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[25]
[2022] FWCFB 116
General information, not legal advice.
Fair Work Commission (Full Bench)
2022-07-01
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [2022] FWC 542 of Deputy President Lake at Brisbane on 10 March 2022 in matter number C2021/7234 - permission to appeal refused.
[1] Mr Rhidian Lloyd Cody (Mr Cody) 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 of Deputy President Lake issued on 10 March 2022 in matter number C2021/7234 (the Decision).[1]
[2] The Decision dealt with an application made by Mr Cody on 26 October 2021 under s.365 of the Act in which Mr Cody alleged that he was dismissed by Stratacache Australia Pty Ltd (Stratacache) in contravention of the general protections' provisions of the Act. Mr Cody maintained that his application was made within 21 days after the dismissal took effect as required by s.366(1)(a) of the Act and submitted that his dismissal took effect on 5 October 2021, the date he received written notice of termination from Stratacache. In his Decision, the Deputy President determined the date of dismissal to be 28 September 2021 and not 5 October 2021, as Mr Cody contended. Having determined the date of dismissal, the Deputy President found that the application was filed seven days outside the statutory time frame. The Deputy President was not satisfied having considered the factors in s.366(2) that there were exceptional circumstances warranting an extension of time to make the application and accordingly, Mr Cody's application was dismissed.
[3] The matter was listed for permission to appeal only. On 7 April 2022, directions were issued for the filing of material and the matter was listed for hearing on 12 May 2022. On 12 April 2022, Mr Cody provided consent for the matter to be determined on the papers and the hearing was subsequently vacated. We are satisfied that the matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.
[4] The Decision begins by considering the date of the Appellant's dismissal. A summary of the events around the time of the Appellant's dismissal is as follows:
On 28 September 2021, Mr Cody attended a meeting with Stratacache. During the meeting Mr Cody was informed that Stratacache had made the decision to terminate his employment effective immediately, due to performance concerns and his absence from work. Stratacache also indicated that if Mr Cody wished to resign, he could do so within the next 24 hours and they would process the termination as a resignation.
Mr Cody did not respond within the 24-hour period, and accordingly on 29 September 2021, Stratacache sent a follow up email to Mr Cody requesting he respond. No response was received and a further follow up email was sent on 2 October 2021, whereby Mr Cody was informed that if he did not clearly inform Stratacache of his decision, they would have no option but to proceed with the termination process.
Mr Cody submitted that from 28 September to 5 October 2021 he continued working for Stratacache. However, Stratacache denied this and submitted that the Appellant was removed from email and all other systems following the termination discussion on 28 September 2021.
• On 3 October 2021, Mr Cody replied to Stratacache's emails stating that he had decided to acquiesce to the termination, rather than resign. Mr Cody also clearly acknowledged in his email that "it has been made very clear to [him] in the virtual meeting on September 28, 2021, that the management decision to terminate him was final."[2]
[5] The Deputy President began by setting out Mr Cody's position. Mr Cody submitted that he was not dismissed until 5 October 2021 on the basis that an initial call was held on 28 September 2021 in which he was informed of an "impending dismissal." Mr Cody said it was not clear that his employment was terminated during that call. That is particularly so given Mr Cody's employment contract stipulated that "the agreement may be terminated... by giving written notice"[3] and that written notice was not provided until 5 October 2021. Mr Cody also relied on s.117(1) of the Act which provides that a notice of termination is to be delivered in writing and that none of the exceptions to this provision are applicable to him. Further, Mr Cody referred to s.117(2)(b) and submitted that he had not received notice of payment in lieu until 8 October 2021 and was only paid on 15 October 2021.
[6] Mr Cody submitted after the meeting on 28 September 2021 he was given a time during which Stratacache had indicated he could opt to resign instead of being dismissed and that he did not stop performing his duties until 5 October 2021 when he received the termination letter. Mr Cody submitted that he received the letter of termination via email on 5 October 2021 and the letter was backdated to 28 September 2021.
[7] Ultimately, Mr Cody submitted that the earliest date which could be considered the effective termination date, is 5 October 2021 and his application is therefore lodged in time. However, if the Commission finds that he was terminated on 28 September 2021, an extension ought to be granted because exceptional circumstances exist.
[8] The Deputy President then turned to Stratacache's position. Stratacache submitted that the jurisdictional objection should be upheld on the basis that the application was made out of time and no exceptional circumstances exist.
[9] Stratacache submitted that Mr Cody was fully aware that his employment was terminated with immediate effect on 28 September 2021. Submitting that they communicated the reasons for the decision to Mr Cody during the meeting and told him that they would issue a termination letter immediately after the meeting. Stratacache submitted that Mr Cody was also informed during the meeting that he would receive four weeks' pay in lieu of notice. Stratacache argued that it cannot be penalised for accommodating in good faith Mr Cody's request to provide him time to tender his resignation instead of being terminated.
[10] Taking both parties submissions into account, the Deputy President accepted that Mr Cody was notified of his dismissal on 28 September 2021. In reaching that decision, the Deputy President accepted Stratacache's evidence which indicated that it was clear to Mr Cody that the decision to terminate his employment was effective immediately with notice to be paid in lieu. Further, the Deputy President found that it was uncontested that Mr Cody did not respond within the 24 hours period and that Stratacache made additional follow up attempts in the days leading to 3 October 2021, in which Mr Cody indicated that he decided to "acquiesce" to the termination rather than resign.
[11] Mr Cody's witness evidence was relevant to this finding, when giving evidence on the meeting of 28 September 2021, he stated:
"This was - it seemed strange to me that the decision was final at that point and, you know, that was one thing that was made clear. What wasn't made clear was that that decision, you know, took effect, effectively, right at that moment, it was that the termination was impending and was due to happen, which you know, which did actually. I received the termination letter then on 5 October, as I expected."[4]
[12] Given this finding, Mr Cody's application was made out of time and the Deputy therefore turned to consider whether a further period of time should be granted by taking into account the factors in s.366 of the Act.
[13] First, the Deputy President considered Mr Cody's reason for delay in making the application. Mr Cody submitted that he did not appreciate that his termination was effective on 28 September 2021 and had he appreciated this, he would have lodged his application in time. The Deputy President rejected this submission finding that Mr Cody could not have reasonably held this view, given the unequivocal nature of the conversation on 28 September 2021. The Deputy President was therefore not satisfied that any exceptional circumstances had been evidenced.
[14] Next, the Deputy President found that Mr Cody did not dispute the dismissal, apart from an email dated 3 October 2021 in which Mr Cody asserted his view of his performance and offered explanations for the issues that had been raised by Stratacache. Ultimately, the Deputy President considered this attempt to be futile as Stratacache had already made its decision.
[15] The Deputy President found the merits of the application to be a neutral factor, as Mr Cody did not make out his general protections application in any detail. Similarly, prejudice to the employer and fairness between the person and others in a like position, were neutral considerations as neither party made submissions on these factors.
[16] Ultimately, the Deputy President was not satisfied that exceptional circumstances existed to warrant the granting of an extension of time, and he dismissed Mr Cody's application.
[17] 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.[5] There is no right to appeal. An appeal may only be made with the permission of the Commission.
[18] 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.[6] The public interest is not satisfied simply by the identification of error,[7] or a preference for a different result.[8] 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 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..."[9]
[19] 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.[10] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[20] 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.[11] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[21] Mr Cody relies on his application as his submissions for permission to appeal and contends that the 28 September 2021 was the first date of any mention of a termination of employment. Written confirmation of termination of employment was received on 5 October 2021 and it is this date that Mr Cody took to be his last day of employment. He states that correspondence between the two dates did not confirm a termination date.
[22] Further, Mr Cody refers to s.117(1) of the Act, his contract of employment which provides for 30 days' notice and the Fair Work Ombudsman website in support of his contention that termination of employment requires written notice, and the termination takes effect when payment in lieu of notice is made. He submits that he did not receive any payments until 15 October 2021. However, based on the evidence before the Commission, it appears that Mr Cody received full payment of the notice owed to him upon termination.
[24] Mr Cody submits an appeal is in the public interest as the decision is contrary to s.117(1) of the Act and current authorities, and if not corrected by appeal, the decision will create confusion.
[25] Stratacache submits that the Deputy President's findings should not be disturbed. They assert that the Deputy President's finding on the date of dismissal is consistent with the documentary and witness evidence. In relation to Mr Cody's submissions concerning s.117(1) of the Act, they submit that Mr Cody is incorrect, as compliance with s.117 of the Act is not required for the termination to take effect. The Respondent relies on Metropolitan Fire and Emergency Services Board v Garth Duggan[12] and Inna Grabovsky v United Protestant Association of NSW Limited T/A UPA[13] to support this position. Finally, Stratacache submits that permission to appeal should not be granted as there is no appealable error and there is no public interest in granting permission to appeal.
[26] Having regard to appeal ground 1, we note that Mr Cody refers to Melbourne Stadiums Ltd v Sautner[14] and Cerin v ACI Operations Pty Ltd & Ors[15] in support of his submissions on the date of dismissal. We have considered these decisions and find that they do not assist on the points raised by Mr Cody.
[27] Mr Cody also tendered Patrone v Unique Muscle Pty Ltd[16] following receipt of Stratacache's submissions. This decision identifies the different circumstances in which a dismissal takes effect. Relevantly, in that decision Deputy President Asbury found that termination of employment was not of immediate effect, but rather two weeks after receipt of the letter of termination of employment. However, we find that the circumstances of that case can be distinguished from the facts in this appeal, as Mr Cody was dismissed immediately with notice to be paid in lieu and the delay in payment was largely due to the timeframe granted to Mr Cody to advise whether he preferred to resign.
[28] Further, we find that the Deputy President's determination of the date of dismissal was sound and reasonably open to him on the evidence before him. The Deputy President appropriately considered the submissions and evidence of both parties and applied the law in an orthodox manner. We are therefore not satisfied that his finding on the date of dismissal raises an instance of appealable error.
[29] Turning to appeal ground 2, which concerns s.117 of the Act, Stratacache relevantly referred to Metropolitan Fire and Emergency Services Board v Garth Duggan.[17] In that decision, a Full Bench of the Commission found that the purpose of s.117 is to ensure that employees are given clear and adequate notice, or payment in lieu of notice of their termination.[18] The Full Bench further summarises that notice to dismiss the employment relationship remains valid even if notice of termination did not comply with s.117. Relevantly, the Full Bench stated:
"it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact."[19]
[30] Therefore, we are not satisfied that the Deputy President incorrectly applied or failed properly consider s.117 of the Act in determining the date of the Appellant's dismissal.
[31] The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an appeal should be granted. We are satisfied that the Deputy President has not erred in the application of the principles to the facts and evidence as presented to him.
[32] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
there is a diversity of decisions at first instance so that guidance from an appellate body is required;
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 were disharmonious when compared with other decisions dealing with similar matters.
[33] Permission to appeal is refused.
[1] Rhidian Lloyd Cody v Stratacache Australia Pty Ltd [2022] FWC 542 ('the Decision').
[5] 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).
[6] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 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].
[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].
[8] Ibid 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].
[9] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].
[10] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].
[11] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[16] Maria Florencia Patrone v Unique Muscle Pty Ltd [2022] FWC 319.
Printed by authority of the Commonwealth Government Printer
Rhidian Lloyd Cody
Stratacache Australia Pty Ltd [2022] FWCFB 116
(2000) 203 CLR 194
(1989) 168 CLR 210
(2011) 243 CLR 506
(2011) 192 FCR 78
(2011) 192 FCR 178
(2001) 116 FCR 481