Federal Court of Australia

Twomey v Que 5 Pty Ltd [2024] FCAFC 30

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a judgment of this Court (J) in which the primary judge dismissed an application for judicial review of two decisions of the second respondent (Commission). The Commission at first instance (Deputy President) dismissed an application by the appellant (Mr Twomey) in which Mr Twomey sought an unfair dismissal remedy under the Fair Work Act 2009 (Cth) against the first respondent (Que 5). Mr Twomey then applied to the Full Bench of the Commission for permission to appeal, which was refused (FBD) (J[1]).

2    The appellant advances two grounds of appeal. First, that the primary judge did not specifically identify how he failed to present his case. Second, that there are obvious errors and inconsistencies throughout the entirety of that judgment.

3    This appeal concerns the bounds of the Commission’s jurisdiction to deal with a dispute arising from the termination of employment. Not all employees in Australia are able to bring proceedings before the Commission challenging their dismissal from employment.

4    Mr Twomey was employed by Que 5 and was dismissed on 1 September 2022. In his Form F2 application to the Commission for an unfair dismissal remedy, Mr Twomey stated that his employment commenced on 3 January 2022. Accordingly, reading his application on its face, Mr Twomey asserted to the Commission that he had been employed by Que 5 for a period of nine (9) months (DP[6], [8], [10]; J[7]).

5    Part 3-2 of the FW Act prescribes the ambit of the protection. Section 382 states:

A person is protected from unfair dismissal at a time if, at that time:

(a)    the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

    …

6    Section 383 of the FW Act defines what the “minimum employment period” means, and provides:

383 Meaning of minimum employment period

The minimum employment period is:

(a)    if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i)    the time when the person is given notice of the dismissal;

(ii)    immediately before the dismissal; or

(b)    if the employer is a small business employer—one year ending at that time.

7    As is apparent from the foregoing, the length of time over which an employee must have been employed in order to be eligible for protection under the unfair dismissal provisions is dependent on whether the employee’s employer is a “small business employer”. A national system employer (of which it is not in dispute that Que 5 was one) is a “small business employer” if it “employs fewer than 15 employees” at the particular time. Section 23 prescribes the method of calculation and the point in time upon which the calculation is made, in the following way:

23  Meaning of small business employer

(1)    A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2)    For the purpose of calculating the number of employees employed by the employer at a particular time:

(a)    subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b)    a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3)    For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4)    To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a)    the employee who is being dismissed or whose employment is being terminated; and

(b)    any other employee of the employer who is also being dismissed or whose employment is also being terminated.

8    Before the Deputy President and the Full Bench, it was not in dispute that Que 5 was a small business employer.

9    Accordingly, the relevant dispute before the Commission, at first instance, and as agitated on appeal, was whether Mr Twomey was employed for more than the “minimum employment period” of one (1) year. If he was not, then whatever the circumstances of his dismissal, fair, unfair, unreasonable or otherwise, he was not entitled to a remedy before the Commission.

10    It is worthwhile at this juncture to say something about the nature of the proceeding before this Court. This appeal is from a decision of a judge of this Court dismissing Mr Twomey’s application for judicial review.

11    Therefore, this Court only has jurisdiction to correct jurisdictional error and does not have the power to descend into the merits of Mr Twomey’s application for unfair dismissal and order reinstatement or compensation. The Federal Court does not sit as a court of appellate review from decisions of the Commission. All that this Court could do, if jurisdictional error were established, is to quash the order(s) below and/or order that the Commission take certain steps, including remitting the matter back to the Commission.

12    For the reasons which follow, we reject the appeal – we can discern no error in the primary judge’s reasons for dismissing Mr Twomey’s judicial review application. We accept that Mr Twomey is very aggrieved at the circumstances leading to the termination of his employment. However, this Court’s jurisdiction is limited.

13    It is worthwhile briefly describing Mr Twomey’s proceedings before the Commission because they form the basis for his application for judicial review.

Proceedings in the Commission

14    On 9 September 2022, Mr Twomey applied for an unfair dismissal remedy in the Commission. The Deputy President heard and determined Que 5’s jurisdictional objection to Mr Twomey’s application on the basis that it was a “small business employer” within the meaning of s 23 of the FW Act (DP[3]) and Mr Twomey had not been employed for the “minimum employment period” as required under s 383(b) of the FW Act given he was only employed for nine (9) months.

15    The Deputy President’s conclusions as to why the Commission did not have jurisdiction are encapsulated in the final four (4) paragraphs of her reasons, which were as follows:

Consideration

[19]    It is not in contest in this case that the Respondent is a small business employer and was at the relevant time. It follows that the minimum employment period for the Applicant was one year.

[20]    Furthermore, it is not in dispute that the Applicant commenced employment with the Respondent on a casual basis on 3 January 2022, notwithstanding the information provided by the Respondent initially in its Form F3. Further, both parties agree that the Applicant’s dismissal took effect on 1 September 2022.

[21]    Whilst the Applicant has provided 40 payslips evincing the number of hours worked each week during the period of his employment, it has proven unnecessary to examine those for the purpose of ascertaining whether the Applicant’s engagement as casual worker was ‘regular’ as understood by reference to the judgment in Yaraka Holdings Pty Ltd v Giljevic. However, those same payslips have illuminated that, consistent with both the Applicant’s account and that of the Respondent, his period of employment was less than one year.

Conclusion

[22]    To be protected from unfair dismissal, it must be established that the Applicant served contiguous periods of service amounting to one-year preceding dismissal. That requirement has not been met given the Applicant’s dismissal came into effect on 1 September 2022 and he commenced employment on 3 January 2022. Therefore, the Applicant has not met the minimal employment period.

(Citations omitted.)

16    Mr Twomey then applied to the Full Bench for permission to appeal from the decision and order of the Deputy President. A person must seek “permission” to appeal because a person is not entitled, when bringing a case of Mr Twomey’s kind, as of right, to appeal to the Full Bench. As a consequence, the Commission must not grant permission to appeal unless it is in the public interest to do so: ss 400(1), 604(1) of the FW Act. Mr Twomey advanced three grounds of appeal before the Full Bench, which the Full Bench briefly considered and dismissed. To the extent that we can decipher, the first and second grounds were re-agitated as part of Mr Twomey’s application for judicial review before the primary judge, and form part of his grounds on appeal.

17    By the first ground (FBD[11]):

The Deputy President “gave permission for an incorrect appeal procedure” in respect of which the Appellant was not notified or present until the phone hearing was in process and “blatantly contradicted” the established findings of the staff member of the Commission who conducted the conciliation conference on the matter.

(Emphasis in original).

18    The Full Bench understood this ground had two components, the second of which has some bearing on this appeal. The second component was that the Deputy President had “blatantly contradicted” the findings reached in the conciliation conference (FBD[22]). The Full Bench found that, consistent with its ordinary processes, the conference comprised a confidential process which explored the possibility of reaching an agreed settlement, and no conciliator could make “findings”.

19    As to the second appeal ground, Mr Twomey submitted that the Deputy President had erred by (FBD[11]):

.. refus[ing] to alter the Decision “without reading, or properly investigating appropriate evidence [9] (Deputy President Beaumont’s, Decision, Background, Consideration, Conclusion, 18th November 2022) or my payslips.”

(Emphasis in original).

20    The Full Bench understood that, by this ground, Mr Twomey was asserting that the Deputy President had refused to take into account Mr Twomey’s payslips and the police statement given by Que 5’s owner, Mr Coulter. Mr Twomey had sought to rely on these two forms of evidence to assist his argument that the Commission did have jurisdiction.

21    With respect to the payslips, as is apparent from both the Deputy President’s reasons (extracted at [15] above), Mr Twomey had produced 40 payslips evidencing the hours that he had worked between 3 January and 1 September 2022: DP[21]. The Full Bench understood that Mr Twomey relied upon those payslips to support his contention that he was employed as a casual employee, and he held a reasonable expectation of continuing employment on a regular and systematic basis within the meaning of s 384(2)(a) of the FW Act: FBD[25].

22    The Full Bench could discern no error arising from this ground because it was not in dispute that Que 5 was a small business employer and the pertinent issue before the Deputy President was whether Mr Twomey had completed the minimum employment period of one year in s 383(b): FBD[26]. A simple calculation revealed that the period between 3 January and 1 September 2022 was less than one year. Accordingly, by operation of s 382(a), Mr Twomey was not a person who, under the FW Act, was protected from unfair dismissal. Whilst finding that the Deputy President had had regard to those payslips, the Full Bench ultimately agreed with the Deputy President that any consideration of them was unnecessary given Mr Twomey was not employed for the minimum employment period: FBD[27]. Mr Twomey’s reliance on them was misguided: the Full Bench reasoned that whether his casual employment was regular and systematic had no bearing on the determination of this issue. Similarly, to the extent that Mr Twomey tried to argue that he was a “regular casual” for the purpose of s 23(2)(b), again this did not cure the defect in his application by operation of s 23(1): FBD[30].

23    In regard to Mr Twomey’s attempt to rely on appeal on the police statement, the Full Bench noted that the police statement had not been relied upon at first instance, referred to orthodox principle regarding the appeal process not being an avenue for an unsuccessful party to seek to cure shortcomings below and found that they were not satisfied that Mr Coulter’s police statement disclosed any relevant material such that there was a high degree of probability that it would lead to a different decision: FBD[29].

24    After considering the other grounds, the Full Bench refused to grant Mr Twomey permission to appeal, finding as follows (at FBD[35]):

The Deputy President has taken an entirely orthodox approach to the determination of the relevant facts in the matter and the application of the law to those facts. Nothing in the material before us indicates that it would be in the public interest to grant permission to appeal. There is no issue of importance or general application arising in the matter and the legal principles applied are not disharmonious when compared with other decisions dealing with similar matters. We do not consider that the Decision manifests an injustice and nor is the result counter intuitive.

25    Given the same, the Full Bench of the Commission refused Mr Twomey permission to appeal under s 400(1) of the Act.

The primary judgment

26    Mr Twomey’s application for judicial review is set out in full in the primary judge’s reasons: J[22]. The grounds of application were as follows:

Grounds of application

1.    If DEPUTY PRESIDENT MILLHOUSE & Associate actions are deliberate and or lacking in capacity, it would be detrimental to all concerned.

2.    DEPUTY PRESIDENT BEAUMONT & Associate actions are very similar.

27    The primary judge identified Mr Twomey’s three contentions supportive of his application as being: the application of s 23(2)(b) of the FW Act, what occurred at the conciliation before the Commission and Mr Coulter’s police statement: J[4], [25], [26]. The primary judge dealt with each of these contentions in turn and ultimately dismissed Mr Twomey’s application. Given the overlap between these contentions and the submissions made on appeal, the primary judge’s reasons will be considered further below.

28    In the primary judge’s subsequent costs decision, in which Mr Twomey appears to have elected not to participate: Twomey v Que 5 Pty Ltd (No 2) [2023] FCA 1481 at [12] (Costs Decision), his Honour concluded that the application was not made with reasonable cause, and ordered that Mr Twomey pay $8,000 in fixed costs by reason of the following (at [9]):

(1)    Mr Twomey's originating application did not identify any coherent grounds of judicial review: at [22], [25].

(2)    It was not in dispute that Que 5 met the definition of a small business employer, meaning that the minimum period of employment to be a person protected from unfair dismissal was one year. It was also not in dispute that Mr Twomey was employed by Que 5 for a period of about eight months, having commenced employment on 3 January 2022 and been dismissed on 1 September 2022: at [5]-[7], [30]-[31].

(3)    Contrary to Mr Twomey's contention, s 23(2)(b) of the FWA does not mean that Mr Twomey was a person who was protected from unfair dismissal. Section 23(2)(b) concerns counting how many employees an employer has for the purpose of the definition of a “small business employer”. Whether or not Mr Twomey was a person protected from unfair dismissal turned on other provisions of the FWA, namely s 382 -s 384. Mr Twomey's reliance on s 23(2)(b) was misconceived: at [30]-[32].

(4)    Mr Twomey's contention that a conciliator in the FWC said Mr Twomey had a case, but then the Deputy President said he did not have a case, had no reasonable prospects of success in disclosing a jurisdictional error, given that the conciliation process can have no bearing on the decision that the FWC makes after the hearing, and there was no evidence that it did or that it resulted in any denial of procedural fairness: at [33]-[34].

(5)    As for his contention about Mr Coulter's police statement, Mr Twomey did not suggest that the police statement was before the Deputy President, or that it should have been, or that the Full Bench's refusal to receive the police statement into evidence was a jurisdictional error. Further, and in any event, the police statement would not have established that Mr Twomey's service with Que 5 was continuous, such that Mr Twomey had been employed for at least one year at the time of his dismissal: at [35]-[36].

The appeal to this Court

29    Mr Twomey advances two grounds of appeal, which are extracted as follows (all errors as in original):

1.    Justice Jackson conclusion is not specific to where my or Appellant Rhys Twomey failures are when presenting my case but relies on 34 paragraphs attempting to establish any jurisdictional error on behalf of Respondent 2.

2.    Justice Jackson obvious errors are within the whole Federal Judicial print out and or Intro – Orders – Reasons for Judgement – Conclusion – plus inconsistencies within.

30    Mr Twomey seeks orders from the Full Court to overturn “all previous decisions”, including that of the primary judge, “compensation” from both Que 5 and the Commission, and a “fair reference” from Que 5 “from January 2022 till present”. For the reasons stated above, this Court’s jurisdiction is limited. It has no power to award compensation or order that Que 5 provide Mr Twomey with a reference.

31    The Commission, while being the second respondent in this appeal, did not wish to be an active party in this appeal. By affidavit affirmed 7 December 2023, filed on behalf of the Commission, Ms Caitlin Yazidjoglou deposed that the Commission took no position on whether the primary judgment contained any appealable error. However, given Mr Twomey is seeking “compensation” from the Commission, the Commission did not consider it appropriate to file a submitting notice in accordance with r 12.01 of the Federal Court Rules 2011 (Cth), which requires a party to submit to any order that the Court may make. The Commission filed submissions justifying its course of action.

Submissions

32    It is useful to extract from Mr Twomey’s primary submissions which contained his articulation of the grounds of appeal and other matters (all errors as in original):

1.     Summary

A.    On the 27th of September 2023 Presiding Jackson J delivered by e mail, FCA 1155, 2 pages of Intro, 10 pages with 41 paragraphs for Judgement for Twomey v Que 5 Pty Ltd & Fair Work Commission.

B.     On 20 October I was returned stamped with approval, Form 122 Notice of appeal.

2.    Grounds of appeal.

•    Justice Jackson conclusion is not specific to where my or Appellant Rhys Twomey failures are when presenting my case but relies on 4 paragraphs of Reason for Judgement and 35 paragraphs attempting to establish any jurisdictional error on behalf of Respondent 2.

•    Justice Jackson obvious errors are within the whole FCA 1155 Judgement or Intro - Orders - Reason for Judgement - The Commission's decision at first instance-The application to the Full Bench - plus inconsistencies within, requiring a staggering 39 paragraphs to justify Conclusion.

(Jackson J Conclusion:)

40 (Mr Twomey has not established any jurisdictional error on the part of the Fair Work Commission. His application will be dismissed.)

3.    Cases cited by Jackson J. FCA 1155 Judgement

a.     DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

b.     Gregory V Qantas Airways Ltd [2016] FCAFC7; (2016J 241 FCR 72

c.     MZARG v Minister for Immigration and Border Protection [2018] FCA 624

d.     Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102

i.     The cases cited have little relevance and or significance to (WAD137/2023) and I am bewildered as to why they even bothered.

4.    Annexure one. Fair Work Commission – Form of submissions x2 pages

•    On 24/11/2022 I completed Form F& Notice of appeal (Appealing a decision of the Fair Work Commission) and lodged with option for written Form of submissions.

…

The Form of submissions is specific, decisive, and deliberately concise and with proper investigation by Respondent 2, it should have overturned a questionable decision by their own colleague plus previous Fair Work Commission cases to reference.

(I listed all the relevant legislation to give a firm gist of how much applicable legislation was unheard or ignored plus Pay Slips then Collated due to an obvious opinion that Meaning of small business employer strictly adhered to 12 months' probation employment period and have allegedly deliberately ignored s23 (2) (a) (b) & Period of employment s384 (2) (a) (i) (ii) of which if the circumstances are correct the probation employment period is 6 months, statutory to the norm)

…

6.    Annexure three. Attached Collated Pay Sheets x2 pages.

Respondent 2 twice ignored my past hours and pay of regular employment.

January is usually quiet with maintenance tasks by the Customer (who operates 12 months)

plus, colleague attitude of "I had no work, so I took yours" (Peter Barton).

I made verbal complaint of bullying to the Fair Work Commission and their advice was to speak to your employer first with behaviour alleviating. See annexure for discriminatory actions exercised by colleagues.

Twice Phil verbally offered alternative duties and or new role and twice the colleagues (no license or employment) secured the roles for unbeknown reason which is what lead to a verbal altercation between me and Phil Coulter and unexpected termination of employment,

Before our verbal altercation, my relationship with Phil was pleasant and my past Heavy Vehicle experience is from 27 years (now 56) old and with maximum length and weights in New Zealand,

7.     Relevant Legislation Regarding my case since conciliation at Fair Work Commission

FAIR WORK ACT 2009 - SECT 23

Meaning of small business employer

(2)    For the purpose of calculating the number of employees employed by the employer at a particular time:

(a)    subject to paragraph (b), alt employees employed by the employer at that time are to be counted; and

(b)    a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

8.     FAIR WORK ACT 2009 - SECT 384

Period of employment s384

(2) However

(a) a period of service as a casual employee does not count towards the employees' period of employment unless;

(i)     the employment as a casual employee was a regular casual employee; and

(ii)     During the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

"'I did not locate this piece of legislation until research into previous relevant cases."

9.     Kennedy v D Petrie & DC Petrie (2021) FWC 5411

What is regular and systematic employment?

Consideration.

[26]    The Respondent submitted that the applicant is not a person protected from unfair dismissal under s382(a) of the Act because she had not completed a period of at least the minimum employment period (being 12 months) given that her period of service as a casual employee does not contribute to the period of employment. A period of service does not count towards the period of employment if the employee's engagement as a casual was neither regular nor systematic, and the employee had no reasonable expectation of continuing employment on a regular or systematic basis.

[34]    The regular and systematic nature of the employment identified above, including sheer regularity of engagement, leads me to the conclusion that the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis (s.384(2)(a)(ii).

[35]    I determine that the Applicants period of service from the commencement of her employment until its termination counted towards his period of employment, and the Applicant had therefore completed the minimum employment period.

Extract from Kennedy v D Petrie & D C Petrie (2021) FWC 5411 delivered 1 September 2021 per Cross DP.

10.    Chandler v Bed Bath n Table Pty Ltd (C2019/6120) Sydney 23 January 2020

Vice President Hatcher - Commissioner Cambridge - Commissioner Booth

[20]    For similar reasons, we consider in respect of s384 (2) (a) (ii) that, during her period of service with BBNT as a casual employee, Ms Chandlier had a reasonable expectation of continuing employment on a regular and systematic basis, that expectation was engendered by:

[21]    We therefore determine that Ms Chandler's period of service from the commencement of her employment until its termination counted towards her period of employment, that Ms Chandler therefore completed the minimum employment period, and therefore that Ms Chandler is a person protected from unfair dismissal.

Orders

[22] WE order as follows:

1)     Permission to appeal is granted.

2)     The appeal is upheld.

11.     Conclusion

After 14 months of unnecessary litigation the conclusion is still the same and the facts provided are from the first instance "My employment was regular and systematic as pursuant of Conciliator Suzanne Me Cormack and my own defence uitlizing Sect 23 (2) (a) (b) & Sect 384 (2) (a) (ii) plus cited cases Kennedy v D Petrie & D C Petrie & Chandler v Bed Bath n Table Pty Ltd - that I had completed the minimum employment period and was therefore protected from unfair dismissal."

Also, there are 4 potential errs that require some investigation x3 deleting of conversations from the Court Transcript x3 proceedings, see x3 typist for (WAD137/2023) & missing Form 69 Originating application plus x3 supporting affidavit (see Sia Lagos National Registrar for confirmation of lodgement). Reason. The alleged misconduct resulted in a bias conclusion & decision for (WAD137/2023) resulting in further unnecessary proceedings.

33    Que 5 filed very brief written submissions, which were of limited assistance. In essence, Que 5 submitted that the present appeal raised no coherent grounds of appeal and should be dismissed with costs for being instituted without reasonable cause. Que 5 submitted that to the extent Mr Twomey may be understood to be alleging inadequacy of the primary judge’s reasons or apprehended bias, these allegations would be without merit or foundation.

34    The Commission’s submissions are confined to whether it would be open to this Court to order compensatory orders against it in this proceeding. As we have already noted, the Commission takes no position as to whether the primary judgment contains appealable error.

35    Mr Twomey filed reply submissions, affidavit evidence and also evidence as to his employment history and certificates of courses he has undertaken.

Consideration

36    As is evident from Mr Twomey’s grounds of appeal, Mr Twomey has not identified with any particularisation any alleged error in the primary judge’s reasons. As stated above, this Court’s function is to correct jurisdictional error in the primary judge’s reasons, not to adjudicate, on appeal, the merits of the disputed application that was before the Commission.

37    Mr Twomey made clear, oral submissions which addressed sequentially, and supplemented the content of, his primary written submissions, extracted above. Mr Twomey submitted that the alleged jurisdictional “errors” manifested in the primary judge’s reasons or by the primary judge’s failure to so recognise them as arising from the Commission’s reasons were: (a) the failure of each member of the Full Bench to give (separate) reasons where purportedly only Deputy President Millhouse gave reasons; (b) the Commission’s failure, and thereafter the primary judge’s failure to recognise Mr Twomey’s “past hours and pay of regular employment”, as evident from the payslip summary, relying on s 23(2)(b) of the FW Act; (c) the failure to take into account two authorities (not cited before any of the forums below), in combination with the operation of s 384 of the FW Act, from which it was submitted that Mr Twomey’s employment was “regular and systematic” such that he had completed the minimum employment period which he understood to be six (6) not twelve (12) months; and (d) an allegation of discrepancies in the Court transcript, originating application and file said to have arisen from the primary judge’s “bias”.

38    Each of Mr Twomey’s submissions will be addressed in turn as follows.

39    First, Mr Twomey seeks to reagitate an argument before the primary judge, namely his belief that the Full Bench decision was not in fact made by the Full Bench but rather only Deputy President Millhouse. We reject this submission, there is no foundation for it. The decision identifies each of the three members of the Full Bench, Deputy President Millhouse, Commissioner Bissett and Commissioner Harper-Greenwell and refers to its views, throughout the reasons, using the collective noun “we”. The fact that the seal of the Fair Work Commission may be signed by the most senior member of a Full Bench (or their associate) is of no consequence. It is consistent with the powers afforded to the most senior member by ss 618 and 619 of the FW Act. There is no compulsion on each member of the Full Bench to give separate reasons and it is entirely orthodox for them to deliver joint reasons.

40    Secondly, to the extent that Mr Twomey seeks to repeat his arguments before the primary judge, the Full Bench and the Deputy President regarding his payslips, we reject his arguments. We can discern no error in the primary judge’s reasons. Mr Twomey submitted orally that the conciliator had misled him as to the relevance of the payslips. This argument appears different to that that was before the primary judge and the Commission. However, we accept the correctness of the reasons given in each of these forums. The payslips only confirm and do not cure the flaw in Mr Twomey’s claim: the evidence before the Commission was that Mr Twomey was employed between 3 January and 1 September 2022, less than the twelve (12) month minimum employment period applicable to an employee of a small business employer.

41    Mr Twomey sought to rely on s 23(2)(b) of the FW Act to submit that a “regular casual” is not caught by the small business minimum twelve (12) month employment period under s 383(b). As stated correctly by the primary judge, s 23 defines a “small business employer” to be an employer who employs less than 15 employees at a particular time. We can discern no error in his Honour’s reasons: at J[31]. Whether or not Mr Twomey was a “regular casual” does not affect the ultimate conclusion that Que 5 was a small business employer in this case. The operation of s 23(2)(b), had no bearing, in this case, on the Commission’s conclusion, at first instance, that Mr Twomey did not meet the minimum employment period so as to be a person protected from unfair dismissal. Whether such a protection applies to an employee depends on the application of ss 382–384 of the FW Act, and it was clear that Mr Twomey’s circumstances did not fall within the unfair dismissal protection because his employment was for less than twelve (12) months: at J[32].

42    Thirdly, Mr Twomey submits, relying on s 384 of the FW Act, that his employment was “regular and systematic” such that he had completed the minimum employment period, said to be six (6) not twelve (12) months. Mr Twomey relied upon two authorities: Kennedy v D Petrie & DC Petrie [2021] FWC 5411 and Chandler v Bed Bath n’ Table Pty Ltd [2020] FWCFB 306.

43    This argument, as developed by relying on those two authorities, was not run before the Deputy President, the Full Bench nor the primary judge. The Deputy President, at DP[2], referred to Mr Twomey’s Form F2 application for an unfair dismissal remedy in which he “stated” in that form that he commenced work for Que 5 on 3 January 2022 and the dismissal took effect from 1 September 2022. Accordingly, whether his employment was “regular and systematic” would only be relevant to this application, if Mr Twomey was alleging that he had been employed prior to 3 January 2022 such that he could claim periods of employment, that were “regular and systematic” within the meaning of s 384, that added up to more than twelve (12) months of employment. This was not Mr Twomey’s case below nor appears to be his case now.

44    Mr Twomey’s argument seems to be based on his (incorrect) reading of Kennedy and Chandler. It was Mr Twomey’s submission that Chandler could be read as holding that, where an employee proved that he or she had a reasonable expectation of continuing employment and the employment was “regular and systematic”, the applicable minimum employment period was six (6) rather than twelve (12) months. However, this is not what these cases found. In Chandler, the employer was not a small business employer, as in this case, and as a consequence, s 383(a), not s 383(b), applied. That meant that in Chandler there only needed to be proof of six (6) not twelve (12) months employment. Similarly, Kennedy does not stand for the proposition Mr Twomey seeks to make. In that case, the evidence established, that the applicant worked over the period between April 2019 and December 2020: [11]. Accordingly, the issue concerned whether in those circumstances, the casual engagements over more than a twelve (12) month period, fell within s 384 such that the “period of employment” was continuous. The circumstances of that case are different to those here.

45    Fourthly, we reject that there is any basis to question the impartiality of the primary judge. We did not understand the basis for the submission nor was there any evidence before us such that it can be asserted that a fair-minded lay observer might reasonably apprehend the primary judge might not have brought an impartial mind to the resolution of the question he was required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 338 at [6].

Conclusion

46    For the reasons set out above, we can discern no error in the primary judge’s reasons and the appeal must be dismissed.

47    Lastly, Que 5 applies for its costs on the basis that Mr Twomey “instituted the proceedings … without reasonable cause”, pursuant to s 570(2)(a) of the FW Act. The second respondent did not join in that application. Que 5 relied upon no evidence in support of its application but rather submitted that the order ought be made given that Mr Twomey had reiterated the same “misconception”, on appeal, as to the applicable employment period, as before the primary judge, without reasonable foundation.

48    The Court’s otherwise wide discretion to award costs is limited by operation of s 570 of the FW Act: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221 at 252 [140]. The relevant portions of s 570 are extracted as follows:

Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or…

49    The Full Court in Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166; 145 ALD 548 (recently cited with approval by the Full Court in Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102 at [7]), considered what was meant by the phrase “without reasonable cause” within s 570(2)(a) (relied upon by Que 5 to support its application here) and in particular in the context of an appeal or judicial review proceedings, relevantly at [9]–[10]:

[9]    The meaning and application of the phrase “without reasonable cause” in s 570 and its predecessors has been considered in many cases. The effect of these authorities was recently summarised by Pagone J in Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351. His Honour said (at [8]) that:

“To exercise the discretion conferred by [s 570(2)(a) of the FW Act] the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470, 473. The relevant provisions reflect ‘a policy of protecting a party instituting proceedings from liability for costs’ and costs will rarely be awarded unless justified by exceptional circumstances: see Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at [60]. In Kangan Batman Institute it was said by the Full Court at [60] that ‘a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure’. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Wilcox J indicated at 264 that one way of testing whether a proceeding was instituted ‘without reasonable cause’ was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no ‘substantial prospect of success’. His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant’s own version of the facts.”

[10]    This test requires some minor modification when applied to the institution of an appeal or judicial review proceedings. In such proceedings the focus changes to whether, having regard to the facts apparent to the appellant at the time of instituting the appeal or the application for judicial review, there were no reasonable prospects of success. In evaluating these prospects regard may be had to the reasons for judgment or decision under appeal or review, as the case may be, and the grounds relied on to challenge the judgment or decision: see Imogen Pty Ltd v Sangwin (1996) 70 IR 254 at 257 (Wilcox CJ).

50    Notably in this case, as adverted to above, the primary judge made a costs order under s 570(2)(a), which is not challenged on appeal. Consistent with the observations of the Full Court above, the primary judge, in the Costs Decision, acknowledged that a proceeding may not be said to have been brought “without reasonable cause” simply because the party is unsuccessful in their claim but may arise where it is clear on the applicant’s version of the facts that the proceeding must fail. The primary judge concluded that those circumstances arose here: Mr Twomey was challenging a decision based on the duration of his employment where, on his own evidence, he had been employed for less than one year of continuous employment with Que 5: Costs Decision at [10] and [11].

51    The circumstances of this application are unfortunate. It is evident from Mr Twomey’s appeal submissions that he misapprehended the operation of s 384 combined with the effect of the Kennedy and Chandler decisions. It is very unfortunate that Que 5 in its brief, eight (8) paragraph written submission and in its derisory oral submission made no attempt to disabuse Mr Twomey of his misconception of how those authorities were of no assistance as to the operation of s 384 and the strictures of the minimum employment period provisions under s 383(b). Further, unlike as is often the case in applications of this kind, Que 5 relied upon no solicitor correspondence sent to Mr Twomey clearly setting out its position and why Mr Twomey’s appeal was doomed to fail. Whilst there is no obligation on a party to do so, it is troubling in this case where it was known that Mr Twomey was unrepresented and living in rural Western Australia.

52    However, the discretion has been enlivened by s 570(2)(a) as the appeal lacked reasonable cause. By the time of the commencement of the appeal, Mr Twomey had the benefit of the primary judge’s explanation in both of the primary judge’s decisions (as well as the decision of the Commission) as to why his arguments regarding s 384 were incorrect. In addition, it would have been apparent to Mr Twomey, given the award of costs by the primary judge, that there was a risk of costs being awarded on appeal.

53    Accordingly, we are of the view, despite the unfortunate circumstances that consistent with the authorities and the power under s 570(2)(a), costs should be awarded in this case.

Associate:

Dated:    8 March 2024