DECISION

Fair Work Act 2009
s.604—Appeal of decision

Daniel Hall
v
The Whole Box n Dice T/A The Whole Box n Dice
(C2018/3777)

Appeal against decision ([2018]) FWC 3521 of Commissioner Cambridge at Sydney on 20 June, 2018 in matter number U2017/13508

[1] Mr Daniel Hall (the Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Cambridge issued on 20 June 2018 (Decision). 1 In the Decision, the Commissioner granted the Appellant’s application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (FW Act) on the basis that the dismissal of the Appellant by his former employer, The Whole Box n Dice Pty Ltd T/A The Whole Box n Dice (the Respondent), on 15 December 2017 was harsh and unreasonable.

[2] The Decision included a finding that it was appropriate that the Appellant be paid compensation. An order was issued by the Commissioner on 20 June 2018 to give effect to the Decision (Order). 2 The Order was in the following terms:

1. “Pursuant to s.392 of the Act, The Whole Box ‘n Dice Pty Ltd ABN: 34 060 308 830 (the Employer) is hereby Ordered to pay to Daniel Peter Hall (the Applicant), the amount of $6,928.00.

2. The amount Ordered in 1 above is a gross figure and appropriate taxation treatment is a matter for the Parties.

3. The amount Ordered in 1 above is to be paid to the applicant within 21 days of the date of this Order.”

[3] On 10 July 2018, the Appellant lodged a Notice of Appeal.

[4] On 8 August 2018, we heard the parties on permission to appeal and the substantive appeal. The Appellant appeared on his own behalf, and Mr Adam Guy, of counsel, sought permission to appear for the Respondent. The Appellant opposed the application for legal representation and opposed the Respondent being entitled to rely on submissions prepared by a lawyer.

[5] Submissions on representation were filed for the Respondent on 23 July 2018. It was submitted that the grounds of appeal involved the non-inclusion of superannuation in the order for compensation, evidence concerning the viability of the Respondent, and alleged inadequacy of the remedy generally. The Respondent contended that these matters raised complex issues that would be dealt with more efficiently with legal representation. It was also submitted that Ms Jan Richards would be travelling at the time of the hearing on 6 August 2018, although the hearing was subsequently moved to 8 August 2018.

[6] The Appellant filed submissions on 23 July 2018 in response to, and opposing, the Respondent being represented. The Appellant submitted that the Respondent successfully opposed him being allowed legal representation in the matter at first instance and the case being put by the Respondent to being represented on appeal was at odds with the case it put at first instance. The Appellant also said that the Respondent, at first instance, claimed it could not afford to be represented however the fact it now engaged a lawyer contradicted its’ earlier position. Finally the Appellant submitted that the issues were not complex.

[7] The parties also made brief oral submissions on the matter at the commencement of the hearing. We had regard to the submissions advanced by both parties and decided to grant permission for legal representation. 3 For the reasons stated by the Respondent in its submissions on legal representation, we are of the view that this appeal is likely to involve a degree of complexity beyond the matter at first instance,4 and therefore we consider that granting permission to appear would enable the matter to be dealt with more efficiently.5

[8] The Appellant filed a Form F52 application for an order for production of documents on 24 July 2018 including end of year financial statements, profit and loss statements and tax returns for each of the Respondent, Doja Pty Ltd and the Whole Box ‘n Dice New Zealand. The Respondent submitted that it would only be appropriate to make the orders sought if the Appellant’s appeal was allowed and a new hearing is ordered. In email correspondence to the parties, the Commission advised that the F52 application would be dealt with on the day of the hearing. After hearing the oral submissions of both parties concerning the application, we declined to issue the order.

[9] On 7 August 2018, the Appellant sent an email to the chambers of Vice President Catanzariti seeking to adduce fresh evidence concerning the existence of a business associated with the Respondent registered in New Zealand, and a business called Doja Pty Ltd. The Respondent submitted that, despite the requirements of Rule 56(3) of the Fair Work Commission Rules 2013, the Appellant filed additional evidence in the form of sales records for the periods July 2015 to June 2016, and July 2016 to June 2017 in the appeal book filed on 13 July 2018. The Respondent submitted that, generally, an appeal is not the appropriate forum to call new evidence that was not considered by the tribunal below and the Full Bench should disregard the sales records. The Respondent made further oral submissions addressing the application to adduce fresh evidence. We decided in the course of the hearing not to allow the new material to be included in the appeal.

The Decision at first instance

[10] The Appellant was employed as a Business Development Manager with the Respondent for a period of about two years and ten months. 6 The Respondent is a small business employer involved in the design, manufacture and procurement of promotional merchandise.7 The Respondent asserted that it had decided to make the Appellant’s role redundant and redistribute his work, and that was the reason for his termination. The termination had immediate effect and the Appellant was paid three weeks’ wages in lieu of notice, together with his outstanding leave entitlements.8

[11] The Commissioner had regard to the Small Business Fair Dismissal Code and determined it had no particular relevant operation in the circumstances of the dismissal in this case. 9

[12] The Commissioner noted that the Appellant acknowledged that the role he had performed was redundant and not being required to be performed by anyone in any form. 10 The Commissioner concluded that the evidence established that the position the Appellant occupied was no longer required and consequently the requirement in s.389(1)(a) had been established.11

[13] There was a dispute as to whether the Commercial Sales Award 2010 applied to the Appellant’s employment with the Respondent. That dispute was relevant to the question as to whether the Respondent had complied with an obligation to consult about the redundancy. The Commissioner determined that the Commercial Sales Award 2010 did apply. 12 The Commissioner subsequently found that the Respondent had failed to meet the relevant consultation obligations in the Award, that s.389(1)(b) of the FW Act had not been satisfied, and therefore the jurisdictional objection failed because the dismissal was not a genuine redundancy.13

[14] The Commissioner considered each of the matters set out under s.387 of the FW Act, and that the dismissal was not related to capacity or conduct pursuant including to s.387(a). 14 In relation to s.387(h) of the FW Act, the Commissioner gave weight to the Respondent’s failure to consult the Appellant15 and determined that the dismissal was unfair.

[15] At paragraph [77] of the Decision, the Commissioner concluded as follows

“[77] There was uncontested evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise. This evidence has been the most significant factor in reducing the amount of compensation to be provided.”

[16] The Commissioner considered that there was evidence to suggest that the employment would not have continued for a significant period of time because of the deteriorating financial position of the employer, and that notionally the employment would have continued for at least a further 10 weeks, amounting to a figure of $17,320. 16 Consequently, the Commissioner concluded that:

“[85] … the amount of compensation to be provided to the applicant [Appellant] should be calculated by subtracting from the amount determined as remuneration that the [Appellant] would have received or would have been likely to have received if he had not been dismissed, an amount equivalent to six weeks in recognition of the impact that payment of the full amount would have on the viability of the employer’s enterprise. Therefore, that calculation is: $17,320 minus $10,392.

[86] The result is an amount of compensation of $6,928.00. Accordingly, separate Orders [PR608165] providing for remedy in these terms will be issued.”

Appeal grounds and submissions

[17] The Commissioner’s Decision that the dismissal was unfair was unchallenged. The appeal is confined to the remedy ordered.

[18] The appeal is made on that basis that the Order did not include an amount for superannuation and also against the Decision of the Commissioner to subtract from the amount determined as remuneration that the Appellant would have received or would have been likely to have received if he had not been dismissed, an amount equivalent to six weeks in recognition of the impact that payment of the full amount would have on the viability of the employer’s enterprise. 17

Appellant submissions

[19] It was contended that the financial position of the Respondent was not accurately assessed or disclosed to the Commission. The appeal grounds referred to the existence of another successful property acquisition business called Doja Pty Ltd.

[20] The Appellant submitted that he was experiencing extreme financial pressure which should be taken into account. The Appellant also submitted his sales and performance figures were not down, and the company was mismanaged but he was over his budget.

[21] The Appellant submitted that relying on results for one financial year to show the business was not viable was unconscionable, that the business continues to trade successfully and that the Decision was counter intuitive. The Appellant said the Respondent hired new staff in September 2017 and went on business trips on business class fares.

[22] The Appellant queried the Respondent’s profit and loss statement and highlighted the fact that the rental costs were a passive loss and not actual. The Appellant noted that more sales figures should be provided and that the accountant was extremely slow in invoicing jobs for clients. The Appellant said that because of this, the sales figures for each term or year may not be accurate. The Appellant also contended that the profit and loss statement never came up in the hearing, was not explained to him how important this document would be when it came to the Decision, and that this led him to believe that the issue was irrelevant to his unfair dismissal case.

[23] The Appellant submitted that the Respondent falsely stated that it was up to him to make sure client invoices were paid. He was not privy to the Respondent’s financial situation and had no idea that this would be taken into consideration. The Appellant stated that there was insufficient evidence to make a deduction from the compensation and other factors have not been considered when making the Decision to deduct from the original figure of compensation.

[24] The Appellant submitted that the order overlooked the superannuation component, and that the manner in which the Commissioner reached his conclusion about the Respondent’s actual financial position was erroneous. The Appellant contended that if further financial documents were submitted, these would have been taken into consideration and that the Respondent was selective in the material it submitted.

[25] The Appellant submitted it was in the public interest that to grant permission to appeal because it sets a precedent for other small business employers to seek to reduce compensation.

Respondent submissions

[26] The Respondent submitted that the appeal was not within the public interest and should be dismissed.

[27] In relation to the non-inclusion of a superannuation component in the compensation awarded, the Respondent submitted that the Appellant failed to identify how the Commissioner’s approach manifested an injustice, produced a counter intuitive result, required appellate guidance or was disharmonious when compared with other recent decisions. The Appellant does not point to any material establishing that the Appellant sought a component of compensation for superannuation at first instance and that the ordering of a payment for superannuation as part of compensation to be awarded is not mandatory or required by the Act. There was no significant error of fact as contemplated by s.400(2) of the FW Act in that regard. In response to the Appellant’s claim that the Commissioner had ‘overlooked’ or ‘forgot’ the Appellant’s entitlement to superannuation, the Respondent submitted that there was no evidence to suggest that the Commissioner did not follow the authorities, or expressly excluded remuneration for superannuation as a component of the Appellant’s award.

[28] In relation to the reduction in the compensation awarded in consideration of the viability of the Respondent’s enterprise, it was submitted that the Appellant simply desired a different result and that this did not enliven the public interest.

[29] The Respondent submitted that the Appellant erroneously relied on the existence of the Whole Box ‘n Dice registered in New Zealand, and a business called Doja Pty Ltd neither of which were not subject to this appeal or to the proceedings below, and were not a relevant consideration to the viability of the employer’s enterprise.

[30] The Respondent submitted that the profit and loss statements presented at the hearing were the best evidence of the Respondent’s viability as an enterprise. The Respondent said it was open to the Appellant to challenge the evidence of the Respondent’s viability at the hearing at first instance, and open to the Appellant to seek to have financial reports and bank balances produced to the Commission. Neither of these options were taken up by the Appellant.

[31] In response to the Appellant’s claim that the importance of the profit and loss statements was not explained to him, the Respondent asserted that the Commissioner explained to the Respondent the role of the Commission in the running of the case and referred to the transcript. 18

[32] The Commissioner was not in error to find that there was uncontested evidence that an order for compensation would impact on the viability of the business. The Respondent said the profit and loss statement formed part of its document list and was tendered as an exhibit, and there was no objection to its tender.

[33] The Respondent submitted that s.392(2)(a) of the FW Act requires the Commission to take into account the impact that an order for compensation will have on the employer’s enterprise, and it was open for the Commissioner to apply whatever reduction in compensation he believed fit in the circumstances of the case, which was not erroneous.

Permission to appeal principles

[34] The appeal is made under s.604 of the 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. 19

[35] 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.

[36] In Coal & Allied Mining Services Pty Ltd v Lawler and others 20, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as “a stringent one”.21 The task of assessing whether the public interest is met is a discretionary one involving a broad value judgement.22 In GlaxoSmithKline Australia Pty Ltd v Makin23 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”. 24

[37] 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. 25 However, the fact that the Member at first instance made an error at first instance is not necessarily a sufficient basis for the grant of permission to appeal.26

Consideration

[38] Whilst many orders flowing from decisions of the Commission in successful unfair dismissal matters include a component for superannuation, no Full Bench authority or other authority has determined that approach is mandatory. We are satisfied that the Commissioner took into account each of the matters he was required to under s.392 and applied a conventional approach including by relying on relevant authorities in the exercise of his discretion.

[39] A review of the transcript in its entirety reveals that Ms Richards made a number of references in the course of the hearing to the financial difficulties of the Respondent which was of course a small business, including whilst cross-examining the Appellant, 27 in her own opening statement28 and during her own evidence.29

[40] The Appellant raised no objection to the admission of the Respondent’s evidence that the Commissioner relied upon to form a view about the effect of an order for compensation on the viability of the employer’s enterprise. The transcript reveals that the Appellant did not cross-examine Ms Richards about the financial viability of the business, or attempt to challenge Ms Richards’s reliance on the 2016/2017 profit and loss statement.

[41] We agree with the Respondent’s submission that the Appellant’s appeal ground concerning the deduction made on account of s.392(2)(a), and his desire to now bring new evidence not brought at first instance falls into the category of the Appellant desiring a different result, rather than identifying an arguable case of error.

[42] Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Commissioner applied the correct legal principles, considered and dealt with the evidence that were before him, and made findings of fact based on the evidence before him. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purpose of s.400(1) that:

•  There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

•  The appeal raises issues of importance and/or general application;

•  The Decision at first instance manifests an injustice, or the result is counter intuitive; or

•  The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[43] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.

[44] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

Mr D. Hall, Appellant, appeared on his own behalf

Mr A. Guy, of counsel, appeared for the Respondent

Hearing details:

2018

Sydney

August 8

Printed by authority of the Commonwealth Government Printer

<PR700929>

 1   [2018] FWC 3521.

 2   PR608165.

 3   Transcript of Proceedings, 8 August 2018 at PN20.

 4   Ms Erica Pedler v The Commonwealth of Australia, represented by Centrelink [2011] FWAFB 4909 at [9].

 5   FW Act, s.596(2)(a).

 6   Decision at [7].

 7   Decision at [6].

 8   Decision at [11].

 9   Decision at [32].

 10   Decision at [24].

 11   Decision at [38] – [40].

 12   Decision at [41]-[51].

 13   Ibid.

 14   Decision at [56].

 15   Decision at [65] and [69].

 16   Decision at [79] – [80].

 17   Decision at [85].

 18   Transcript of Proceedings, 18 April 2018 at PN34.

 19   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.

 20   Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78.

 21   Ibid at [43].

 22   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 78, 207 IR 177 at [44] – [46] .

 23   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

 24   Ibid.

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

 26   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28] affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 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].

 27   Transcript of Proceedings, 18 April 2018 at PN96 – PN104.

 28   Transcript of Proceedings, 18 April 2018 at PN386 – PN388.

 29   Transcript of Proceedings, 18 April 2018 at PN513 – PN516.