Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 2498 of Deputy President Young at Melbourne on 13 May 2021 in matter number C2021/17 - permission to appeal refused.

[1] MGH Employment and Training Pty Ltd (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 Young (the Deputy President) issued on 4 May 2021. The Decision dealt with an application brought by Mr Alexander Knott (the Respondent) under s 365 of the Act for the Commission to deal with a general protections dispute involving dismissal.

[2] In the matter at first instance, the Appellant raised a jurisdictional objection to the Respondent's application on the basis that it was made out of time. The Deputy President found that the Respondent's application was made within time.

[3] The matter on appeal was subject to a telephone hearing on 5 July 2021. The Appellant sought permission to be legally represented. The Full Bench granted the Appellant permission to be legally represented pursuant to s 596(2)(a) of the Act. Accordingly, Mr A Harding of counsel, instructed by Mr J Harding of Gifford Legal represented the Appellant. The Respondent appeared on his own behalf.

[4] The Full Bench has heard the parties on the issue of permission to appeal only. For the reasons that follow, permission to appeal is refused.

[5] In the matter at first instance, the Respondent contended that his dismissal took effect on 24 December 2020. The Appellant contended that the Respondent was dismissed on 23 October 2020. The Respondent lodged his s 365 application on 3 January 2021. Section 366(1) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Accordingly, if, as contended by the Respondent, he was dismissed on 24 December 2020, then his application was made within time. However, if, as contended by the Appellant, his dismissal took effect on 23 October 2020, then the application was lodged out of time.

[6] The Respondent was a university student at the time he commenced employment with the Appellant and was a student throughout his employment. The Respondent was engaged as a casual employee at the Appellant's restaurant, Milano. The Appellant last worked for the Respondent on 14 October 2020. The Respondent's evidence was that prior to late March 2020, he worked approximately 20-30 hours per week but with the onset of the COVID-19 pandemic, he only worked one eight-hour shift per week.

[7] Prior to 23 October 2020, the Respondent requested a copy of the collective workplace agreement (the Agreement) which applied to his employment with the Appellant. After being provided with the Agreement, the Respondent queried his rate of pay. He also queried with Mr Latham, Chief Human Resource Officer of the Appellant, whether he was classified correctly under the relevant award.

[8] On 23 October 2020, the Respondent received an email (the 23 October Email) from Carol Wu, the venue manager at Milano, which reads as follows:

As discussed this morning, I don't want you to risk your Uni works, and we are very busy for the next couple of weeks with AFL grand final and Queen St Mall Shopping Promotions.

And then we have Melbourne Cup and Wallabies rugby at Suncorp Stadium. I am really struggling with staff who are available and need to hire some asap.

Please let me know when you are finished studies and I will put you back on the books asap.

[9] On the same day, the Respondent emailed Ms Wu words to the effect that he was happy to be rostered back on from Sunday the 1st of November 2020. The Respondent also provided his availabilities for every week.

[10] The Respondent was not offered any more shifts after 1 November 2020. The Respondent and Ms Wu engaged in a series of communications via both telephone and email. Amongst other things, the Respondent complained that he was not offered any more work after querying his pay and classification. On 15 December 2020, he sent an email to Ms Wu querying whether he still had a job. He received no response to this email. On 21 December 2020, the Respondent emailed Mr Latham to ventilate the issues he had raised with Ms Wu. Mr Latham responded on 24 December 2020, stating, amongst other things, that a telephone call made by the Respondent to Ms Wu on 10 December 2020 had caused her significant distress and harm. Furthermore, Mr Latham directed the Respondent to "cease and desist contacting the management team and Milano venue staff for any reason." The Respondent responded shortly thereafter, indicating that he understood he was dismissed by the Appellant as of 24 December 2020 and that he would pursue an adverse action application.

[11] The Deputy President set out the relevant case law regarding when a dismissal takes effect[2] and found that the Respondent was not dismissed on 23 October 2020 by the 23 October Email. The Deputy President relevantly found:

• The 23 October Email did not in its express terms, state that the Respondent had been dismissed or that his employment was terminated.

• The phrase "I will put you back on the books asap" was ambiguous and could not be said to have plainly or unambiguously communicated to the Respondent that his employment had ended. The Deputy President considered, given all the circumstances, that being put "back on the books" is an acknowledgement that the Respondent was temporarily unavailable for shifts rather than indicating that his employment had ended.

• The Respondent's status as a casual employee does not affect the conclusion that his employment had not ended. The Deputy President acknowledged the orthodox approach to casual employment whereby each engagement is under a separate contract of employment. Accordingly, there was no contract of employment on foot when the Respondent finished his last shift on 14 October 2020. However, a dismissal takes effect when the employment relationship has ended. The Deputy President then rejected the contention that Ms Wu dismissed the Respondent in the 23 October email so as to cause the employment relationship to come to an end.

• The Deputy President noted that Ms Wu was not called to give evidence at the hearing despite still being employed by the Appellant. No explanation was given for the failure to call Ms Wu and the Deputy President considered this failure to be of considerable relevance.

[12] The Deputy President found that the email of 24 December 2020 brought the employment relationship to an end. Accordingly, the Respondent was dismissed by the Appellant with the effective date of dismissal being 24 December 2020. Therefore, the Deputy President found that the Respondent's s 365 application was lodged within time.

[13] 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.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[14] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issue 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..."[7]

[15] 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.[8] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

Whether the Full Bench should receive further evidence in the appeal

[16] Before turning to consider the grounds of appeal advanced by the Appellant, we firstly deal with whether the Full Bench should receive new evidence that the Appellant seeks to adduce on appeal. Section 607(2) of the Act provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence, however it is by no means a matter of course that it will do so.

[17] It is uncontroversial that the exercise of discretion to admit new evidence or to consider further material is governed by the principles set down in Akins v National Australia Bank[9] (Akins) in which the New South Wales Supreme Court identified three conditions that it would need to be satisfied of before the discretion might be exercised to admit further evidence. Firstly, it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance. Secondly, it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance. Thirdly, the evidence must be credible[10].

[18] The evidence that the Appellant seeks to adduce on appeal is a statement of Ms Carol Wu. Having reviewed the additional material the Appellant seeks to adduce on appeal we decline to admit that evidence. Our reasons are as follows.

[19] Firstly, this evidence was clearly available to the Appellant and could have been adduced with reasonable diligence in the proceedings before the Deputy President. As the Deputy President notes in the Decision, Ms Wu was still employed by the Respondent at the time the proceedings at first instance took place and there was no explanation given for the Appellant's failure to call Ms Wu to give evidence.

[20] Secondly, we are not persuaded that the evidence is highly probative such that there is a probability a different outcome would have resulted at first instance. The evidence that the Appellant is seeking to adduce contains Ms Wu's subjective interpretation of the events that transpired between herself and the Respondent. The Deputy President's task at first instance was to find, on an objective basis, when the Respondent's dismissal took place. We are not persuaded that Ms Wu's evidence, being her own subjective views of what took place, is evidence that is highly probative such that there is a probability the Deputy President would have reached a different outcome at first instance.

[21] Given our above findings, there is no need to consider the credibility of the evidence. We refuse leave for the Appellant to adduce further material.

[22] The Appellant's grounds of appeal are as follows:

1. The Commission did not make any findings relevant to a determination whether to extend time under s 366(2) of the Act.
2. Therefore, the Commission has no jurisdiction to deal with the application under s 365 of the Act unless the application was made within 21 days after the dismissal took effect.
3. The Commission member erred in finding that the date of dismissal was 24 December 2020.
4. The Commission thereby erred in deciding that it had jurisdiction to deal with the application.

[23] We are not satisfied that there is an arguable case of appealable error in relation to any of the above appeal grounds. Regarding the first two appeal grounds, the Deputy President did not make any findings relevant to a determination whether to extend time because she had reached the conclusion that the application was made within time.

[24] Regarding the third and fourth appeal grounds, we are not satisfied that the Deputy President erred in finding that the date of dismissal was 24 December 2020. In written and oral submissions, the Appellant contends that the Respondent's employment relationship ended with the termination of the final employment contract on 14 October 2020 and that the Deputy President erred in finding that the employment relationship ended on 24 December 2020. We are not satisfied that the Appellant has identified an error in the Deputy President's reasoning or the conclusion she reached. The Deputy President applied the law in an orthodox manner in determining that the employment relationship ended on 24 December 2020.

[25] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied 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 when compared with other decisions dealing with similar matters.

[26] For the reasons set out above, we are not satisfied, for the purpose of s 604(2) of the Act, that it would be in the public interest to grant permission to appeal.

Mr A Harding of Counsel and Mr J Harding for the Appellant.

[1] Alexander Knott v MGH Employment and Training Pty Ltd [2021] FWC 2498.

[3] 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).

[4] O'Sullivan v Farrer (1989) 160 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] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[7] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

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

[9] (1994) 34 NSWLR 155

[10] Cited in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936.

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