[2019] FWCFB 4240  Note: Refer to the Federal Court decision of 4 September 2020 for the result of this matter.
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Loi Toma
v
Workforce Recruitment and Labour Services Pty Ltd
(C2019/1868)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT DEAN
COMMISSIONER HUNT

SYDNEY, 18 JUNE 2019

Appeal against decision [[2019] FWC 1564] of Senior Deputy President Hamberger at Sydney on 11 March 2019 in matter number U2018/2283 - no public interest in appeal identified - permission to appeal refused.

[1] Mr Loi Toma (the Appellant) was employed by Workforce Recruitment and Labour Services Pty Ltd (the Respondent) until his employment ended in February 2018.

[2] The Appellant applied for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). In a decision issued on 24 May 2018, Commissioner Cambridge summarily dismissed the application pursuant to s 587 of the Act 1. The Appellant appealed, and on 27 September 2018, a Full Bench upheld the appeal and quashed the decision2.

[3] The Appellant’s application for an unfair dismissal remedy was remitted to Commissioner Simpson for rehearing. The Commissioner conducted a directions hearing by telephone on 31 October 2018 (the Directions Hearing). The application was subsequently reallocated to Senior Deputy President Hamberger to re-hear the application.

[4] The Senior Deputy President re-heard the application on 26 February 2019. The Senior Deputy President issued a decision in relation to the application on 11 March 2019 (the Decision). 3 In the Decision, the Senior Deputy President determined that the Appellant had not been dismissed within the meaning of s 386 of the Act because he had resigned from his employment, and his resignation was not forced by any action of the Respondent. As a result, the application was dismissed.

[5] The Appellant has lodged an appeal, for which permission to appeal is required, against the Decision, and it is this appeal we now deal with.

[6] On 16 May 2019, the Full Bench heard the parties on permission to appeal and the appeal. At the hearing of the appeal, Mr Toma was self-represented and was provided with an interpreter. The Respondent was represented by Mr Andrew Burnett of Counsel. We granted the Respondent permission to be represented pursuant to s 596(2)(a) of the Act because we were satisfied that the matter could be deal with more efficiently if the Respondent was represented.

[7] For the reasons set out below, we have determined that permission to appeal should not be granted.

Permission to appeal

[8] An appeal under s 604 of the 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[9] The appeal is also one to which s 400 of the Act applies. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)).

[10] 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 as ‘a stringent one’. 5 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[11] The task of assessing whether the public interest test is met, is a discretionary one involving a broad value judgment. 6 In GlaxoSmithKline Australia Pty Ltd v Makin7 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.” 8

[12] 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. 9 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.10

The Appellant’s grounds for appeal and submissions

[13] The Notice of Appeal lodged by the Appellant set out three grounds of appeal.

First Appeal Ground

[14] The first ground of appeal was that the Decision was not enforceable because the name of the Respondent was incorrect.

[15] The Appellant had described his employer as being Workforce Variable Pty Ltd in his application for an unfair dismissal remedy.

[16] During the Directions Hearing conducted by Commissioner Simpson, and after hearing from both parties, the Commissioner corrected the name of the Respondent to Workforce Recruitment and Labour Services Pty Ltd in accordance with the Commission’s discretion under s 586 of the Act. The relevant section of the transcript 11 is as follows:

“THE COMMISSIONER:

Can you ask Mr Toma, does he agree, or not agree, that he was employed by a business whose legal name was Workforce Recruitment and Labour Services Proprietary Limited?  Because that's who the respondent says employed him.

MR FOAGA:

Yes.

MR TOMA: 

Yes.  Okay, yes.  Yes.

MR FOAGA:

He agrees with that.

THE COMMISSIONER

He agrees with that.

MR FOAGA:

Yes.

THE COMMISSIONER:

All right.  Well, on that basis I'm prepared to exercise power under the legislation.  I'll just make sure I get the right – I think it's 586, from memory – just bear with us.

……………

THE COMMISSIONER:

Yes.  Yes, well, look, all right, I'll exercise power under section 586 to allow a correction, or amendment to the application so that the legal identity of the employer is Workforce Recruitment and Labour Services Proprietary Limited…….”

[17] In the Decision, the Senior Deputy President found that “it is clear from evidence tendered during the proceedings (including the applicant’s pay slips) that his employer was actually Workforce Recruitment and Labour Services Pty Ltd, a related entity of Workforce International Group”. 12

[18] We are satisfied that there is no error in having corrected the name of the Respondent. The evidence, including a reliance on the Appellant’s payslips, constituted a proper evidentiary basis upon which to make such a correction. We reject this ground of appeal.

Second appeal ground

[19] We understand the Appellant’s second ground of appeal to be that that complaints made by the Appellant prior to the hearing of this appeal about Commissioner Simpson and the Senior Deputy President were not dealt with prior to the appeal, and that this resulted in the Appellant being “unable to run my case”.

[20] The Appellant did not expand on this appeal ground. We are unable to discern any reason why the Appellant was unable to run his case because of the reason proffered by him, or for any other reason. The Appellant was provided with a full opportunity to present his case. There is nothing in the Decision which would suggest otherwise. We reject this ground of appeal.

Third appeal ground

[21] The third appeal ground was that the Senior Deputy President made twelve significant errors of fact. The majority of the errors alleged by the Appellant are not relevant to the question the Senior Deputy President needed to determine, that being whether there had been a dismissal within the meaning of the Act.

[22] The Appellant contended that the most significant error made by the Senior Deputy President was his failure to listen to the audio recording of the Directions Hearing. The Appellant contended that had the Senior Deputy President done so, “he would have been fully aware of what happened before”. It seems that this ground is in part related to the Appellant’s request that the Senior Deputy President recuse himself from determining the application. In this regard, the Senior Deputy President said the following:

“[14] The applicant also asked that I recuse myself from hearing the case. The reason he gave was:

‘…because you’re new to the case and the people that dealt with it before I think that if they dealt with it it would be a different path, but because you’re new to the case.’

[15] He confirmed this was the only reason he was seeking my recusal but added:

‘…I’ve got a feeling that you don’t know fully of what has happened before….Because the statement that I received from the respondent there’s a lot of changes, and I don’t understand all the changes that are in the statement.’ 

[16] I indicated at the time that I did not intend to recuse myself from dealing with the application. I did not consider that the applicant had made out a proper basis for recusal. In particular, I was satisfied that he was being given a fair opportunity to present his case, including any objections he had to Ms Vanzwan’s statement. I should add that I have had the opportunity to acquaint myself with all the relevant written and audio records from the previous proceedings dealing with Mr Toma’s application.” (References omitted)

[23] Further, in paragraph [19] of the Decision, the Senior Deputy President specifically states that he had listened to the recording of the directions hearing before Commissioner Simpson.

[24] In considering this appeal, the Full Bench arranged for the transcription of the audio recording of the Directions Hearing and provided a copy of this transcript to the parties. The Full Bench has also given consideration to the transcript.

[25] In our view, there was no basis for the Senior Deputy President to recuse himself. The Appellant did not make out any reasonable grounds for him to do so. The Decision makes it clear that the Senior Deputy President did in fact listen to the recording of the Directions Hearing. There is no basis for this ground of appeal.

Public interest

[26] The Appellant argued that it was in the public interest for the Commission to grant permission for the appeal, including for the following reasons:

a) The Commission discriminated against the Appellant and denied him a fair hearing because he could not call a witness;

b) Commissioner Simpson made an error in his directions, and behaved in a discriminatory manner against the Appellant because he told the Appellant’s interpreter to “stop having lengthy conversations despite Simpson talking to the respondent for 92% of the hearing and only 8% with me”;

c) The Senior Deputy President discriminated against the Appellant by not listening to the audio of the pre-hearing and by allowing the Respondent to make amendments to its evidence without giving the Appellant enough time to respond;

d) The Senior Deputy President “refused to remove himself and continued his discrimination at the hearing and his decision”; and

e) The public had a right to know certain matters, which we have considered but are not set out here.

[27] There is nothing in the evidence that supports a finding in favour of any of the public interest grounds put forward by the Appellant.

Conclusion

[28] We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. The Senior Deputy President addressed the relevant statutory requirements and we are not persuaded that the Decision discloses any error of principle or any significant error of fact.

[29] This is not a case where there is a diversity of decisions at first instance so that guidance from a Full Bench is required; the Decision at first instance does not manifest an injustice; the result is not counter intuitive; and the legal principles applied do not appear disharmonious when compared with other decisions dealing with similar matters.

[30] As we have mentioned, s 400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.

[31] We make the following order:

1. Permission to appeal is refused.

al of the Fair Work Commission with member's signature,

VICE PRESIDENT

Appearances:

L Toma, Appellant, on his own behalf.
A Burnett,
of counsel, for the Respondent.

Hearing details:

2019
Sydney
May 16.

Printed by authority of the Commonwealth Government Printer

<PR709485>

 1   [2018] FWC 2963.

 2   [2018] FWCFB 5811.

 3   [2019] FWC 1564.

 4   This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 5   (2011) 192 FCR 78 at [43].

 6   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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].

 7   (2010) 197 IR 266.

 8   Ibid at [27].

 9   [2001] FCA 1803 at [30].

 10   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

 11   Transcript of proceedings on 31 October 2018 PN57 - PN67

 12   Decision at [1].