Arlene Diane Wright v Navy Club Incorporated
[2021] FWCFB 6017
•27 SEPTEMBER 2021
| [2021] FWCFB 6017 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Arlene Diane Wright
v
Navy Club Incorporated
(C2021/3459)
VICE PRESIDENT CATANZARITI | SYDNEY, 27 SEPTEMBER 2021 |
Appeal against decision [2021] FWC 2976 of Deputy President Young at Melbourne on 24 May 2021 in matter number C2020/7909 - permission to appeal refused.
[1] On 24 May 2020, Deputy President Young handed down a decision in Arlene Wright v Navy Club Incorporated 1in relation to an application made under s.365 of the Fair Work Act 2009 (Cth) (“FW Act”) to deal with contraventions involving dismissal.
[2] In Coles Supply Chain Pty Ltd v Milford 2 the Full Court of the Federal Court held that where an employer submits that an applicant to a s.365 application was not dismissed, the Fair Work Commission (“Commission”) must first determine whether the person was dismissed.
[3] In the matter before Deputy President Young, Navy Club Incorporated (the Respondent) submitted that Ms Arlene Wright (the Appellant) had resigned from her employment and was not dismissed within the meaning of the FW Act. Deputy President Young found that the Appellant voluntarily resigned from her employment with the Respondent and that she was not forced to do so because of conduct, or a course of conduct, of the Respondent. The Appellant was not dismissed within the meaning of s.386 of the FW Act and was not a person who had been dismissed for the purposes of s.365 of the FW Act. Deputy President Young found that the Commission did not have jurisdiction to deal with the application and therefore dismissed the application (“Decision”).
[4] On 18 June 2021the Appellant lodged an appeal against the Decision. Those grounds as stated by the Appellant are as follows:
“(1) The Deputy President made a decision before the respondent complied with Commission order. the respondent knowingly gave misleading information during the hearing to delay proceedings her statements prior failed to back her claim and the proof of its falsehood was important information relevant to the case, and also added 5 weeks of undue stress onto me.
(2) The transcripts had errors, on reading it would make it seem that I was giving misleading statements which makes me think the decision has been made with incorrect information e.g., Ms Sloss’ evidence was actually my evidence?
(3) The Commission misplaced 2 full pages of my very important statements of evidence which were missing on the hearing date. Which again affected my representation and makes me question the Deputy President’s decision making. I fail to see any investigation on my behalf on this matter.
(4) The Deputy President did not address my claim of sexual harassment accordingly.
(5) The respondent has under oath made inconsistent statements which were overlooked by the Deputy President in her decision. The respondent clearly stated that I will not be given another shift after the COVID lockdown, at the hearing the respondent forgot her misleading statement which I thought the Deputy President would’ve picked up.
(6) I believe the Deputy President has based her decision on false information. I think it is unfair and I’m aggrieved by her decision.
(7) In her decision the Deputy President states that she found my evidence not presented as well as the respondents and therefore less believable, failing to keep in mind her awareness of my disability of ADHD which made me struggle as I understand the bench book and I didn’t comprehend the instructions given a few days prior, and therefore made me struggle on the day and I feel it wasn’t a fair hearing.” 3
[5] The Appellant advanced the following grounds for permission to appeal in the public interest:
“The combined misinformation, the transcript errors and the Deputy President’s presumably misguided decision making and explanation, present sufficient doubt to revisit this case and review the decision to be fair and just.” 4
[6] The matter was listed before us for permission to appeal only, and this decision relates only to that issue.
[7] On the day of the hearing, the Respondent did not make an appearance at the scheduled start time. Given this matter was listed for permission to appeal only, the matter commenced without the Respondent in attendance. Shortly after the commencement of the matter, Ms Kate Sloss joined the hearing on behalf of the Respondent. Ms Sloss was informed that a transcript of the proceedings would be made available to the parties, from which time the Respondent would have 7 days in which to file written submissions in reply to any oral submissions made by the Appellant, otherwise the matter would be determined on the basis of the material before us. The Respondent has not put on any submissions.
Principles of appeal
[8] 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. 5 There is no right to appeal, and an appeal may only be made with the permission of the Commission.
[9] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 6 The public interest is not satisfied simply by the identification of error,7 or a preference for a different result.8 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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...” 9
[10] 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. 10 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
[11] In oral submissions before us the Appellant addressed a number of issues including alleged missing evidence, alleged incorrect dates, that she was scared to put submissions, that she had difficulty in focussing on the proceedings, that she probably needed a lawyer, and that drinking behind the bar was occurring.
[12] However, the Appellant did not substantiate these claims by providing us with specific examples. Nor are these claims consistent with the record of proceedings contained in the transcript.
[13] The Deputy President firstly clarified that all the submissions of Ms Wright were in the appeal book, and Ms Wright confirmed that they were:
“PN21 THE DEPUTY PRESIDENT: Yes. So is everything that you think you filed in that digital court book?
PN22 MS WRIGHT: I think so, yes.”
[14] Later at [PN118] the Deputy President again questioned Ms Wright in an endeavour to ensure that she had a copy of the court book either in hard copy or electronic copy. At PN1790 Ms Wright was given the opportunity, after the cessation of proceedings, to provide the Commission with any documents that she considered were missing.
[15] Ms Wright gave her version of events at PN123-229, and PN262-336, and was assisted by the Deputy President asking her relevant questions. She was cross examined by Ms Sloss and at PN390 was given a short break to enable her to ‘gather herself’. Ms Wright resumed putting her version of events until she was again cross examined by Ms Sloss at PN555. This process went on throughout the day. Overall Ms Wright was given full opportunity to put her version of events, and did so, as did Ms Sloss. Ms Wright was given a further adjournment at PN1672 at the request of Ms Wright ‘Just so I can just get my head around something here. I just need to think.’
[16] The proceedings are unremarkable. Having regard to the fact that the parties were not represented the Deputy President ensured by questions and directions to the parties that orderly and relevant proceedings were conducted, that natural justice was afforded to each side, with each side given full opportunity to put their respective cases, and to provide relevant evidence and documentation. The Deputy President acted to help Ms Wright deal with the stress of proceedings by providing her with short adjournments. The transcript shows that the Deputy President was careful to allow the applicant to put submissions and listened to and responded to those submissions in the ordinary manner.
[17] Transcript of the proceedings provides no support for the Appellant’s claim that there is a public interest in granting permission to appeal because:
“The combined misinformation, the transcript errors and the Deputy President’s presumably misguided decision making and explanation, present sufficient doubt to revisit this case and review the decision to be fair and just” 11
[18] The Appellant has identified no ‘transcript errors’ such as to warrant granting permission to appeal.
[19] Turning to the appeal grounds, nor do those grounds disclose any reasons for granting permission to appeal in the public interest. The transcript and material before us do not provide any support for the assertion that “[t]he Deputy President made a decision before the Respondent complied with [a] Commission order [and] the Respondent knowingly gave misleading information during the Hearing to delay proceedings. [The Respondent’s] statements prior failed to back [their] claim and the proof of its falsehood was important information relevant to the case, [it] also added 5 weeks of undue stress [unto the Applicant]” for example.
[20] The Appellant submits that there are a number of errors in the transcript of the proceedings at first instance. These alleged errors are as follows:
1. At PN45 – 46 the wrong names are transcribed.
2. At PN1753-54 Ms Powley was told to stop walking around but the transcript identifies Ms Wright as the individual told to stop walking.
3. At PN1791-1799 Ms Sloss was replying to the Deputy President but the transcript identifies the speaker as Ms Wright.
[21] We have had the benefit of listening to the audio of the proceedings at first instance. In relation to error 1 above, we are not satisfied that the wrong names were transcribed. Regarding error 2 above, we are satisfied that there is an error in the transcript. It was indeed Ms Powley, a witness, who was told to stop walking around but the transcript incorrectly identifies Ms Wright as the person told to stop walking. Regarding error 3 above, there is also an error identified. It was indeed Ms Sloss who was speaking with the Deputy President but the transcript incorrectly identifies Ms Wright as the speaker.
[22] The errors identified by the Appellant are immaterial to the appeal. They do not, despite the Appellant’s contentions in ground 2, mislead a reader into thinking the Appellant gave inconsistent evidence. It is immaterial which individual was told to stop walking around. Furthermore, error 3 relates to an exchange between Ms Sloss and the Deputy President regarding the logistics of sending through certain correspondence to the Commission. The fact that the transcript incorrectly identifies Ms Wright as having the exchange with the Deputy President is immaterial to the appeal. The errors certainly do not cause confusion regarding who gave evidence as contended by the Appellant.
[23] If any submissions were ‘misplaced’ (ground 3) the Deputy President gave the Appellant the opportunity to provide any further material she wished after the cessation of proceedings (PN1790).
[24] In relation to the claim that the Deputy President (ground 4) ‘did not address my claim of sexual harassment accordingly’, the Deputy President did in fact address the Appellant’s claim of sexual harassment at paragraphs 14 and 26 her decision.
[25] At paragraph 14 of the Decision under appeal, the Deputy President said that she would address this claim under the heading of ‘Other Matters’:
“[14] In her application Ms Wright also says that she was victimised by Ms Powley, her superannuation entitlements were not paid, shifts were swapped, she was treated badly and has suffered emotional stress and Post Traumatic Stress Disorder. The application also makes reference to “information misleading”. Ms Wright’s further material makes reference to sexual harassment, victimisation and disability discrimination based on Ms Wright’s asserted Attention Deficit Hyperactivity Disorder (ADHD) (collectively, Other Matters).” [emphasis added]
[26] The Deputy President rejected the Appellant’s claims of sexual harassment:
“[26] As to the Other Matters, whilst various assertions and allegations were made by Ms Wright, for the large part they rose no higher than generalised, unparticularised allegations, which were also largely unsupported by any probative evidence. In particular no probative evidence of Ms Wright’s asserted ADHD was led. Accordingly, I find that on the basis of the material currently before the Commission none of the Other Matters, other than in relation to payment of Ms Wright’s superannuation entitlements, give rise to any relevant matter going to whether Ms Wright was forced to resign.”
[27] This was a conclusion that the Deputy President was entitled to make on the material before her and is unremarkable. It raises no public interest issues.
[28] In grounds 5-7 the Appellant makes a number of claims about the evidence before the Deputy President which are not substantiated and appear to be an attempt to persuade us to take a different view of the evidence to that taken by the Deputy President. It is an attempt to put a case at first instance, not to address the statutory tests in relation to appeals. With respect these grounds do not disclose any public interest such as to persuade us to grant permission to appeal.
Conclusion
[29] For the above reasons, we refuse permission to appeal.
VICE PRESIDENT
Appearances:
Ms A Wright on her own behalf
Ms K Sloss for the Respondent
Hearing details:
2021.
Sydney (via teleconference)
2 September.
Printed by authority of the Commonwealth Government Printer
<PR734332>
1 [2021] FWC 2976.
2 [2020] FCAFC 152.
3 Form F7, Notice of Appeal, 2.1.
4 Form F7, Notice of Appeal, 3.1.
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
6 O’Sullivan v Farrer (1989) 160 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].
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
9 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
10 Wan v AIRC (2001) 116 FCR 481 at [30].
11 Form F7, Notice of Appeal, Paragraph 3.1.
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