| [2020] FWCFB 2417 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Red Telecom Pty Ltd T/A Red Telecom
v
Mark Peters
(C2019/7309)
VICE PRESIDENT CATANZARITI |
SYDNEY, 8 MAY 2020 |
Appeal against decision [2019] FWC 7677 of Deputy President Dean at Sydney on 8 November 2019 in matter number U2019/4847.
[1] Red Telecom Pty Ltd T/A Red Telecom (Red Telecom) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 by Deputy President Dean made on 8 November 2019 (Decision), for which permission to appeal is required.
[2] The Decision concerned an application by Mr Mark Peters (the Respondent) under s.394 of the Act for an unfair dismissal remedy in respect of his employment with Red Telecom Pty Ltd T/A Red Telecom (Red Telecom) (the Appellant).
[3] In its Form F7 - Notice of Appeal, Red Telecom contends that the Decision of the Deputy President was in error in a number of respects, and that it would be in the public interest to grant permission to appeal the Decision.
[4] There is no right to appeal a decision of the Commission and for an appeal to proceed s.604(1) of the Act requires the Commission to grant permission. Appeals against an unfair dismissal decision are also subject to s.400(1) of the Act which provides that permission to appeal is only available where the Commission considers that it is in the public interest to grant permission; and further where an error of fact is alleged it must be a significant error, pursuant to s.400(2) of the Act.
[5] On 9 March 2020, Directions were issued which required Red Telecom to file submissions on whether permission to appeal should be granted by 30 March 2020. A number of extensions to file the material were subsequently granted.
[6] The parties were advised on 16 March 2020 that in light of the COVID-19 pandemic it was proposed that the matter be dealt with by telephone hearing or on the basis of the written submissions filed. The matter was determined on the papers.
[7] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. Rather, the task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[8] The Appellant operates in the Telecommunications industry. Mr Peters was employed as a Senior Telecommunications Consultant. Mr Peters was dismissed as a result of concerns over his sales performance.
[9] The Deputy President summarised the evidence in paragraphs [7] to [43] of her Decision.
[10] At paragraph [48] the Deputy President determined that Red Telecom was a small business and considered if the dismissal was consistent with the Small Business Fair Dismissal Code. It was not contended that Mr Peters was summarily dismissed. The Deputy President found that Red Telecom did not warn Mr Peters that he was at risk of being dismissed and did not give him an opportunity to respond and thus the requirements of the Code had not been met.
[11] The Deputy President then considered if the dismissal was harsh, unjust or unreasonable in accordance with s.387 of the Act.
[12] The Deputy President concluded at paragraphs [61] to [64] that there was not a valid reason for the dismissal in that:
“[62] In this case, Red Telecom contends it dismissed Mr Peters because of his failure to meet sales targets during 2019 and because of misconduct allegations. While Mr Peters did not meet his sales targets in 2019, there were in my view valid reasons for not doing so. First, for the month of January, Red Telecom staff were on annual leave until 15 January, providing only half the month to be able to make sales. Mr Peters received an award of Salesperson of the Month for January 2019. The office relocation and the removal of the call centre, which had generated sales leads for Mr Peters, both contributed to a decreased opportunity to make sales. Mr Peters was dismissed in April 2019.
[63] In terms of the alleged misconduct, the evidence does not establish that this occurred. These allegations seem to be an attempt to justify Mr Peters’ dismissal after the event.
[64] The evidence set out earlier does not support a finding that Mr Peters performance was so poor as to warrant his dismissal …”
[13] At paragraphs [65] to [76], the Deputy President found that:
• Mr Peters was not advised of the reason for the dismissal in the required manner;
• Mr Peters was not given an opportunity to respond;
• Mr Peters was not provided with an opportunity to have a support person;
• Mr Peters was not warned that his employment was at risk if his performance did not improve;
• the size of the employer’s enterprise and absence of dedicated human resources support had an effect on the procedures followed; and
• there were no other relevant factors.
[14] The Deputy President considered remedy at paragraphs [78] to [92] in accordance with s.392 and the principles in Sprigg v Paul’s Licensed Festival Supermarket. 2
[15] The Deputy President calculated Mr Peters’ earnings as $3,069.55 per week and awarded him 8 weeks’ pay based on that amount.
[16] On 3 December 2019, the Deputy President issued a Correction to the Decision 3 in accordance with s.602 of the Act, having observed that the rate of earnings used to calculate the amount of compensation represented a fortnight’s pay instead of a week. The monetary amount of compensation previously ordered was halved.
[17] Red Telecoms appeal grounds as contained in the Form F7 - Notice of Appeal (which was lodged prior to the Correction Order being published) are summarised as follows:
• The Deputy President’s calculation of compensation was a significant error and may indicate a broader lack of diligence and defective decision making process in respect to the overall decision to award compensation.
• The decision maker:
• acted upon a wrong principle;
• was guided by irrelevant factors including evidence given by Mr Peters to justify his poor work performance;
• had mistaken the facts concerning Red Telecoms attitude to giving warnings and her conclusion that no warning was given;
• had mistaken the facts concerning the payslips; and
• failed to take some material consideration into account.
[18] Red Telecom sought that the decision be varied to allow payment of the compensation amount by instalments. This contention was not pursued in the written submissions.
[19] Red Telecom contended that there was public interest in order to;
• Demonstrate how compensation if awarded should be calculated.
• Correct the error in the compensation amount [in the original decision].
• Address doubts in the decision due to the error in calculation of compensation.
• Codify the threshold for compliance with the Small Business Fair Dismissal Code.
• Clarify the requirements for dismissal in the case of poor performance.
[20] On 27 April 2020, Red Telecom provided written submissions which are summarised below:
• Whilst the compensation calculation error had now been corrected, it may indicate a broader lack of diligence and defective decision making process.
• The Deputy President was wrong in assessing the factors which may have effected Mr Peters ability to meet his KPIs and that she did not have any expertise in assessing these factors and such as assessment would require a deeper understanding of Mr Peters position, the products sold and Red Telecom’s business model and the sales environment.
• Red Telecom took issue with the Deputy President’s assessment that but for the dismissal Mr Peters would have continued in employment for a period of 8 weeks.
• The statement made at paragraph [33] in the Decision is inconsistent with paragraphs PN237, PN241-245 and PN248 of the transcript.
• The finding at paragraph [73] of the decision is inconsistent with the evidence given by Mr Kontaxis at paragraph PN242 of the transcript.
• The description of the evidence at paragraph [38] of the decision is at odds with Red Telecom’s evidence.
• Paragraphs [64] and [84] of the decision are inconsistent.
• The facts contained in paragraph [62] of the decision are mistaken.
• The Deputy President failed to take into account:
• Mr Peters acknowledged poor performance as detailed in paragraph [50] of the decision;
• Mr Kontaxis’ explanation for preferring verbal warnings and the practicality of managing warnings and performance in a small business environment;
• The meaning of the term ‘warning’ contained in the Code;
• The evidence of Ms Sandra Selim; and
• The giving of written warnings in her finding that the Code had not been complied with.
• The refusal of the Deputy President to receive a Statutory Declaration from a witness who was not available for cross-examination.
[21] The submissions restated Red Telecom’s original contentions as to the public interest.
[22] No submissions were filed by the Respondent.
[23] 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 As stated above, there is no right to appeal and an appeal may only be made with the permission of the Commission.
[24] This appeal, being one challenging an unfair dismissal decision, is subject to the tests set out at s.400 of the Act which have been described by the Federal Court as ‘stringent’.5 These tests are set out at ss.400(1) and (2) of the Act as follows:
“(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.”
[25] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 The Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin, 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.”7
[26] As an appeal cannot succeed in the absence of appealable error, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.8 The fact that the Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
[27] Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits.
Public Interest
[28] We have considered the submissions advanced by Red Telecom and have been unable to identify any sustainable public interest grounds. Red Telecom has not satisfied us that the Decision raises any issues of importance or of general application, nor has Red Telecom identified any decisions of a similar nature to allege a diversity or disharmony with other decided cases.
[29] To the extent that the submissions raise any contention of appealable error, we do not consider them to be seriously arguable. The Deputy President’s findings (apart from the calculation of compensation error which has now been corrected) appear consistent with the facts before her.
[30] We also do not consider that the Deputy President’s conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded that the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on any question.
[31] In addition to the public interest requirements of s.400(1) of the Act, an appeal relating to an unfair dismissal must, if alleging errors of fact, be on the ground that any error of fact involved a significant error of fact as per s.400(2) of the Act.
[32] In this appeal, it appears that Red Telecom seeks to persuade us that the Deputy President should have considered and dealt with the evidence that was before her in a different way, and that she should have reached a different conclusion on the facts. It is noteworthy to mention that an appeal is not the place to re-agitate the matters that have been considered at first instance. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 10 The fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[33] Having considered Red Telecom’s submissions, we are not persuaded that it has made an arguable case that the Deputy President made a significant error of fact in respect of her determination that the Code was not complied with, or her finding that the dismissal was harsh, unjust and unreasonable, and the determination of the compensation award.
[34] On the material before us, and for the reasons stated above, we are not persuaded that the matters set out in the grounds of appeal raise any arguable case of material error in the exercise of the Commission’s discretion of the kind discussed in House v King11 or as otherwise required by s.400(2) of the Act. The Deputy President considered all the issues raised by Red Telecom and the conclusions in the Decision were reasonably open to her.
[35] We are not satisfied that an arguable case of appealable error has been established. The Decision of the Deputy President is not one attended by sufficient doubt to warrant its reconsideration, nor are we persuaded that substantial injustice will result if permission to appeal is refused.
[36] We do not consider the grant of permission to be in the public interest, nor do we consider there is any other basis upon which permission to appeal should be given. Permission to appeal is therefore refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant’s written submissions dated 27 April 2020.
Printed by authority of the Commonwealth Government Printer
<PR719223>
2 (1998) 88 IR 21.
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2) of the Act; see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 The Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) at (43).
6 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
7 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as 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 [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
10 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
11 (1936) 55 CLR 499 at 505.