[2012] FWAFB 5679 [2012] FWAFB 5679 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604 - Appeal of decisions Achilleus Taxation Pty Limited ATF The Achilleus Taxation Trust; Achilleus Accounting Pty Limited ATF The Achilleus Accounting Trust v Thomas Hobbs (C2012/3526) SENIOR DEPUTY PRESIDENT DRAKE SENIOR DEPUTY PRESIDENT RICHARDS COMMISSIONER GREGORY SYDNEY, 20 JULY 2012 Appeal against decision [2012] FWA 2907 of Commissioner Deegan at Canberra on 4 April 2012 in matter number U2011/14851. [1] This is an appeal pursuant to section 604 of the Fair Work Act 2009 (the Act) arising from a decision of Commissioner Deegan. 1 Commissioner Deegan found that Mr Hogg's employment was terminated in circumstances that were harsh unjust or unreasonable. She ordered the appellant to pay Mr Hobbs compensation in the sum of $14,241. [2] The principles applicable to this appeal are: “[13] An appeal under s.604 of the Act is an appeal by way of rehearing and the Tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from a decision made under Part 3.2 unless the Tribunal considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s.400(2)). [14] Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally (compare s.604(2) and s.400).” 2 [3] Before the arbitration of this application, directions were issued by Commissioner Deegan which required the appellant to provide its material by 16 March 2012. At the hearing of the appeal the appellant’s counsel acknowledged that the appellant had received the notice of listing of the arbitration for 27 March 2012. The appellant did not provide any material by the date required or before the arbitration date. When no material was provided in accordance with the directions, the Commissioner's staff endeavoured to contact the appellant’s business by telephone and via it’s e-mail address. Messages indicating the urgency of the matter were left with the appellant’s staff. There was no response. 3 [4] The appellant did not attend the arbitration. Commissioner Deegan heard the application in the absence of the appellant. The Commissioner issued her decision after having given the appellant the opportunity to make submissions following the hearing. 4 The appellant did not provide the Commissioner with any explanation for its failure to appear at the arbitration nor its failure to provide any material relevant to the issue for determination at the arbitration. [5] Counsel for the appellant submitted that the Commissioner had no power to amend the application to amend the name of the appellant in the absence of an application by a party. Counsel submitted that the use of the word " allow" in section 586 (a) infers a requirement that there be an application by a party. In this case he submitted that there was no application by Mr Hobbs and that there could be no application by the appellant, since the appellant had not appeared. Section 586 of the Act is set out below: “586 Correcting and amending applications and documents etc. FWA may: (a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or (b) waive an irregularity in the form or manner in which an application is made to FWA.” [6] We are not persuaded that the operation of section 586(a) has the limitation argued for by the appellant. Fair Work Australia (FWA) is empowered to allow an amendment and may make a decision about that matter, or any other matter properly before it, on its own initiative: “589 Procedural and interim decisions (1) FWA may make decisions as to how, when and where a matter is to be dealt with. (2) FWA may make an interim decision in relation to a matter before it. (3) FWA may make a decision under this section: (a) on its own initiative; or (b) on application. (4) This section does not limit FWA’s power to make decisions.” [7] Mr Hobbs was present at the arbitration and was seeking to conduct his application without representation, partly by providing the relevant employment documents to the Commissioner. The Commissioner perused the documents and, on her own initiative, amended the application to properly identify the employer, the correct name of the appellant being identified on the employment contract. In doing so, the Commissioner was within power and acted appropriately on the material that was available to her. Further, we are not persuaded that there was any denial of natural justice to the appellant or any person or entity associated with the appellant, since all documents had been served on all relevant persons. [8] Counsel for the appellant made submissions regarding alleged significant errors of fact attributed to the Commissioner. Counsel referred to the failure of the Commissioner to take into account and give weight to references in the submissions filed by Mr Hobbs. In particular, in paragraphs three and five of his submissions, Mr Hobbs had made reference to suspicions he had about the financial viability of the appellant’s enterprise. Counsel suggested that the Commissioner should have relied on the unsubstantiated suspicions of Mr Hobbs about the financial viability of the appellant. The submission is based upon the fact that Mr Hobbs had some knowledge of the appellant's financial affairs arising from his work, and might also have made assumptions about the financial viability of the appellant from its failure to pay him regularly. [9] We are not persuaded that Commissioner Deegan was in error when she failed to rely on Mr Hobbs’ suspicions to make a finding about the financial viability of the appellant. All manner of circumstances might affect such a finding. Neither is this Full Bench persuaded that the Commissioner’s reasoning in relation to any other finding was informed by any such failure. We have considered the transcript and the evidence. We are satisfied that the finding of the Commissioner in relation to the viability of the appellant was not in error. It was a finding based on the evidence before her and it did not cause the Commissioner to misdirect herself in relation to any other issue. [10] There is no merit in the submission that the Commissioner found that the appellant had paid no wages. The Commissioner found that the appellant failed to regularly pay Mr Hobbs, not that the appellant had never paid any wages to Mr Hobbs. [11] Finally, Counsel suggested that Commissioner Deegan failed to properly consider all of the matters to which she was obliged to give consideration pursuant to section 387 of the Act. Commissioner Deegan's obligation is to give consideration to all of those matters that are relevant. We are satisfied that in considering this application Commissioner Deegan made reference to and made findings about all matters that were relevant. [12] The appellant's Counsel submitted that the appellant “... obviously wanted to place evidence before the Tribunal at the time.” 5 In essence, Counsel’s submission was that, despite having received the notice of listing, the appellant was confused as to the day and date of the hearing. If this were accepted, there still appears to be no explanation for the appellant's failure to provide any submission following the hearing when invited to do so and when the urgency of the situation was apparent. The appellant understood that a decision was imminent but he did not provide any materials or submissions as to the reasons for his non appearance or as to either the merits of his defence to the substantive application. We are satisfied that the appellant was given an appropriate opportunity to appear and defend the application and failed to take advantage of that opportunity. There was no denial of natural justice. There was no error in this regard by the Commissioner. [13] We now wish to deal with a matter raised by Counsel for the appellant which does not arise from any of the Grounds of Appeal. The appellant’s Counsel submitted to this Full Bench that any submission put by the appellant to the Commissioner following the arbitration, but before her decision, would have been pointless because it did not appear to Counsel that Commissioner Deegan would in any event have given such material proper consideration. 6 This submission was an expression of Counsel’s own opinion. There is no basis for any such attack upon the Commissioner’s integrity. To add insult to injury neither the appellant nor Counsel representing the appellant acknowledged the efforts of Commissioner Deegan and her staff to ensure the appellant's attendance, or the Commissioner’s courtesy of extending the time in which the appellant could make submissions. [14] The grounds of appeal demonstrate no error, significant or otherwise, in the decision of Commissioner Deegan. Nor are we persuaded that there is any reason to grant permission to appeal in the public interest. [15] Permission to appeal is refused. SENIOR DEPUTY PRESIDENT Appearances : N. Larter of Counsel with T Mylecharane , solicitor for The Trustee For the Achilleus Taxation Trust. T. Hobbs on his own behalf. Hearing details: 2012 Canberra: June 14. 1 PR522064 2 PR522422 3 [4] Repeated efforts were made by my Chambers to contact the appellant concerning the non-compliance with the Directions. Six telephone calls were made, messages were left and two emails were sent between 16 March and 27 March. The messages left with the receptionist requested that the Appellant’s nominated contact person contact FWA as a matter of urgency. The calls were not returned and the emails remain unanswered. The receptionist who took the calls was advised of the urgency of the matter. 4 [6] Subsequent to the hearing on 28 March 2012 a phone call was received from a representative of the appellant. The representative was advised to contact my chambers in writing if the appellant wished to make any representations concerning the matter as the hearing had proceeded in the absence of the appellant and a decision was imminent. At the date of the decision no further representations have been received from the appellant 5 PR522064 at para 11 6 PR522064 at para 47 Printed by authority of the Commonwealth Government Printer <Price code C, PR525913>