DECISION

Fair Work Act 2009
s.604—Appeal of decision

Troy Cameron
v
Murrin Murrin Operations Pty Ltd
(C2020/2472)

Appeal against decision ([2020] FWC 1566) of Deputy President Beaumont at Perth on 31 March 2020 in matter number U2019/14700 – unfair dismissal claim lodged out of time – permission to appeal refused

[1] Mr Troy Cameron has lodged an appeal, for which permission is required, against a decision made by Deputy President Beaumont on 31 March 2020 (Decision), 1 in which the Deputy President refused to grant an extension of time for Mr Cameron to lodge his application for an unfair dismissal remedy. Mr Cameron’s application for permission to appeal was heard before us on 8 May 2020.

[2] Section 394(2) of the Fair Work Act 2009 (Act) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission may allow under s 394(3) if it is satisfied that there are exceptional circumstances, taking into account the matters set out in that subsection.

[3] Mr Cameron commenced employment with Murrin Murrin Operations Pty Ltd (company) on 16 November 2018 as a casual mobile plant operator. On 12 February 2019 Mr Cameron received a letter from the company which advised him of the ‘suspension’ of his operational shifts as a casual operator. The letter stated that Mr Cameron would ‘remain active’ on the company’s ‘system’ for a period of 6 months from his last rostered shift, but that if the company was unable to offer him further operational shifts in this period, it would remove him from its system. The Deputy President concluded that Mr Cameron was dismissed at the expiration of this 6-month period, and that his unfair dismissal application, lodged on 25 December 2019, was four months out of time. The Deputy President was not persuaded that there were exceptional circumstances and declined to grant a further period under s 394(3). The Deputy President therefore dismissed Mr Cameron’s unfair dismissal application.

[4] Mr Cameron’s notice of appeal contends that the Deputy President erred in finding that he was dismissed in August 2019. He submits that the Deputy President ought to have concluded that he was dismissed on 5 December 2019, with the consequence that there was no need for him to seek an extension of time.

[5] An appeal under s 604 of the Act is an appeal by way of rehearing however the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 2 An appeal may only be made with the permission of the Commission. The present appeal is one to which s 400 of the Act applies. This section 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.”

[6] In Coal & Allied Mining Services Pty Ltd v Lawler and others, a Full Court of the Federal Court characterised the test under s 400 as ‘stringent’. 3 

[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest might be enlivened where, for example, a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance, or where the decision at first instance manifests an injustice.

[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, because an appeal cannot succeed in the absence of appealable error. 4 However, the fact that a member at first instance has made an error is not necessarily a sufficient basis for the grant of permission to appeal. In determining whether permission to appeal should be granted, it is unnecessary for the Full Bench to conduct a detailed examination of the grounds of appeal.5 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[9] Mr Cameron’s notice of appeal advances seven grounds or contentions.

[10] First, Mr Cameron says that his contract was not terminated until 5 December 2019, when he received a separation certificate. He submits that only then were the termination conditions in his contract satisfied. The terms of Mr Cameron’s casual employment were set out in a contract dated 15 November 2018. Clause 9 of the contract stated that ‘either party may terminate this Agreement and your employment on giving one (1) day’s written notice.’ As we understand it, Mr Cameron contends that he was not provided with one day’s notice in writing of the termination of his contract until he received the separation certificate on 5 December 2019, and that he was therefore not dismissed until this date.

[11] We do not see any substance in this ground of appeal. The fact that Mr Cameron was not provided with an employment separation certificate until 5 December 2019 has no evident bearing on the legal analysis of when his employment ended. A separation certificate is a document that is relevant for various purposes connected with benefits that a person may claim through Centrelink and the Department of Human Services. It is not a document that is necessary in order to formalise the termination of employment. It does not provide notice of termination of employment, because the termination has already occurred.

[12] Mr Cameron’s first ground of appeal also contends that a ‘letter of suspension’, meaning the letter of 12 February 2019, could not be used to terminate his employment. It is true that a permanent employee could not be dismissed by a letter which merely suspended employment. But Mr Cameron was not a permanent employee, but a casual. And the letter of 12 February 2019 suspended his casual shifts, not any ongoing employment. Ordinarily, a casual employee is employed for the period of each engagement, not between engagements. The present case does not appear to us to be any different. In this regard, clause 2.1 of the contract states that the terms and conditions of employment are those set out in the contract and those contained in the letter of offer dated 15 November 2018. That letter offered Mr Cameron ‘casual employment’ as a ‘casual mobile plant operator’. It stated that the 25% loading he would receive was in lieu of any form of paid leave, redundancy and notice benefits. It said that he would be required to complete weekly time sheets in order to be paid. All of this is in keeping with an ordinary casual employment relationship. We note Mr Cameron’s statement, in his fifth ground of appeal, that he had a roster ‘without an end date’, appearing on a printed calendar running to December 2020. However, this statement was not accompanied by any detail. We do not know whether this roster is said to have been a final, provisional or indicative roster. And it does not appear that Mr Cameron raised this matter in the proceeding before the Deputy President. In any event, his rostered shifts were cancelled.

[13] The letter of 12 February 2019 told Mr Cameron that he had no shifts. At least on one view, this constituted notice of termination of his contract with effect from the following day. The letter also told Mr Cameron that, if after six months no shifts had been offered to him, he would be removed from the company’s ‘system’, which was evidently a reference to its pool of deployable casuals. Mr Cameron has not presented an arguable case that his contract, or his employment, remained on foot after the 6-month period ended.

[14] The second contention advanced by Mr Cameron is that the letter of 12 February 2019 was a direct response to his request of the company for ‘employment termination papers’. We do not see how this argument assists Mr Cameron. If anything, it would appear to support a conclusion that he was provided with such papers and that his employment in fact ended on 13 February 2019.

[15] Thirdly, Mr Cameron submits that the Deputy President erred in stating at [18] that it was uncontested that his unfair dismissal application was made out of time. Clearly, Mr Cameron did contest this point before the Deputy President, and the statement at [18] is incorrect. However, elsewhere in her decision (at [27] and [28]), the Deputy President engages directly with Mr Cameron’s argument that his employment continued until 5 December 2019. She was clearly aware that Mr Cameron did indeed contest the date of dismissal. We note that, in his F2 unfair dismissal application, Mr Cameron had stated that his dismissal occurred on 12 February 2019, and it was only later that he contended that the dismissal took effect in December 2019. It may be for this reason that the error at [18] occurred. However, it appears to us that the error was without consequence.

[16] Fourthly, Mr Cameron contended that the Deputy President erred at paragraph [42] of her decision, where she stated the following:

“When asked why he had not filed his application in August 2019, a time when his name would have been removed from the Murrin Murrin ‘system’, the extent of Mr Cameron’s response was in effect that ‘life got in the way’. Similarly, no attempt was made by Mr Cameron, in August 2019, to obtain an employment separation certificate.”

[17] Mr Cameron is correct that his statement in evidence that ‘life got in the way’ was a response to a different question in cross-examination, which concerned why he had not requested separation papers in August 2019. 6 However, a review of the preceding passages of transcript suggests that the context of that exchange was connected with the broader question of why Mr Cameron had not lodged his unfair dismissal application around that time.7 In any event, it does not appear to us that any error of fact here could be described as ‘significant’ for the purpose of s 400(2). Mr Cameron’s remark about life ‘getting in the way’ does not appear to us to be of any relevance to the question of when his employment ended, which is the focus of his appeal. Mr Cameron does not challenge the Deputy President’s finding that there was no reasonable explanation for the delay, or that there were no exceptional circumstances in this case, but even if he had done so, the significance of his fourth ground of appeal would appear to be simply that the Deputy President attributed to him an additional reason for delay that he did not in fact advance. This does not appear to have adversely affected his case in any way.

[18] Mr Cameron’s fifth appeal ground contended that his supervisor had provided him with the roster that we have referred to above, which ran until December 2020. However, Mr Cameron has not provided any details of this roster or sought to produce it. Further, Mr Cameron does not explain how the roster could have survived the suspension of his operational casual shifts in February 2019.

[19] Ground six stated that there was no provision in the casual contract that allowed for the suspension of his employment, and therefore the suspension was not lawful. This submission is misconceived. Mr Cameron’s employment was not suspended. He was a casual employee and the letter of 12 February 2019 advised him of the suspension of his casual shifts.

[20] Ground seven contended that the company had not provided any evidence from witnesses with first-hand knowledge of his ‘on-boarding’, or his offer of employment, and that he would be calling a number of people with such first-hand knowledge. By this we understand him to mean that he would call such witnesses in the event his appeal were to succeed, and his unfair dismissal application proceeded to a consideration of the merits. This submission does not speak to any error in the Deputy President’s decision.

[21] In written submissions that largely mirrored the grounds in the notice of appeal, Mr Cameron raised a further matter. He said that it would be in the public interest to grant permission to appeal because his claim should receive a fair hearing and the facts should be established. Again, this contention does not identify any arguable error in the Deputy President’s decision. Further, Mr Cameron’s application did receive a fair hearing before the Deputy President. The application was dismissed on jurisdictional grounds.

Conclusion

[22] We do not consider that there is an arguable case of appealable error in the Deputy President’s conclusion that Mr Cameron’s unfair dismissal application was lodged outside the 21-day period prescribed by s 394.

[23] In respect of the two alleged factual errors to which Mr Cameron has referred, we do not consider that he has presented an arguable case that, if they are indeed errors of any substance, they are significant errors for the purpose of s 400(2), or that they were errors of any consequence. We do not consider there to be any other basis to apprehend an arguable case of appealable error in the Decision. Further, in our opinion the Deputy President’s decision in this matter turned on its own facts and does not raise any issue of importance or general application, nor does it manifest an injustice.

[24] We do not consider that it is in the public interest to grant permission to appeal. Section 400(1) of the Act requires that in such circumstances the Commission not grant permission to appeal.

[25] Permission to appeal is therefore refused.

DEPUTY PRESIDENT

Appearances:

Mr T Cameron for himself
Mr R Wade and Ms O du Toit for the company

Hearing details:

2020
Melbourne, by telephone to Perth
8 May

Printed by authority of the Commonwealth Government Printer

<PR719307>

 1   [2020] FWC 1566

 2   Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 204 at [17]

 3   (2011) 192 FCR 78 at [43]

 4   Wan v AIRC (2001) 116 FCR 481 at [30]

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

 6   Transcript of proceedings at PN141

 7   See PN129