Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 2198 of Deputy President Binet at Perth on 21 April 2021 in matter number U2020/6241 - permission to appeal refused.

[1] Ms Amy Veronica Greene (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] (the decision) of Deputy President Binet (the Deputy President) issued on 21 April 2021. The Decision dealt with an application for an unfair dismissal remedy made by the Appellant under s 394 of the Act.

[2] The Appellant alleged that she had been unfairly dismissed by Floreat Hotel - CEH Group trading as Floreat Hotel (the Respondent). The Respondent raised a jurisdictional objection to the Appellant's application for an unfair dismissal remedy, namely that the dismissal was a case of genuine redundancy. In her Decision, the Deputy President found that the Appellant's dismissal was a case of genuine redundancy within the meaning of s 389 of the Act. Accordingly, the Appellant's application was dismissed.

[3] The matter on appeal was listed for permission to appeal only. Directions were set for the filing of material by the Appellant regarding the grant of permission to appeal. The Respondent was not required to file material, but it did so in any case. As such, both parties have filed written submissions.

[4] Prior to the hearing of the appeal, the Respondent requested that the appeal be determined on the basis of written submissions without the need for a formal hearing. The Appellant consented to this request. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on the basis of written submissions only.

[5] For the reasons that follow, we refuse permission to appeal.

[6] The procedural history of this matter can be summarised as follows:

• On 6 May 2020, the Appellant filed an application for an unfair dismissal remedy pursuant to s 394 of the Act.

• On 15 May 2020 the Respondent raised a jurisdictional objection to the application, namely that the Appellant's dismissal was a case of genuine redundancy.

• On 22 June 2020, the parties participated in a conciliation conference before the Deputy President. At this conference, the Respondent raised an additional jurisdictional objection that Ms Greene had not served the minimum employment period for the purposes of s 383 of the Act.

• The Deputy President heard this jurisdictional objection on 12 August 2020 and issued a decision on 3 September 2020[2] in which she found that the Appellant had not completed the minimum employment period necessary to be eligible to seek an unfair dismissal remedy.[3]

• On 11 November 2020, a differently constituted Full Bench of the Fair Work Commission (the Commission) held that the Appellant has fulfilled the minimum employment period.[4] Accordingly, the Appellant's application was remitted to the Deputy President to determine the merits of the application and the remaining jurisdictional objection that the dismissal was a case of genuine redundancy.

[7] The Appellant commenced employment as a casual food and beverage attendant with the Respondent on 24 February 2019. The parties did not enter into any written employment contract with respect to the casual employment. On 17 January 2020, the Appellant was offered full-time employment with the Respondent. She accepted this offer on 20 January 2020, commencing on that date as a full-time food and beverage attendant.

[8] The Appellant was covered by the Hospitality Industry General Award 2010 (the Hospitality Award) during her employment with the Respondent.

[9] On 22 March 2020, the Respondent was directed to close except for take away beverage services as a consequence of stage one social distancing directions issued by the Western Australian Government. The following day, 23 March 2020, the Appellant was stood down by way of a letter (the Stand Down Letter) from her employment as a consequence of the Respondent's closure.

[10] On 15 April 2020, the Appellant was informed in writing that her position was redundant and that her employment would cease on 16 April 2020. The Appellant subsequently made an application for an unfair dismissal remedy.

[11] The Deputy President dealt first with the Respondent's jurisdictional objection that the Appellant's dismissal was a case of genuine redundancy. The Deputy President found that the Respondent no longer required the Appellant's role to be performed by anyone because of changes in the operational requirements of its enterprise.[5]

[12] The Respondent was obligated to comply with the consultation provisions of the Hospitality Award which appear at clause 38. The Deputy President was satisfied that the Respondent complied with the requirement to consult with the Appellant about the redundancy prior to dismissing her.[6] The Deputy President considered the Stand Down Letter and further email correspondence to the Appellant satisfied the requirement for consultation.[7]

[13] The Deputy President was satisfied that redeployment of the Appellant was not possible.[8] Accordingly, she found that the Appellant's dismissal was a case of genuine redundancy and dismissed the application.[9]

[14] 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.[10] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[15] 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."

[16] 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".[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[13] In GlaxoSmithKline, 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."[14]

[17] 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.[15] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[18] 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.[16] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[19] The Appellant's grounds of appeal submit that the Deputy President made a number of errors of both fact and law.

[20] Regarding errors of law, the Appellant submits that the Deputy President failed to correctly apply ss 385 and 389 of the Act, clause 38 of the Hospitality Award, the decision of the Full Bench in Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019 and was biased against the Appellant.

[21] Regarding errors of fact, the Appellant submits that the Deputy President relied erroneously or otherwise failed to apply the correct probative value to different aspects of evidence. The Appellant also submits that the Deputy President ignored the authorities placed before her by the Appellant in favour of the Respondent's authorities and erred by allowing the Respondents to rely on specific clauses of the Appellant's employment contract regarding redundancy whereby those clauses are void due to the decision in Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019.

[22] We are not satisfied that the Appellant has identified any arguable error. The Deputy President applied the relevant sections of the Act, the Hospitality Award, and the decision in Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019 in an orthodox manner. Furthermore, we are not satisfied that the Deputy President acted upon a wrong principle, or was guided by irrelevant factors, mistook the facts, or failed to take some material consideration into account.

[23] We are not satisfied that the Appellant has identified that the Decision involved a significant error of fact. The Appellant has merely taken issue with the probative value the Deputy President applied to various parts of evidence. As the Member at first instance, the Deputy President is best placed to decide the weight of the evidence and the conclusions she reached were open to her in all the circumstances.

[24] The Appellant relied predominantly on the Respondent's alleged failure to meet its obligation to consult with the Appellant prior to making her position redundant. We note that the Respondent had 93 eligible employees when it closed most of its business temporarily because of COVID.[17] We also note that almost all of the Respondent's employees were made redundant at the same time as the Applicant three weeks later.[18] In this context the Deputy President's findings at [118]-[120] were reasonably available:

"[118] Prior to making Ms Greene's position redundant Floreat Hotel consulted with Ms Greene via the Stand Down Letter, Update Email and other email correspondence as to the changes to her employment and reasons why. Floreat Hotel promptly responded to her queries with respect to her employment, her entitlements and the Job-Keeper scheme. Ms Greene conceded this at the Determinative Conference.

[119] Even if further consultation had taken place by way of skype or telephone (given that face to face meetings were not possible) there is no evidence that such consultation would have changed the outcome. Unavoidable, the business no longer required her permanent role.

[120] Consequently, I am satisfied that Floreat Hotel complied with the requirement to consult with Ms Greene about the redundancy prior to dismissing her."

[25] The Appellant has also misconstrued the findings of the Full Bench in Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019. That decision dealt only with whether the Appellant's period as a casual should be included in the calculation of her minimum employment period. The Appellant's submission that the decision voided the Appellant's employment contract is not correct.

[26] The Appellant submits in two separate grounds, that the Deputy President displayed bias against the Appellant. We are not satisfied that the Appellant has identified how the Deputy President was biased against her or how this alleged bias has caused an error at law or in fact. We would also note that the Appellant chose not to make a recusal application in the matter below despite the Deputy President suggesting she could do so.[19]

[27] Regarding the public interest, the Appellant submits that the Respondent has circumvented certain aspects of laws and procedures regarding both casual employees and full-time employees. The Appellant submits that given the COVID-19 pandemic, the Full Bench should interpret how full-time employees are affected by the temporary closure of businesses. Furthermore, the Appellant submits that both the Respondent and the Deputy President have ignored the Appellant's status as a full-time employee.

[28] We are not satisfied that the Appellant has identified any arguable public interest grounds. Furthermore, we are not satisfied that:

• (a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

• (b) The appeal raises issues of importance and/or general application;

• (c) The decision at first instance 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.

[29] For the reasons set out above, we are not satisfied, for the purpose of s 400(1) of the Act, that it would be in the public interest to grant permission to appeal.

[30] Permission to appeal is refused.

Matter determined on the basis of written submissions.

Respondent's written submissions dated 8 June 2021.

[1] Amy Greene v Floreat Hotel - CEH Group T/A Floreat Hotel [2021] FWC 2198.

[2] Amy Greene v Floreat Hotel - CEH Group T/A Floreat Hotel [2020] FWC 4245.

[4] Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019.

[10] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd)

[11] [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 [43].

[12] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 [216] - [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46].

[13] see: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266 ('GlaxoSmithKline'); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[14] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

[15] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[19] Appellant's written submissions dated 31 May 2021 at paragraph 2.

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