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[67]
[2017] FWCFB 3906
General information, not legal advice.
Fair Work Commission (Full Bench)
2017-09-06
Original judgment source is linked above.
s.604 - Appeal of decisions
Permission to appeal against decision [2017] FWC 3211 of Commissioner Williams at Perth on 16 June 2017 in matter number U2017/660.
[1] Mr Marcus Wilson has applied for permission to appeal and appealed a decision of Commissioner Williams issued on 16 June 2017[1] (Decision). In the Decision the Commissioner dismissed Mr Wilson's application made pursuant to s.394 of the Fair Work Act 2009 (FW Act) for a remedy for unfair dismissal on the ground that Mr Wilson had not been dismissed within the meaning of s.386(1) of the FW Act. The Commissioner found that Mr Wilson resigned from his employment with the Town of Victoria Park (Victoria Park), and the resignation was not forced because of conduct or a course of conduct on the part of Victoria Park. The Commission's unfair dismissal jurisdiction was therefore not enlivened.
[2] Mr Wilson commenced employment in June 2009 with Victoria Park as a Gym Instructor/Personal Trainer on a casual employment contract. His letter of offer stated: "You are employed to work casual hours as rostered in accordance with operational needs of the Town. These hours and days may vary from week to week and there is no guarantee of regular work." There was a dispute between Mr Wilson and Victoria Park in September 2016 about Mr Wilson's hours of work which was eventually resolved, but the basis of its resolution was disputed. Mr Wilson believed he had been guaranteed 5.5 hours work per weekend, but Victoria Park took issue with this.
[3] At the time the employment came to an end, Mr Wilson was working on weekends only alternately at Leisurelife and Aqualife, two of Victoria Park's leisure centres. In late December 2016 new rosters were issued which would reduce Mr Wilson's hours to 3 per weekend. He protested this in an email dated 4 January 2017. There followed an exchange of emails which included an email from Victoria Park dated 10 January 2017 which relevantly stated:
"... As you are aware we recently advertise for a part-time role and 2 casuals to cover week and weekend shifts. Therefore as we now have new staff on the roster Catherine has decided to adjust everyone's hours, not only yours in order to ensure we have permanent staff rostered on the weekends (not just the casuals).
As previously advised, rostering of shifts is based on the operational requirements and budgetary restrictions for both centres. Would you have any availability during the week at all to perhaps increase your availability for shifts.
I would like to sit down with you this week to discuss your emails and concerns. Would you be able to let me know a time/day that suits you to do this?
[4] Mr Wilson's reply, sent on the following day, was as follows (formal parts omitted):
I acknowledge receipt of Yesterday's email and comment as follows.
In reference to the 2nd paragraph of your letter, it is trite to say that the hiring of new staff should not be undertaken and its very necessity questioned, if it is to such an extent that its at the expense and detriment of highly satisfactorily long-standing existing employees.
The considerations mentioned in the 3rd paragraph of your email plainly are not new and where of the same import and relevance as when a mutually agreed formal outcome was reached only last September to place me at the alternate centres and importantly with the retention of my 5.5 hours.
This was precipitated by Catherine's unilateral removal of me from a roster without any consultation or reason.
You and Catherine are both aware that I work full-time during the week and that I do not have availability to perhaps increase your availability' for shifts during the week.
This is a faux offer, made in the knowledge I cannot accept it, designed purely to put an ostensible conciliatory spin on the blatant reneging of the Agreement formally mediated only last September.
In all the circumstances there is in effect and in practical terms, clearly a refusal to abide by the agreed 5.5 hours per weekend shift agreed in September.
In all the circumstances I am compelled to give you my involuntary resignation from employment with the Town of Victoria Park effective immediately.
Your machinations in relation to this matter verge on the deplorable on account of
1. My lengthy years of diligent service including making myself available at negligible notice to replace no-shows
2. The absence of any performance issues on my part
3. The blatant reneging on the settlement terms of an area of previous contention
[5] Victoria Park accepted Mr Wilson's resignation on 16 January 2017.
[6] Section 385(a) of the FW Act requires that, in order for a person to have been unfairly dismissed, the Commission must first be satisfied that the person was dismissed. Section 386(1) defines when a person has been "dismissed" in the following terms:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[7] In the Decision the Commissioner carefully assessed and made findings about the facts in dispute. In relation to the resolution of the September 2016 dispute concerning Mr Wilson's hours, his assessment of the competing witness evidence about what occurred was as follows:
"[52] I also find that nothing was said during the 20 September 2016 meeting to Mr Wilson that would have reasonably allowed him to understand that 5.5 hours per weekend was a guaranteed number of hours for the future. To the contrary, I accept the evidence that in a number of different ways it was explained to Mr Wilson that rostering was a function of the operational needs of the business and that the rosters for casual employees including himself in future will in all likelihood change, and so his hours may change. There was no commitment to Mr Wilson that in future he would always be rostered to work 5.5 hours on weekends."
[8] The Commissioner's ultimate findings and conclusion concerning the circumstances of the termination of Mr Wilson's employment were as follows:
"[112] There is no evidence before the Commission that the Respondent's conduct in this case was intended to bring Mr Wilson's employment to an end.
[113] Nor in my view was the Respondent's conduct or course of conduct, whether considered in totality from mid September 2016 onwards, or only from the time of proposing a new roster in December 2016, such that the resignation of Mr Wilson was the probable result.
[114] At the time Mr Wilson resigned the new roster which had reduced his hours had been operating for nine days. This period only covered one of his rostered shifts which Mr Wilson in any event did not work, having arranged for someone else to work his shift that day.
[115] Mr Wilson had a number of other options rather than resigning at the time he did. Immediately prior to resigning he had been invited to meet with Ms Holt to discuss his emails and his concerns. There was no reason why Mr Wilson could not have done this. There was no reason to believe that such a meeting could not have been helpful given three months earlier when Mr Wilson had concerns about his rosters in September 2016 these were resolved after meeting with the Respondents staff.
[116] If he didn't wish to deal with the matter in this way there were other options open to Mr Wilson rather than resigning when he did. He had the options of pursuing a grievance under the dispute settling procedure in the Agreement or alternatively under the Respondent's own disputes handling policy, either informally or formally.
[117] Even if Mr Wilson's understanding that he had been guaranteed 5.5 hours each weekend into the future was correct, he could have pursued the reinstatement of this arrangement through meetings with the Respondents manager or by pursuing it as a grievance. In any event as I have found above there was no reasonable basis for Mr Wilson to have this understanding.
[118] Mr Wilson had a range of options available to him other than resigning as he did. Mr Wilson's resignation was voluntary. Mr Wilson was not forced to resign because of the conduct or the course of conduct engaged in by his employer."
[9] Mr Wilson's grounds of appeal were as follows:
"1. The Background recited in the learned Commissioners Decision is manifestly incomplete imparting a misleading impression of the pertinent facts resulting in the Appellants constructive dismissal.
2. The learned Commissioner erred in confining his consideration of whether the Respondent had engaged in a course of conduct such that the resignation of Wilson was the probable result, to events in the period mid September 2016 onwards, omitting the total removal of Wilson in early August 2016 from the work roster for all the prospective September 2016 shifts.
3. The learned Commissioner erred in not having full and proper regard to the entire course of the Respondents conduct that culminated in the Appellants constructive dismissal.
4. The learned Commissioner erred in conferring literal credence to the emails sent by the Respondent to the Appellant dated the 5th and 10th days of January 2017 implicitly and explicitly considering them genuine attempts to resolve the Appellants objection to the reneging upon the terms of the September Resolution by the Respondent when they were in all the attendant circumstances mala fides and disingenuous conveying a specious but false accommodation of the Appellants objection
5. The learned Commissioner erred in stating that other options were open to the Appellant to seek a reinstatement of the September Resolution and that he should have availed himself of those when he had in fact instigated an emailed protest in that regard and the Respondents attitude to his request for its reinstatement was clear amounting to a constructive refusal to accede to it. In light of this any pursuit of other options by the Appellant would have been pointless and could reasonably be considered to be superfluous and redundant exercises.
6. The learned Commissioner erred in stating the Appellants email of the 13th September 2016 was simply and solely about transferring him from one centre to the other and that this amounted to an attempt to engineer his constructive dismissal overlooking the material consideration that the Appellants email was equally concerned with and prompted by his omission from all prospective September 2016 shifts.
7. The learned Commissioner erred in placing reliance on terms that were not made to the Appellant by the Respondents staff at the September meeting in that he found no agreements or guarantees were made to him that the hours to be worked as per the September Resolution were guaranteed or to be a permanent arrangement. The preponderance of evidence was that the September Resolution was not qualified or adorned by any terms as to its duration and therefore this is an unwarranted embellishment.
8. By virtue of the parole evidence rule the Respondents claims that there were verbal qualifications to the September Resolution should have been deemed inadmissible in any event as there was adequate written contemporaneous evidence as to its terms."
[10] Mr Wilson contended in his notice of appeal that the grant of permission to appeal would be in the public interest for the following reasons:
"1. If (as in this matter) an Employer reneges upon the fundamental terms of a recently mediated workplace outcome involving a long term casual employee by unilaterally seeking to invoke a significantly adverse variation to such outcome and then constructively refuses to reinstate those terms, does that give rise to a circumstance whereby the employee can successfully claim constructive dismissal.
2. Is an employee obliged to pursue other grievance procedures relating to the same issue when an emailed complaint in relation to it and the ensuing response(s) render it probable or obvious having regard to all the attendant circumstances ,the employees concern will not be addressed and resolved irrespective of the method or procedure utilised by the employee to have his grievance dealt with.
3. If (as in this matter) emails from an employee to his relevant supervisor(s) are an acceptable method of conveying objections in relation to a workplace issue in circumstances where the employer has accepted and acted upon such conveyance previously, and does such previous occurrence preclude the employee from being obliged to avail himself of alternate grievance procedures.
4. Whether the intervention by the learned Commissioner effectively curtailing the cross examination of the Respondents witnesses on the question of the refusal of the Town to issue a reference to the Appellant which was material to the questions of reinstatement and mitigation of loss , gives rise to a reasonable perception that he had predetermined the Applicants application."
[11] An appeal under s.604 of the FW 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.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] This appeal is one to which s.400 of the FW 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.
[13] 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]
[14] 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]
[15] 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.[8]
[16] The appeal grounds which we have earlier set out contend that the Commissioner erred in making significant errors of fact. We are not satisfied that any of these grounds of appeal are arguable. Mr Wilson's case appears to depend on the proposition that the resolution of the September 2016 dispute concerning his working hours was resolved on the basis that he was indefinitely guaranteed 5.5 hours' work per week. The Commissioner, having carefully assessed the competing evidence about this, found that no such guarantee was given, and that to the contrary Mr Wilson was told that as a casual employee his hours might change again in the future according to Victoria Park's operational needs. This was consistent with the basis upon which he was originally engaged. Beyond the assertion that Mr Wilson's evidence should have been preferred, no basis has been demonstrated for considering that the Commissioner's finding about the resolution of the September 2016 dispute was attended by appealable error. Mr Wilson's contention therefore that the proposed alteration to his working hours in late December 2016 represented a repudiation of his employment contract is therefore misconceived.
[17] On the facts as found by the Commissioner, it was simply not open to find that any conduct on the part of Victoria Park had forced Mr Wilson to resign. It was entitled under its employment arrangement with him to alter his hours of work. Once he protested about this, Victoria Park made it clear to Mr Wilson that it was willing to discuss a resolution of the problem (as it had successfully done in September 2016). There are no facts demonstrating or supporting the inference that Victoria Park intended Mr Wilson's employment to terminate or that it foresaw that this would be the likely consequence of its conduct.
[18] Mr Wilson's application was decided on its own facts. The appeal does not raise any issue of importance or general application. There is no arguable case that the Decision was unreasonable, manifested any injustice or was counter-intuitive. The public interest is not enlivened by any of the grounds of appeal.
[19] We are not satisfied that it would be in the public interest to grant permission to appeal. Therefore, as required by s.400(1), permission to appeal must be refused.
[2] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (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] FCAFC 54; (2011) 192 FCR 78 at [44] -[46]
[5] [2010] FWAFB 5343, 197 IR 266 at [27]
[6] Wan v AIRC [2001] FCA 1803; (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 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]
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
Printed by authority of the Commonwealth Government Printer
Marcus Wilson
Town of Victoria Park [2017] FWCFB 3906
(2011) 192 FCR 78
(1989) 168 CLR 210
(2001) 116 FCR 481
(2000) 203 CLR 194
(2011) 85 ALJR 398