| [2021] FWCFB 1413 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Kym Wheare
v
Hi Trans Express
(C2021/196)
VICE PRESIDENT CATANZARITI |
SYDNEY, 16 MARCH 2021 |
Appeal against decision [2020] FWC 7068 of Deputy President Anderson at Adelaide on 24 December 2020 in matter number U2020/14174 – permission to appeal refused.
[1] Mr Kym Wheare has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 by Deputy President Anderson made on 24 December 2020 (Decision), for which permission to appeal is required.
[2] The Decision concerned an application by Mr Wheare under s.394 of the Act for an unfair dismissal remedy in respect of work he performed for Hi Trans Express (the Respondent).
[3] In his Form F7 - Notice of Appeal, Mr Wheare contends that the Decision of the Deputy President was unfair and in error in a number of respects, and that it would be in the public interest to grant permission to appeal the Decision.
[4] There is no right to appeal a decision of the Commission and for an appeal to proceed s.604(1) of the Act requires the Commission to grant permission. Appeals against an unfair dismissal decision are also subject to s.400(1) of the Act which provides that permission to appeal is only available where the Commission considers that it is in the public interest to grant permission; and further where an error of fact is alleged it must be a significant error, pursuant to s.400(2) of the Act.
[5] Directions were issued on 15 January 2021 which required Mr Wheare to file submissions on whether permission to appeal should be granted by 1 March 2021. The same Directions advised the parties the matter was listed before the Full Bench for permission to appeal only and that the hearing would be conducted by telephone only. At the hearing, Mr Wheare appeared for himself, and Ms Linda Marrone, Hi Trans’ General Manager of People, Safety and Culture appeared for the Respondent.
[6] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. Rather, the task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[7] Mr Wheare drove trucks for Hi Trans from early 2020, having also driven for the company at an earlier time. He had a disagreement with Hi Trans from October 2020 over matters of safety and the adequacy of facilities. The disagreement led to him no longer driving Hi Trans trucks, which in turn led to him making an unfair dismissal application to the Commission on 28 October 2020.
[8] The unfair dismissal application was objected to by Hi Trans, which argued it had never employed Mr Wheare and had instead obtained his services through an arrangement it had with a labour hire agency, Driver Recruitment Pty Ltd, trading as 1800 Drivers. The Decision recorded the following about the parties’ respective contentions;
“[27] In support of its submission, Hi Trans relies on the following:
• Mr Wheare was recruited to work for Hi Trans in 2020 via a seek.com advertisement placed by 1800 Drivers. It was only after his initial contact with 1800 Drivers that he was referred by the labour hire agency to Hi Trans for work;
• Mr Wheare had no oral or written contract of employment with Hi Trans;
• Mr Wheare did not exclusively work for Hi Trans. Whilst working for Hi Trans he was also offered and accepted work by the labour hire agency with other trucking companies;
• Mr Wheare was not paid by Hi Trans. He was paid by 1800 Drivers. The labour hire agency would invoice Hi Trans for work done by Mr Wheare, and after verifying the work as stated, the invoice would be paid to the labour hire agency. No money was transacted between Hi Trans and Mr Wheare; and
• notification that Mr Wheare was no longer providing work to Hi Trans was communicated by 1800 Drivers, not by Hi Trans.
[28] Mr Wheare submits that he was employed by Hi Trans and dismissed by Hi Trans. He says that his work for Hi Trans in 2020 was not the first time he had worked for Hi Trans. He had done so between around 2011 and 2014. He says he enjoyed working for Hi Trans and but for unfair allegations against him he would still be working for Hi Trans even though he believed it had failed to meet its duty of care towards him in the final months of his work.
[29] Mr Wheare relies on the following:
• it was employees of Hi Trans who gave him his rostered shifts;
• it was Hi Trans who funded his remuneration and checked whether the remuneration to be paid matched his work roster;
• he dealt with Hi Trans on any operational issues that arose;
• he drove trucks owned by Hi Trans and emblazoned with Hi Trans logos;
• his original accreditation had been certified by Hi Trans in about 2011;
• his essential worker border pass allowing him to cross borders during the COVID-19 period was issued by Hi Trans; and
• even though he occasionally worked for other trucking companies, most of his work in 2020 was with Hi Trans.”
[9] The Decision considered at length whether Mr Wheare was an employee of Hi Trans, taking into account the well-established indicia for determination of the existence of an employment relationship. 2 In conclusion, the Deputy President found that while there were some competing indicia, “none point strongly towards an employment relationship or are inconsistent with a genuine labour hire arrangement existing”.3 He also rejected the possibility a joint employment arrangement could be established, with such being inconsistent with Australian law.4 As a consequence, Mr Wheare’s application for unfair dismissal remedy was rejected.5
[10] The Form F7 (Notice of Appeal) prepared by Mr Wheare describes the hearing which led to the Decision as not having proceeded “fairly enough” with his appeal grounds stated under the form’s question 2.1 ‘What are the grounds for your appeal?’ as being that he believed Ms Marrone had been untruthful in her evidence to the Deputy President about whether she had ever spoken to Mr Wheare before his application. Mr Wheare states about the public interest in the Form F7 that permission to appeal would save others from “being taken for granted”, as well as illustrating the lengths employers will go to “to save themselves rather than help an Employee”.
[11] On 5 March 2021 Mr Wheare filed brief submissions and other material in response to a reminder to file material in response to the Directions which did not materially add to the matters summarised above.
[12] No submissions were filed by the Respondent.
[13] 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.6 As stated above, there is no right to appeal and an appeal may only be made with the permission of the Commission.
[14] This appeal, being one challenging an unfair dismissal decision, is subject to the tests set out at s.400 of the Act which have been described by the Federal Court as ‘stringent’.7 These tests are set out at ss.400(1) and (2) of the Act as follows:
“(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.”
[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.8 The Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin, 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.”9
[16] As an appeal cannot succeed in the absence of appealable error, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.10 The fact that the Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.11
[17] Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits.
[18] Before we deal with the question of permission to appeal, we note that the decision which is the subject of appeal deals only with the issue of whether or not Mr Wheare was employed by Hi Trans. Mr Wheare’s submissions were principally focused on how he felt he was treated by Hi Trans and his views as to the merits of his termination. Whilst we have every empathy with Mr Wheare in relation to the genuine concerns he has, as is clear from the decision below, that is not the issue with which we are dealing.
Public Interest
[19] We have considered the submissions advanced by Mr Wheare and have been unable to identify any sustainable public interest grounds. Mr Wheare has not satisfied us that the Decision raises any issues of importance or of general application, nor has Mr Wheare identified any decisions of a similar nature to allege a diversity or disharmony with other decided cases.
[20] To the extent that the submissions raise any contention of appealable error, we do not consider them to be seriously arguable. The Deputy President’s findings appear consistent with the facts before him.
[21] We also do not consider that the Deputy President’s conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded that the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on any question.
[22] In addition to the public interest requirements of s.400(1) of the Act, an appeal relating to an unfair dismissal must, if alleging errors of fact, be on the ground that any error of fact involved a significant error of fact as per s.400(2) of the Act.
[23] In this appeal, it appears that that Mr Wheare seeks to persuade us that the Deputy President should have considered and dealt with the evidence that was before him in a different way, and that he should have reached a different conclusion on the facts. It is noteworthy to mention that an appeal is not the place to re-agitate the matters that have been considered at first instance. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 12 The fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[24] Having considered Mr Wheare’s submissions, we are not persuaded that he has made an arguable case that the Deputy President made a significant error of fact in not rejecting Ms Marrone’s evidence that she had not previously spoken with Mr Wheare. The findings made by the Deputy President in regard to the indicia for determination of an employment relationship are founded on factual material advanced by both parties, with the Deputy President being required to assess and balance their competing submissions.
[25] On the material before us, and for the reasons stated above, we are not persuaded that the matters set out in the grounds of appeal raise any arguable case of material error in the exercise of the Commission’s discretion of the kind discussed in House v King13 or as otherwise required by s.400(2) of the Act. The Deputy President considered all the issues raised by Mr Wheare and the conclusions in the Decision were reasonably open to be made by the Deputy President.
[26] We are not satisfied that an arguable case of appealable error has been established. The Decision of the Commission is not one attended by sufficient doubt to warrant its reconsideration, nor are we persuaded that substantial injustice will result if permission to appeal is refused.
[27] We do not consider the grant of permission to be in the public interest, nor do we consider there is any other basis upon which permission to appeal should be given. Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Mr K Wheare on his own behalf.
Ms L Marrone on behalf of the Respondent.
Hearing details:
2021.
Telephone hearing.
9 March.
Printed by authority of the Commonwealth Government Printer
<PR727811>
2 Jiang Shen Cai trading as French Accent v Rozario [2011] FWAFB 8307 at [30] applying Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Roy Morgan Research Pty Ltd v Commissioner of Taxation [1997] 37 ATR 528 and Hollis v Vabu [2001] HCA 44
3 [2020] FWC 7068, [50].
4 Ibid, [52] – [53].
5 Ibid, [55].
6 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2) of the Act; see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
7 The Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) at (43).
8 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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, 192 FCR 78, 207 IR 177 at [44]-[46].
9 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
10 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
11 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
12 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
13 (1936) 55 CLR 499 at 505.