Fair Work Act 2009
s.604 - Appeal of decisions

Permission to appeal against decision [2017] FWC 2702 of Commissioner Wilson on 24 May 2017 in matter number U2017/2340 – minimum employment period – permission refused.

[1] Mr Joseph Calleri has applied for permission to appeal a decision of Commissioner Wilson issued on 24 May 2017, 1 in which the Commissioner dismissed his application for an unfair dismissal remedy.

[2] Mr Calleri had been engaged by Swinburne as a casual employee at various times over a period of approximately six years. The question before the Commissioner was whether Mr Calleri had completed the minimum employment period for the purposes of s382 and 384 of the Fair Work Act 2009 (Cth) (FW Act) and was therefore a person ‘protected from unfair dismissal.’ 2

[3] The Commissioner found that Mr Calleri had not completed the minimum employment period, and was not protected from unfair dismissal.

Permission to appeal

[4] An appeal under s604 of the FW 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[5] This appeal is one to which s400 of the FW Act applies. Section 400 provides:

(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.

[6] In Coal & Allied Mining Services Pty Ltd v Lawler and others, the Federal Court characterised the test under s400 as “a stringent one”. 4

[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 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 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.” 6

[8] 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. 7 However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8

[9] 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. 9

Permission to appear

[10] Mr Calleri’s application for permission to appeal was heard before us on 12 July 2017.

[11] Swinburne sought permission, pursuant to section 596 of the FW Act, to be represented by counsel. Mr Calleri opposed this application. Both parties filed written submissions and made brief oral submissions on this question. We were satisfied that, taking into account the complexity of the matter, granting the respondent’s counsel permission to appear would enable the matter to be dealt with more efficiently. 10

Grounds of appeal

[12] Mr Calleri’s notice of appeal appended a 31 page document that set out his grounds of appeal. Prior to the hearing of the application for permission to appeal, Mr Calleri filed a three page summary of his grounds of appeal. The six grounds formulated in the summary appear to us to convey the essence of the concerns raised by Mr Calleri in the 31 page document. They are as follows:

‘Ground 1--
The Commissioner erred in dismissing my application, erred in refusing or failing to exercise his jurisdiction under Division 2 of Part 3‐2 of the Fair Work Act 2009, and erred in law and acted without jurisdiction in treating me as other than a protected person pursuant to Section 382 of the Fair Work Act 2009.

Ground 2--
The Commissioner erred in failing to consider whether Section 384(1) in whole of the Fair Work Act 2009 and Section 384(2) in whole of the Fair Work Act 2009 were validly made so as to be effective at law.

Ground 3--
The Commissioner erred in not drawing adverse inferences regarding the Respondent’s failure to call any witness from its human resources section.

Ground 4--
The Commissioner erred in allowing the Respondent to have external legal representation.

Ground 5--
The Commissioner erred in law and in fact in accepting as truthful the testimony of the Respondent’s sole witness, Simona Jobbagy (Jobbagy).

Ground 6--
The Commissioner erred in considering the possibility that, my unfair dismissal application may have been made out of time; the Commissioner erred in finding that the Respondent did not intend to re-employ me; the Commissioner erred in finding my continuity of service with the Respondent was broken when I completed preparation of course materials in June of 2015.’

[13] We deal with these grounds in turn below, and consider whether they disclose an arguable case of appealable error for the purposes of permission to appeal.

Ground 1

[14] Mr Calleri contends that the Commissioner erred in not treating him as a person protected from unfair dismissal. As set out in the Commissioner’s decision, to be protected from unfair dismissal, a person must have completed the minimum employment period (s382). In the case of Swinburne, which is not a small business employer, this period is 6 months (s383). The ‘period of employment’ is the period of continuous service 11 the employee has completed with the employer (s384).

[15] Special arrangements apply in relation to when casual employment counts towards the period of employment. Section 384(2) provides that a period of service as a casual employee does not count towards the employee’s period of employment, unless two criteria are satisfied. First, the employment as a casual employee must have been on a ‘regular and systematic basis’. Secondly, during the period of casual service, the employee must have had a ‘reasonable expectation of continuing employment by the employer on a regular and systematic basis’.

[16] Mr Calleri contended that his employment with Swinburne commenced in approximately June 2010 and continued until February 2017. Swinburne’s position was that Mr Calleri had had various periods of casual employment with it from 8 May 2010, but that his casual engagements prior to 2016 were occasional and irregular. It contended that Mr Calleri had casual engagements with Swinburne in May 2016, and again from August to December 2016. He performed no work for Swinburne after 6 December 2016.

[17] In his decision, the Commissioner examines Mr Calleri’s history of casual employment with Swinburne. His analysis proceeds chronologically, studying first the periods of employment from 2010 to 2015, and then the periods of casual engagement in 2016. The Commissioner concludes:

[53] Based on the evidence before the Commission I can make no finding other than that his continuity of service with Swinburne, if there was any, was broken when he completed preparation of the course materials in 2015, whether that was in March or June 2015. None of the C3 Engagement documents he provided to the Commission give rise to a contrary finding, and neither does any other evidence. It follows that assessment of Mr Calleri’s minimum employment period for the purposes of this decision commences with the work he was contracted to perform from 4 May 2016.

[54] Having made that finding, the question arises as to whether the work performed by Mr Calleri in 2016 was continuous service and whether, as a casual employee, he had a reasonable expectation of continuing employment by Swinburne on a regular and systematic basis.

[55] The evidence about Mr Calleri’s 2016 engagements by Swinburne is set out above. That evidence indicates that Mr Calleri was initially contracted in May 2016 to prepare a submission for Swinburne; in May he was engaged as a specialist guest speaker; between August and October he taught classes of a particular program; also between August and October he spoke as a guest industry speaker at another university program; in November he was involved in marking associated with the classes he taught; and in December he attended a meeting for which he was paid.

[56] Viewed both in whole and objectively, this evidence does not lead me to a finding that there is continuous service within those engagements. This is for the reason that s.384(2)(a)(i) requires employment as a casual employee that was not on a regular and systematic basis to be disregarded from inclusion in the Commission’s consideration of continuous service.

[18] The Commissioner then returns to focus further attention on the periods of casual employment in 2016. He finds:

[62] Viewed objectively the two engagements in May 2016 are separate and distinct as between themselves, and I am unable to discern something regular and systematic within those two engagements. The work associated with the award submission is separate and distinct to the teaching and guest speaking arrangements. The guest speaking arrangements came about for different reasons to the preparation of the award submission and were offered by different people for different motives.

[63] Further, I am unable to discern a regular and systematic basis of engagement between the May engagements and the first August 2016 teaching engagement. The first August 2016 teaching engagement came about for reasons unconnected with the May engagements. Its offering had neither a regular nor systematic basis to it.

[64] However, I am satisfied that there is the requisite connection between the first August teaching engagement, which commenced for 12 weeks on 2 August 2016 and the second, which commenced on 15 August 2016. Each required teaching of some kind, although the second is characterised by Swinburne as being work as a “guest industry speaker”. Given that it went for several weeks and required Mr Calleri to work directly with students, I consider it has a sufficient relationship to teaching.

[65] I also consider that the marking in November 2016 and the October 2016 and December 2016 meetings to have the character of regular and systematic employment. Each relates, it appears, to the teaching activities Mr Calleri undertook in 2016.

[19] As to the date on which Mr Calleri’s employment concluded, the Commissioner’s analysis was as follows:

[69] Notwithstanding Mr Calleri’s contention that his termination of employment was notified and took effect on 13 February 2017, my consideration of the minimum employment period must have regard to his “service” as a casual employee, and whether any part does not count. Noting that the term “service” is defined by s.22 of the Act to be a “period during which the employee is employed by the employer”, subject to specified exclusions, I am unable to find any period of employment after 6 December 2016. While Mr Calleri may have had a reasonable expectation of continuing employment, there is no evidence that any ever eventuated.

[20] The Commissioner concludes:

[70] As a result of the findings made by me, I find that the employment period to which I must have regard commenced on 2 August 2016. All casual employment after that period was on a regular and systematic basis, with Mr Calleri having a reasonable expectation of continuing employment. Therefore, no casual employment is to be disregarded. However, his last casual employment with Swinburne was on 6 December 2016, and there was a representation to him on 16 December 2016 that there may be further employment if he was interested. There is no evidence that Mr Calleri answered Ms Ryan’s request that he advise her if he would like to teach the unit she mentioned. The absence of such a response allowed Swinburne to see that as Mr Calleri’s words or actions that there would be no further engagement under the then operating contract. There is no evidence of employment after 16 December 2016. In all likelihood Mr Calleri’s employment ended by no later than 16 December 2016, and I find that date to be his date of termination.

[71] Mr Calleri has therefore not completed the minimum employment period.

[21] We find no apparent error in the Commissioner’s findings and conclusions above. The various periods of casual employment were carefully considered. On any view, there was a substantial period between June 2015 (at the latest) and May 2016 when Mr Calleri was not employed by Swinburne at all. No service was rendered during this period. The analysis of the various periods of casual employment in 2016 is thorough and reasoned.

[22] To the extent that Mr Calleri’s first ground of appeal contends that the Commissioner made an error of fact in his analysis of the various periods of casual employment, his appeal can only be made on the ground that the error was ‘significant’, as required by s400(2).

[23] We do not consider there to be an arguable case that the Commissioner made a significant error of fact.

Ground 2

[24] Mr Calleri’s second ground of appeal contends that the Commissioner erred by not considering the constitutional validity of s384. His belief that the provision is not valid appears to be based on the misapprehension that the constitutional foundation of this and other relevant provisions is the external affairs power in s.51(xxix) of the Constitution.

[25] However, Part 3-2 (which contains the unfair dismissal provisions, including s384) is supported by the corporations power in s.51(xx) as well as various other heads of power in the Constitution. 12 In any event, we would point out that the Termination of Employment Convention authorises states parties to exclude employees engaged on a casual basis for a short period (Article 2(1)(c)).

[26] We see no arguable case of error in the Commissioner’s assumption that the relevant provisions of the FW Act are constitutionally valid.

Ground 3

[27] It appears to us that this ground is based on two complaints. The first is that the Commissioner did not consider Mr Calleri’s submission that the Commission should draw an adverse inference from the Respondent’s failure to call any witness from its human resources section. The second is that such an inference should have been drawn.

[28] As was recently observed by the Full Bench of the Commission in Construction, Forestry, Mining and Energy Union v Australian Workers’ Union & TCW Labour Pty Ltd, it is not necessary for a decision-maker to refer to every contention made by a party.  13 Much is dependent on the importance of the submissions to the issue or issues requiring determination.14 The Full Bench observed:

‘A failure to address a submission which is significant and touches upon the core duty being discharged or which is centrally relevant to the decision being made may, in some circumstances, found a conclusion that the submission has not been taken into account and may thereby expose jurisdictional error.’

[29] In our view, it does not appear that Mr Calleri’s submission concerning Jones v Dunkel 15 was one of significance that required attention in the Commissioner’s decision.

[30] Mr Calleri argued that, had the university called a witness from its human resources department to give evidence about his employment history, it would have revealed the true nature and total period of his employment. However, it is not clear to us what particular adverse inference the Commissioner could have drawn from Swinburne not calling a witness from the human resources department. In the present case, the university led evidence about Mr Calleri’s various periods of employment.

[31] The rule in Jones v Dunkel applies in circumstances where a party fails to call a witness, where it would be natural for them to do so, or where the party might be reasonably expected to call the witness. 16 Further, the inference that may be drawn is a negative one, namely that the evidence that might have been led by the party concerned would not have assisted it. We do not see how the rule in Jones v Dunkel would have had meaningful application in the present case, where the university did call evidence in relation to the relevant issues.

[32] Even where an adverse inference can be drawn, it remains at the discretion of the decision maker as to whether the inference should be drawn. An inference is never required to be drawn. In this regard, any error would need to be of the kind described in House v The King. In our view there is no arguable case of any such error here.

Ground 4

[33] Mr Calleri submitted that the Commissioner erred in exercising his discretion to grant the respondent permission for external legal representation under s596.

[34] A question arises in this context as to whether the restrictions in s400 referred to earlier apply. Section 596 is found in Part 5-1, rather than 3-2, to which s400 applies. In Asciano Services Pty Ltd v Hadfield, 17 the Full Bench determined that it would approach the matter on the basis that s400(1) applied, but that it would also state the conclusion it would reach if s400(1) did not apply.

[35] In the present matter, the decision to grant permission to appear does not appear to be challenged on the basis that an error of fact was made; accordingly, s.400(2) would not be of relevance. In relation to permission to appeal, as we have noted earlier, the first step common to both s.400(1) and 604 is to identify an arguable case of error. The difference between the two provisions is that s.400(1) requires the Commission to be satisfied that permission to appeal is in the public interest, before granting permission to appeal; s604 does not.

[36] The granting of permission under s596 involves a two-step process. 18 The first is that there must be satisfaction that at least one of the criteria in s596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”.19 The second is that the discretion conferred by s596(2) must be exercised in favour of the applicant for permission. Accordingly in respect of either step it will not be sufficient for an appellant to invite the Full Bench simply to substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified in House v The King.20

[37] The Commissioner dealt with the grounds for permission to appear in paragraphs 5 to 12 of his decision. He identified the matters relevant to the consideration of whether to grant a party permission to appear. He considered the complexity of the matter,  21 the fact that Mr Calleri is a solicitor, and that unfairness might accrue to the respondent if permission were not granted.22

[38] We do not discern an arguable case of appealable error in respect of ground 4.

Ground 5

[39] Mr Calleri challenges the Commissioner’s acceptance of the evidence of Swinburne’s witness, Ms Jobbagy. The Commissioner’s assessment of Ms Jobbagy’s evidence is found in paragraph 31 of the decision:

[31] Mr Calleri put numerous questions to Swinburne’s witness, Ms Jobbagy, to the effect that her evidence was untruthful or that she was lying or that she had made things up. While Mr Calleri put those propositions to her, each denied by Ms Jobbagy, he did not put contrary and specific information to her that would enable a finding that she had been untruthful. Rather than finding that Ms Jobbagy was untruthful in any respect I found her to be a truthful witness who was prepared to acknowledge those parts of her statement where she relied upon information provided from others or to acknowledge those aspects of her statement that were incorrect. In relation to those parts of her statement requiring correction I accept that the initial errors made by Ms Jobbagy were inadvertent, unintentional and without any intention to mislead.

[40] Ground 5 challenges the Commissioner’s findings in relation to the credit of the witness. Mr Calleri contended that the Commissioner erred in accepting as truthful the evidence of Ms Jobbagy, and that her statement should have been struck out on the basis of personal bias against him.

[41] In Short v Ambulance Victoria, 23 a Full Court of the Federal Court, relying on High Court authority, noted that findings of fact at first instance based on the credibility of a witness will usually only be set aside on appeal where:

‘incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences’. 24

[42] The Full Court also referred to the High Court decision in Devries v Australian National Railways Commission, 25 where the majority observed:

‘More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.”’(Citations omitted)

[43] In Colin Wright v AGL Loy Yang Pty Ltd, 26 a Full Bench of the Commission noted that these principles had been applied by the Commission for many years.27

[44] Having reviewed the submissions and material in this matter, we do not see any basis for a contention that the Commissioner’s finding as to Ms Jobbagy’s credibility is inconsistent with inconvertibly established facts. Mr Calleri does not agree with the Commissioner’s assessment. However, a party’s opposition to a finding or conclusion is not of itself sufficient to establish an arguable case of error.

[45] We do not consider ground 5 to disclose an arguable case of appealable error.

Ground 6

[46] Mr Calleri’s sixth ground contains several elements. First, he contends that the Commissioner erred in considering the possibility that his unfair dismissal application might have been made out of time. However, the Commissioner did not find that the application was out of time. We do not see how the Commissioner’s reflection on the possibility of the application being out of time could constitute an error. There is no indication that this had any bearing on the Commissioner’s assessment of whether Mr Calleri had met the minimum perid of employment.

[47] Secondly, Mr Calleri submits that the Commissioner erred in finding 28 that the respondent did not intend to re-employ him beyond March or June 2015. This contention alleges an error of fact on the part of the Commissioner. In this regard, applying s.400(2), the relevant errors of fact must be ‘significant’ in order for them to constitute an acceptable ground of appeal. We do not identify an arguable case that the Commissioner made a significant error of fact in this regard. The fact that Mr Calleri was subsequently employed as a casual the following year does not mean that the university had an intention in 2015 to reengage him in the future.

[48] Thirdly, Mr Calleri contends that the Commissioner erred in finding his continuity of service with Swinburne was broken when he completed the preparation of course materials in June of 2015. 29

[49] The Commissioner found that, based on the evidence, Mr Calleri’s continuity of service with Swinburne in 2015, if there was any, was broken when he completed preparation of the course materials in either March or June 2015. 30 He found that none of the evidence pointed to any continuity between the work performed by Mr Calleri in 2015 and his next engagement by Swinburne to work in May 2016.

[50] As noted earlier, Mr Calleri performed no work for Swinburne between (at the latest) June 2015 and May 2016. He was not on leave of any kind, or on call. He was not employed by Swinburne during this period. He rendered no service as a casual employee or on any other basis. We are unable to identify any apparent error in the Commissioner’s conclusion.

Conclusion

[51] We are not persuaded that Mr Calleri has established that there is an arguable case that the Commissioner erred in his decision. He has not identified matters of importance or general application that would enliven the public interest for permission to appeal being granted. We do not consider there to be manifest injustice.

[52] Accordingly, we do not consider that it would be in the public interest to grant permission to appeal. In accordance with s400(1) of the FW Act, permission to appeal is refused.

PRESIDENT

Appearances:

Mr M Minucci of counsel for Swinburne

Mr J Calleri represented himself
Hearing details:

2017

Melbourne

12 July

 1   [2017] FWC 2702

 2   See s382(1) of the FW Act

 3   This is so because on appeal the Commission has power to receive further evidence, pursuant to s607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 4   (2011) 192 FCR 78 at [43] per Buchanan J (with whose judgment Marshall and Cowdroy JJ agreed)

 5   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] -[46]

 6   [2010] FWAFB 5343, 197 IR 266 at [27]

 7   Wan v AIRC (2001) 116 FCR 481 at [30]

 8   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 9   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 10   Transcript of proceedings before the Full Bench, PN15

 11   ‘Service’ is defined in s22; ‘continuous service’ is partially defined in s22

 12   See s380 which defined employer and employee as national system employers, and the definition of these terms in s14 of the FW Act. See also the decision of the High Court in NSW v Commonwealth (WorkChoices case) [2006] HCA 52; (2006) 229 CLR 1

 13   [2017] FWCFB 2296 at [9]

 14   Ibid at [10]

 15   [1959] HCA 8

 16   See decision of the Full Bench in Tamayo v Alsco Linen Service Pty Ltd, Print P1859, 25 February 1997

 17   Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 (Asciano)

 18   Warrell v Walton [2013] FCA 291, 223 IR 335 at [24]

 19   Asciano, above n17, at [19]

 20   (1936) 55 CLR 499 at 505

 21   At [9] of the decision

 22   At [10] of the decision

 23   [2015] FCAFC 55

 24   Ibid at [99]

 25   (1993) 177 CLR 472 at 479

 26   [2016] FWCFB 4818; 262 IR 1

 27   Ibid at [36]

 28   At [41] of the decision

 29   At [53] of the decision

 30   Ibid

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