Bronze Hospitality Pty Ltd v Hansson

JACKSON J: 1 The applicant, Bronze Hospitality Pty Ltd (Bronze), has applied for judicial review of a decision of the Full Bench of the Fair Work Commission: Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099. The application is made under s 39B of the Judiciary Act 1903 (Cth). 2 On 30 May 2019 the court made orders programming the application to a hearing on 5 September 2019. Bronze now seeks the vacation of that hearing. In order to understand why, it is necessary to explain the history of the proceedings before the Fair Work Commission and this court. It is quite involved. 3 Bronze is in the business of providing labour to the Harbour Terrace Bar and Grill in Hillarys, Western Australia. The first respondent, Ms Hansson, was an employee of Bronze from 28 November 2017. She was dismissed on 7 June 2018. She made an application to the Commission for remedies arising out of what she alleged was her unfair dismissal. Bronze raised two 'jurisdictional objections'. 4 The first objection was that Bronze was a small business employer, so that the minimum period of employment required in order for Ms Hansson to be 'protected from unfair dismissal' within the meaning of the Fair Work Act 2009 (Cth) (FWA) was one year: s 383(b). If Bronze was not a small business employer, then the minimum period was only six months: s 383(a). Section 23 of the FWA provides that an employer is a small business employer if it employs fewer than 15 employees. Casual employees are not to be counted unless at the relevant time they were employed on a regular and systematic basis: s 23(2)(b). At the time of Ms Hansson's dismissal, Bronze claimed, it employed 15 people. It accepted that 11 of those counted for the purpose of s 23 but claimed that the remaining four were employed on a casual basis and not on a regular and systematic basis. 5 The other jurisdictional objection was that Ms Hansson had been employed as a casual employee between 28 November 2017 and 21 January 2018, and that period did not count towards her period of employment because she was not employed on a regular and systematic basis and did not have a reasonable expectation of continuing employment: FWA s 384(2)(a). She became a permanent full-time employee on 22 January 2018 and was employed on that basis until her dismissal, a period of approximately 4½ months. So only if the approximately eight weeks from 28 November to 21 January was counted towards her employment would she qualify for the minimum six months, assuming that Bronze was not a small business employer. 6 The Commissioner rejected the jurisdictional objections, finding that Bronze was not a small business employer, and that the eight weeks of casual employment could be counted towards Ms Hansson's employment, so that she met the six month minimum in any event. Bronze appealed from those findings to the Full Bench. The decision on that appeal is the one of which Bronze seeks judicial review in this court. 7 The Full Bench upheld Bronze's first objection. It held that the Commissioner had erred in his approach to that question. This turned on whether four of Bronze's employees, who were casuals, were employed on a regular and systematic basis. If not, they and potentially a further nine casuals could not be counted as employees. 8 But the Full Bench dismissed the appeal in respect of the other objection. It held that the Commissioner was correct to conclude on the evidence that Ms Hansson's employment was regular and systematic during the eight weeks or so before she became a permanent full-time employee. It also held that the Commissioner was correct to find that she had a reasonable expectation of continuing employment, and to conclude that all of the approximately eight weeks of casual employment counted towards her period of employment for the purposes of her eligibility to bring an unfair dismissal claim. 9 In the result, the Full Bench indicated that it would remit the question of whether Bronze was a small business employer back to the Commissioner for redetermination. The Full Bench took the view that this would give the parties the opportunity to adduce further evidence about the working arrangements of the four 'contested' casuals, and the further nine casuals. Despite that, and despite its findings about Ms Hansson's working arrangements, the orders of the Full Bench remitted both jurisdictional objections to the Commissioner for redetermination. So, even disregarding the present application for judicial review, the question of the duration of Ms Hansson's employment remained in issue. 10 The Full Bench's decision was handed down on 20 February 2019. Bronze applied for judicial review to this court on 26 March 2019. 11 The resumed hearing before the Commissioner was delayed because Bronze applied, unsuccessfully, for the Commissioner to recuse himself for apprehended bias and then appealed, unsuccessfully, from the Commissioner's decision on that point. The basis of the application is not revealed by the evidence in this court. The hearing before the Commissioner resumed on 27 May 2019, at the outset of which Bronze (through a director, Andrew Thorpe) applied again for the Commissioner to recuse himself. The Commissioner dismissed that application and the hearing proceeded. 12 As I have said, on 30 May 2019 the court made orders programming the matter to a hearing on 5 September 2019. The respondent appeared in person (by telephone) at that hearing. The applicant was represented by a solicitor. While the subject matter of the Fair Work Commission proceedings was mentioned at the case management hearing, neither party suggested that there would need to be a stay of those proceedings or delay in the present judicial review application. 13 The first two procedural milestones in the orders made on 30 May 2019 were that the applicant file and serve a book of relevant documents by 20 June 2019 and that it file and serve its written submissions by 27 June 2019. The applicant did not comply with either of those deadlines and no explanation for that was provided before the application for adjournment was made. On 28 June 2019 my Chambers emailed the parties noting the lack of compliance. Neither party responded although, of course, since the default was on Bronze's part it was really for Bronze to respond. 14 The Commissioner handed down his second decision on the jurisdictional objection on 3 July 2019. After a detailed consideration of the evidence as to the working arrangements of relevant employees, he found that in fact Bronze employed 17 employees who could be counted towards the 15 employee threshold. In relation to the calculation of Ms Hansson's period of employment, the Commissioner further considered the applicable law and reconsidered the evidence and found, once again, that her period of casual employment counted so she had a total period of employment of just over six months, making her eligible to pursue her unfair dismissal claim. 15 On 16 July 2019 Bronze appealed to the Full Bench from that second decision. The notice of appeal places in issue the same questions as to whether Ms Hansson's employment should be calculated as exceeding six months for the purposes of the unfair dismissal claim. It does not re-agitate the question of whether Bronze was a small business employer. 16 On 17 July 2019 the President of the Commission listed the matter for hearing on 8 August 2019. On 18 July 2019, after further communications between my Chambers and the parties, Bronze's solicitors advised that it would be filing the outstanding documents, namely the book of relevant documents and its submissions, within seven days. Bronze did not refer to the Commissioner's second decision or the appeal from that decision. 17 Bronze filed the book of relevant documents on 24 July 2019, but contrary to its indication did not file any submissions. On 26 July it filed the present application. The application seeks an order in effect that the hearing of 5 September 2019 be vacated and that a directions hearing be listed for some future time, presumably to monitor and assess the outcome in the Full Bench. The application was supported by an affidavit of Mr Thorpe which annexed the relevant Commission and Full Bench decisions, the notice of appeal from the second Commission decision and the directions that the President made. The affidavit states that the appeal and this application are likely to address the same question and that the outcome of the appeal is likely to be relevant to the questions to be determined by this application. 18 Ms Hansson, who is now represented by pro bono counsel, opposes any vacation of the 5 September 2019 hearing. 19 Bronze has filed a brief written submission explaining why the hearing should be vacated. It says that the Full Bench, in determining the third appeal, may direct itself to different questions than those to which it directed itself in the first appeal, so that the claimed jurisdictional error may change or fall away. It also pointed to the prejudice it may suffer if the hearing is not vacated, most significantly if the Full Bench decision resolves the issues to Bronze's satisfaction, so that the judicial review hearing will have been a waste of time and resources. 20 At the hearing of the adjournment application, counsel for Bronze largely rested on the written submission. Counsel accepted, in my view properly, that on certain scenarios it would be possible to fashion appropriate orders to deal with any difficulties that may arise because of the respective timing of the Full Bench decision on the appeal and the decision of this court on judicial review. 21 I accept that there is likely to be substantial overlap between the issues with which the Full Bench will deal and the issues covered by the application for judicial review. Clearly, the potential interaction between the judicial review application and its outcome, and the appeal to the Full Bench and its outcome, is a relevant consideration in determining whether it is necessary to adjourn. The main difficulties I need to take into account in that regard are the potential for inconsistent decisions, and the potential for wasted time and cost. 22 There is no indication in the evidence of when the Full Bench will hand down its decision at or following the hearing of the appeal on 8 August 2019. It is enough to say that it is possible that the Full Bench decision will come down before the decision of this court on the judicial review application, or after that decision. Both possibilities are real ones. 23 With that in mind, the universe of possibilities splits as follows. Either the consideration of the remaining 'jurisdictional' issues by the Commission, including the Full Bench, is infected by jurisdictional error or it is not. If it is so infected, then it seems to me that the sooner in the course of the Commission's processes that is corrected by this court, the better. While further proceedings in the Commission or the Full Bench to address the consequences of the error may ensue, that is simply an inevitable consequence of Bronze's success in the judicial review application, if that is what it achieves. (I am of course, making a hypothesis there. I express no view that there is any such error, or as to what the consequences of an error should be for any of the Commission or Full Bench decisions. Those are matters I am yet to consider. Nor do I express any disrespect for the Commission or the Full Bench by posing this hypothesis.) 24 If the process in the Commission is not infected by error, then the wasted time and cost will be a consequence of Bronze having brought a judicial review application which, it turns out, has failed. That is a risk facing any applicant. It does not call for any adjournment. The process in the Commission will have proceeded in accordance with that tribunal's determinations, uninfected by jurisdictional error, which is as it should be. 25 I do not accept the contention in Mr Thorpe's affidavit that the outcome of the second Full Bench decision is likely to be relevant in any significant way to the questions to be determined in the application for judicial review. While the court will accord due respect to such findings of fact and law as the Full Bench makes, in the end the court must make its own determination as to whether there was error in the first Full Bench decision. 26 The written submission suggested that the Full Bench may direct itself to different questions regarding the issues than it did in the first Full Bench appeal, so that the subject matter of the jurisdictional error alleged in the proceedings in this court may change or fall away. Insofar as this means that the second decision will depart from the first one in relation to any matter of law, that seems to me to be unlikely. Insofar as it suggests that the second Full Bench decision will itself be infected by jurisdictional error, I do not consider it is appropriate to proceed on that assumption. But in any event, as I have said, on that hypothesis the sooner the error is addressed, the better. 27 The third set of possibilities is that the Full Bench resolves the appeal in a way that satisfies Bronze, so that it does not need to proceed with the judicial review application. If this happens before the hearing of the judicial review application, then Bronze will have wasted some time and costs in preparing written submissions. But it should have prepared those submissions in compliance with this court's orders anyway, before the Commissioner handed down his decision and any appeal was commenced. In the exercise of discretion, I place little weight on this potential extra cost to Bronze, given that it is, in effect, occasioned by its own default. In any event I doubt that there will be much by way of additional cost in Bronze preparing for the hearing of the judicial review application, except in the unlikely scenario that the Full Bench decision comes down a day or two before 5 September 2019. 28 If that hypothetical Full Bench decision, satisfactory to Bronze, comes down after the hearing of the judicial review application, then Bronze will have incurred some wasted time and cost. But for four reasons, I place little weight on that. The first is that, as the foregoing makes plain, it is only one of several possible outcomes. It is by no means inevitable. 29 The second reason is that the time and cost will not be substantial. It will be a judicial review application that will not go longer than half a day. 30 The third reason is that the risk of potential wasted time and cost is a consequence of the way that Bronze has chosen to conduct the proceedings, including the proceedings in the Commission and in this court. It has taken jurisdictional objections. It has appealed the first decision on those. The matter was remitted to the original Commissioner to determine in accordance with the first appeal decision. In the meantime it made the application to this court seeking to impeach the result of the first appeal. The determination of the matters remitted to the Commission was delayed because Bronze chose to seek to have the Commissioner recuse himself and Bronze appealed from his refusal to do so. Then Bronze appealed from the Commissioner's second substantive determination of the issue. 31 It seems to me that any prejudice which Bronze may incur as a result of the ensuing procedural complications is, to a significant extent, prejudice of which Bronze itself is the author by the choices it has made. None of this is to say that the challenges, appeals and other procedural steps that Bronze has brought and taken were, or are, without merit or otherwise illegitimate. I proceed on the basis that it was entitled to pursue them. But it seems to me that it is the author of the delay and procedural complications which, it now says, have the potential to prejudice it. 32 The fourth reason I place little weight on this alleged prejudice is that it is, in the end, a prejudice suggested to have arisen because Bronze is applying to this court for review of the Full Bench's decision, while at the same time the resulting processes in the Full Bench had been permitted to run their course. The straightforward way of minimising any potential prejudice of that sort, which was available to Bronze, was for it to apply for a stay of the proceedings in the Commission, including any proceedings in the Full Bench. There is no evidence before me that it has made such an application. 33 In summary, the main consideration which Bronze advances in favour of an adjournment is not one on which I place a great deal of weight. I can deal with the other discretionary considerations I consider to be relevant more briefly: (a) Ms Hansson is an individual who has already had to deal with a large number of applications and appeals and does not yet know whether she will be able to prosecute the substance of her unfair dismissal claim. This is in circumstances where she was dismissed in the middle of 2018. She has only received pro bono representation recently, and only in relation to the judicial review application. Even if the applications and appeals brought by Bronze were or are meritorious, and even if her unfair dismissal claim is not meritorious, I consider it relevant to take into account the strain that this procedural history is likely to have placed on her as an individual, being the party opposing the adjournment. She made reference to that strain at the first case management hearing on 30 May 2019. In my view, delaying the judicial review application will exacerbate that strain. (b) There is also a question of proportionality. This is an unfair dismissal claim in relation to someone who worked for a restaurant business for a little over six months. It is clear from the procedural history I have recounted that there has already been a great deal of time expended on both sides, and some cost expended on Bronze's side, with the present status of the claim being that it is still uncertain whether Ms Hansson may prosecute it. While I do not doubt that the claim is important to both parties, in my view the time that has been spent on it, and the consequent use of public resources, is already disproportionate to the subject matter. After considering the scenarios I have outlined above, I consider that on balance further delay is only likely to exacerbate that disproportion. That is an important consideration. (c) It is also relevant to consider whether the hearing on 5 September can now proceed in a manner which permits justice to be done to both parties. In my view it can. All that is really required between now and the hearing is written submissions and preparation by counsel. There is ample time for the latter. As for the former, there will need to be some truncation in the timetable. But I take it from their opposition to the application that Ms Hansson and her counsel are prepared to work within the necessary time frames. To the extent that the time is truncated for Bronze to file its submissions, that is ultimately a consequence of its unexplained default in filing its submissions when they were due on 27 June 2019, which was before the decision of the Commission, from which Bronze subsequently appealed, was handed down. As it happens I consider that there is still sufficient time for both parties to provide written submissions. (d) The final consideration is that the most efficient use of this court's resources will be the speedy resolution of the judicial review proceedings. 34 I consider that there is little in favour of granting an adjournment and that there are significant factors going against it. The application is dismissed and I will vary the programming orders accordingly. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.