1
Fair Work Act 2009
s.604 - Appeal of decisions
Marcus Wilson
v
Town of Victoria Park
(C2017/3726)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BINET
COMMISSIONER CRIBB SYDNEY, 6 SEPTEMBER 2017
Permission to appeal against decision [2017] FWC 3211 of Commissioner Williams at Perth
on 16 June 2017 in matter number U2017/660.
Introduction and background
[1] Mr Marcus Wilson has applied for permission to appeal and appealed a decision of
Commissioner Williams issued on 16 June 20171 (Decision). In the Decision the
Commissioner dismissed Mr Wilson’s application made pursuant to s.394 of the Fair Work
Act 2009 (FW Act) for a remedy for unfair dismissal on the ground that Mr Wilson had not
been dismissed within the meaning of s.386(1) of the FW Act. The Commissioner found that
Mr Wilson resigned from his employment with the Town of Victoria Park (Victoria Park),
and the resignation was not forced because of conduct or a course of conduct on the part of
Victoria Park. The Commission’s unfair dismissal jurisdiction was therefore not enlivened.
[2] Mr Wilson commenced employment in June 2009 with Victoria Park as a Gym
Instructor/Personal Trainer on a casual employment contract. His letter of offer stated: “You
are employed to work casual hours as rostered in accordance with operational needs of the
Town. These hours and days may vary from week to week and there is no guarantee of
regular work.” There was a dispute between Mr Wilson and Victoria Park in September 2016
about Mr Wilson’s hours of work which was eventually resolved, but the basis of its
resolution was disputed. Mr Wilson believed he had been guaranteed 5.5 hours work per
weekend, but Victoria Park took issue with this.
[3] At the time the employment came to an end, Mr Wilson was working on weekends
only alternately at Leisurelife and Aqualife, two of Victoria Park’s leisure centres. In late
December 2016 new rosters were issued which would reduce Mr Wilson’s hours to 3 per
weekend. He protested this in an email dated 4 January 2017. There followed an exchange of
emails which included an email from Victoria Park dated 10 January 2017 which relevantly
stated:
1 [2017] FWC 3211
[2017] FWCFB 3906
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 3906
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“... As you are aware we recently advertise for a part-time role and 2 casuals to cover
week and weekend shifts. Therefore as we now have new staff on the roster Catherine
has decided to adjust everyone’s hours, not only yours in order to ensure we have
permanent staff rostered on the weekends (not just the casuals).
As previously advised, rostering of shifts is based on the operational requirements and
budgetary restrictions for both centres. Would you have any availability during the
week at all to perhaps increase your availability for shifts.
I would like to sit down with you this week to discuss your emails and concerns.
Would you be able to let me know a time/day that suits you to do this?
I look forward to your reply.”
[4] Mr Wilson’s reply, sent on the following day, was as follows (formal parts omitted):
“Hi Narelle/Catherine,
I acknowledge receipt of Yesterday’s email and comment as follows.
In reference to the 2nd paragraph of your letter, it is trite to say that the hiring of new
staff should not be undertaken and its very necessity questioned, if it is to such an
extent that its at the expense and detriment of highly satisfactorily long-standing
existing employees.
The considerations mentioned in the 3rd paragraph of your email plainly are not new
and where of the same import and relevance as when a mutually agreed formal
outcome was reached only last September to place me at the alternate centres and
importantly with the retention of my 5.5 hours.
This was precipitated by Catherine’s unilateral removal of me from a roster without
any consultation or reason.
You and Catherine are both aware that I work full-time during the week and that I do
not have availability to perhaps increase your availability’ for shifts during the week.
This is a faux offer, made in the knowledge I cannot accept it, designed purely to put
an ostensible conciliatory spin on the blatant reneging of the Agreement formally
mediated only last September.
In all the circumstances there is in effect and in practical terms, clearly a refusal to
abide by the agreed 5.5 hours per weekend shift agreed in September.
In all the circumstances I am compelled to give you my involuntary resignation from
employment with the Town of Victoria Park effective immediately.
Your machinations in relation to this matter verge on the deplorable on account of
1. My lengthy years of diligent service including making myself available at
negligible notice to replace no-shows
[2017] FWCFB 3906
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2. The absence of any performance issues on my part
3. The blatant reneging on the settlement terms of an area of previous contention
Yours Faithfully,
Marcus”
[5] Victoria Park accepted Mr Wilson’s resignation on 16 January 2017.
[6] Section 385(a) of the FW Act requires that, in order for a person to have been unfairly
dismissed, the Commission must first be satisfied that the person was dismissed. Section
386(1) defines when a person has been “dismissed” in the following terms:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on
the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
The Decision
[7] In the Decision the Commissioner carefully assessed and made findings about the facts
in dispute. In relation to the resolution of the September 2016 dispute concerning Mr
Wilson’s hours, his assessment of the competing witness evidence about what occurred was
as follows:
“[52] I also find that nothing was said during the 20 September 2016 meeting to Mr
Wilson that would have reasonably allowed him to understand that 5.5 hours per
weekend was a guaranteed number of hours for the future. To the contrary, I accept
the evidence that in a number of different ways it was explained to Mr Wilson that
rostering was a function of the operational needs of the business and that the rosters
for casual employees including himself in future will in all likelihood change, and so
his hours may change. There was no commitment to Mr Wilson that in future he
would always be rostered to work 5.5 hours on weekends.”
[8] The Commissioner’s ultimate findings and conclusion concerning the circumstances
of the termination of Mr Wilson’s employment were as follows:
“[112] There is no evidence before the Commission that the Respondent’s conduct in
this case was intended to bring Mr Wilson’s employment to an end.
[113] Nor in my view was the Respondent’s conduct or course of conduct, whether
considered in totality from mid September 2016 onwards, or only from the time of
proposing a new roster in December 2016, such that the resignation of Mr Wilson was
the probable result.
[2017] FWCFB 3906
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[114] At the time Mr Wilson resigned the new roster which had reduced his hours had
been operating for nine days. This period only covered one of his rostered shifts which
Mr Wilson in any event did not work, having arranged for someone else to work his
shift that day.
[115] Mr Wilson had a number of other options rather than resigning at the time he
did. Immediately prior to resigning he had been invited to meet with Ms Holt to
discuss his emails and his concerns. There was no reason why Mr Wilson could not
have done this. There was no reason to believe that such a meeting could not have
been helpful given three months earlier when Mr Wilson had concerns about his
rosters in September 2016 these were resolved after meeting with the Respondents
staff.
[116] If he didn’t wish to deal with the matter in this way there were other options
open to Mr Wilson rather than resigning when he did. He had the options of pursuing a
grievance under the dispute settling procedure in the Agreement or alternatively under
the Respondent’s own disputes handling policy, either informally or formally.
[117] Even if Mr Wilson’s understanding that he had been guaranteed 5.5 hours each
weekend into the future was correct, he could have pursued the reinstatement of this
arrangement through meetings with the Respondents manager or by pursuing it as a
grievance. In any event as I have found above there was no reasonable basis for Mr
Wilson to have this understanding.
[118] Mr Wilson had a range of options available to him other than resigning as he
did. Mr Wilson’s resignation was voluntary. Mr Wilson was not forced to resign
because of the conduct or the course of conduct engaged in by his employer.”
Appeal grounds and submissions:
[9] Mr Wilson’s grounds of appeal were as follows:
“1. The Background recited in the learned Commissioners Decision is manifestly
incomplete imparting a misleading impression of the pertinent facts resulting in the
Appellants constructive dismissal.
2. The learned Commissioner erred in confining his consideration of whether the
Respondent had engaged in a course of conduct such that the resignation of Wilson
was the probable result, to events in the period mid September 2016 onwards, omitting
the total removal of Wilson in early August 2016 from the work roster for all the
prospective September 2016 shifts.
3. The learned Commissioner erred in not having full and proper regard to the entire
course of the Respondents conduct that culminated in the Appellants constructive
dismissal.
PARTICULARS
[2017] FWCFB 3906
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a. The unilateral and arbitrary removal of the Appellant from a roster for all
prospective shifts for September 2016 which came to his notice on the 13th
August 2016 to which he verbally protested immediately.
b. The directive by the Respondent on or about the 13th of September 2016 that
the Appellant transfer and undertake his employment duties at the Aqualife
Centre only with advice that if he was not prepared to accept such direction
there would be no other work available for him with the Respondent.
c. The email sent by the Appellant to the Respondent dated 13th September 2016
advising of his concern at the events traversed in both a and b.
d. The mediation convened by the Respondent at its insistence which occurred on
the 20th September 2016 the mutually agreed outcome of which was the
Appellant would work for 5.5 hours every weekend at the Respondents
Aqualife and Leisurelife Centres respectively ( “ the September Resolution “).
e. The reneging upon the September Resolution by the Respondent 3 months later
manifested by the Respondents posting of a roster for the prospective January
2017 shifts conferring 3.5 hours work per weekend ( a 45% reduction in hours
and concomitant pay) upon the Appellant with his duties confined to the
Aqualife Centre only.
f. The Respondents constructive and implicit refusal to reinstate the September
Resolution by inter alia evading the Appellants requests for its reinstatement.
4. The learned Commissioner erred in conferring literal credence to the emails sent by
the Respondent to the Appellant dated the 5th and 10th days of January 2017 implicitly
and explicitly considering them genuine attempts to resolve the Appellants objection
to the reneging upon the terms of the September Resolution by the Respondent when
they were in all the attendant circumstances mala fides and disingenuous conveying a
specious but false accommodation of the Appellants objection
PARTICULARS
a. On becoming aware of the Respondents reneging upon the terms of the
September Resolution the Appellant sent an email to the Respondent dated the
4th of January 2017 which inter alia requested its reinstatement.
b. Despite the manifest breach of the September Resolution by the Respondent
the Respondent contended in an emailed response dated 5th of January 2017
that it required time to obtain all the information.
c. By email dated the 9th of January 2017 the Appellant advised it was a pretty
simple situation and that there would be little information to obtain.
d. By email dated the 10th of January 2017 the Respondent emailed a reply which
was non responsive to the request for reinstatement stating inter alia “ Would
you have any availability during the week at all to perhaps increase your
[2017] FWCFB 3906
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availability for shifts” and “ I would like to sit down with you this week and
discuss your emails and concerns”
e. The Respondent was at all material times well aware the Appellant had no
availability to work shifts during the week. Further, the Appellant had only one
concern which at all material times was obvious rendering any meeting to
discuss the Appellants concerns nugatory.
5. The learned Commissioner erred in stating that other options were open to the
Appellant to seek a reinstatement of the September Resolution and that he should have
availed himself of those when he had in fact instigated an emailed protest in that
regard and the Respondents attitude to his request for its reinstatement was clear
amounting to a constructive refusal to accede to it. In light of this any pursuit of other
options by the Appellant would have been pointless and could reasonably be
considered to be superfluous and redundant exercises.
6. The learned Commissioner erred in stating the Appellants email of the 13th
September 2016 was simply and solely about transferring him from one centre to the
other and that this amounted to an attempt to engineer his constructive dismissal
overlooking the material consideration that the Appellants email was equally
concerned with and prompted by his omission from all prospective September 2016
shifts.
7. The learned Commissioner erred in placing reliance on terms that were not made to
the Appellant by the Respondents staff at the September meeting in that he found no
agreements or guarantees were made to him that the hours to be worked as per the
September Resolution were guaranteed or to be a permanent arrangement. The
preponderance of evidence was that the September Resolution was not qualified or
adorned by any terms as to its duration and therefore this is an unwarranted
embellishment.
8. By virtue of the parole evidence rule the Respondents claims that there were verbal
qualifications to the September Resolution should have been deemed inadmissible in
any event as there was adequate written contemporaneous evidence as to its terms.”
[10] Mr Wilson contended in his notice of appeal that the grant of permission to appeal
would be in the public interest for the following reasons:
“1. If (as in this matter) an Employer reneges upon the fundamental terms of a recently
mediated workplace outcome involving a long term casual employee by unilaterally
seeking to invoke a significantly adverse variation to such outcome and then
constructively refuses to reinstate those terms, does that give rise to a circumstance
whereby the employee can successfully claim constructive dismissal.
2. Is an employee obliged to pursue other grievance procedures relating to the same
issue when an emailed complaint in relation to it and the ensuing response(s) render it
probable or obvious having regard to all the attendant circumstances ,the employees
concern will not be addressed and resolved irrespective of the method or procedure
utilised by the employee to have his grievance dealt with.
[2017] FWCFB 3906
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3. If (as in this matter) emails from an employee to his relevant supervisor(s) are an
acceptable method of conveying objections in relation to a workplace issue in
circumstances where the employer has accepted and acted upon such conveyance
previously, and does such previous occurrence preclude the employee from being
obliged to avail himself of alternate grievance procedures.
4. Whether the intervention by the learned Commissioner effectively curtailing the
cross examination of the Respondents witnesses on the question of the refusal of the
Town to issue a reference to the Appellant which was material to the questions of
reinstatement and mitigation of loss , gives rise to a reasonable perception that he had
predetermined the Applicants application.”
Consideration
[11] An appeal under s.604 of the FW 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.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
[12] This appeal is one to which s.400 of the FW 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.
[13] In the Federal Court Full Court decision 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”.3 The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment4. 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
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78 at [43]
4 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 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
[2017] FWCFB 3906
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applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”5
[14] 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.6 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.7
[15] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.8
[16] The appeal grounds which we have earlier set out contend that the Commissioner
erred in making significant errors of fact. We are not satisfied that any of these grounds of
appeal are arguable. Mr Wilson’s case appears to depend on the proposition that the resolution
of the September 2016 dispute concerning his working hours was resolved on the basis that he
was indefinitely guaranteed 5.5 hours’ work per week. The Commissioner, having carefully
assessed the competing evidence about this, found that no such guarantee was given, and that
to the contrary Mr Wilson was told that as a casual employee his hours might change again in
the future according to Victoria Park’s operational needs. This was consistent with the basis
upon which he was originally engaged. Beyond the assertion that Mr Wilson’s evidence
should have been preferred, no basis has been demonstrated for considering that the
Commissioner’s finding about the resolution of the September 2016 dispute was attended by
appealable error. Mr Wilson’s contention therefore that the proposed alteration to his working
hours in late December 2016 represented a repudiation of his employment contract is
therefore misconceived.
[17] On the facts as found by the Commissioner, it was simply not open to find that any
conduct on the part of Victoria Park had forced Mr Wilson to resign. It was entitled under its
employment arrangement with him to alter his hours of work. Once he protested about this,
Victoria Park made it clear to Mr Wilson that it was willing to discuss a resolution of the
problem (as it had successfully done in September 2016). There are no facts demonstrating or
supporting the inference that Victoria Park intended Mr Wilson’s employment to terminate or
that it foresaw that this would be the likely consequence of its conduct.
[18] Mr Wilson’s application was decided on its own facts. The appeal does not raise any
issue of importance or general application. There is no arguable case that the Decision was
unreasonable, manifested any injustice or was counter-intuitive. The public interest is not
enlivened by any of the grounds of appeal.
[19] We are not satisfied that it would be in the public interest to grant permission to
appeal. Therefore, as required by s.400(1), permission to appeal must be refused.
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[2017] FWCFB 3906
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VICE PRESIDENT
Appearances:
M. Wilson on his own behalf.
D. Smith for Town of Victoria Park.
Hearing details:
2017.
Sydney:
7 August.
Printed by authority of the Commonwealth Government Printer
Price code C, PR594833
OF THE FAIR WORK MISSION THE
