct.
We had no option at the end then to dismiss her.
She had an issue with the new office manager which she told myself she was no capable of doing the job, which caused her to get frustrated and upset.
We also were happy to provided her with a reference and paid out all her entitlements.
We have been under duress due to this and believe her dismissal was fair and just.
Mostafa Mohammed
Director”
In a separate document also filed on 31 January 2022 the Appellant provided the following information.
“This letter is written to outline the reason(s) and supporting documentation for the fair dismissal of Kim Winning, in compliance with the “small business fair dismissal code” which applies to businesses with fewer than 15 employees.
Kim Winning was employed as a full time Office Assistant with Wins Australia Pty Ltd T/A Kevin Joyce Pest Management, commencing employment on 29t h October 2019.
Kim’s conduct was unsatisfactory and did not adhere to Kevin Joyce Pest Managements Code of Conduct.
Please refer to Page 3 index.
Code of Conduct
Breach of –
Clause 7. Telephone Manner
In particular, clause 7i and clause 7ii
Clause 8. Office Guidelines
In particular, clause 8i and clause 8ii
Clause 9. Use common sense and manners to achieve office etiquette
In particular, clause 9i, 9ii, 9iii, 9iv, 9vi”
Documents provided with these submissions were as follows:
“SUPPORTING DOCUMENTATION
ITEM 1 – Kevin Joyce Pest Management ‘Code of Conduct’
ITEM 2 – Employee Employment Application dated 15/10/2019
ITEM 3 – Senior Technician Dispute Statement
ITEM 4 – Adverse comments on google dated 11/04/2020 (VERBAL WARNING)
ITEM 5 – WRITTEN WARNING dated 25/11/2020 (Repeated rude conduct towards customers)
ITEM 6 – Adverse comments on google dated 03/05/2021
ITEM 7 – WRITTEN WARNING dated 10/5/2021
ITEM 8 – Resignation letter by previous employee dated 12/05/2021
ITEM 9 – Employee Dismissal notification and final payout dated 30/6/2021”
Consideration
The Appellant has failed to identify any arguable grounds of appealable error in the Decision. The Appellant merely disagrees with the conclusions of the Commissioner at first instance. This does not give rise to any grounds of appeal. The basis on which the Commissioner reached her Decision discloses an orthodox approach to the determination of the Respondent’s unfair dismissal application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on the evidence.
We note that where there were factual disputes arising in the course of the hearing at first instance the Commissioner considered the evidence and made findings that were open to her in regard to the matters that the Appellant now seeks to reagitate on appeal. These matters included whether warnings were given to the Respondent, and the Respondent’s conduct in relation to other staff and customers of the Appellant. We do not accept that there is an arguable case that the Commissioner made errors of fact, let alone any significant errors of fact.
Public Interest
Having considered the Appellant’s submissions and all the materials filed on appeal, we have also considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400(1) 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 at first instance manifests an injustice, or the result is counter intuitive; or
- The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s 400(1) of the Act.
Permission to appeal is refused.
In accordance with paragraph 1C of the Stay Order the amounts deposited into the interest bearing account for the benefit of the Respondent must now be paid to the Respondent.
VICE PRESIDENT
Appearances:
Mr Mohammed for the Appellant.
Mr T Kolestos for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video)
10 February.
[1] Winning v Wins Australia Pty Ltd [2021] FWC 6403.
[2] PR736634
[3] (2010) 197 IR [27].
[4] Wan v AIRC (2001) 116 FCR 481 [30].
[5] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
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