Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2015] FWC 790 of Commissioner Williams at Perth on 5 February 2015 in matter number U2014/15069.

[1] This is an appeal against a decision of Commissioner Williams in which he dismissed an application by Mr David Djula (Mr Djula or the appellant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). 1 The s.394 application had not named the correct employer of Mr Djula and the Commissioner declined to allow an amendment to change the name of the respondent from Centurion Transport Co. Pty Ltd (Centurion), which was named in the Form F2 as the employer, to the name of the correct employer. The application for an amendment had been made relying on s.586 of the Act. The Commissioner found that section did not provide the power to grant the amendment sought and, in the alternative, found that if power existed he would not exercise his discretion to allow the amendment.

[2] The appeal was originally listed before us for the purpose of considering whether permission to appeal should be granted. However, at the commencement of the hearing, the representatives of both parties agreed that we should hear the whole of the appeal.

[3] In the hearing before us, the appellant was represented by Mr Dzieciol, a Senior Legal/Industrial Officer with the Transport Workers Union of Australia (TWU). Permission was sought by Mr Riddle, a solicitor, to appear on behalf of Centurion and also CFC Consolidated Pty Ltd as trustee for CFC Employment Trust (CFC Consolidated). CFC Consolidated was said to have been the employer of the appellant at the time of his dismissal. Permission was granted on the basis that we formed the view, consistent with s.596 of the Act, that to allow the respondents to be legally represented would enable the appeal to be dealt with more efficiently taking into account the complexity of matters raised in it.

The Act - provisions relevant to the appeal

[4] The originating s.394 application was made under Part 3-2 of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision under that Part of the Act unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one.” 2

[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Fair Work Commission (the Commission) 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...” 4

[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, as an appeal cannot succeed in the absence of appealable error. 5 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis on which to grant permission to appeal.6

[7] Although it is clear that this appeal is filed under s.604 of the Act, a question arises as to whether s.400 of the Act applies. The application to amend the s.394 application was made under s.586 of the Act. That section is in Part 5-1 of the Act. The question, therefore, is whether the decision made by the Commissioner is, in terms of s.400, a decision made under Part 3-2. This matter was recently the subject of consideration in Clermont Coal Pty Ltd and others v Troy Brown and others 7 (Clermont). That decision dealt with an appeal against orders made under s.590 of the Act, a section also contained in Part 5-1. Consistent with the Full Bench’s conclusion in Clermont, we shall approach this appeal on the basis that s.400 applies. However, we will also state the conclusion we would reach if s.400 did not apply.

[8] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker. 8 The grounds of appeal in this matter assert that the Commissioner made both legal errors and errors in the exercise of his discretion. In so far as the challenge is to rulings made in the exercise of the Commissioner’s discretion, the majority of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission explained, in the following passage, how error may be identified where a discretionary decision is involved:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.” 9

[9] Insofar as the grounds of appeal assert an appealable error was made on a question of law, namely whether s.586 applied to the matter before the Commissioner, our task is to consider whether the Commissioner’s ruling was correct; it is not a challenge to a discretionary decision.

The background facts

[10] It is important to refer in some detail to the facts made out on the evidence and submissions before the Commissioner. We have also referred to facts which are apparent from the Commission’s file.

[11] The s.394 application was filed on Mr Djula’s behalf by the TWU. In the application it nominates Centurion as having been his employer when he was dismissed.

[12] As is the practice in the Commission, the s.394 application was sent to the email address of the person nominated in the application as the employer’s contact person. That was “Zach Heale, Senior HR Advisor” with an email of “z.heale@cfc.com.au”. It was sent on 25 November 2014, accompanied by a letter explaining what Centurion needed to do. One requirement was for it to promptly file an Employer Response Form.

[13] Centurion filed an Employer Response Form on 28 November 2014. In it, Mr Justin Cardaci was nominated as the employer’s contact person. It confirms Centurion was the employer of Mr Djula and that Mr Djula’s employment was covered by the Centurion Transport Company Pty Ltd Kalgoorlie Regional Branch Drivers & Freight Officers Enterprise Agreement 2012. 10 It also confirmed the date of Mr Djula’s dismissal was 24 October 2014.

[14] The Employer Response Form records the reason for dismissal as being Mr Djula’s failure to comply with Centurion’s drug and alcohol policy.

[15] Documents titled “Team Member Interview Form” concerning discussions with Mr Djula in the lead up to his dismissal are on “CFC Group” letterhead. In the body of the documents the Centurion alcohol and drug policy is referred to as having been breached by Mr Djula. One of the witnesses participating in the interview is named as “Zach Heale”.

[16] A memorandum dated 23 October 2014 addressed to Mr Djula (this was on the day before his dismissal) is on Centurion letterhead and signed by the “OHSE Manager”. A May 2014 version of the Centurion alcohol and drugs policy provided to Mr Djula is signed by two persons, one of whom is “Marc Cardaci, Chief Executive Officer”.

[17] The letter of termination dated 27 October 2014 is on “CFC Group “letterhead. Under the signature of the “HR Adviser” who signed the letter appears “Contura Mining Pty Ltd” (Contura). We note from the ASIC documents in evidence before the Commissioner that Contura is the “Ultimate Holding Company” of Centurion. Throughout the body of the letter of termination it refers to “CFC Group” as having made the decision to terminate Mr Djula’s employment. Nowhere in the letter is there a reference to CFC Consolidated.

[18] The separation certificate provided to Mr Djula refers to CFC Consolidated as his employer.

[19] Although Centurion was Mr Djula’s employer when he was first engaged, at the time he was dismissed his employer was CFC Consolidated. We note that a copy of some PAYE payment summaries were in evidence and the earliest is dated 6 July 2010. It records the “Payer’s name” as “CFC Employment Trust.” It contains no reference to CFC Consolidated.

[20] ASIC records showed that Centurion and CFC Consolidated have a common director, Mr Marco Cardaci, the same registered office address and the same principal place of business address. The two companies have separate management and operational structures. Centurion operates in the north west of Western Australia and the Perth metropolitan area and CFC Consolidated operates across the country in a range of different interests.

[21] On 3 December 2014, Mr Riddle wrote to the TWU and the Commission advising that he acted for Centurion. He indicated that Centurion was not Mr Djula’s employer but that CFC Consolidated was, and had been, for some time. The letter indicated that the Employer Response Form filed by Centurion was done by mistake. It was asserted that the s.394 application “must be dismissed.” On the same day, Mr Riddle filed an application seeking the dismissal of the s.394 application on the basis it incorrectly named the employer of Mr Djula. It appears that, at or before this time, Mr Riddle also commenced to act for CFC Consolidated.

[22] In response to the application dated 3 December 2014, the TWU, on 9 December, made an application pursuant to s.586 of the Act to amend the s.394 application to reflect the name of the respondent employer as CFC Consolidated. 11

The Commissioner’s decision

[23] The key findings made by the Commissioner are as follows:

● Mr Djula had not simply made a mistake when naming his employer, such as by misspelling the name or not providing the full name of his employer. The amendment sought changes to the legal entity respondent to the application which, if it was allowed, would effectively revoke the original application and create a new application. On the authority of the Full Bench in Narayan v MW Engineer's Pty Ltd (Narayan), 12 the relief sought goes beyond the power of s.586 of the Act. That section is not a power to revoke or set aside an application. Section 586 of the Act is also not a power that allows the Commission to create an application.

● What is sought is not an amendment to the respondent’s name but a total change to who the respondent is. Considering the nature of the amendment sought, it is beyond the power of s.586 of the Act.

● In the alternative, if he was wrong about s.586 and there is power to make the amendment sought, then there were serious considerations whether he should exercise his discretion to allow it.

● An application under s.394(2) of the Act must be made within 21 days after the dismissal took effect. Changing the named respondent to be a different legal entity at a time well beyond 21 days after the dismissal has the effect of circumventing this requirement. Exceptional circumstances must be established before an extension of the 21 day timeframe to file a s.394 application is allowed. One consideration in that regard is any prejudice to the employer caused by the delay in making an application.

● The Commission should be very cautious in agreeing to such an amendment as it would have the effect of overriding the express legislative requirements of the Act. This is particularly the case where the applicant has an alternative course of action being to discontinue this application and file a fresh application correctly naming the employer as the respondent.

Our consideration

[24] We are persuaded that it is in the public interest to grant permission to appeal. The grounds raise the question of whether s.586 provides a power to amend the name of a respondent identified in a s.394 application to a different respondent. There are numerous decisions at first instance in which s.586 has been relied upon as providing power to do so. This appeal raises the question of whether those decisions are correct and, if so, they are distinguishable on the facts before the Commissioner. It is also in the public interest to grant permission to appeal as the decision of the Commissioner does raise issues of general importance and which do not appear to have previously been dealt with by a Full Bench.

[25] In the event s.400 does not apply to this appeal we would also find that to deny the appellant the opportunity to pursue his unfair dismissal application would result in a substantial injustice to him. In reaching this conclusion about the granting of permission to appeal, we should not be taken to have expressed any view about the merits of his claim or the fairness of his dismissal. He should, however, have an opportunity to argue his dismissal was harsh, unjust or unreasonable.

[26] In our opinion, s.586 did provide the power for the Commissioner to make the amendment sought by Mr Djula. This finding is consistent with existing single member authority. The key consideration in those cases was to the question of whether, in the exercise of the Commission member’s discretion, the amendment sought should be granted. 13 We will later return to the manner in which Commissioner Williams exercised his discretion in this matter.

[27] In reaching his decision that s.586 did not provide the source of power to make the amendment sought by Mr Djula, the Commissioner referred to and relied upon Narayan. We have earlier noted why he said that decision was relevant to his ruling about s.586. Narayan concerned an application made pursuant to s.586 to revoke a notice of discontinuance which had been filed by the applicant in the s.394 application he had made. The single Commission member declined to allow him to do so and Mr Narayan appealed that decision. The Full Bench observed that s.586 provided a power to correct or amend an application, or waive an irregularity in the form or manner in which an application is made, but it is not power to “revoke or set aside an application. Once filed a notice of discontinuance is self executing and it brings the application to an end.” 14 The Full Bench said that s.586 does not empower the Commission to determine an application to set aside a notice of discontinuance.15

[28] In our opinion, Narayan did not support the finding made by the Commissioner. What Mr Djula had sought was not the revocation or setting aside of his s.394 application. Had the amendment sought been granted, it would not have had the affect of creating a new application. Certainly, it would have substituted the name of the respondent, Centurion, with CFC Consolidated, but the application would have remained the same.

[29] The facts in this matter are also distinguishable to those considered in Ioannou v Northern Belting Services Pty Ltd (Ioannou). 16 The Full Bench there considered whether it could permit an amendment of an unfair dismissal application to make it a general protections application. It said that the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant in that matter would have resulted in transforming an unfair dismissal application into an application under s.365 and, for this to be done, without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application. The amendment sought here by Mr Djula is not of the same kind as dealt with by the Full Bench in Ioannou.

[30] In reaching the finding that s.586 did not provide the power to amend the application in the manner sought, the Commissioner was in error.

[31] We turn to the alternative basis upon which the Commissioner ruled he would not grant the amendment sought. He indicated that, if he was wrong in his finding about s.586 not being the source of power, in the exercise of his discretion, he would not have granted the amendment. We commence our consideration of this aspect of the appeal by observing that an applicant for such an amendment will need to call evidence sufficient to persuade the Commission that it clearly weighs in favour of the grant of the amendment sought. The facts in this matter are such that, in our opinion, they did warrant the exercise of the Commissioner’s discretion to allow the amendment. In making this finding, we acknowledge it is not the role of a Full Bench in an appeal to merely substitute its preferred ruling for a ruling made in the exercise of a single member’s discretion; error in the ruling must be identified. In this matter, however, we are persuaded that the Commissioner was in error in that he did not give sufficient weight to the uncontested facts. That Mr Djula was able to discontinue his application and commence a new application identifying CFC Consolidated was not an answer to why his application to amend his originating application should not be granted. The merit of the application to amend needed to be considered.

[32] We are also persuaded that the Commissioner applied a wrong principle in deciding to decline to exercise his discretion to grant the amendment on the basis that it would disentitle CFC Consolidated from running an argument about any prejudice to it as a consequence. In our opinion, CFC Consolidated would have been entitled to mount an argument about the prejudice it asserts it would suffer if the amendment was granted. In fact, it did make submissions about this consideration, both to the Commissioner and to us on appeal. The submissions were brief and unpersuasive. There was no evidence of any prejudice CFC Consolidated would suffer if it was to be named as the respondent to the s.394 application.

Conclusion

[33] For the reasons we have given, we have decided to allow the appeal. We quash the Commissioner’s decision. We have considered for ourselves whether we should exercise our discretion to allow the amendment sought by Mr Djula. The facts we have set out earlier in this decision weigh heavily in favour of the amendment being granted. The name of the respondent to the s.394 application will be amended to read “CFC Consolidated Pty Ltd as trustee for CFC Employment Trust (CFC Consolidated).” The s.394 application will be referred to the unfair dismissal unit for further processing.

[34] Finally, we emphasise that it was the peculiar facts in this case which, in our opinion, justified the grant of the application to amend the name of the respondent. The facts in other matters may not be comparable. In such a case the correct ruling may be to refuse an amendment to the name of a respondent. In the event that was to occur, the applicant would then need to consider whether another s.394 application should be made and to seek an extension of time for the filing of that application, should it be made out of time.

VICE PRESIDENT

Appearances:

Mr A Dzieciol of the Transport Workers’ Union of Australia, for the appellant.

Mr B Riddle for the respondent.

Hearing details:

Sydney.

2015.

April 8.

 1   [2015] FWC 790.

 2   O’Sullivan v Farrer (1989) 168 CLR 210 (Mason CJ, Brennan, Dawson and Gaudron JJ) applied in Hogan v Hinch (2011) 85 ALJR 398, [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, [44]-[46].

 3   [2011] FCAFC 54, [43].

 4   [2010] FWAFB 5343, [27].

 5   Wan v AIRC [2001] FCA 1803, [30].

 6   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].

 7   [2015] FWCFB 2460.

 8   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) HCA 47, [14]-[17].

 9   Ibid, [21] and House v The King (1936) 55 CLR 499.

 10   [2012] FWAA 10378.

 11   The TWU had received the objection on 8 December 2014.

 12   [2013] FWCFB 2530.

 13   Eg Yasin Oznek v Oxford Cold Storage [2015] FWC 189; Ms Kataryzna Wybranski v Telstra [2012] FWA 2566; T De Silva-McKay v EQ Life Pty Ltd   [2013] FWC 9203; Jabbour and Queensland Child Care Services Pty Ltd [2014] FWC 6821; Bock v Jarjoura Holdings Pty Ltd [2013] FWC 2161; Tobiahs Pty Ltd v Jessica Vidacic [2011] FWAFB 1679.

 14   [2013] FWACFB 2530, [6].

 15   Ibid, [14].

 16   [2014] FWCFB 6660.

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