XL Express (Personnel) Pty Ltd v Mr Steven Biffin
[2017] FWCFB 5441
•22 NOVEMBER 2017
| [2017] FWCFB 5441 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
XL Express (Personnel) Pty Ltd
v
Mr Steven Biffin
(C2017/4693)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 22 NOVEMBER 2017 |
Appeal against order PR594541 of Deputy President Asbury at Brisbane on 31 July 2017 in matter number U2016/14475; appeal instituted out of time allowed; whether pro-rata LSL to be taken into account in assessing compensation; whether point taken at first instance; pro-rata LSL entitlement is referable to past service; not a matter relevant for the purposes of deductions made in assessing compensation order in lieu of reinstatement; not persuaded arguable case of appellable error established; public interest not enlivened; permission to appeal refused.
[1] XL Express (Personnel) Pty Ltd (Appellant) lodged a Notice of Appeal, for which permission is necessary, against a decision 1 (Decision) and order2 (Order) of Deputy President Asbury in which the Deputy President dealt with an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (Act). The Deputy President determined that the dismissal of Mr Steven Biffin (Respondent) by the Appellant was ‘harsh, unjust and unreasonable’. The Respondent did not seek reinstatement and the Deputy President determined that an order for reinstatement was not appropriate.3 The Deputy President determined that an order for compensation was appropriate and in lieu of an order for reinstatement, ordered the Appellant to pay to the Respondent compensation in the amount of $48,432.69, less appropriate taxation, plus superannuation to the sum of $4,601.23.
[2] The Respondent had, until 23 November 2016, been employed by the Appellant as a Depot Manager at its facility in Brisbane. The Respondent had commenced employment with the Appellant on 6 May 2008. He was dismissed for reasons said to relate to conduct in which he was alleged to have engaged, and which the Appellant considered to be serious misconduct.
[3] Three issues require our consideration in respect of the Notice of Appeal. First, whether we should exercise our discretion to allow the appeal to be instituted outside the 21 day period for which provision is made in the Fair Work Commission Rules 2013 (FWC Rules). Secondly, if we allow the late lodgement of the Notice of Appeal, whether permission to appeal should be granted. Thirdly, if permission is granted, whether the appeal should be upheld and if so, the consequences which would follow the upholding of the appeal.
[4] On reviewing the Notice of Appeal it appeared to us that each of these matters could be adequately determined without the parties making oral submissions and as the parties consented to the appeal being conducted without a hearing, we decided to deal with each of these matters on the papers taking into account the written submissions filed by the parties.
Extension of time
[5] The Appellant lodged its Notice of Appeal on 24 August 2017. The Order the subject of that notice was made on 31 July 2017. Rule 56 of the FWC Rules deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision being appealed against or if the decision was in the form of an order, within 21 calendar days after the date of the order. The appeal was instituted 3 days outside of the time prescribed. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[6] Time limits of the kind in rule 56 should not simply be extended as a matter of course. There are sound reasons for setting a limit to the time for bringing an appeal. Time limits in relation to the institution of appeals must be treated seriously and should only be extendedwhere there are good reasons for doing so.
[7] The authorities 4 indicate that the following matters are relevant in considering whether to exercise the Commission’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 of one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.
[8] 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. 5
[9] In support of its application to extend time for the institution of the appeal, the Appellant says that an extension of time to file its appeal should be granted because the appeal was lodged on 24 August 2017, only 3 days after the 21 day time frame had passed. The Order issued by the Deputy President required the Appellant to make the compensation payment by 22 August 2017. On 22 August 2017, the Appellant complied with the Order by paying the Respondent the compensation amount and confirming that payment had been made in email correspondence to the Respondent at 4:35pm that day. At 5.33pm the Respondent replied to the email correspondence inquiring when his long service leave entitlements would be paid (LSL claim). The Appellant says that the nature of the error about which it complains only became apparent to it, once the LSL claim was made. The Appellant says that it did not otherwise intend to challenge the Deputy President’s Decision and Order. The Appellant contends that it acted swiftly after receiving the LSL claim to lodge the appeal. We are persuaded in the circumstances described above that there is a satisfactory explanation for the delay.
[10] Additionally, the Appellant contends that the nature of the grounds of appeal are strongly arguable in the public interest and that if the time to lodge the appeal is extended, the appeal will be upheld. We do not share the Appellant’s optimistic view of its grounds of appeal. For reasons that will become apparent, they, or it, as there is only one operative ground, is weak.
[11] As to prejudice, the Appellant says that there have been no developments or circumstances that would prejudice the Respondent if the extension were granted and the Appellant would be prejudiced if an extension was not granted. 6 The Respondent does not point to any prejudice and we are persuaded that there will not be any real prejudice to the Respondent, beyond that normally associated with litigation, if the appeal lodgement time were extended.
[12] Self-evidently, the delay period (3 days) is short. Thus, although the merits of the appeal appear weak, the other factors tend to weigh in favour of allowing the appeal to be lodged outside of the time prescribed. There are no other matters about which we are aware that would weigh against allowing the late lodgement of the appeal. In the circumstances, we consider that the interests of justice favour the grant of an extension of time. We therefore extend the time by which this Notice of Appeal may be lodged to 24 August 2017.
[13] We now turn to consider whether permission to appeal should be granted.
Consideration
The Deputy President’s Decision
[14] The Deputy President’s consideration of whether the dismissal of the Respondent was harsh, unjust or unreasonable is relevantly set out at [63] – [93] of the Decision. At [94] the Deputy President concludes, after weighing the matters set out in s.387 of the Act, that the dismissal of the Respondent was harsh because it was disproportionate to the misconduct found, unjust because there was no proper basis for the Appellant to conclude that the Respondent had engaged in bullying conduct, and unreasonable because the conclusion that the Respondent engaged in such conduct was based on inferences that could not reasonably be drawn from the material that was before the Appellant.
[15] Neither this conclusion nor the factual findings earlier made by the Deputy President upon which the conclusion is based are challenged by the Appellant.
[16] In considering other relevant matters as required by s.387(h) of the Act, the Deputy President identified as relevant and to be weighed in favour of a conclusion that the Respondent’s dismissal was unfair, the uncontroversial fact that the Respondent was not paid an amount representing pro-rata long service leave. This was because the Appellant had dismissed the Respondent in the circumstances for which provision is made in s.95(4)(c) of the Industrial Relations Act 2016 (Qld) (IR Act). 7
[17] At [95] of the Decision, the Deputy President concludes that an order for reinstatement is not appropriate but that a remedy in the form of an order for compensation is appropriate. From [96] to [116] of the Decision, the Deputy President considers all the circumstances that she identifies as relevant in determining an amount of compensation. During the proceedings before the Deputy President it was uncontroversial that the Respondent was paid an amount of $27,423.08 which was the equivalent of 12.4 weeks of wages at the time of, or shortly after, the termination of the Respondent’s employment. The Deputy President deducted this amount in the course of calculating the amount of compensation that would ultimately be the subject of a compensation order. This appears to have been done on the basis that the sum paid was an amount to which the Respondent was not otherwise entitled by reason of the circumstances of his dismissal, and on the basis of the reason for that dismissal relied on by the Appellant at the time it took effect. 8 The Appellant does not challenge this aspect of the Deputy President’s Decision and Order. The Appellant does not challenge any of the other matters that the Deputy President took into account in assessing the compensation amount. As will be apparent, the Appellant says that a deduction from the amount of compensation calculated by the Deputy President, representing the pro-rata long service leave payment to which the Respondent became entitled by reason of the Decision ought also to have been made.
Permission to appeal principles
[18] 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. 9 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[19] Section 400 of the Act applies to this appeal. 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.”
[20] 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”. 10 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.11 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” 12
[21] 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. 13 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.14
[22] In support of its application, the Appellant submits that it is in the public interest for us to grant permission to appeal for the following reasons:
1. It is in the public interest that the provisions of s.392 which stipulate the matters that the Commission must take into account be properly applied, and that the Deputy President erred in:
(a) failing to take into account the material consideration of the pro-rata LSL the Respondent became entitled to pursuant to s.95(4)(c)(ii) of the Industrial Relations Act 2016 (Qld) (‘Qld IR Act’) as a direct result of her finding that the Respondent was unfairly dismissed, as required by s.392(2); and
(b) failing to reduce the amount of compensation to be paid by the Appellant by an amount equal to the pro-rata LSL entitlement of $16,365.40 gross.
2. It is in the public interest that permission to appeal be granted on the basis that the question of the correct application of s.392(2) in the case of an employee who becomes entitled to pro-rata LSL pursuant to s.95(4)(c)(ii) of the Qld IR Act as a direct result of a finding by the Commission that the Respondent was unfairly dismissed should be considered by a Full Bench in light of the diversity of treatments at first instance; and
3. It is in the public interest that permission to appeal be granted on the basis that a substantial injustice will result if the Appellant, after having paid the Respondent the ordered amount of compensation not reduced by the pro-rata LSL entitlement now claimed by the Respondent, was to be required to pay a further amount of $16,365.40 on account of pro-rata LSL. We submit that this injustice can be averted if the Order is reduced on appeal by the amount of the pro-rata LSL entitlement, such amount already paid being a payment on account of pro-rata LSL. 15
[23] For the reasons which follow, we are not persuaded that an arguable case of appellable error has been established or that the public interest is enlivened.
Appeal grounds
[24] By its Notice of Appeal dated 24 August 2017, the Appellant appears to advance a number of grounds of appeal. Appeal grounds 1 – 11 of the Notice of Appeal appear to be no more than contentions of fact or law in support of the gravamen of the appeal contained in ground 12.
[25] By appeal ground 12 the Appellant contends the Deputy President erred in failing to take into account the pro-rata long service leave sum to which the Respondent became entitled pursuant to s.95(4)(c)(ii) of the IR Act consequent on her decision that the Respondent was unfairly dismissed. It contends that the Deputy President was required by s.392(2) of the Act to do so, and in failing to reduce the amount of compensation to be paid by the Appellant by an amount equal to the pro-rata long service leave entitlement of $16,365.40 the Deputy President erred.
[26] In support of its appeal ground, the Appellant maintains that the pro-rata long service leave amount to which the Respondent became entitled was a relevant matter which the Deputy President should have taken into account in assessing the amount of compensation the subject of the order made. In essence, by this submission, the Appellant contends that the Deputy President failed to take into account a relevant consideration. The Appellant submits that on 24 November 2016 it paid to the Respondent a “golden handshake” payment of 12.4 weeks’ amounting to 5 weeks’ pay in lieu of notice and 7.4 weeks’ pro-rata long service leave that the Respondent would have been entitled to had he not been dismissed for serious misconduct. 16
[27] The Appellant submits that as the Respondent was dismissed for serious misconduct, he was not entitled to pay in lieu of notice or pro-rata long service leave. It says that the pay slip which was provided to the Respondent upon his termination described the “golden handshake” severance payment as 480 hours in lieu of notice and 16 hours ordinary pay and that the description per se does not alter the true nature of the payment or the fact that it included an amount equivalent to pro-rata long service leave, but that it merely reflects the choice of computer pay system coding to achieve the desired superannuation and tax treatments of the payment. 17 The Appellant contends that it is no coincidence that the “golden handshake” payment to the Respondent, equated to the pay in lieu of notice and pro-rata long service leave to which the Respondent would have been entitled to had he not been dismissed for serious misconduct.18
[28] The Respondent contends that he did not raise the LSL claim with the Appellant when his employment was terminated because, at that time, his employment ended as a result of serious misconduct. 19 He says that, the entitlement to be paid pro-rata long service leave did not arise until the Deputy President found that his dismissal was unfair and when he received his compensation from the Appellant which did not include his entitlement to pro-rata long service leave, he raised it with the Appellant.20 The Respondent contends that his entitlement to pro-rata long service leave is “over and above” the amount that was awarded by the Deputy President.21
[29] Additionally, the Respondent also points to the fact that during the proceeding before the Deputy President, the following exchange to took place:
PN52
You mentioned that you were not paid your long service leave on termination?---Correct.
PN53
And you say you were entitled to be paid that?---Yes.
PN54
The reason for not paying it was I take it because the respondent said you were dismissed for serious misconduct?---Correct.
[30] The Respondent says that the extracted transcript above supports his contention that the Appellant did not dispute the non-payment of the pro-rata long service leave, and consequently, the Appellant’s acquiescence to dispute the non-payment, necessarily means that it did not disagree. 22
[31] Respectfully, none of the parties’ submissions summarised above grapple with the central question raised by the Appellant’s appeal ground. That question is whether an amount that is to be paid to the Respondent representing pro-rata long service leave to which he became entitled once it was determined that his dismissal was unfair, was a matter that was relevant to the assessment of an amount of compensation in lieu of reinstatement. The short answer to the question is no.
[32] Before turning briefly to state our reasons for that conclusion we make the following observation.
[33] The issue of the treatment of an entitlement to payment of pro-rata long service leave in the assessment of compensation in lieu of reinstatement was not agitated before the Deputy President. It was not put by the Appellant during the proceedings at first instance, that in the event that the Deputy President concluded that the dismissal of the Respondent was unfair and determined that compensation was appropriate, the Deputy President should make a deduction or an allowance by reason of the Respondent then becoming entitled, under State law, to an amount of pro-rata long service leave.
[34] The Deputy President cannot be fairly criticised for not taking into account a matter which the Appellant did not ask her to take into account. Moreover, on appeal an Appellant would not generally be permitted to raise a matter, which though available, it did not raise or argue at first instance. This is so whether the failure to raise or argue the matter was by omission or by design. The Appellant should be held to the case it ran at first instance. The issue it now raises is not in the nature of a jurisdictional issue going to power. This is a powerful reason alone for not granting permission to appeal. An appeal is not an opportunity to run a better case than that advanced at first instance.
[35] As to the issue now raised, it must be remembered that the power to order compensation is a power to order compensation in lieu of reinstatement. The assessment that is undertaken in determining the amount of compensation is essentially an assessment of income that an unfairly dismissed employee would have earned with the employer had the employment continued for a period determined by the Commission, less income earned from other sources, contingencies and other deductions. The assessment of compensation looks forwards into a hypothetical future. Also relevant are non-monetary considerations such as impact on viability of an employer’s enterprise, misconduct contributions and the statutory cap.
[36] The pro-rata long service leave payment to which the Respondent became entitled under the IR Act by reason of the determination that his dismissal was unfair, is an entitlement derived from past eligible service rendered during a period of employment which has ended. It is a payment that looks backwards. The amount the Appellant is now required under the IR Act to pay to the Respondent does not bear any relationship to future service. The pro-rata entitlement under the IR Act generally arises upon the happening of an event, namely the termination of the employment after the completion of the qualifying period of service and subject to some exceptions.
[37] In the instant case, the entitlement arose because the Respondent’s dismissal was determined to be unfair. But for the Appellant’s view at the time it dismissed the Respondent that he had engaged in serious misconduct, the Respondent would have been paid the pro-rata long service leave entitlement when the employment ended. The amount of the pro-rata entitlement under the IR Act that is now due is not compensatory in nature. It is not a payment for the performance of work during the period over which a compensation order is calculated, nor is it another source of income earned or paid by reference to that period. There is no element of double dipping involved.
[38] Long service leave payments may be a relevant consideration in a particular substantive case, for example, if the unfair dismissal of an employee results in the qualifying period of service being cut just short of a long service leave entitlement or where the likely period of assessed ongoing employment would crystallise an entitlement during that period. However, it does not follow that an amount to which a dismissed employee subsequently becomes entitled under the IR Act, by reason of a determination that the dismissal was unfair, is to be deducted from an assessment of an amount of compensation in lieu of reinstatement consequent upon a finding that an employee’s dismissal was unfair. We do not consider that the pro-rata long service leave entitlement was relevant to the Deputy President’s assessment of compensation and it follows that the Deputy President did not err as contended by the Appellant. That the Appellant made another payment which appears to be equivalent to the pro-rata long service leave amount does not change the relevance assessment. That payment was not made to meet the entitlement under the IR Act and in any event, as we noted earlier, the Deputy President made an allowance for that amount in her assessment of the compensation amount that ultimately became the subject of the Order.
[39] Consequently, we are not persuaded that the Appellant has made out an arguable case of appellable error. We are also not persuaded that the public interest is enlivened. Contrary to the Appellant’s submission we are not persuaded that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required; or
(b) the appeal raises issues of importance or general application; or
(c) the Decision manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
[40] It follows that permission to appeal must be refused.
Conclusion
[41] For the reasons given we allow the Notice of Appeal to be lodged outside of the time prescribed by rule 56 of the FWC Rules, but the application for permission to appeal is refused.
DEPUTY PRESIDENT
Written submissions:
Appellant’s Outline of Submissions on Extension of Time and Permission to Appeal lodged 12 September 2017.
Appellant’s Outline of Submissions on the Merits of the Appeal dated 27 September 2017.
Respondent’s Outline of Submissions on Extension of Time, Permission to Appeal and Merits of the Appeal dated 3 October 2017.
Appellant’s Outline of Submissions in Reply dated 11 October 2017.
1 [2017] FWC 3702
2 PR594541
3 [2017] FWC 3702 at [95]
4 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36];Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
5 Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
6 Appellant’s Outline of Submissions on Extension of Time and Permission to Appeal, undated at [4].
7 [2017] FWC 3702 at [93]
8 Ibid at [112] and [116]
9 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
10 (2011) 192 FCR 78; 207 IR 177 at [43]
11 O’Sullivan v Farrer (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; 207 IR 177 at [44] -[46]
12 [2010] FWAFB 5343; (2010) 197 IR 266 at [27]
13 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]
14 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; (2014) 241 IR 177 at [28]
15 Appellant’s Outline of Submissions on Extension of Time and Permission to Appeal, undated at [7] – [9]
16 Appellant’s Outline of Submissions in Reply, dated 11 October 2017 at [1] – [2]
17 Ibid at [3]
18 Ibid at [4]
19 Respondent’s Outline of Submissions, dated 3 October 2017, at [9] where second appearing
20 Ibid at [10] where second appearing
21 Ibid
22 Ibid at [2] where second appearing
Printed by authority of the Commonwealth Government Printer
<Price code C, PR596977>
4
11
0