DECISION

Fair Work Act 2009
s.604—Appeal of decision

Goldbreak Holdings Pty Ltd T/A The Local Shack
v
Danny Mitchell
(C2019/2062)

Appeal against decision [2019] FWC 1435 of Commissioner Williams at Perth on 8 March 2019 in matter number U2018/10442.

[1] Goldbreak Holdings Pty Ltd T/A The Local Shack (Appellant) has appealed a Decision 1 and Order2 of Commissioner Williams made on 8 March 2019 in which the Commissioner found that Mr Danny Mitchell (Respondent) had been unfairly dismissed. The Commissioner also determined that the Respondent should be paid compensation of $8,844.23 gross subject to taxation.

Decision at first instance

[2] The Respondent was employed as an Executive Chef at The Local Shack which has a number of outlets and approximately 60 employees. He was responsible for the kitchens at four different venues. His employment was subject to a contract of employment which required that he “report to the Venue Manager or as the Employer may from time to time otherwise direct.” 3 The Commissioner found that there was no evidence that the Respondent was at any time directed to report to anyone other than the “Venue Manager”.

[3] The Commissioner made a number of findings in relation to the matter including:

•  In the week beginning 10 September 2018 the Respondent was working at the Mandurah outlet. Following the completion of his shift on 11 September 2018 Mr Wright, the General Manager, asked the Respondent to assist with the installation of a new oven at the Forrestville site. The Respondent attended but had a disagreement with Mr Wright as to what was expected of him. 4

•  The Respondent then found himself removed from the Appellant’s WhatsApp group (used by the Appellant to communicate with employees) and took this as an indication that his employment was terminated. The Respondent was removed from the WhatsApp group by Mr Wright. 5

•  On 12 September 2018 the Respondent attended his doctor and was issued with a medical certificate from 12-19 September 2018. The Respondent provided his medical certificate to the Venue Manager at Mandurah (Katie Johnson) which was where he was rostered to work for the period of the medical certificate. He did not mention the medical certificate to Mr Wright or Ms DeBono (the Human Resources Officer). 6

•  The Respondent and Ms DeBono exchanged some text messages between 11 and 13 September 2019. As arranged through the text messages the Respondent spoke to Mr Wright on 13 September 2018. The Respondent said, and the Commissioner accepted, that he did not agree to work at Forrestville on 13 September 2018. 7

•  On 19 September 2019 the Respondent received a further medical certificate for the period from 19 – 26 September 2018. He spoke to a person in the accounts area as he had not been paid. The Respondent was advised that this was because he had failed to work any of his shifts. 8

•  On 19 September 2018 the Respondent emailed Ms DeBono advising her of his medical certificates. He received a reply email from Ms DeBono in which she advised that he had abandoned his employment and his employment had been terminated with immediate effect. 9

[4] On the basis of these findings the Commissioner then found that there was no valid reason for the dismissal of the Respondent, that the Respondent was not notified of the reason nor given an opportunity to respond before the Appellant took action to dismiss him, no meetings had been held with the Respondent and hence there had been no refusal to allow him a support person, the Appellant was a medium sized business with a Human Resources Officer (Ms DeBono) and that the Respondent had been employed for approximately 14 months. Considering all of these matters the Commissioner determined the Respondent had been unfairly dismissed.

[5] Upon considering that reinstatement was not appropriate in the circumstances the Commissioner determined that compensation of $8,844.23 gross was appropriate.

Permission to appeal

[6] An appeal under s.604 of the Fair Work Act 2009 (‘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.¹⁰ There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of the FW Act states:

(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).

[7] This appeal is one to which s.400 of the FW Act applies. Section 400 provides as follows:

400 Appeal rights

(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.

[8] In Coal & Allied Mining Services Pty Ltd v Lawler and Others¹¹ the Federal Court characterised the test under s.400 as “stringent”.¹² The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.¹³ In GlaxoSmithKline Australia Pty Ltd v Makin¹⁴ 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.¹⁵

[9] 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.¹⁶ 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.¹⁷

Grounds of appeal

[10] The Appellant argues that the Commissioner made a number of errors of fact such that the decision is attended by doubt and permission to appeal should be granted.

[11] The errors of fact are that:

•  The Respondent had agreed to work at the Forrestville store on 14-16 September;

•  The Respondent’s contract required him to notify his employer if he could not attend work and he did not do so;

•  The Respondent failed to provide a medical certificate to the Venue Manager at Forrestville or his employer until 19 September;

•  Katie Johnson is the Venue Manager of Forrestville and not Mandurah;

•  The Respondent only had a valid working visa until 30 September 2018 and not for six weeks as found by the Commissioner;

•  The Commissioner failed to take into account that the Respondent owed Ms DeBono and Mr Wright money for his immigration visa.

[12] The Appellant also said that the appeal attracts the public interest as it raises important issues in relation to the operation of the contract of employment and the provision of medical certificates.

Consideration

[13] The Appellant said that this matter goes to whether the employer can rely on a signed contract between an employer and employee. The Appellant argued that the employment contract signed by the Respondent requires that he provide a medical certificate at the first opportunity and he failed to do so. Further he failed to advise Mr Wright or Ms DeBono on 12 or 13 September 2018 that he had a medical certificate.

[14] In reaching his conclusion that the Respondent had been unfairly dismissed the Commissioner considered the evidence before him and determined both that the Respondent had advised his Venue Manager that he was ill and provided her with a copy of his medical certificate. Further, the Commissioner found, based on the evidence he preferred, that the Respondent had not agreed to work at an alternative venue.

[15] The Appellant has not demonstrated that the decision of the Commission is attended by significant errors of fact that would enliven the public interest such that permission to appeal should be granted. If it is correct that Ms Johnson was the Venue Manager at Forrestville and the Respondent performed work here, then the finding that he provided his medical certificate to Ms Johnson as his Venue Manager is not an error. Even if there was some error of fact, we are not satisfied that it would amount to a significant error such that the ultimate finding of the Commissioner might be attended by sufficient doubt to warrant permission to appeal.

[16] To the extent that the Appellant maintains the contract of employment required that the Respondent provide a medical certificate to “the employer” it fails to demonstrate that there was any error in the finding of the Commissioner that the contract required advice of absence to the Venue Manager or otherwise as directed by the employer. Further, it fails to demonstrate any error in the finding of the Commissioner that the Respondent had not been directed to provide the medical certificate to any other person than the Venue Manager.

[17] It seems to us that the Appellant is, in this case, dissatisfied with the decision of the Commissioner. This does not demonstrate any error on the part of the Commissioner nor provide grounds on which to find that permission to appeal should be granted.

[18] There is no evidence before us of a diversity of decisions at first instance as to the operation of contracts of employment or the requirement to provide a medical certificate such that guidance from a Full bench is required nor that the decision of the Commissioner is counter intuitive or disharmonious with other recent decisions. In reaching his decision it appears the Commissioner took an orthodox approach – he considered the evidence, made relevant findings of fact based on that evidence and reached a conclusion open to him.

[19] Further, we discern no error in the determination of compensation. It was open to the Commissioner to make the finding he did regarding the anticipated period of employment. The validity of a working visa at the time of dismissal is a relevant but not determinative consideration.

Conclusion

[20] On the basis of the submissions of the Appellant we are not satisfied that there is a significant error of fact in the decision such that it would attract the public interest.

[21] Permission to appeal is therefore refused.

VICE PRESIDENT

Appearances:

B. Wright with C Debono for the Appellant.

D. Mitchell for the Respondent.

Hearing details:

2019.

Sydney via video link to Melbourne and Perth:

May 14.

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWC 1435.

 2   PR705534.

 3   [2019] FWC 1435 at [9].

 4   Ibid at [16]-[17].

 5   Ibid at [18] and [31].

 6   Ibid at [21], [23] and [26].

 7   Ibid at [22].

 8   Ibid at [32].

 9   Ibid at [33] and [34].

10 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

11 (2011) 192 FCR 78.

12 Ibid at [43].

13  O’Sullivan v Farrer and another (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].

14 (2010) 197 IR 266.

15  [2010] FWAFB 5343; Ibid at [27].

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

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