DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jeremy Taylor
v
Auto Loans Group Pty Ltd T/A AutoCarLoans
(C2018/2195)

Permission to appeal against decision [2018] FWC 1950 of Commissioner McKinnon at Melbourne on 5 April 2018 in matter number U2017/10648.

[1] On 26 April 2018 Mr Jeremy Taylor lodged a notice of appeal, for which permission to appeal is necessary, against a decision 1 (Decision) of Commissioner McKinnon on 5 April 2018. In the Decision the Commissioner dismissed Mr Taylor’s application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (FW Act) on the basis of a determination that the dismissal of Mr Taylor by his former employer Auto Loans Group Pty Ltd t/a AutoCarLoans.com.au (ALG) on 25 September 2017 was consistent with the Small Business Fair Dismissal Code (the Code).

[2] The appeal is made under s 604 of the Fair Work Act 2009 (FW Act). There is no right to appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2

[3] This decision concerns whether permission to appeal should be granted.

[4] Section 400 of the FW Act applies to this appeal. It 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.

[5] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the FW Act as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 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” 5 

[6] 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. 6 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7

[7] 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.⁸

Public Interest Considerations

[8] We now consider whether the appeal enlivens the public interest.

Does the appeal raise a matter of importance or general application?

[9] Mr Taylor asserts that the principles of law associated with the operation and application of the Code, particularly as it relates to a summary dismissal, have been misapplied.

[10] In so contending, Mr Taylor does not seek to disturb those legal principles or establish new principles. Rather, he seeks to rely on established principle. The appeal does not raise a legal question of importance or general application.

Is guidance from an appellate body required on the legal principles?

[11] The legal principles relevant to the determination of the matter, including the operation and application of the Code, were identified by the Commissioner. The Commissioner stated: 9

“In the present context, the Commission’s role is to determine whether the employer genuinely held a belief that the employee had committed an act of serious misconduct and whether that belief was, objectively speaking, based on reasonable grounds. It is not necessary to determine whether the serious misconduct did in fact occur or that the employer was correct in the belief that it held.” (references omitted)

[12] This statement of principle and others relied on by the Commissioner were drawn from the terms of the FW Act itself and its associated regulations, from the authority of courts exercising a supervisory role or Full Benches of the Commission exercising an appellate jurisdiction. They are settled principles. They do not emerge from a diversity of earlier decisions that remain unresolved. There is no basis on which this appellate body considers it necessary or expedient to revisit those principles or provide general guidance on them.

Does the decision manifest an injustice or is it counter intuitive?

[13] A primary issue agitated in seeking permission to appeal was the contention by Mr Taylor that the Commissioner caused him an injustice by erring in making the following findings of fact:

• That neither Mr McPherson nor Mr Tushuizen were employees of the Respondent or an associated entity; 10

• That Mr Taylor was absent from work for unauthorised periods in September 2017; 11

• That Mr Taylor had deliberately engaged in behaviour that was inconsistent with the continuation of his contract of employment in that he had established and was conducting a competitor business which “put ALG at risk of reduced profitability by commissions being redirected away to other sources”; 12 and

• That Mr Taylor had been instantly dismissed with the dismissal taking effect on 25 September 2017. 13

[14] We do not consider that Mr Taylor has advanced an arguable case that any of these findings was made in error.

[15] The finding that neither Mr McPherson nor Mr Tushuizen were employees of ALG or an associated entity was relevant to the Commissioner’s conclusion that the Code applied. The Commissioner found that ALG (including associated entities) employed 13 employees at the date of dismissal (excluding these two persons). The Commissioner’s finding that neither person had a contract of employment with ALG or an associated entity was based on uncontroverted evidence before her and the application of correct principle. 14

[16] Similarly, the finding that Mr Taylor was absent from work for unauthorised periods in September 2017 was supported by oral and documentary evidence before the Commissioner. At the hearing of his application for permission to appeal Mr Taylor contended that further evidence (including fuller details of text message exchanges), if admitted, would place his absences into a different context. We are not satisfied that Mr Taylor has an arguable case for the admission of fresh evidence in his appeal should he be granted permission to appeal, having regard to principles stated in the Full Bench decision in Loftus v Earth Force Personnel Pty Ltd. 15 He conceded that the evidence of the text message exchanges he wished to rely on were available to him at the time of the hearing before the Commissioner, but he had not sought to place them before the Commission then because he had not been “emotionally ready” for the hearing. In any event, we are not satisfied that the Commissioner failed to have regard to contextual matters in arriving at her decision, nor that any such evidence could displace the Commissioner’s findings concerning Mr Taylor’s absences from work.

[17] The finding that Mr Taylor had established and was conducting a competitor business which had not been disclosed to the employer was relevant to the Commissioner’s conclusion, when applying the Code, that the employer had reasonable grounds on which to believe that the employee had engaged in serious misconduct justifying summary dismissal. The evidence before the Commissioner, both documentary and oral, supported this finding.

[18] The finding that Mr Taylor had been instantly dismissed with the dismissal taking “immediate effect” 16 on 25 September 2017 was relevant to the Commissioner invoking the summary dismissal provisions of the Code. On appeal, Mr Taylor contended that this was an error of fact in that he claimed that he was not summarily dismissed because the employer required him to complete work on at least the day following his dismissal.

[19] This contention is inconsistent with the way in which the matter was argued before the Commissioner. Mr Taylor’s unfair dismissal application indicated that his dismissal was both notified to him and took effect on 25 September 2017 (when he was “walked out of the building”) - that is, it was a summary dismissal. There is no indication that Mr Taylor resiled from this position at the hearing. In any event the evidence demonstrates that Mr Taylor’s contention that he was not summarily dismissed is clearly incorrect. An email sent by ALG to Mr Taylor three days after his dismissal confirmed that he had been dismissed effective from 25 September 2017. ALG had, on the day following the dismissal, taken steps to prevent Mr Taylor accessing its clients on ALG’s behalf. Its request for information from Mr Taylor on the day following dismissal was for the purpose of enabling the employer to ascertain what had been done in its name, and to protect its interests. We are satisfied that ALG did not require Mr Taylor to work on its behalf in the days that followed dismissal. There is no arguable case that the Commissioner erred in concluding that the dismissal had immediate effect.

[20] It was evident on appeal that Mr Taylor’s complaint with the Commissioner’s findings of fact was primarily based on his belief that he would have presented fuller evidence at the hearing had he been emotionally ready to respond to the employer’s case, which he claimed he was not.

[21] It is not a ground on which the public interest is enlivened for an appellant to contend that they could have run a better case at first instance, and now wishes to do so. Nor is it a ground to contend that the Commission has some special obligation to call for the admission of evidence which a party has in its possession but fails to place before the Commission. There is no doubt that proceedings in the Commission can be stressful, particularly so for persons unfamiliar with the jurisdiction or litigation in general.

[22] In this instance, the Commissioner dealt with the matter by determinative conference. This provides a less formal forum for the determination of an application. Notice of the conference was given well in advance and written materials were exchanged, as directed. Almost four months had transpired between the dismissal and the hearing, a period that allowed adequate time for the parties to prepare their respective cases. Although Mr Taylor was not represented by a lawyer or paid agent, neither was ALG. He represented himself with the assistance of his father. The proceedings took an orthodox course. There is no indication that the Commissioner placed any inhibition on Mr Taylor advancing the case which he wished to advance.

[23] We are not satisfied that there is any arguable case that the proceedings conducted by the Commissioner manifested any unfairness to Mr Taylor in either the presentation or testing of the evidence or in the making of submissions.

Are the legal principles misapplied or disharmonious?

[24] We have not identified any legal principles that were misapplied by the Commissioner in a manner that was disharmonious with decisions that have applied them correctly.

Conclusion

[25] In arriving at our decision we have considered the following factors:

(a) whether there are a diversity of decisions at first instance so that guidance from an appellate body is required; or

(b) whether the appeal raises issues of importance or general application; or

(c) whether the decision manifests an injustice, or the result is counter intuitive; or

(d) whether the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[26] We are not persuaded that these factors are established either in their own right or in combination. We have also considered whether the appeal raises other factors beyond those stated above that could be said to enliven the public interest. None were put to us by the Mr Taylor and we find no others.

[27] It follows that it is not in the public interest to grant permission to appeal. Permission must therefore be refused.

VICE PRESIDENT

Appearances:

J. Taylor on his own behalf.

C. McPherson and A. Tushuizen on behalf of Auto Loans Group Pty Ltd t/a AutoCarLoans.

Hearing details:

2018.

Melbourne:

12 June.

Printed by authority of the Commonwealth Government Printer

<PR608443>

 1   [2018] FWC 1950

 2   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 3   (2011) 192 FCR 78; 207 IR 177 at [43]

 4   O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; 207 IR 177 at [44] -[46]

 5   [2010] FWAFB 5343; (2010) 197 IR 266 at [27]

 6   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]

 7   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28]

⁸ Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 9   Decision at [62]

 10   Decision at [54] – [56]

 11   Decision at [21] to [35]

 12   Decision at [77] and [79]

 13   Decision at [37] and [66]

 14   Decision at [53] and [58]

 15   [2014] FWCFB 1978 at [14]-[17]

 16   Decision at [60]