[2014] FWCFB 6141
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.604—Appeal of decision

Davy
v
ABS Business Sales Pty Ltd T/A ABS Business Sales
(C2014/5089)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER SPENCER

SYDNEY, 15 SEPTEMBER 2014

Appeal against decision [2014] FWC 3624 of Commissioner Simpson at Brisbane on 4 June 2014 in matter number U2014/4146.

[1] This is an appeal by Mr Ronald Davy (the Appellant) against a decision 1 (Decision) of Commissioner Simpson in relation to an application that the Appellant made under s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed.

[2] The Commissioner’s Decision dealt with a jurisdictional objection that had been raised by ABS Business Sales Pty Ltd T/A ABS Business Sales (the Respondent). The Respondent claimed that the Fair Work Commission (the Commission) did not have jurisdiction to hear the matter as the Appellant had not met the minimum employment period as set out in ss.382-4 of the Act. Both parties accepted that the Appellant had been employed by the Respondent for over six months but less than twelve months. The question to be determined by the Commissioner, therefore, was whether or not the Respondent was a small business employer for the purposes of s.383 of the Act. If the Respondent had less than fifteen employees at the time of the dismissal, the relevant minimum employment period would be twelve months as the Respondent would be classified as a small business employer. If the Respondent employed at least fifteen employees, it would not be a small business employer and the minimum employment period would be only six months.

[3] At first instance, determining the number of employees that the Respondent had at the time of dismissal hinged on determining the proper date of the Appellant’s dismissal. The Appellant submitted at first instance that he was dismissed either on 9 or 10 December 2013, at which time it was submitted that the employer had at least 15 employees. The Respondent, however, submitted that the Appellant was dismissed on 29 January 2014, at which time the employer had less than 15 employees.

[4] The Commissioner found that the dismissal occurred on 29 January 2014, that the Respondent had less than 15 employees at time of the dismissal and that therefore the minimum employment period was 12 months. As the Appellant had worked for the Respondent for less than 12 months, the Commissioner found that the Commission did not have jurisdiction to determine his application. The Appellant’s application was dismissed.

[5] The Appellant lodged his appeal on 24 June 2014. On 27 June 2014, correspondence was exchanged between Vice President Catanzariti’s associate and the parties, and both parties consented to the appeal being dealt with without an oral hearing. As a result, we have determined this appeal on the basis of the written submissions provided by both parties.

The Appeal

[6] The Appellant’s primary contention on appeal is that the Commissioner has made an error of law. This contention is expressed in the Appellant’s submissions as follows:

[7] It was not in dispute between the parties that the Appellant was suspended without pay on 10 December 2014. In his Decision below, the Commissioner considered this fact and found as follows:

[8] The Appellant submits that the Commissioner was in error and that by suspending him without pay, the Respondent effectively terminated his employment. The Appellant submitted further that the Commissioner was in error in finding that there was an employment contract between the parties, on the basis that there was no written employment contract.

[9] We are not satisfied that the Commissioner has made any error in his finding. We are satisfied that it was open to the Commissioner to conclude that, in the circumstances, the Appellant’s employment contract was not terminated on the basis of him being suspended without pay, despite the potential for such conduct to constitute a breach of contract. While the Appellant contends that there was no contract between the parties, we are satisfied that a contract of employment existed between the parties. There is no requirement that a contract of employment be reduced to writing.

[10] The Appellant made a number of other submissions. Some of these submissions related to matters that are not before the Fair Work Commission, including allegations about a new separation certificate that the Respondent issued on 2 June 2014 that the Appellant contends is deliberately misleading. This is not relevant to the matter at hand and we make no finding in relation to the Appellant’s allegation.

[11] Similarly, we are unable to make any finding in relation to the Appellant’s allegation that the Respondent has engaged in false and misleading conduct for the purposes of the Australian Consumer Law.

Permission to Appeal

[12] Section 604(1) of the Act requires the permission of the Commission in order to appeal a decision made by the Commission. In order to grant the Appellant permission to appeal, we must be satisfied that it is in the public interest to do so. 3 In GlaxoSmithKline Australia Pty Ltd v Colin Makin4 a Full Bench summarised the concept of public interest in the following terms:

[13] We are not satisfied that it is in the public interest to grant the Appellant permission to appeal the Decision of the Commissioner at first instance. The conclusions reached by the Commissioner were reasonably open to him, and we are not satisfied that the Commissioner has made an error of the kind described in House v The King. 5 There is, therefore, no utility in allowing permission to appeal.

[14] Permission to appeal is refused.

VICE PRESIDENT

Final written submissions:

Ronald Davy, 22 July 2014.

Kenneth J Law for ABS Business Sales Pty Ltd T/A ABS Business Sales, 12 August 2014.

 1   Ronald Davy v ABS Business Sales Pty Ltd T/A ABS Business Sales [2014] FWC 3624.

 2   Ibid [20].

 3   Fair Work Act 2009, s.400(1).

 4   [2010] FWAFB 5343 at [27].

 5   House v The King (1936) 55 CLR 499.

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