MGH Employment and Training Pty Ltd v Knott

Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

BETWEEN: MGH EMPLOYMENT AND TRAINING PTY LTD Applicant

AND: ALEXANDER KNOTT First Respondent

order made by: LOGAN J DATE OF ORDER: 1 FEBRUARY 2022

1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Mr Alexander Knott (Mr Knott) once worked on a casual basis with the present applicant, MGH Employment and Training Pty Ltd (MGH). He did so as a casual employee at MGH's restaurant, Milano. His last shift was on 14 October 2020. He had been undertaking shifts on a casual basis for MGH ever since 3 September 2019. He did so approximately 20 to 30 hours per week prior to the impact of the COVID-19 pandemic. Thereafter, his casual employment pattern changed such that he worked one eight-hour shift per week. All of this he did whilst pursuing his primary calling, which was that of university student. 2 In September 2020, Mr Knott made inquiries of MGH concerning the industrial instrument governing his employment. On 25 September 2020, he sought from MGH a copy of the collective workplace agreement which applied to his employment. He obtained this on 9 October 2020. That led to his querying on 13 October 2020 his rate of pay and how it had been calculated. In turn, this prompted MGH to conduct an audit of Mr Knott's wages history. That resulted on 19 October 2020 in a Mr Darren Latham, the Chief Human Resources Officer (Mr Latham) of MGH advising Mr Knott that he had not been paid the correct hourly rate when performing duties that involved liquor dispensing, and was owed $2,659 gross in back pay. 3 On that date, Mr Knott also asked Mr Latham whether he had been correctly classified under the governing award. Some further correspondence in relation to pay occurred on 23 October 2020 as between Mr Knott and Mr Latham. Mr Knott alleged that on the morning of that same day, ie, 23 October 2020, at about 10 am, he had been telephoned by a Ms Carol Wu, the Venue Manager of Milano, on behalf of MGH. He said that in the course of that conversation Ms Wu raised with him a need to focus on his studies. At about 10 am, Ms Wu sent an email to Mr Knott in these terms: Hi Alex, AS [sic] 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 someone asap. Please let me know when you are finished studies and I will put you back on the books asap. Good luck with your exam and assignment. 4 Mr Latham later that day sent an email to Mr Knott. In the course of that email, he stated: … For shifts this week and moving forward, Carol will assign the correct rate of pay for each shift. … 5 At 5.23pm on 23 October 2020, Mr Knott sent an email to Ms Wu in these terms: Hello Carol, As I also mentioned in our conversation this morning, I am happy to be rostered back on from Sunday the 1st of November. My availability includes: Sunday, Monday and Wednesday all weeks following unless other arrangements are made. Thanks! Alex 6 Matters did not rest there. At 8.12am on 2 November 2020, which was the day after Mr Knott had advised he was available for shifts, Mr Knott sent Ms Wu a message via "WhatsApp" which commenced by saying "Hey la, am I on this weeks roster?" to which Ms Wu replied: "not this week… terry said you came to see me?". 7 Further events followed as related in the reasons of the Federal Conciliation and Arbitration Commission, presently known as the Fair Work Commission (Industrial Commission), at [15] - [26]: [15] Mr Knott's unchallenged evidence is that on 10 December 2020 he discovered that on 4 December 2020 he had been removed from the Respondent's staff management group chat and HumanForce (the shift management software used by the Respondent). On 10 December 2020 Mr Knott sent an email to Ms Wu at 9.16 pm (10 December Email). That email refers to a telephone conversation between Mr Knott and Ms Wu and "reiterate[s] what was discussed." In that email Mr Knott says that he contacted Ms Wu at 6.30 pm that evening and advised her he was ready to return to Milano after his final examination. Ms Wu advised him there was no availability as she had hired and transferred new staff. The email says that Mr Knott then telephoned Ms Wu again at 7.00 pm and expressed his disappointment at the "handling of the situation" and particularly his removal from the staff group chat saying: "At 7 pm, I called you again. I expressed my disappointment in the handling of the situation; in particular, you removing me from the staff group chat without my knowledge or any indication of why (4/12/2020). As a result, it would seem I have no position to return to,…" [16] In the 10 December Email Mr Knott also says that "Since I had challenged issues around my legal pay entitlements, my work opportunities at Milano have dried up." [17] On 14 December 2020at 9.02 am Ms Wu wrote to Mr Knott in the following terms: "Dear Alex, Your email to me last week came as a shock to be honest. My views on prioritising your study and exams over casual work (1 shift per week) was genuine and sincere. And I stand by it. It's the approach I have taken with other junior staff who are also students. That aside, I needed to have more staff available particularly through November and December. That's how the venue operates in the lead up to the Christmas season every year. And that's why I have recruited more staff since we last spoke. Thanks for letting me know that you are ready to re-start work again but, as I mentioned earlier, there are no shifts currently available for you. It is as simple as that, and not something underhanded like you have insinuated (which I absolutely deny). I will certainly let you know when future shifts come available. I have spoken with the payroll team about the other issue you raised. The summary is: 1. I confirm that all wages owed to you have now been paid. There are no other outstanding wages payable. To be clear about your Level, you are not employed in Milano at Level 2. I employed you at Introductory Level. 2. Superannuation amounts are paid quarterly, and the next payment date is 28.01.2021. The amount to be paid to you on this date will be based on wages that have now been paid. 3. Future shifts and wages that you earn will be included in the next scheduled quarterly Superannuation payment after those shifts. Alex, if you want to discuss anything at all please give me a call. I will be sure to contact you about future shifts available too. Regards, Carol" [18] Mr Knott replied at 12.27 pm as follows: "Dear Carol, Could you please explain why I am removed from the Milano staff group chat and my Humanforce employee profile has been terminated? Thanks, Alex Knott" [19] Ms Wu responded at 9.46 pm as follows: "Hi Alex, The reason I removed you from the group is because we had so much change and updates occur over the past few months that I did not want to confuse you when you returned. You are not the only person that this applies to; it has happened in our kitchen group chat as well. Staff that return to work will be added to the group again. As for humanforce, I did not know this happened since you mentioned it. I cannot delete staff from the system under my access permissions at venue level. There is an updated version of humanforce being implemented across the business, but I am not sure is it because of this. I will find out." [20] Mr Knott responded at 10.02 pm as follows: "Hi Carol, That doesn't make any sense to me. If you intent on having an employee back at your venue, why keep them out of the loop? Why wouldn't you want the[sic] to have all updated information. Could you please add me back to the group so I can be updated on everything? Thanks, Alex Knott" [21] At 10.06 am the following day, 15 December 2020 Ms Wu replied saying: "Hi Alex, I hear your request but it is declined. I determine how staff are managed within the venue and in this online group. thanks Carol" [22] Mr Knott responded saying: "Hi Carol, In which case, do I still have a job? Considering I'm no longer a member of the staff group chat and my humanforce employee login has been terminated. Thanks, Alex Knott" (15 December Email). [23] No response was received to the 15 December Email. [24] On 21 December 2020 Mr Knott wrote a lengthy email to Mr Latham raising a number of issues including alleged underpayments, misclassification, his failure to be rostered again after 1 November 2020 and the "unavailability" of shifts for him, his removal from the group chat and HumanForce with loss of his historical pay records and the failure to respond to his email of 15 December 2020. [25] On 24 December 2020 at 9.09 am Mr Latham responded to Mr Knott stating, amongst other things, that the telephone call to Ms Wu on 10 December 2020 had caused her significant distress and harm and that Mr Knott was to "cease and desist contacting the management team and Milano venue staff for any reason." [26] Mr Knott responded to that email shortly thereafter refuting that, inter alia, he had caused any distress to Ms Wu and also saying, relevantly, "Based on my interpretation of your cease and desist directive, I have been dismissed by MGH as of 24/12/2020. As such, I will now be pursuing an adverse action application involving unfair dismissal." [footnote references omitted] See Alexander v MGH Employment and Training Pty Ltd [2021] FWC 2448. 8 It is not necessary to set out all of what the Industrial Commission then found, only to record that, that, having considered the course of events between September 2020 and December 2020, the Commission concluded that the effective date of Mr Knott's dismissal was 24 December 2020. That was an important finding because, as the Industrial Commission was well aware - as paragraph 1 of the Industrial Commission's reasons reveals, the Deputy President was well aware, in the absence of an extension of time, Mr Knott's application under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Industrial Commission to deal with a general protections dispute had to be made within 21 days after the dismissal took effect: see s 366. 9 MGH had a quite different view as to when the dismissal of Mr Knott had occurred. Its view was that the dismissal had occurred on 14 October 2020, such that the application under s 365 of the Act was, in the absence of an extension of time, incompetent. MGH lodged an appeal under s 604 of the Act. Such an appeal lies only with the permission of the Industrial Commission. MGH identified the following as grounds of appeal: 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. 10 In the result, the Full Bench (Vice President Catanzariti, Deputy President Clancy, Commissioner Lee, Commissioner Mirabella) refused permission to appeal: MGH Employment and Training Proprietary Limited v Knott (see 2021/2871, 3 August 2021). 11 MGH has now invoked the original jurisdiction of this Court under s 39B of the Judiciary Act 1903 (Cth), so as to claim the following relief: 1. A Writ of Certiorari or an order in the nature of Certiorari to remove into this Honourable Court the proceedings in matter Fair Work Commission reference C2021/2871 ('the Proceedings') subject of the decision of the Full Bench of the Second Respondent made on 3 August 2021 for the purpose of quashing the decision. 2. A Writ of Mandamus or an order in the nature of Mandamus commanding the Second Respondent to hear and/or determine the Proceedings in accordance with law. 12 The original jurisdiction of the Court in respect of such a proceeding might be exercised by a Full Court, but in this case, the Chief Justice has not so determined. In order for MGH to succeed, it is incumbent upon it to demonstrate jurisdictional error on the part of the Full Bench. It is emphatically not the case - and this was well understood by Mr Harding of counsel in his submissions - that this Court exercises an appellate jurisdiction with respect to the Full Bench. 13 There is a well-recognised difference between the exercise of an appellate jurisdiction and supervision of an inferior court or tribunal or administrative decision-maker by way of what in modern times is termed a constitutional writ: see generally Craig v South Australia (1995) 184 CLR 163. The task of the Full Bench in respect of a proceeding under s 604 of the Act was to identify whether there was error on the part of the Industrial Commission in its original jurisdiction, and also to make an evaluative judgment as to whether that warranted the granting of permission to appeal. See as to the nature of an appeal to the Full Bench: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 (Coal and Allied Operations). 14 The Industrial Commission, as is both orthodox and proper, has adopted the stance with respect to the present application of abiding the order of the Court. So too, as is his perfect right, has Mr Knott adopted that stance. The absence of an active contradictor does not, of course, mean that the application must succeed, although it does place additional burden on the part of counsel for the applicant in terms of identifying both the strengths and weaknesses of the case to be put for the applicant. Mr Harding undoubtedly rose to this challenge. 15 The reasons for the Full Bench refusing permission are, with respect, compressed but not necessarily the worse for that. In respect of the grounds of appeal, the Full Bench stated at [23] - [25]: [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. 16 Earlier in its reasons, the Full Bench addressed what it understood to be the principles governing an appeal. It stated at [13] - [15] the following: [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. 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. The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia [sic] 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 ..." [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. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. [footnote references omitted] 17 That statement of principle appears to me, with respect, to be entirely orthodox. In particular, the Full Bench patently well understood the nature of the appellate jurisdiction consigned to it as not being materially different to that described by the High Court in Coal and Allied Operations. 18 The Full Court's judgment in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385 (Bianco Walling) contains at [101] - [113] a comprehensive survey of pertinent authority in relation to the subject of the establishment of jurisdictional error with respect to a decision of a Full Bench. I incorporate that survey by reference, without setting the same out in full. 19 In that survey is to be found observations made by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 (Re Commonwealth of Australia; Ex parte Marks) in relation to an application for an extension of time within which to apply for an order nisi for constitutional writs directed to the Industrial Commission. His Honour referred to Coal and Allied Operations, and thereafter at [23] - [24], under the heading "The Full Bench Understood its Role on Appeal" stated: The Full Bench's role in the applicant's section 45 appeal was to ascertain whether or not Commissioner Jones had made an error in dismissing the applicant's application under section 170CE. As Gleeson CJ and Gaudron and Hayne JJ noted in Coal and Allied, an appeal under section 45 "is properly described as an appeal by way of rehearing", and the powers under section 45(7) "are exercisable only if there is error on the part of the primary decision-maker". And then continuing in [23]: That is so "regardless of the different decisions that may have been the subject of an appeal under section 45". And then [24]: In my view, there can be no doubt that the Full Bench understood that its function was to ascertain whether or not Commissioner Jones had made a relevant error. The Full Bench considered the applicant's grounds of appeal and concluded that, in respect of each of them, Commissioner Jones did not relevantly err. If the Full Bench was wrong to reach this conclusion, then that was an error of law within jurisdiction. (Footnotes omitted - emphasis in original). 20 These observations were quoted with approval by Buchanan J in Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, at [57], one of the authorities in turn cited in the comprehensive survey offered by the Full Court in Bianco Walling. 21 Regard to the authorities in that survey also discloses a statement of principle with respect to jurisdictional error by Jordan CJ in Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, at 420, in which the Chief Justice stated: … I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise and to apply "a wrong and inadmissible test"; or to "misconceive its duty" or "not to apply itself to the question which the law prescribes"; or "to misunderstand the nature of the opinion which it is to form" in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law. [references omitted] 22 Mr Harding of counsel, in the course of an exchange concerning whether the Full Bench had committed jurisdictional error, submitted that the present case was one where an error of a similar kind to that discerned by the Full Court in Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591 had been committed. In that case, as [9] of the report reveals, and perhaps, with respect, oddly, a Full Bench had determined that the date of dismissal in respect of an application under s 365 was to be ascertained by reference to the date of dismissal that had been alleged by the applicant on his application, irrespective of whether the allegation was correct in fact. Unsurprisingly, with respect, the Full Court concluded that the Industrial Commission had failed to address whether there was, in fact, a dismissal in respect of which an application had been made within the specified 21-day period upon which its power to "deal with the dispute" under s 368 of the Act depended. 23 There was no such misapprehension by the Industrial Commission in this case. In the original jurisdiction, the Industrial Commission squarely addressed whether or not there had been a dismissal and when that dismissal had occurred. 24 But the present case is not concerned with whether or not there was jurisdictional error on the part of the Industrial Commission in its original jurisdiction, but rather whether the decision of the Full Bench is attended with jurisdictional error. The difficulty about establishing that is that it is patent that the Full Bench understood the task that fell to it under s 604 of the Act. Yet further, the Full Bench expressly addressed the articulated grounds upon which it was said that the decision of the Industrial Commission was attended with error. 25 Both in the original jurisdiction of the Industrial Commission and before the Full Bench, MGH went to some considerable trouble to explore the subtleties in law as to when a dismissal of a casual employee occurred. 26 In the Industrial Commission, Deputy President Young determined this question on the facts and by reference to an earlier decision of the Full Bench, Ayub v NSW Trains [2016] FWCBFB 5500 (Ayub), at [48] and [49], and a decision of Deputy President Gooley in Andrew Kim v ORC International Pty Ltd [2016] FWC 1029, at 49. In the latter, Deputy President Gooley had observed that it is often difficult to determine when a casual employee's employment is, in fact, terminated. In the present case, Deputy President Young's conclusion was that Mr Knott had not been dismissed on 23 October 2020. 27 In turn, and as [24] of its reasons reveals, the Full Bench was not persuaded that Deputy President Young had erred in finding that the date of dismissal was 24 December 2020. Its conclusion was that the law had been applied in an orthodox manner in determining that the employment relationship had ended on that date. 28 As it transpired, the High Court, on the very day after the Full Bench gave its decision in the present case, gave judgment in WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 (WorkPac v Rossato). In that case, overturning a judgment of a Full Court of this Court, the High Court emphasised the primary importance of the contract governing the relationship between parties in relation to determination of whether or not a person was or was not a casual employee. It may very well be that what was said by the Full Bench in Ayub requires reconsideration in light of the statements made by the High Court in WorkPac v Rossato concerning casual employment. It may also be that statements made by the Industrial Commission in Milford v Coles Supply Chain Pty Ltd trading as Coles Heathwood Distribution Centre [2019] FWC 4892, a case referred to on behalf of MGH in submissions, challenge an uncritical application of Ayub in any event to casual employment cases. But the critical point for present purposes is that any error of law made by the Full Bench in its statement that Deputy President Young had applied the law in an orthodox way was an error within jurisdiction. The case is exactly the same as that which attracted the like emphasis by McHugh J in Re Commonwealth of Australia; Ex parte Marks. 29 It was put on behalf of MGH that it is a jurisdictional error for an inferior court or tribunal or decision-maker to fail to address a serious submission required to be addressed in order to discharge a statutory function so it can be: see notably Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov), at [24] and [95]. But the task here of the Full Bench, in accordance with the practice governing an appeal to the Full Bench, was to address the grounds of appeal as specified in the notice of appeal. This the Full Bench did. Any error of law which it made in relation to the law with respect to termination of casual employment in so doing was an error within jurisdiction. 30 There was also some agitation about whether the Full Bench had erred in refusing to admit on the hearing of the appeal evidence from Ms Wu. Ms Wu had not given evidence in the original jurisdiction of the Industrial Commission, nor had, as the Full Bench noted, at [19], there been any explanation given as to her absence. The findings of fact which Deputy President Young made were made on the basis of the evidence before her Honour, which did not include any evidence from Ms Wu. 31 The Full Bench addressed whether or not to admit on appeal evidence from Ms Wu. It concluded, having regard to the content of the evidence sought to be adduced, that the evidence was not highly probative such that there was a probability of a different outcome in the original jurisdiction. Once again, the Full Bench turned its mind to the question of whether or not to admit that evidence. Any error that it made in deciding whether or not to admit that evidence was an error within jurisdiction. As it happens, the decision of the Full Bench not to admit Ms Wu's evidence looks to me to be entirely unremarkable. However that may be, any error was an error within jurisdiction. 32 The present is not a case akin to Dranichnikov. In Dranichnikov, the administrative decision-maker was required to determine a particular claim by reference to its integers. As the dissent of Gleeson CJ in that case reveals, it was by no means an easy task to determine, having regard to the lay formulation of the relevant claim, what those integers were. However, the view reached by the majority was that an integer of a claim had not been addressed such that there had been a constructive failure to exercise jurisdiction. An alternative way in which the jurisdictional error concerned was formulated, as indeed a case could be formulated in respect of a Full Bench decision, was that there had been a failure to afford procedural fairness by failing to address a particular integer. 33 In this case, however, the relevant parameters were defined by the grounds of appeal. Those grounds, it is true, contained a level of generality which evidently was developed in submissions made to the Full Bench. But even as developed the Full Bench sufficiently addressed submissions concerning the law with respect to termination of casual employment for jurisdictional error purposes in its observation that the law had been applied in an orthodox way in the original jurisdiction by Deputy President Young, self-evidently incorporating by reference her Honour's reference to authority. Thus, however one approaches the case, it is one where whatever error was committed by the Full Bench was an error within jurisdiction. It necessarily follows that the application must be dismissed. 34 The only order that I make is that the application be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.