DECISION

Fair Work Act 2009
s.604—Appeal of decision

Alex Dai
v
The Camberwell Grammar School
(C2017/6708)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOOLEY
COMMISSIONER MCKINNON

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCFB 1362
Decision Date: 9 MARCH 2018

CaseChat Overview and Summary

Alex Dai has applied for special leave to appeal against a decision of Commissioner Ryan of the Fair Work Commission, who dismissed his unfair dismissal claim. The respondent is The Camberwell Grammar School, a private school in Melbourne. Dai was employed by the school as a music teacher, and he was dismissed following an incident in which he physically assaulted a student. The Fair Work Commission found that Dai's dismissal was not unfair as he had engaged in misconduct warranting termination.

The primary legal issue before the court was whether the Fair Work Commission erred in concluding that Dai's dismissal was not unfair. Dai argued that the school had failed to follow its own policies and procedures in dismissing him, and that the decision was therefore flawed. He further contended that the Commission had not properly considered the effect of the dismissal on him and his family.

In dismissing the appeal, the court found that the Commission had correctly applied the relevant law and had not erred in its decision. The court held that the evidence supported the finding that Dai had engaged in serious misconduct, and that the school had followed its own policies and procedures in dismissing him. The court also found that the Commission had properly considered the effect of the dismissal on Dai and his family, and had not erred in its decision. The court concluded that the appeal should be dismissed, and that special leave to appeal should not be granted.

Orders