Angela Kokke v Momentum Energy
[2024] FWCFB 336
•12 SEPTEMBER 2024
| [2024] FWCFB 336 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Angela Kokke
v
Momentum Energy
(C2024/4548)
| DEPUTY PRESIDENT BELL | MELBOURNE, 12 SEPTEMBER 2024 |
Appeal against decision [2024] FWC 1710 of Deputy President Colman at Melbourne on 28 June 2024 in matter number U2024/4405 - permission to appeal refused.
Ms Angela Kokke has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] (the decision) of Deputy President Colman issued on 28 June September 2024, for which permission to appeal is required. The Deputy President dismissed an application, brought by Ms Kokke, for an unfair dismissal remedy. This matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Decision under appeal
The salient parts of the decision under appeal can be succinctly stated. The decision records that Ms Kokke was dismissed from her employment by the respondent, Momentum Energy Pty Ltd (Momentum), because she refused to comply with a ‘performance improvement plan’ and for a separate, but related, direction that Ms Kokke physically attend the workplace rather than from home, on Tuesdays and Wednesdays during the plan period. The performance plan included a requirement to attend team ‘chats’. The period of the improvement plan was stated to run from 19 March to 16 April 2024. While Ms Kokke attended the office on 19 March 2024, she failed to further attend the office at all after then.
On Ms Kokke’s account, she did not deem it safe for her to attend the office. Ms Kokke said she was not required to attend the office or participate in the chats because she considered the attendance and chats were unsafe. Those activities were said by Ms Kokke to be incompatible with her health, and particularly her mental health. Ms Kokke had also been told by her employer that if she contended she was unable to comply with the performance plan for health reasons (the employer had noted some earlier medical certificates from the previous year), then she was required to provide supportive information from her medical practitioner. Ms Kokke did not supply any further information to the employer from a medical practitioner and stated that she was not required to do so.
In the face of Ms Kokke’s refusals to comply with the directives issued by the employer, Ms Kokke was asked by her employer to show cause as to why her employment should not be terminated. Ms Kokke reiterated her position that she was not required to attend the office nor required to supply medical evidence.
The Deputy President was satisfied that Ms Kokke had been dismissed and was entitled to make an application for unfair dismissal. The issue for determination was whether her dismissal was harsh, unjust or unreasonable, having regard to s 387 of the Act. The Deputy President was satisfied Ms Kokke’s refusal to attend the office at all and otherwise participate in the performance plan was a valid reason for dismissal, that Ms Kokke was afforded the relevant procedural fairness, and there was no other matter that rendered the dismissal unfair.
Grounds of appeal
No clear ground or grounds of appeal have been articulated. In her Notice of Appeal, Ms Kokke states, among other brief matters, that (original errors):
“The dimple fact is that it is a basic human right to expect a safe work environment and workplace.
I am entitled to request and receive reasonable adjustments.
I sumbitted evidence (letters) from my specialist that back up my conditions, regardless of it was for all or some of the conditions that clearly were not taken into account despite the Commissioner stating at the start that he had read ALL of the material supplied.
Even so, the condition still requires reasonable adjustments to be made and a copy of the letter in August- September 2023.
Therefore regardless of the remaining conditions,condition. the same outcome would have been required even if they had further information regarding the third condition.
A further updated copy was also supplied once received in 2024.
Based on this alone, the dismissal wasnt just unfair, but discriminatory”
Ms Kokke’s written submissions in support were voluminous. Her primary submissions were 18 pages in length and were cross-referenced to about 50 separate supporting submissions labelled 1 – 22 and A – Z respectively. The primary submissions assert “errors in facts and laws/Acts not taken into account”. By way of example, a list of approximately 18 company documents, policies and legislation was provided of matters allegedly not taken into account, ranging from the Occupational Health and Safety Act 2004, the Health Records Act 2001 (Vic), the Privacy Act, a company code of conduct, and the Cybercrime Prevention Act.
It is simply not practicable to attempt to summarise Ms Kokke’s submissions on appeal, although we have considered them. We do note two particular themes of Ms Kokke’s overall position on appeal, where she asserts:
·It was unsafe for her to attend the workplace. The lack of safety is asserted to rest upon a combination of physical and mental health reasons.
·Some of Ms Kokke’s medical evidence was based on letters from 2022 and 2023, which were before the Deputy President and the employer. Other material was not provided at all. In relation to the latter category, Ms Kokke states she was not required to provide that material due to various privacy rights.
Principles for permission to appeal
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.[2] There is no right to appeal, and an appeal may only be made with the.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[3] This is so because an appeal cannot succeed in the absence of appealable error.[4] 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.[5]
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.[6] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. In Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46 (Waters), the Full Court stated at [10] that “An indiscriminate “scatter-gun” approach on the part of an Applicant seeking leave upon each of the proposed Grounds of Appeal may well only divert attention away from the one (or a limited number of grounds) which really expose the reason why a primary judge’s decision is truly open to “sufficient doubt” to warrant leave being granted” (original emphasis).
As the appeal is one to which s 400 of the Act applies, the Commission “must not” grant permission to appeal unless it considers that it is in the public interest to do so. 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. [7]
Consideration
None of the grounds of appeal raised identify any arguable error of law or fact. The voluminous nature of Ms Kokke’s submissions, together with further evidence, clearly indicate that Ms Kokke was seeking to reargue her case again. This is not the function of an appeal and her material significantly contravened the “scatter gun” vice cautioned against in Waters.
The one element that could have potentially supported an arguable error was Ms Kokke’s contention that medical evidence demonstrated she was unable to attend the workplace. Ms Kokke referred to letters from medical practitioners from 2022 and 2023. We have reviewed that material. Far from demonstrating any arguable error on behalf of the Deputy President, it demonstrates the Deputy President’s assessment was plainly correct.
Ms Kokke sought to rely on more recent medical correspondence not before the Deputy President, including a letter dated 15 March 2024 from a medical practitioner. While s 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information” on appeal, the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (1994) 34 NSWLR 155. It is sufficient to note that the letter does not at all demonstrate Ms Kokke was unable to attend the office, in addition to the fact that the material was available for Ms Kokke at first instance. Leave to adduce the further material is refused.
As we are not satisfied that the grounds of appeal advance any sufficiently arguable error in fact or law, or any other material miscarriage such as denial of procedural fairness, permission for leave to appeal is refused on that basis. Having regard to the factors in GlaxoSmithKline Australia Pty Ltd v Makin, we are also not satisfied that the decision raises any of the public interest considerations identified in that decision and nor was any other matter raised that would mandate the grant of permission to appeal under s 604(2) of the Act.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
A. Kokke on behalf of herself.
K. Vermey on behalf of the Respondent.
Hearing details:
11 September
2024.
Melbourne (by video via Microsoft Teams)
[1] [2024] FWC 1710.
[2] This is so because on appeal FWC has the 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] Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 275.
[4] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[5] 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].
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
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