C2015/1610, Transcript of Proceedings [2015] FWCTrans 191 (31 March 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT ACTON

DEPUTY PRESIDENT GOSTENCNIK

C2015/1610

s.604 - Appeal of decisions

Jacqueline Schneider
and
Apollo Motorhome Holidays Pty Ltd
(C2015/1610)

Melbourne

3.06PM, WEDNESDAY, 18 MARCH 2015

PN1

JUSTICE ROSS: Ms Schneider, you’re representing yourself, as we understand, is that right?

PN2

MS SCHNEIDER: Yes, your Honour.

PN3

JUSTICE ROSS: Thank you, and who’s appearing for the respondent, Apollo Motorhome Holidays?

PN4

MR T KOWALSKI: Your Honour, Kowalski, initial T. I’m with the Motor Trades Association and I’m appearing for the respondent.

PN5

JUSTICE ROSS: Thank you, Mr Kowalski. Remain seated while you are speaking because it’s easier for the microphones to pick up what you’re saying and so the video camera doesn’t bounce around.

PN6

Can we start with you, Ms Schneider, you’ve put in an outline of submissions indicating what you say were the errors in the Vice President’s decision. Can I ask whether you want to expand on that point. I see what you’ve said about the public interest in your grounds of appeal, in your notice of appeal. Is there anything further you wish to say about those issues? Is there anything you want to add to what you’ve already put in in writing to us?

PN7

MS SCHNEIDER: So you would prefer I remain seated?

PN8

JUSTICE ROSS: Yes, certainly, yes.

PN9

MS SCHNEIDER: Okay, thanks. I suppose there’s nothing really that I can add. I tried to be as succinct as possible so I probably could expand, not - what the previous gentleman said resonated with me because representing yourself on an issue that affects you directly means that it’s very hard to think straight and you have an emotional investment in what you’re - in the matter and you are very emotional about it, which creates tension and nerves inside yourself and it’s quite hard to think straight, but again, it’s also something I believe in. That’s why I’m here today. So excuse me, if I’m - bring emotion ‑ ‑ ‑

PN10

JUSTICE ROSS: No, not all. No, I readily understand the circumstances that self-represented parties are in and that’s why I think it’s a good idea for you to set out in writing, as you have done, the arguments you want to advance because it makes sure that you cover everything that you want to say rather than missing something in the course of an oral argument.

PN11

MS SCHNEIDER: That’s true. I suppose the one overriding thought that - I’ve tried to think about it today, obviously, what I would say today, but the one thought that I keep coming back to is, consider the alternative scenario, the one where Apollo Motorhomes was completely honest with me about circumstances of my redundancy, about the decisions that they had made, if they had fulfilled their obligations under the Fair Work Act, what would have been the outcome and the outcome would have been, there’s no doubt in my mind, that I would have had the opportunity to file an unfair dismissal claim. And so, that is, I suppose, the main thrust of my argument, because I was robbed of that opportunity, because of the way the company handled the redundancy.

PN12

JUSTICE ROSS: All right, thank you. Now, anything further you’d like to say?

PN13

MS SCHNEIDER: The other thing that I would also like to point out is that again, what the previous gentleman said I had noted to myself as well, that all the disadvantage is on my side. I’m out of a job at my age, which is a very disadvantageous thing, I was dismissed summarily, the obligations to me under the Fair Work Act were not met and the company wasn’t honest with me and I was treated, I believe, rather shabbily, So all the disadvantage is on my side, and it’s up to me to try and redress that balance, so I did try to, because I believe that I had been treated unfairly, but unfortunately, I only realised that after the time limit and then again, I didn’t receive any joy out of the decision.

PN14

Just thinking about the general concept of fairness, the Fair Work Act is the Act that we are talking about. There’s the word ”fair”, it’s the Fair Work Commission, there’s the word ”fair” again. In a lot of the decisions I’ve read, the Commissioner has referred to what is fair and equitable in the circumstances and I truly feel that I have not been treated fairly or equitably and that was a direct result of the way the redundancy was handled and because I was misled about the nature of the redundancy.

PN15

JUSTICE ROSS: All right. Thank you, Ms Schneider. Mr Kowalski, what do you wish to say about the permission to appeal application?

PN16

MR KOWALSKI: Your Honour, I have just a very brief oral submission I would like to make and I have it written here; I’ll simply read from my prepared notes.

PN17

The appellant in this matter seeks leave to appeal the decision of Hatcher VP given on 19 January 2015 in which he refused her application for an extension of time in which to lodge her unfair dismissal application. The hearing of that extension of time application involved the appellant providing sworn evidence before Hatcher VP, as well as sworn evidence being given by a representative of the respondent company Apollo Motorhomes. Hatcher VP made some observations in his decision relating to the adequacy of the consultation process leading to the redundancy and the circumstances surrounding the offer of casual employment once the job of the appellant had been outsourced to the Philippines. However, he had the very great benefit of the presence of the appellant and respondent to clarify any doubts he may have had in exercising his discretion in ultimately refusing the extension of time.

PN18

We say that the appellant has failed to demonstrate any appealable error in the Vice President’s decision. While it’s possible that a different decision may have been made by another Commissioner, the appellant has not shown any significant error which would render the decision of the Vice President unsafe. We note that the appellant has indicated in her submission that she would produce additional evidence going to the legitimacy of the redundancy if she were permitted a further opportunity to argue her case. We say that the appellant’s assertion that additional material would be provided if permitted should have no bearing on the decision of this Full Bench. The appellant had her opportunity to present her case before Hatcher VP and it was up to her to present the material necessary to argue her case at that time. It would be unfair for appellants to be given a second chance at their case, simply because their first attempt did not produce the result they desired.

PN19

In her submission the appellant continues to portray her fundamental misunderstanding of the process by which a company outsources functions which cannot be financially sustained within the existing company framework. She seems to believe that if a function is to be outsourced, the only available and legitimate recourse for the company is to close down that part of its operation. Such a proposition, we say, is nave at best and the company is obviously entitled to conduct its business in a commercially sensible way. Her basic and ongoing misunderstanding of these commercial realities has clouded her approach to her redundancy.

PN20

We say that the appellant has done no more in her current submission than attempt to re‑argue the very same material she presented before Hatcher VP. No one from the company misled her in advising that her position was being made redundant. Her specific role ceased to exist and was in fact outsourced to the Philippines. Her belief that, because part of the business for which she worked, that is, Salamander, was not closed down completely, her redundancy was therefore rendered questionable. We say that’s misguided and self-serving. Her self-described ”after acquired knowledge” that Salamander had not completely wound down after she had been made redundant again simply portrays a flawed understanding of quite normal business practices. It in no way justified a late lodgement of her original claim, as attested to by the decision of Hatcher VP in rejecting her claim for the extension of time.

PN21

In conclusion, your Honours, I’d like to quote from some extracts from the Practice Note of the Fair Work Commission, number 12013, Appeal Proceedings. At paragraph 12 of that document:

PN22

Where the original decision has involved the exercise of a significant level of discretion, it’s not enough that the Full Bench would have reached a different conclusion. The Full Bench may only intervene on limited grounds if some error has been made in exercising the discretion. An illustrative list of such errors were set out in House v King, namely, that the decision-maker has acted upon a wrong principle, being guided by irrelevant factors, mistaken the facts or failed to take some material consideration into account.

PN23

MR KOWALSKI: We say, your Honours, that none of these factors have been shown to apply to Hatcher VP’s decision. Further, at paragraph 15 of the same Practice Note:

PN24

Subject to the appellant demonstrating an arguable case of appealable error, the Commission has a broad discretion as to the circumstances in which it can grant permission to appeal. Some examples of considerations which have traditionally been adopted in granting leave include:

PN25

that the decision is attended with sufficient doubt to warrant its reconsideration;

PN26

that the Commission at first instance may have exceeded its jurisdiction, and

PN27

that substantial injustice may result if leave is refused.

PN28

We say again, your Honours, that the appellant has not shown in her submission that any of the above factors apply in this matter.

PN29

At paragraph 16 of the same Practice Note:

PN30

The general requirements relating to appeals are modified in the case of appeals against unfair dismissal decisions. If the error that is alleged is an error of fact, then the appellant must persuade the Full Bench that it is a significant error of fact.

PN31

Further, section 401 provides that:

PN32

Permission to appeal from an unfair dismissal decision must not be made unless the Commission considers that it is in the public interest to do so.

PN33

We say that the appellant again has not been able to show any error, let alone significant error, in Hatcher VP’s decision. Lastly, looking at paragraph 14 of the same Practice Note:

PN34

In considering whether permission to appeal should be granted, the Full Bench will consider whether it is in the public interest to grant permission to appeal. The public interest is not defined in the Act but it generally refers to a benefit or advantage to the whole community as opposed to the individual.

PN35

We say that the appellant certainly seeks an advantage for herself in having her appeal succeed, but any value to the greater community would be marginal, if it exists at all. No factors have been identified that make this claim appreciably different from hundreds of others before it. Neither has any contentious legal issue been highlighted which requires the guidance of this Full Bench.

PN36

We will respectfully ask this Full Bench to refuse her application for leave to appeal. Thank you, your Honours.

PN37

JUSTICE ROSS: Thank you, Mr Kowalski. Ms Schneider, is there anything you wish to say in reply?

PN38

MS SCHNEIDER: Yes, your Honour. With regard to the additional evidence that I referred to in my summary of arguments, the hearing - the decision in question relates to an application which was a late application, so as I understand it, as a lay person, it was not an unfair dismissal hearing where I would have had the opportunity to present a lot of evidence, but it was an application to extend the time in which I had to apply. So that is the reason that I refer to additional evidence because, at that late application, it was not the opportunity to submit the full evidence. I was responding to the directions that I received from Drake SDP, I believe, who advised me the considerations that would happen on the day, in my hearing for a late application, and I followed those directions.

PN39

So one of them was relating to the merit of my claim, but I understood that we were not going to go into the full merit of my claim on my day, it was only going to touch upon that and that was reiterated by Hatcher VP on the day. So that relates to my additional evidence that, if I did have the opportunity, if my late application had been accepted and it had gone to an unfair dismissal hearing, that is when I would have had the opportunities to submit my additional evidence. So I really don’t think that that’s a correct point from Mr Kowalski, that I had the opportunity to submit all my evidence, and that is why I do reject Hatcher VP’s assumption in his decision that there would be no further evidence forthcoming because he thought that it was already extensive, but I don’t agree with that because I would have had more evidence at an unfair - that I could have produced at an unfair dismissal hearing. So I believe that that is an incorrect assumption on his part and logically an incorrect assumption can lead to a flawed decision, so that was why I pointed that out.

PN40

JUSTICE ROSS: Ms Schneider, ultimately, the Vice President concluded that, taking into account the matters, including merit, that there were exceptional circumstances, but then turned his mind to whether or not, it was appropriate to extend time. So, the additional evidence that you refer to, how would that alter the outcome?

PN41

MS SCHNEIDER: I think it ‑ ‑ ‑

PN42

JUSTICE ROSS: It’s not as though, for example, the Vice President concluded that your case had no merit and because of that there were no exceptional circumstances. He concluded to the contrary.

PN43

MS SCHNEIDER: Yes, but it goes towards the merit of my claim because I believe that the additional evidence would have gone more to the merit of my claim. For example, one of the assumptions he made was that I expressed a preference for casual work and that’s not correct and I would have been able to produce additional evidence that disproved that, but on the day I didn’t have it because I thought that it was sufficient that that was only one of the points that I touched on and I thought it was clear that there was merit to my application. But he went into that in a lot of depth and then he drew the conclusion that there would be no further evidence. Another point that he made was that the financial information that the company had provided proved beyond doubt that my redundancy was justified and that would have been something else I would have disputed at an unfair dismissal hearing, and so that was another assumption I thought that was incorrect on his part.

PN44

I think I might have lost the track a little bit of what I was saying there, I’m sorry.

PN45

JUSTICE ROSS: That’s okay, Ms Schneider. Was there anything else you wanted to say in reply, Ms Schneider?

PN46

MS SCHNEIDER: Just that, so Hatcher VP exercised his discretion, as I understand it, in reaching that conclusion and I do think that he was not guided correctly in reaching that conclusion because of giving insufficient weight to the fact that I was misled and I had a completely - I was given a completely wrong impression about the circumstances and, under - of my redundancy which effectively cut me off from even thinking about any sort of notion of unfair dismissal.

PN47

I also do reject what Mr Kowalski says that I’m being somehow self-serving. Of course I do feel that I have not been treated fairly and equitably by the company and I question the - I would like to - leave to appeal the decision of Hatcher VP because I don’t believe that it was fair, but I’m not being 100 per cent self-seeking because I did point out that I think that it is unfair if companies can mislead their employees and other companies will read this decision and see this is how this company handled the redundancy, they misled this employee, they didn’t tell her what was going on, they made her think that the company was being closed down, so she didn’t think twice about it and that’s how we’ll handle it. We’ll mislead our employees as well and not deal with them fairly, not consult, not be genuine in our offer of redeployment and that’s how we’ll do it too and so that is where I see the public interest and I think that that’s - I actually take quite a bit of exception to Mr Kowalski’s claim on that point. I think it’s definitely in the public interest because I know of, amongst my acquaintances and friends and other people who’ve experienced redundancy and their companies have gone about it in a completely different way. I’ve a friend who works at Qantas. She was told six months in advance and they were told everything completely upfront from the word go and why would those companies do anything any different if Apollo Motorhomes can handle the redundancy in this way?

PN48

JUSTICE ROSS: All right, thank you, Ms Schneider. Is there anything further? No?

PN49

MR KOWALSKI: No, your Honours.

PN50

JUSTICE ROSS: All right.

PN51

MS SCHNEIDER: Yes, I just believe that in not being honest with me, and not taking the requirement to consult in good faith and be clear with me about what their intentions were, that that really - everything that makes - all a lot of considerations null and void and those exceptional circumstances should then apply to my late application in being permitted - but I’m probably also getting mixed up between permission to appeal and the actual appeal. I’m sorry, I don’t have any legal background, I’m just muddling as best I can.

PN52

JUSTICE ROSS: No, no, that’s fine. Thank you, Ms Schneider. If there’s nothing further from either party, we’ll adjourn now and we’ll reserve our decision. Once we leave the room, my associate will check with each of you to make sure we have your email address and we will send you the decision in due course. Thanks very much for your submissions.

PN53

MS SCHNEIDER: Thank you.

PN54

JUSTICE ROSS: We’ll adjourn.

ADJOURNED INDEFINITELY [3.29 PM]