DECISION

Fair Work Act 2009
s.604—Appeal of decision

Canberra Urology Pty Ltd
v
Renee Lancaster
(C2021/140)

Appeal against decision [2020] FWC 6447 of Deputy President Dean at Sydney on 24 December 2020 in matter number U2020/10525 - permission to appeal refused.

Introduction

[1] Canberra Urology Pty Ltd (the Appellant) has lodged an appeal against a decision 1 of Deputy President Dean made on 24 December 2020 (the Decision).

[2] The Decision concerned the Appellant’s jurisdictional objection to the Respondent’s application under s. 394 of the Fair Work Act 2009 for an unfair dismissal remedy. Deputy President Dean dismissed the Appellant’s jurisdictional objection.

[3] For the reasons that follow, we decline permission to appeal. The application for permission to appeal is dismissed.

Background

[4] Ms Lancaster was employed by the Appellant as a part-time Medical Receptionist from 18 March 2019 until 20 July 2020.

[5] The Appellant is a small business. Accordingly, in order to be a person protected from unfair dismissal Ms Lancaster must have completed a minimum employment period of 12 months at the time of her dismissal.

[6] The Appellant claimed that Ms Lancaster resigned from her employment in November 2019 and was re-employed shortly thereafter. The Appellant argued that Ms Lancaster had two periods of employment and that her second period of employment from November 2019 to 20 July 2020 fell short of 12 months. Accordingly, the Appellant contended that Ms Lancaster did not satisfy the minimum employment period and therefore was not a person protected from unfair dismissal.

[7] Ms Lancaster denied that the alleged resignation in November 2019 occurred and maintained that she had continuous service with the Appellant of about 16 months.

The Decision

[8] The Deputy President commenced her consideration of the matter as follows:

“[29] The entire crux of this matter is whether the Applicant’s employment with the Respondent ceased and recommenced in November 2019 by reason of the alleged resignation which is contested by the Applicant.

[30] If I am satisfied that the alleged resignation occurred, the Applicant’s period of continuous service with the Respondent would not satisfy the minimum employment period by virtue of s.384 of the Act.”

[9] In the material and evidence before the Deputy President, the Appellant provided three dates upon which the Respondent was said to have resigned. The Form F3 filed by the Appellant provided a resignation date of 14 November 2019. Dr Mulcahy for the Appellant filed two statements, one on 13 October 2020 and a second statement on 17 November 2020, following the filing of the Respondent’s material. The Decision sets out the evidence of Dr Mulcahy in the 13 October 2020 statement, as follows:

“[13] …

1. On the afternoon of Thursday 21 November 2019, upon him asking the Applicant if she had dealt with some overdue accounts, the Applicant said words to the effect of ‘That’s it. I’ve had enough of this place. I’m out of here.’ The Applicant then proceeded to collect her personal belongings from on and around her desk and put them in her bag.

2. He then asked the Applicant: “What are you doing?” to which she responded: “I’m leaving. I’m out of here” and walked out of the office.

3. He took that the Applicant was resigning from her employment.

4. When he returned to work on Monday 25 November 2019, he noticed the Applicant sitting at her desk. He then said to her: “What are you doing here? You said you were leaving. The Applicant ignored his questions. He then went to the Practice Manager and asked why the Applicant was there but was told not to say anything to her and leave her alone.”

[10] In his statement on 17 November 2020, Dr Mulcahy corrected the date on which the alleged resignation occurred to 13 November 2020 and the next date he saw the Respondent in the office to Monday 18 November 2020.

[11] Dr Mulcahy explained these inconsistencies by saying he relied on a complex and confusing diary that was managed by the Practice Manager.

[12] The Decision records that in cross examination Dr Mulcahy:

•  said that he was sure that the Applicant would not be returning after walking out on 13 November 2019.

•  agreed that he received a text message from the Applicant at 1:05 pm on 14 November saying that she was going to leave work early because her son was unwell and that he responded by saying: ‘No problem’.

•  said that the Applicant’s text message implied that she had changed her mind and returned to work.

•  explained that he did not follow up with the Applicant after her ‘walk out’ and did not ask for the return of the office keys and various things because she was in an agitated mood and was very aggressive on 13 November and he did not want to ‘raise her temperature even higher’.

•  said that the Applicant was not paid out her annual leave entitlements after the purported first period of employment because she returned to work and became re-employed.

•  said that he did not have any conversation with the Applicant about the ‘walk out’ because it was dealt with by the Practice Manager. 2

[13] The Appellant submitted that on the basis of the unchallenged evidence of Dr Mulcahy and the test provided by Rares J in Koutalis v Pollett 3 (Koutalis), the Respondent’s conduct and acts on 13 November 2020 indicated that her employment ended on that day.

[14] The Deputy President found that the Respondent did not resign from her employment saying:

“[33] It is well established that a resignation must be clear and unequivocal. Having considered the evidence and submissions made, I am not satisfied that the Applicant resigned in November 2019. On the evidence before the Commission, there is nothing that reaches that benchmark.

[34] The circumstances under consideration by Rares J in Koutalis can be distinguished from those presently before the Commission. In Koutalis it was found that the proper inference was that the employee resigned in a conversation with his employer. That was made clear because immediately after that conversation the employee had a further discussion with a third party and in unequivocal terms stated that he had resigned his employment.

[35] To the extent there is a discrepancy between the evidence of the Applicant and the Respondent, I prefer the evidence of the Applicant. The Respondent has proposed three different dates upon which the resignation purportedly occurred. Dr Mulcahy’s contention in this regard was not assisted by his uncertainty as to when the resignation was supposed to have occurred, despite his explanation that it was a result of the complexity of his diary which was managed by the Practice Manager. The Applicant, by way of contrast, was unequivocal in her denial that she did not, at any stage in November 2019, tender her resignation or ‘walk out’ with the intention not to return.

[36] Even if I accept the version of events advanced by Dr Mulcahy that the Applicant, on 13 November 2019 (ie the third date put forward by the Respondent), said “That’s it. I’ve had enough of this place, I’m out of here” and “I’m leaving. I’m out of here” and took her belongings and left, those words and conduct alone do not in my view constitute a clear and unequivocal intention to resign. This is particularly so given the conduct of the Applicant afterward, in that she attended work the following day as normal.

[37] Despite Mr Wilson’s submission that there was no suggestion of a case of a ‘heat of the moment’ resignation, it was Dr Mulcahy’s evidence that the Applicant was in an agitated state and was aggressive at the time in question. Even if I did accept the Respondent’s evidence in this regard, the Applicant’s words and conduct could not be reasonably understood to be conveying a real and unequivocal intention to resign.

[38] In summary, I am not satisfied that the evidence supports a finding that the Applicant resigned in November 2019. Accordingly, I am satisfied and find that the Applicant had more than 12 months employment with the Respondent when her employment ceased on 20 July 2020. As a consequence, she is a person protected from unfair dismissal.”

Appeal grounds

[15] The Appellant raises two grounds of appeal in its written material.

[16] Appeal ground one contends that the Deputy President erred in finding that the Respondent’s statements on 13 November 2020 did not amount to a real and unequivocal intention to resign. 4 The Appellant contends that was a significant error of fact contrary to the overwhelming weight of the evidence. 5

[17] Appeal ground two contends that the Deputy President erred in not providing a reason as to why the Respondent’s 13 November 2020 statements did not amount to a clear and unequivocal intention to resign. 6

Permission to appeal

[18] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 7  There is no right to appeal and an appeal may only be made with the permission of the Commission.

[19] This appeal is one to which s.400 of the Act applies. Section 400 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.”

[20] 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 of the Act as “a stringent one”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 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.” 10

[21] 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. 11

[22] The decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 12 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Deputy President at first instance in the absence of appealable error. As the High Court said in House v The King:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”  13

Consideration

Public interest

[23] The Appellant contends that the Deputy President’s failure to give adequate reasons was an error such that it is in the public interest to grant permission to appeal. 14 Further, the Appellant contends that the Decision manifests an injustice and is counterintuitive, enlivening the public interest such that permission to appeal ought be granted.15

[24] We are unable to identify any public interest ground such that permission to appeal ought be granted. Specifically, we reject the submission that the Deputy President failed to give adequate reasons for her conclusion that the Respondent did not resign on 13 November 2020 and discern no error in the Decision in this regard. We consider the Deputy President’s reasons are adequately articulated at paragraphs [33] to [38] of the Decision. In particular, we note that at paragraph [36] the Deputy President finds that even on the Appellant’s own version of events, she is not persuaded that the Respondent resigned on 13 November 2020, most particularly in light of the fact that the Respondent attended for work as normal the following day.

[25] Further, we do not find the Deputy President’s decision to be counterintuitive or to manifest any injustice. We consider the Deputy President’s conclusion to have been one which was open to her on the evidence. We are also not persuaded that the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on any question.

Appeal grounds

Appeal ground one - significant error of fact

[26] As to appeal ground one, for the reasons set out above, we reject the submission that the Deputy President’s conclusion that the Respondent’s conduct on 13 November 2020 did not amount to a real and unequivocal intention to resign constitutes a significant error of fact, contrary to the weight of evidence. In addition to the matters set out at paragraph [9] above, the evidence before the Deputy President was that no issue was raised with the Respondent by Dr Mulcahy or anyone else when she attended for work on 14 November 2020 and further, later that day the Respondent advised Dr Mulcahy she was required to leave work early to care for an ill child, to which Dr Mulcahy responded by texting “no problem”. No question was raised as to the Respondent’s purported resignation. Further, Dr Mulcahy’s evidence was that when he next saw the Respondent at work on 18 November 2020, his Practice Manager told him to “Don’t say anything to her. Leave well enough alone” and he was content to leave the matter with the Practice Manager. Accordingly, we reject that the Deputy President’s conclusion was contrary to the weight of evidence before her and discern no error of fact in the Deputy President’s conclusion.

[27] In oral submissions the Appellant submitted that the events of 14 November 2020 were not relevant matters and, inter alia, consideration of them was not consistent with Rares J’s decision in Koutalis. Further, it was submitted that the Deputy President’s reading of Koutalis was incorrect and that what minded Rares J in that matter to find that the resignation had occurred was the conversation between the employer and the employee. For the reasons that follow, we reject those submissions.

[28] In Koutalis, at issue was whether Mr Pollett resigned or was constructively dismissed. In relation to the former issue His Honour said:

“The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]]. (emphasis added)

In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:

In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.” 16 (emphasis omitted)

[29] At paragraph [46] of that decision His Honour then went on to say:

“In my opinion, the proper inference, having regard to all of the circumstances, is that Mr Pollett resigned in the conversation he had with Mr Koutalis on the morning of 5 May 2014. I am satisfied that what happened was set out, in substance, in the evidence of Mr and Mrs Koutalis. That is because immediately after his conversations with his employers, Mr Pollett went across the road and confirmed, in unequivocal terms, that he had resigned to Mr Malovini. Mr Malovini’s evidence satisfied me that, among other things, Mr Pollett had decided over the previous two weeks of his leave to start up his own business and that he had had enough of dealing with Mr and Mrs Koutalis.”

[30] We see nothing inconsistent in the decision of Rares J as set out above and the approach taken by the Deputy President. We reject any suggestion that Koutalis stands for the proposition that whether or not a resignation occurred is to be determined without any regard to surrounding circumstances and events. Indeed, His Honour expressly stated that this question is to be determined “based on what each party to the conversation had said or done, in light of the surrounding circumstances.” (emphasis added). Further, in Koutalis His Honour had regard to Mr Pollett’s conduct after the conversation with the employer. Accordingly, we reject the contention that the events of 14 November 2020 are irrelevant and consideration of them is inconsistent with Koutalis. We consider they are matters to which the Deputy President was properly able to have regard.

[31] At paragraph [34] of the Decision, the Deputy President said:

“The circumstances under consideration by Rares J in Koutalis can be distinguished from those presently before the Commission. In Koutalis it was found that the proper inference was that the employee resigned in a conversation with his employer. That was made clear because immediately after that conversation the employee had a further discussion with a third party and in unequivocal terms stated that he had resigned his employment.”

[32] We are unable to see how this is inconsistent in any material way with the statement made by His Honour at paragraph [46] of Koutalis set out above.

[33] Accordingly, we do not consider that appeal ground one demonstrates an arguable case of appealable error.

Appeal ground two – failure to provide reasons

[34] We have already addressed the substance of appeal ground two at paragraph [24] above. We refer to and repeat those comments.

[35] Accordingly, we also do not consider that appeal ground two demonstrates an arguable case of appealable error.

Other matters

[36] For completeness, we address two further matters raised in oral submissions.

[37] At paragraph [35] of the Decision, the Deputy President said:

“To the extent there is a discrepancy between the evidence of the Applicant and the Respondent, I prefer the evidence of the Applicant. The Respondent has proposed three different dates upon which the resignation purportedly occurred. Dr Mulcahy’s contention in this regard was not assisted by his uncertainty as to when the resignation was supposed to have occurred, despite his explanation that it was a result of the complexity of his diary which was managed by the Practice Manager. The Applicant, by way of contrast, was unequivocal in her denial that she did not, at any stage in November 2019, tender her resignation or ‘walk out’ with the intention not to return.”

[38] Firstly, it was submitted, inter alia, that paragraph [35] of the Decision incorrectly refers to a “discrepancy” between the evidence of the Appellant and the Respondent. It was submitted that Dr Mulcahy’s evidence was unchallenged and therefore there was no discrepancy in the evidence. We do not consider that this is a fair reading of the Deputy President’s comments. Firstly, the Deputy President’s comments at paragraph [35] are qualified by the introductory words “to the extent there is a discrepancy”. Secondly, the Respondent proposed three dates upon which the purported resignation occurred, notwithstanding that Dr Mulcahy proffered an explanation for the alternate dates provided in his evidence. We consider the Deputy President was entitled to give consideration to the Respondent and Dr Mulcahy’s changing evidence and, in our view, on a fair reading that is what the comments in paragraph [35] are directed to.

[39] Secondly, it was submitted that paragraph [35] misrepresents the Respondent’s evidence. It was submitted that the Respondent did not give evidence that she did not “at any stage” in November 2019 tender her resignation nor that she did not resign on 13 November 2019. We accept that paragraph [35] of the Decision does not reflect the evidence actually given by the Respondent as to this matter. However, even if that be the case, the fact that the Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.¹⁷ In the present circumstances, and for the following reasons, we do not consider that any error by the Deputy President as to this matter provides a sufficient basis for the grant of permission to appeal. Firstly, the Respondent’s evidence was that she commenced employment with the Appellant on 18 March 2019 and was continuously employed for a period of 16 months. 18 It is axiomatic that she therefore contended that she did not resign on 13 November 2019 or at any other time prior to her employment ceasing on 20 July 2020. Secondly, the reference to “at any stage in November 2019” needs to be read in the context of Dr Mulcahy’s evidence, which firstly provided that the purported resignation occurred on 21 November 2019, and then subsequently provided that it occurred on 13 November 2019 and the Form F3 which provided that the date of resignation was 14 November 2019. In those circumstances, and in light of the Respondent’s contention that her employment had been continuous since 18 March 2019, it seems clear that she did contend that she did not resign “at any stage” in November 2019.

Disposition

[40] On the material before us and for the reasons set out above, we are not satisfied, for the purpose of s.400 of the Act, that it would be in the public interest to grant permission to appeal or that the Decision involves a significant error of fact. Further, we are not persuaded that the matters set out in the grounds of appeal otherwise raise an arguable case of error in the Deputy President’s exercise of her discretion. We do not consider the Decision to be attended by sufficient doubt to warrant its reconsideration, nor are we persuaded that substantial injustice will result if permission to appeal is refused.

[41] Accordingly, permission to appeal is refused. The Appellant’s application for permission to appeal is dismissed.

VICE PRESIDENT

Appearances:

Mr J Wilson on behalf of the Appellant

Mr G Pinchen on behalf of the Respondent

Hearing details:

2021.

Telephone hearing.
9 March.

Printed by authority of the Commonwealth Government Printer

<PR728190>

 1   Renee Lancaster v Canberra Urology Pty Ltd [2020] FWC 6447.

 2   At [17].

 3   [2015] FCA 1165.

 4   Statement of Reasons for the Decision Being Appealed Against at [12].

 5   Statement of Reasons for the Decision Being Appealed Against at [17].

 6   Statement of Reasons for the Decision Being Appealed Against at [18-19].

 7   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 8   (2011) 192 FCR 78; (2011) 207 IR 177 at [43].

 9   O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].

 10   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

 11   Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].

 12   House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

 13   Ibid.

 14   Statement of Reasons for the Decision Being Appealed Against at [19].

 15   Appellant’s Outline of Submissions at [11-12].

 16   At [43-44].

17 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 18   Witness Statement of Renee Lancaster at [13]