Fair Work Act 2009
s.604—Appeal of decision

Appeal against ex tempore decision of Commissioner Simpson at Brisbane on 11 March 2015 in matter number U2014/10212.

[1] Ms Deborah Kable (the Appellant) was dismissed from her employment with Michael Keith Bozelle a sole trader (the Respondent) on 4 June 2014. The Appellant’s casual employment with the Respondent began on 20 January 2013. The Respondent provided services and supplied labour pursuant to a contract relevantly to Puma Energy Australia. The Appellant’s employment (and that of other employees) enabled the Respondent to provide the services and labour pursuant to the contract. The Appellant subsequently made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The reason for the Appellant’s dismissal was that the Respondent no longer required the services of the Appellant and other employees of Respondent because the Respondent had terminated the earlier mentioned contract with Puma Energy Australia. That contract was due to expire on 30 June 2014 but it appears that the Respondent had been advised by Puma Energy Australia that the contract was not to be renewed because another provider of the services would be engaged. It appears therefore that the Respondent elected to terminate the contract earlier than its end date and did so with effect on 8 June 2014. The Appellant was not performing work for the Respondent at the time of her dismissal as she was unfit to do so because of a non-work related injury or illness. She would have been fit to resume her duties and be available for work allocation on 16 June 2014.

[3] The Appellant’s unfair dismissal remedy application was heard and determined by Commissioner Simpson on 11 March 2015. The Respondent did not attend the hearing before the Commissioner nor did he attend before us. At the conclusion of the hearing the Commissioner determined that the Appellant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act because the Respondent had not complied with his obligations to consult the Appellant about the redundancy as required by the applicable modern award. 1 The Commissioner further concluded that, having regard to the matters set out in s.387 of the Act, the Appellant’s dismissal was unfair.2

[4] The Commissioner next considered whether a remedy order should be made. 3 The Commissioner noted that the Appellant did not seek reinstatement and then turned his consideration to whether an order for compensation was appropriate, and if so, the amount of compensation.4 Ultimately the Commissioner concluded that no compensation order should be made because it would not be appropriate to do so.5

[5] The Appellant seeks permission to appeal the Commissioner's decision not to make a compensation order.

[6] 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 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’. 6 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’.7 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 8 In GlaxoSmithKline Australia Pty Ltd v Makin 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.” 9

[8] 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. 10 However, the fact that the FWC Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.11

[9] The Appellant’s principle complaint on appeal is that the Commissioner should have concluded that her employment would have continued until 30 June 2014, that she would have been fit to resume her duties on 16 June 2014 and therefore she should be compensated for two weeks wages not earned as a result of the Respondent’s early termination of the contract with Puma Energy Australia. The Appellant says that to the extent that the Act and the formulation for the calculation of compensation discussed in Sprigg v Paul's Licensed Festival Supermarket 12 allows the result determined by the Commissioner, then this is unfair, as in her case, it permits her former employer to end its contract with Puma Energy Australia before it had expired leaving her, and other employees without income.

[10] The complaints made by the Appellant, whilst understandable, are misconceived. The gravamen of the Appellant’s complaint is that she was not awarded compensation even though the Commissioner had concluded that the dismissal was unfair. The appeals mechanism provided for under the Act is not available to pursue a rehearing simply because of some dissatisfaction with the result at first instance. As we have endeavoured to explain above, some appellable error needs to be shown in the first instance decision or in its reasoning, and the public interest needs to be enlivened. For the reasons that follow we are not persuaded that any appellable error has been identified and we are satisfied that the Commissioner was correct in his application of principle and in his conclusion.

[11] As we indicated above, after finding that the dismissal of the Appellant was unfair and concluding that reinstatement was not appropriate, the Commissioner turned to the issue of compensation and addressed the criteria in s.392(2), which provides:

“Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”.

[12] The Commissioner made findings or set out his reasoning in respect of each of the matters set out in s.392(2)(a)-(g) as follows:

● s.392(2)(a): he did not give weight to the impact of an order for compensation on viability of the Respondent’s business because he had no evidence about it as the Respondent did not attend; 13 


● s.392(2)(b): the Appellant’s period of employment was not a significantly lengthy period; 14 


● s.392(2)(c): the employment ended on 4 June 2015 but would have continued until 8 June 2014, the date on which the Respondent terminated the contract with Puma Energy Australia. During this period the Appellant was unfit to work and as a casual employee, she was not entitled to any paid personal/carer’s leave. Consequently the Appellant would not have earned any income during this period; 15


● s.392(2)(d): given the Appellant was unfit for work until 16 June 2014, the question of any efforts to mitigate loss did not arise;


● s.392(2)(e): the Commissioner made no deductions for post-dismissal earnings; 16


● s.392(2)(f): this matter was not relevant in the circumstances of this case; 17 and


● s.392(2)(g): the Commissioner had regard to the casual nature of the employment and concluded that there were no other relevant considerations. 18

[13] After considering the criteria in s.387(2)(a)-(g), the Commissioner concluded that the Appellant has not suffered any loss by reason of the dismissal and so it was inappropriate for a compensation order to be made. 19 Each of the conclusions reached by the Commissioner was reasonably open to him.

[14] The methodology set out by the Commissioner is sometimes referred to as the Sprigg formula, a reference to the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.

[15] It is not contended that the Commissioner made any error in his statement of the relevant principles, nor is it said that he erred it in the application of those principles in the circumstances of this case.

[16] Furthermore, it would not have been appropriate for the Commissioner to have regard to the period of possible employment between 16 June 2014 and 30 June 2014 because the Respondent’s contract with Puma Energy Australia, though due to end on 30 June 2014, ended on 8 June 2014. There was no evidence before the Commissioner that the Respondent could have continued to employ the Appellant in some other position beyond 8 June 2014.

[17] A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. That this is so is evident from the nature of the considerations to which the Commission must have regard set out in s.392 of the Act. Compensation orders are not designed to be a form of punitive measure to punish perceived poor employment or business practices of an employer.

[18] As we have already indicated, the Appellant’s real grievance is that she is dissatisfied with the outcome of her unfair dismissal remedy application. Absent any identifiable and significant error in the factual findings or in the decision-making process, mere dissatisfaction with an outcome will never enliven the public interest.

[19] As we have also 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.

VICE PRESIDENT

Appearances:

Ms Kable in person.

No appearance for the Respondent.

Hearing details:

Sydney via video-link to Brisbane.
20 May 2015.

 1   Transcript PN 1

 2   Ibid at PN 2 - PN 6

 3   Ibid at PN8

 4   Ibid at PN8 - PN17

 5   Ibid PN18

 6   Section 400(2)

 7   (2011) 192 FCR 78 at paragraph 43

 8   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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.

 9   (2010) 197 IR 266 at paragraph 27

 10   Wan v AIRC [2001] FCA 1803 at [30]

 11   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] at the

 12   (1998) 88 IR 21

 13   Transcript PN 10

 14   Ibid

 15   Ibid PN9 - PN10

 16   Ibid at PN 17

 17   Ibid

 18   Ibid at PN9, PN 18

 19   Ibid 18

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