Alex Dai v The Camberwell Grammar School
[2018] FWCFB 1362
•9 MARCH 2018
| [2018] FWCFB 1362 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Alex Dai
v
The Camberwell Grammar School
(C2017/6708)
VICE PRESIDENT HATCHER | SYDNEY 9 MARCH 2018 |
Permission to appeal against decision [2017] FWC 6315 and Order PR598342 of Commissioner Ryan at Melbourne on 4 December 2017 in matter number U2017/6366.
Introduction and background
[1] Ms Qing (Alex) Dai has applied for permission to appeal and appealed a decision of Commissioner Ryan issued on 4 December 1 (Decision). The Decision dealt with the question of remedy arising from an earlier finding of the Commissioner that Ms Dai’s dismissal by the Camberwell Grammar School (CGS) was unfair.2 The Commissioner was satisfied that reinstatement was inappropriate and instead ordered compensation.
[2] Ms Dai contends that there are significant errors of fact in the Decision. In particular she takes issue with the Commissioner’s decision not to order her reinstatement. She contends that the matter raises issues of importance and general application which justify the grant of permission to appeal in the public interest.
[3] The essence of Ms Dai’s contention is that reinstatement will assist in her recovery from a work injury; that she will be able to restore her relationship with CGS if reinstated; and that, absent reinstatement, she is unlikely to find another job.
Approach on permission to appeal
[4] An appeal under s 604 of the Fair Work Act 2009 (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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[5] 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.
[6] 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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 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.” 6
[7] 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. 7 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.8
[8] 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. 9
Remedies for unfair dismissal
[9] Remedies for unfair dismissal are dealt with in Division 4 of Part 3-2 of the FW Act (ss 390-393). Section 390 is the relevant provision for present purposes. It states:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
[10] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.
[11] In the context of reinstatement, the Commission must decide whether such an order is appropriate. This includes consideration of whether a sufficient level of trust and confidence can be restored to make the relationship viable and productive. The rationality of a party’s attitude in this respect is a relevant consideration. 10
Consideration
[12] In the Decision, the Commissioner proceeded on the basis that reinstatement was the primary remedy and set out the parties’ contentions for and against it. 11 He then considered whether reinstatement was appropriate in all the circumstances.12 Ultimately, on the question of reinstatement, he concluded as follows:
“[46] Having regard to all of the circumstances of this case the Commission is satisfied that reinstatement is not an appropriate remedy in this matter. Whilst the Commission accepts that the Applicant has the capacity to perform the inherent requirements of her job, this is outweighed by the inability of a viable and productive relationship to be restored between the Respondent and the Applicant.”
[13] It is apparent from the Decision that the Commissioner had regard to the following matters in deciding whether reinstatement was appropriate:
1) Ms Dai’s lack of trust in the School Principal and the Head of Science as well as some of her work colleagues who she considered were trying to get rid of her;
2) serious allegations made by Ms Dai that:
a. the Principal of CGS, its Head of Science and Business Manager had lied and given false evidence to the Commission;
b. the Head of Science had fabricated evidence to blame Ms Dai for unsafe work areas and unsafe storage of chemical waste;
c. the Head of Science conspired with other employees to lock her in a room force her to resign,
d. false accusations underpinned two written warnings given to Ms Dai during her employment; and
e. several employees had deliberately sought to cause her trouble.
3) Ms Dai’s work environment, including as a learning environment for students;
4) the need for a team approach among Science Department staff; and
5) particular incidents involving “lab coats” and “waste chemical storage” which the Commissioner relied on to illustrate a concern that some of Ms Dai’s views about her position being misrepresented by CGS were not “well founded”.
[14] Ms Dai was self-represented in her application for permission to appeal (as she was in the proceedings before the Commissioner). It is difficult to identify with any precision her grounds of appeal or any specific contentions of appealable error in her notice of her appeal, her written outline of submissions or her oral submissions at the hearing. Some of the issues raised are more properly characterised as matters going to merit than remedy, including the fact that she was given more work than she could have completed in a day; that she could not get access to wi-fi on her return to work after injury; that she was prevented from returning to work despite her having a certified capacity for work; an incident involving the police being called; the credentials of a company engaged to clean up waste chemicals in the laboratory; and the fact that the technician who replaced her was employed on a “long term” basis (although that latter submission is not consistent with the evidence of CGS in the matter). The Commissioner found that Ms Dai’s dismissal was unfair, and that decision is not the subject of an appeal. None of the issues identified above disclose an arguable case of error in the Decision going to the issue of remedy, which is the matter under appeal.
[15] Some specific errors of fact appear to be identified by Ms Dai in the Decision, include the finding at paragraph [49] that had she not been dismissed, she would have remained in employment for a number of months but less than one year. However that finding was made pursuant to s 392(2)(c) as part of the assessment of the amount of compensation to be awarded to Ms Dai. It had nothing to do with the Commissioner’s prior conclusion that an order for reinstatement would be inappropriate, which we understand to be the aspect of the Decision which is under appeal. Therefore there is no arguable case of error with respect to the finding in paragraph [49].
[16] Ms Dai also said the Commissioner misunderstood her evidence when he made the observations that he did at paragraphs [29] and [30] of the Decision about her supposed isolation at work designed to avoid interaction with other workers other than in a limited way. A fair reading of Ms Dai’s evidence and submissions on this issue indicates that her willingness to interact with others if reinstated assumed, firstly, that a reinstatement order from the Commission would itself prevent any further issues arising and, secondly, that she would be able to work more independently so that interaction with others could be confined in some contexts to necessary interaction only. The following extract from her witness statement is relevant in this respect:
“I am happy to accept a certain level of bullying at work since there is no other school that has such a fantastic independent role with an independent working location relatively away from other staff and technically I do not need seek any help from my team members to carry my preinjury duties plus I had learnt a lot of strategy to be survival better in the difficult working environment from my WorkCover psychological treatments since Sep, 2016 to May, 2017.” 13
[17] Ms Dai’s submissions did not explain in any coherent way how paragraphs [29] and [30] of the Decision involved any misunderstanding of the evidence. No arguable case of error is identifiable.
[18] Ms Dai contended that there was a significant error in the Decision in relation to the “lab coat” incident dealt with in paragraphs [33]-[35] because there was no finding that it occurred because an employee of CGS was trying to cause her trouble. She pointed to errors in relevant dates in the Decision and submitted that lab coats were collected for dry cleaning earlier than usual in the term for the specific purpose of causing her distress. In a similar vein, Ms Dai questioned the observation at paragraph [35] of the Decision that she was “lying on top of the plastic bags full of lab coats crying and pulling apart the plastic bags trying to find her lab coat”. However nothing in Ms Dai’s submissions explained why the evidence before the Commissioner did not permit him to make the findings of fact that he did in paragraphs [33]-[35], and Ms Dai’s case in this respect rose no higher than the assertion that her perception of events should have been accepted by the Commissioner. No reasonably arguable contention of appealable error is identifiable.
[19] Ms Dai also took issue with the Commissioner’s failure to find at paragraphs [39] to [40] of the Decision that the “waste chemical storage” incident was manufactured by an unidentified person with the specific purpose of trying to “get rid” of her. In connection with this, certain findings of fact in relation to the incident were also contested including in relation to the smell of the chemicals and her absence over the relevant period while sick. Again, this contention rises no higher than an attempt to re-argue the point without reference to the evidence before the Commissioner. It is not reasonably arguable.
[20] Finally, Ms Dai submitted that the finding at paragraph [41] of the Decision that the weight of evidence tended against reinstatement was a significant error of fact. That was an evaluative judgment required to be made by the Commissioner, and Ms Dai has not advanced any specific contention of appealable error in the exercise of the discretion in this respect.
[21] It is apparent from the Commissioner’s decision that in deciding that reinstatement was inappropriate, he had regard to relevant evidence and formed reasonable views about the relationship between Ms Dai, CGS and employees with whom she would be required to interact if reinstated. He considered the relevant authorities on the question of trust and confidence in the context of reinstatement and ultimately arrived at the conclusion that a viable and productive relationship could not be restored.
[22] The Commissioner’s reasons identify that there was a sound and rational basis for so concluding, including that the evidence demonstrated the difficult relationship between Ms Dai and CGS staff which would only be exacerbated if Ms Dai were to be reinstated. Ms Dai’s allegations concerning the bullying she said she had experienced at CGS only served to support the Commissioner’s conclusion in that respect. In the absence of any contention of genuine appealable error, we see no proper basis to review the Commissioner’s conclusion via the grant of permission to appeal.
[23] Ms Dai advanced some contentions to the effect that there was procedural unfairness in the conduct of the proceedings before the Commissioner, including that she was unable to present her case as well as it could have been presented due to her limited English, the low skill level of her interpreter and her psychological state and distress during the substantive hearing. She submits there was no level playing field, as CGS had a team of 4 lawyers including a barrister advising and representing it while she could not afford representation.
[24] A review of the transcript in this matter demonstrates that these contentions are not reasonably arguable. We accept that Ms Dai is currently experiencing mental health challenges and is receiving medical treatment. We also accept that appearing in the Commission can be a stressful experience and that it was so for Ms Dai. That said, the substantive matter was heard over 6 days, during which Ms Dai was provided with an interpreter and given ample opportunity to put her case. Issues about the suitability of the interpreter on the first day of hearing were raised and this was subsequently addressed. 14 While English is clearly not her first language, Ms Dai was able adequately to communicate her position without the assistance of an interpreter both in the substantive hearing and before us.
[25] The Commissioner at first instance refused CGS permission for legal representation under section 596 of the FW Act. 15 It is evident that the Commissioner was acutely aware of the potential difficulty for Ms Dai in presenting her case and that he went to some lengths to prevent any unfairness to her in this regard. There is no reasonably arguable case of procedural unfairness.
Conclusion
[26] No arguable contention of appealable error has been raised by Ms Dai. We are not satisfied that the matter raises any issues of importance and general application, or that the Decision manifests an injustice or leads to a counter intuitive result. The legal principles applied in the Decision are well-established.
[27] As set out earlier, s 400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. For the reasons given we are not satisfied that it is in the public interest to grant permission to appeal and accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
A. Dai on her own behalf.
C. Lloyd for the Camberwell Grammar School.
Hearing details:
2018.
Melbourne:
March 5.
<PR600941>
1 [2017] FWC 6315
2 [2017] FWC 5561
3 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
4 (2011) 192 FCR 78 at [43]
5 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]
6 [2010] FWAFB 5343, 197 IR 266 at [27]
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 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]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
10 Nguyen & Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198
11 Decision at [17]-[20] and [41]
12 Decision at [24]-[46]
13 Exhibit A2 at paragraph 126
14 Transcript 10 October 2017, at PN2029
15 Transcript 9 October 2017, at PN6
Printed by authority of the Commonwealth Government Printer
3