Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [[2014] FWC 5547], Order PR554393 and decision of costs [[2014] FWC 6602] of Commissioner Roe at Melbourne on 18 August 2014 and 30 September 2014 in matter number U2014/4346 - unfair dismissal - appeal against quantum of remedy and costs application - no appealable error established - no public interest.

[1] This is an appeal, made pursuant to s.604 of the Fair Work Act 2009 (the FW Act), for which the permission of this Full Bench is required, against two related decisions 1 made by Commissioner Roe. In the first of those decisions the Commissioner dealt with an unfair dismissal application made by Ms Mond in relation to the termination of her employment with Seymour-Gross Pty Ltd T/A George Gross and Harry Who (Seymour Gross). The Commissioner determined that dismissal was unfair and awarded compensation of $3499.39 less taxation to Ms Mond. In the second decision, the Commissioner dealt with costs applications made by Ms Mond pursuant to ss.400A and 611. Those costs application were dismissed.

[2] The appeal was lodged on 16 October 2014. It was initially listed for hearing on 10 February 2015. However, following advice that Seymour Gross was in liquidation, Mr Sinisgalli, of counsel on behalf of Ms Mond, requested that the appeal hearing not proceed until the determination of a request for permission for the appeal to proceed being pursued in the Supreme Court. The appeal hearing was adjourned on this basis and the matter was then the subject of brief hearings by telephone before O’Callaghan SDP to enable advice relative to the Supreme Court proceedings to be provided. We note that Mr Garofano of BRI Ferrier, as the Liquidator participated in these proceedings.

[3] On 20 April 2015 the Fair Work Commission was advised that the Supreme Court had granted Ms Mond permission to proceed with her appeal such that the requirements of s.500 of the Corporations Act 2001 were met. The terms of that Order state:

“THE COURT ORDERS THAT:

1. Betty Mond (“the Applicant”) has leave to proceed with her proceeding number (C2014/6799) in the Fair Work Commission Australia against the Defendant, Seymour-Gross Pty Ltd (ACN 007 747 613) (In Liquidation) in respect of the causes of action and Appeal proceedings described in paragraphs 1 to 16 of the Affidavit of David Mond filed in this proceeding and sworn 11 March 2015.

2. No step be taken by the Applicant to enforce against the Respondent Defendant Company any order made or judgment given in that proceeding for the payment or recovery of any money without the leave of the Court.

3. The costs of this application are reserved.”

[4] The appeal was set down for hearing on 29 May 2015. On 26 May 2015 BRI Ferrier confirmed that neither the liquidator nor a company representative would be in attendance at this hearing as:

“ The matter is without sufficient funding to enable representation on behalf of the Company; and

[5] In the appeal hearing on 29 May 2015 Ms Mond was represented by Mr Sinisgalli, of counsel, pursuant to a grant of permission made under s.596(2)(a).

[6] Before setting out the grounds upon which the appeal is made, we have summarised the Commissioner’s two decisions.

[7] In his decision of 18 August 2014 (the primary decision) the Commissioner concluded that Ms Mond was, and had been since 2005, a regular casual employee of Seymour Gross. He concluded that, given that the Seymour Gross stores in which Ms Mond worked were being progressively closed, she would have been made redundant at some time between 17 February 2014 and 31 March 2014. Having considered and determined the factual issues in dispute, the Commissioner addressed each of the criteria set out in s.387 of the FW Act he concluded:

“[74] Although there was a valid reason for the termination I consider that termination was, in all of the circumstances, a disproportionate, harsh and unreasonable response to the misconduct. I also consider that there was significant injustice in the procedures adopted by the Respondent. I consider that the good record and long service of the Applicant contribute to a finding that the termination was harsh or disproportionate. It should be noted that whether the termination took place at 2pm or 6pm is not decisive to my assessment. I would still have concluded that the termination was unfair if I had found that the termination had taken place in the 6pm telephone conversation. In my assessment the Applicant did not have a reasonable opportunity to respond in the 6pm telephone conversation. In the circumstances of this case it was unfair, unreasonable and unjust to expect the Applicant to respond to allegations of which she had no notice on the telephone. I also found that termination because of the single instance of failure to follow policy in not recording the red skirt was harsh and disproportionate in the circumstances.” 3

[8] The Commissioner concluded that reinstatement was not possible as Seymour Gross had ceased trading. He set out the provisions of s.392 of the FW Act and determined the compensation to be payable to Ms Mond on the basis that he considered she would have remained in employment close to 31 March 2014. Taking contingencies into account he determined this amounted to a further 9½ weeks. The Commissioner then determined the payments that would have been due to Ms Mond over that time on the basis of both her rostered work arrangements and an assessment of her average earnings over the previous six months. The Commissioner added a small additional amount in recognition of additional long service leave to which Ms Mond would have been entitled had she continued to work for that additional period. He did not include any amount in recognition of a uniform or clothing allowance as he regarded that as too speculative. He made no deduction on the basis that Ms Mond had not applied for other jobs over this time. Further, he made no deduction for misconduct. The Commissioner declined to increase the compensation payable to Ms Mond on account of the actions of Seymour Gross in making a police report relative to Ms Mond’s behaviour as an employee.

[9] In terms of the second decision (the costs decision) the Commissioner noted the two separate bases upon which Ms Mond sought costs. In relation to the s.400A application the Commissioner recorded the critical issues in the following terms:

“[8] The central questions are:

[10] He concluded:

“[13] I cannot make the costs order sought because the action which is the subject of the claim is not sufficiently connected to the conduct of the unfair dismissal matter.” 5

[11] In relation to the s.611 costs application, the Commissioner concluded that Seymour Gross had not responded to the unfair dismissal application vexatiously, or without reasonable cause and that costs could not be imposed on the basis that the Seymour Gross defence had no reasonable prospect of success.

[12] Ms Mond’s appeal is made in the following grounds:

GROUNDS OF APPEAL

1. The Commissioner erred in failing to assess the correct Compensation amount in accordance with the relevant provisions of the Fair Work Act ('FWA").

2. The Commissioner erred in failing to assess the correct costs amount in accordance with the relevant provisions of the FWA.

3. The Commissioner erred in determining that Section 392 (2)(c) of the FWA limited the claim by the employee to the time available to that employee during the course of closing down its business and up to the closure of the employer's business.

4. The Commissioner erred in failing to calculate the Compensation amount pursuant to Section 392(6)(a) of the FWA.

5. The Commissioner erred in failing to include in the Compensation amount the legal costs incurred by the employee to defend a false report to the Victoria Police pursuant to Section 392(g) of the FWA.

6. The Commissioner erred in making a determination that at law, was a decision that was not in the relevant circumstances, made on the basis of a "fair go all round".

7. The Commissioner erred in applying the case of Sprigg v Paul's Licensed Festival Supermarket to assess the compensation amount under the FWA.

8. The Commissioner erred in failing to find as a matter of law, that the only time of termination was the actual time of dismissal.

9. The Commissioner erred in his application of Section 611 of the FWA to the claim for costs.”

[13] An additional ground was argued, in the following terms:

The Commissioner erred in failing to determine that George Gross and Harry Who Design Pty Ltd was an employer of Betty Mond.

[14] Ms Mond asserts that the Commissioner’s decisions represent significant errors of fact in that he should have found that the employer attempted to interfere or pervert the course of justice in using a threat of a report to Victoria Police to blackmail Ms Mond into dropping her claim shortly after the conciliation conference. Further, she asserts that her appeal gives rise to public interest considerations associated with the intention of the legislation, the application of the concept of a “fair go all round”, the operation of s.392 and the application of the approach in Sprigg v Paul’s Licensed Festival Supermarkets 6.

[15] In terms of the appeal against the costs decision, Ms Mond agreed that the Commissioner’s decision was correct in that the prerequisites for a costs order pursuant to s.611 were not met. She argued, however, that the Commissioner erred in not determining additional costs associated with the need for her to defend her position in relation to the Victoria Police investigation pursuant to s.400A.

[16] Whilst it might be the case that the appeal against the primary decision was made outside of the 21 day time limit specified in the Fair Work Commission Rules at Rule 56 we have noted that the costs applications were made in the course of the conclusion of the unfair dismissal application. Indeed, the Commissioner referred to these costs applications in his primary decision. To this extent we have concluded that the two decisions should be considered collectively so that, while we endorse the position adopted in Tokoda v Westpac Banking Corporation T/A Westpac, 7 we consider that, in the circumstances of this particular matter both appeals should be considered to have been lodged within time.

[17] Section 604(1) provides that an appeal can only be made if permission to that effect is granted. Section 604(2) states:

“604 Appeal of decisions

....

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”

[18] The Commissioner’s decisions were made under Part 3-2 of the FW Act. Section 400 establishes a significant qualification with respect to appeals relating to unfair dismissal applications. Those applications are made under Part 3-2. Section 400 states:

“400 Appeal rights

(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless 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.”

[19] As a consequence, the Commission must not grant permission to appeal unless it is satisfied that to do so would be in the public interest. Furthermore, appeals of fact can only be made relative to significant error of fact. The test under s.400 has been characterised as a “stringent one”. 8

[20] In GlaxoSmithKline Australia Pty Ltd v Colin Makin 9 a Full Bench addressed the discretionary nature of assessing the public interest in the following terms:

“[27] ...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.”

[21] Unless an arguable case of appealable error is established the public interest requirement will rarely be met because an appeal cannot succeed unless error is established. We have reviewed the Commissioner’s decisions in the context of Ms Mond’s appeal.

[22] In this respect we have taken all of the significant written material provided in support of the appeal and Mr Mond’s submissions into account.

[23] Ms Mond’s application was made against Seymour Gross Pty Ltd T/A George Gross and Harry Who. The Commissioner addressed her submissions relative to the addition of George Gross & Harry Who Design Company Pty Ltd in the following terms:

“[2] The Applicant sought that George Gross & Harry Who Design Company Pty Ltd be added as a Respondent. The Applicant gave evidence that although her pay slips showed the employer as Seymour Gross Pty Ltd T/A George Gross & Harry Who her clothing allowance was paid in the name of George Gross & Harry Who Design Company Pty Ltd. Mr Newlands gave evidence that the Respondent met any fringe benefits tax liability in respect to the supply of clothing from George Gross & Harry Who Design Company Pty Ltd. The Respondent is a wholly owned subsidiary of George Gross & Harry Who Design Company Pty Ltd.”

[24] The Commissioner did not identify George Gross and Harry Who Design Company Pty Ltd as an additional employer and we discern no error in this respect.

[25] In the appeal hearing Ms Mond argued that ongoing work would have been available to Ms Mond, through George Gross and Harry Who Design Pty Ltd, after the closure of the Seymour Gross stores, Ms Mond conceded that no argument had been put to Commissioner Roe in this regard. Again, we see no error in the Commissioner’s decision in this respect.

[26] In McCulloch v Calvary Health Care Adelaide 10 a Full Bench of the Commission reaffirmed the approach to be applied in assessing compensation amounts. This requires the consideration of the factors set out in s.392 of the FW Act. The Commissioner addressed each of the relevant statutory considerations. We do not consider that his approach involved any form of error. In fact, in a manner which was within his discretion, the Commissioner adopted a generous approach to the calculation of the compensation payable to Ms Mond.

[27] We do not accept Ms Mond’s position that the Commissioner erred in not having regard to the approach in Smith v Moore Paragon Australia Ltd 11 as distinct from his consideration of the approach to the calculation of the remuneration that Ms Mond would, or would have been likely to have received relative to the approach adopted in Sprigg v Pauls Licenced Festival Supermarkets. The application of these approaches was addressed by a Full Bench in Bowden v Ottray Homes Cobram and District Retirement Villages Inc T/A Ottray Lodge.12 We note that this position was more recently endorsed in McCulloch. We see no error in the Commissioner’s reference to Sprigg and in any event do not consider that Ms Mond’s circumstances are so analogous with those which applied in Moore Paragon such that the Commissioner was in error in not considering that matter.

[28] Ms Mond appears to assert that the Commissioner was in error in not construing compensation amounts as a form of penalty against the employer. Simply put, the FW Act does not envisage or permit such an approach.

[29] The submissions put for Ms Mond are to the effect that she disagrees with the overall amount of compensation payable to her. No appealable error associated with the primary decision has been identified. Further, we are not satisfied that Ms Mond’s appeal raises any issue which would meet the essential public interest considerations.

[30] To the extent that Ms Mond asserts that the Commissioner was in error in his determination of the time of the termination of her employment on 15 January 2014, we are satisfied that the conclusion he reached was reasonably open to him and was not attended by error. In any event, we are not persuaded that this is relevant to the quantum of the compensation which is at the heart of Ms Mond’s appeal.

[31] Ms Mond’s contended that the Commissioner was in error in limiting the assessment of remuneration which she could have earned to the agreed dates of closure of the Seymour Gross shops in which she worked, rather than incorporating an assessment of amounts that she could have earned had she then been employed by another associated entity. The Commissioner’s decision noted that there was no evidence which disputed that advice of the store closures was given to Ms Mond. We see no error in the conclusion reached by the Commissioner on the evidence before him about Ms Mond’s likely duration of employment or his assessment of the amounts involved. To the extent that Ms Mond asserts that the Commissioner should have taken into account projected income from another employer without evidence to support this, we reject that notion.

[32] In terms of the Costs appeal, we are satisfied that the Commissioner correctly applied the considerations in s.400A and that his refusal to take into account costs associated with the involvement of the Victoria Police, under entirely different legislation, was appropriate.

[33] Consequently, we are not satisfied that Ms Mond has demonstrated any error in the decisions under appeal. Additionally, we do not consider that the appeal raises issues of the public interest. There are no novel or exceptional issues apparent in these circumstances.

[34] Accordingly, we are not satisfied that permission to appeal should be granted and the appeal is dismissed accordingly.

Appearances:

J Sinisgalli representing the applicant.

Hearing details:

2015:

Melbourne:

May 29.

 1   [2014] FWC 5547 and [2014] FWC 6602

 2   Email correspondence of 25 May 2015

 3   [2014] FWC 5547, para [74]

 4   [2014] FWC 6602, para [8]

 5   [2014] FWC 6602, para [13]

 6   AIRC, Print R0235, (24 December 1998)

 7   [2012] FWAFB 3995

 8   See Coal and Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at para 43

 9   GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27]

 10   [2015] FWCFB 2267

 11   (2004) 130 IR 446

 12   [2013] FWCFB 431

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