C2015/3759, Transcript of Proceedings [2016] FWCTrans 18 (17 February 2016)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052951

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VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SAUNDERS

C2015/3759

s.604 - Appeal of decisions

Gugiatti v SolarisCare Foundation Ltd
(C2015/3759)

Sydney

12.02 PM, WEDNESDAY, 20 JANUARY 2016

Continued from 19/01/2016

PN1

VICE PRESIDENT HATCHER: I'll take the appearances. I note there's no appearance by Mr Gugiatti at the Bar table in Perth. Can I ask the court officer in Perth to go outside the door and call Mr Gugiatti's name three times, to just check he's not anywhere in the premises?

PN2

SPEAKER: There was no response.

PN3

VICE PRESIDENT HATCHER: Thank you. I will also note that efforts have been made from staff in my chambers to contact Mr Gugiatti through the course of the morning but they have been unsuccessful and the calls have not been answered or returned. Ms Moran, you continue your appearance for the respondent?

PN4

MS MORAN: Yes, I do, your Honour.

PN5

VICE PRESIDENT HATCHER: Yes. Well, I think we might formally grant you permission to appear, at this stage. Now the position is that Mr Gugiatti is not appearing so there'll be no oral submissions. As I recall it, he hasn't filed any witness submissions in accordance with the directions, or any appeal book so the only material that we have is his notice of appeal. Ms Moran, do you want to say anything at all about the notice of appeal?

PN6

MS MORAN: Your Honour, I have submissions I'm prepared to make that would deal with what we say were the only relevant matters that were raised in that notice of appeal.

PN7

VICE PRESIDENT HATCHER: Yes. So - - -

PN8

MS MORAN: If you wish to hear me on it?

PN9

VICE PRESIDENT HATCHER: Yes.

PN10

MS MORAN: Yes. So we submit that the Commission should not exercise its discretion to allow permission to appeal under section 604 and section 400 of the Act. We say that Commissioner Williams did not err in the exercise of his decision-making powers. There is nothing in the notice that establishes any matter of public interest to be determined. The decision discloses no error of fact or law and certainly no significant error of fact. The decision itself confined itself to only two preliminary jurisdictional objections and that was that the applicant was engaged for a specific, specified period of time under 386(2)(a) of the Act and the applicant failed to complete the minimum employment period applicable to a small business employer.

PN11

The appeal can't be based on any matters that do not form part of the reasons for the decision. The application raises multiple matters that are no part of that reason for the decision. My submissions therefore focus on what we say are the three relevant issues that were raised in the notice, that the contract was for a specified period, that the employer is a small business employer under the Act, and that the minimum period of employment of twelve months was not completed. We say all the other matters raised in the notice do not relate to any reason for the decision.

PN12

VICE PRESIDENT HATCHER: That's all right but what was the actual date that the employment came to an end? Because I couldn't quite find that in the decision.

PN13

MS MORAN: I believe that was 8 August. In terms of the contract itself sorry, at paragraph 24 of the decision it was 6 August and then there were two days paid after that date that were on an ex gratia basis. But the actual - - -

PN14

VICE PRESIDENT HATCHER: Why was the employment for less than twelve months?

PN15

MS MORAN: It was for less than twelve months because it had not commenced it commenced on 8 August 2013, at paragraph 9 of the decision and it came to an end on 6 August, 2014. So that's less than twelve months in terms of the end date of the contract. Mr Gugiatti, himself, had not appeared at the premises to do any work in any prior to that point. So that was the basis on which it was less than twelve months, in terms of the decision.

PN16

VICE PRESIDENT HATCHER: So that - - -

PN17

MS MORAN: There were also periods of unauthorised absence that took the even if that date were not accepted, there were periods of unauthorised absence that we put at conservatively, 3.41 days, and that was the third order, the third part of the decision of Commissioner Williams at paragraph 45 where he refers to that he period of continuous service of the applicant was, in any event, less than one year. That was only if he was incorrect on the other two levels of the employment being for less than one year. So that was because of the end date of the fixed term contract, and also because he was actually given notice of his dismissal on 9 July 2014. So that was that notice period that was well before the twelve month period.

PN18

So we say that the Commission can only exercise its powers if it identifies some error on the part of the primary decision maker, that the Coal and Allied Operations case, and that is the case under section 604 as it was in the former section 45 of the Workplace Relations Act, so exercisable only if there is an error on the part of the primary decision-maker. And I would refer on that point to Ulan Coal Mines v Honeysett.

PN19

In terms of GlaxoSmithKline, it's not enough that the judges composing the appellant court consider that if they'd been in the position of the primary judge they would have taken a different course. It must appear that some error has been made.

PN20

The decision in House v The King refers to the types of error which may arise, acting on a wrong principle, allowing extraneous or irrelevant matters to guide of affect the decision, mistaking the fact or failing to take into account some material consideration.

PN21

Under section 400(1) of the Fair Work Act, the Commission must not grant permission unless it's in the public interest to do so. In WorkPac v Bambach the Commission noted that "Section 400 manifested an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than appeals generally", and referring again to Coal & Allied the Commission can, only to the extent there is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

PN22

In Parmalat Food Products v Wililo, again the statement was made that section 400 events is clearly an intention that appeals in unfair dismissal matters are more limited than in other matters under the Act, and that this is - a stringent test and a substantial one was set out in Coal & Allied v Lawler.

PN23

In terms of the public interest, the principles on public interest are also set out in GlaxoSmithKline. "Public interest might be attracted where a matter raises issues of importance in general application, where there is a diversity of the decisions at first instance that require guidance, whether a decision at first instance manifests an injustice, or the result is counter-intuitive, or that the legal principles applied appear disharmonious. The assessment of any public interest is confined by the objects of the Act".

PN24

So we say in terms of public interest, the matters raised in the notice do not constitute public interest grounds. The application discloses no issue of importance or general application. The scope of the issues determined by the Commissioner were confined to the particular circumstances of the employment of the applicant, and that's as in the case of Stevens v Aerial Capital Group Limited. "The appeal proceeds on the basis the appellant is dissatisfied with various findings made on contested matters of fact". Being similar circumstances, the Full Bench has noted, "It is inevitable whether there are contested facts and the Tribunal resolves that contest in favour of one party over the other that the losing party will be dissatisfied with the Tribunal's findings", and that is in Reitman v PG Line Resources.

PN25

So the appellant, we say, didn't agree with the decision and is aggrieved, but this does not constitute matters of general application. An unfair dismissal application in itself is not made in a novel area of law. The principles applicable to those applications including relating to jurisdiction are very well established in the jurisprudence. There is no diversity of the decisions at first instance.

PN26

The concept of small business employer is well established and in fact defined by the Act at section 23. That's not a not a novel concept. There is no diversity of decisions at first instance in relation to small business.

PN27

The principles in relation to the distinction between the employee and the contractor are also well established. These were set out in the respondent's submissions at first instance. It is not a novel area of law and there is no diversity of decisions.

PN28

The reasoning was orthodox. The decision does not appear disharmonious compared with other recent decisions. We say there is no manifest injustice or counterintuitive result. The Commissioner weighed the evidence, assessed credibility, and referred certain evidence in the case of conflict. He did not fail to take into account relevant evidence. The fact that the appellant does not agree does not mean that there's an injustice or a counterintuitive result. The principles applied were logical and led to the result. The decision is not attended with sufficient doubt to warrant reconsideration. So therefore we say it is not in the public interest for permission to appeal to be granted in this matter.

PN29

In terms of any alleged errors of law, and it's not entirely clear to me on the notice if that's what is being stated, but we say there was no lack of evidence of a contract for a specified period. The evidence accepted was referred to by Commissioner Williams in the decision at paragraph 9 to 24 by reference to the written contracts of employment which were filed in both of the respondent's witness statements. And in the unchallenged evidence of Tres Hansen, one of the witnesses. It was also determined by reference to Mr Gugiatti's own email which is cited at paragraph 23 of the decision. So we say the evidence did not support the opposite conclusion, whatever is meant by that in the notice.

PN30

The notice refers to the concept of automatic renewal. Our witness, David Edwards, dealt with this in witness statement at paragraph 95 and gave unambiguous evidence that there was no such practice. The cross-examination of Mr Edwards didn't disturb that evidence. If there's a suggestion that there was a series of contracts, and I'm not sure if that's what the appellant was suggesting, there was no failure of Commissioner Williams to consider the concept of automatic renewal that he refers to. There was no evidence for its existence, and in fact, explicit evidence against it. There's the reference to evidence supposedly in the custody of the respondent that supports, what he calls, the opposite conclusion but we don't know to what he's referring and we deny that that's the case.

PN31

Similarly, on the question of small business employer, there is no error in that finding. There was extensive detailed evidence in David Edward's witness statement as to the number of employees versus the number of contractors. He dealt with the eight individual contractors in his witness statement which took the numbers to below 15. Mr Gugiatti extensively cross-examined David Edwards on that point. That's at transcript PN217 to PN384, and his evidence was not disturbed.

PN32

Moving on to significant errors of fact, we say there's no significant error of fact in the decision. The Commissioner relied on evidence before him, made findings that were reasonably open to him on the evidence, didn't act on a wrong principle or mistake the facts, and did not allow any extraneous or irrelevant matters to affect or guide him. So in terms of the small business concept, the Commissioner did not err in determining the number of employees with the respondent and therefore whether it was a small business.

PN33

Again, as referred to, extensive evidence was in David Edwards' witness statement as to the number of employees and this allowed the Commissioner to apply accepted principles to come to the view of whether a person was an employee or a contractor. The David Edwards' witness statement at paragraphs 18 to 88 set out each contractor and the circumstances of their engagement and with supporting material from Annexure DE2 to DE11, including specific hours worked and invoices submitted by contractors. Again, as I referred to previously, Mr Edwards was extensively cross-examined on this point by the appellant and that did not disturb the characterisation.

PN34

In terms of the end date of the employment the appellant states no reason why he says that that was misconstrued. So I don't know why he says it's misconstrued. The Commissioner stated his reasons for determining the end date of the employment and that was based on the written contract of the employment, and Commissioner Williams preferred the evidence of Tres Hansen - this is at paragraph 20 of the decision on this point and she was not cross-examined so there was no cross-examination to disturb that.

PN35

The appellant states no reason why unauthorised days of leave are said to be miscalculated. There was evidence before the Commissioner as to the length of unauthorised absences in Tres Hansen's witness statement at paragraph 55 and following and there was no cross-examination of Ms Hansen. In terms of his reference to failure to offset hours of additional work, we say that there was no legal principle that required the Commissioner to look at additional hours of work and that this does not constitute an error or law or an error of fact on whatever basis that was advanced.

PN36

The notice refers to inadequate reasons. Again, I'm not entirely sure exactly what that refers to but if it's referring to the concept of automatic renewal of contracts, again we say that there was evidence explicitly against that concept and that evidence was accepted.

PN37

So the general comment we would make on these alleged significant errors of fact are that the appellant inflates every instance in which he disagreed with the Commissioner's assessment of the evidence with the concept that that's a significant error of fact but it's simply not the case. Every factual matter that is contested by the appellant is in fact an occasion in which the Commission accepted or preferred the respondent's evidence including uncontested evidence, or rejected the applicant's evidence. This is not a significant error of fact.

PN38

In terms of matters that are raised but are not part of the decision, we say that these are the matters that are in the notice but they can't properly be considered because they weren't any part of the decision. The application for an adjournment by the applicant, the period of the applicant's illness, the decision to allow legal representation, the concept of discovery of documents, the presence of a witness as an instructor in the hearing room by permission, the amendment to the employer response and allegations about evidentiary and consistency but it's in relation to documents that are not in evidence before the Commission and we don't really know what that is in fact referring to so we say that those are all irrelevant matters because they're not part of the decision and we don't propose to address those unless the Commission wished us to and we can address any of those but we say that they're simply not relevant.

PN39

VICE PRESIDENT HATCHER: Did the Commissioner give a decision, ex tempore or otherwise, about the refusal of the request for an adjournment, which sets out the reasons?

PN40

MS MORAN: He's dealt with it at the beginning of the hearing and the way he dealt with it was that he was only going to be looking at jurisdictional issues. The matter was addressed by the Commissioner at the outset of the hearing. There had been multiple missed deadlines by the applicant and at the very last minute, and I believe he had written a letter at the last minute on 18 February requesting an adjournment, and that was refused by the Commissioner but he dealt with that at the outset. The other issue that was being raised in that context was the amendment to the employer response and the Commissioner dealt with that by saying that he was only going to deal with the matter of jurisdiction, those limited matters and that that had been dealt with from the outset. So that had been as in, it had always been part of the employer's response from the very outset.

PN41

And the Commissioner had granted various extensions to the deadlines. In fact, I think it ended up being a 15 day extension to the deadlines, from 15 January to 13 January, to accommodate whatever material the applicant was putting to the Commission at that point and we - - -

PN42

VICE PRESIDENT HATCHER: Can I take you to something you said earlier, that Mr Gugiatti, not having got the adjournment, then actively participated in the hearing and made submissions and cross-examined witnesses?

PN43

MS MORAN: Yes. Yes, he was physically present and he cross-examined Mr Edwards extensively. He made submissions on his own behalf. He chose not to cross-examine Tres Hansen and the Commissioner had offered him the opportunity to do that and he, at one point, said that he didn't want to continue, didn't want to cross-examine Tres Hansen, so it was at his choice that he didn't do that but he did extensively cross-examine David Edwards, focussing very much on the employee and the contractor distinction.

PN44

VICE PRESIDENT HATCHER: Thank you.

PN45

MS MORAN: But he was present. He cross-examined. He made submissions.

PN46

VICE PRESIDENT HATCHER: All right. Anything further?

PN47

MS MORAN: So in summary we say that the permission to appeal should not be granted. The application has no reasonable prospects of success and should be dismissed under section 587(1)(c). The applicant has not appeared today. He has not appeared yesterday. He has not complied with any of the orders in the appeal matter and the respondent seeks to reserve its position on costs.

PN48

VICE PRESIDENT HATCHER: All right. Well, thank you for your submissions, Ms Moran. We'll reserve our decision. It will be issued in due course and sent directly to the parties. We'll now adjourn.

ADJOURNED INDEFINITELY [12.24 PM]