Beata Goodluck v Northern Territory of Australia
[2022] FWCFB 185
•7 OCTOBER 2022
| [2022] FWCFB 185 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Beata Goodluck
v
Northern Territory Of Australia
(C2022/3971)
| VICE PRESIDENT CATANZARITI | SYDNEY, 7 OCTOBER 2022 |
Appeal against decision [[2022] FWC 1135] of Commissioner Riordan at Sydney on 16 June 2022 in matter number U2021/12288 – permission to appeal refused.
Background
Beata Goodluck (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner Riordan (Commissioner) issued on 16 June 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against the Commissioner for Public Employment (the Respondent), pursuant to s.394 of the Act.
The Appellant was employed by the Northern Territory Department of Education from January 2004 until her dismissal on 16 December 2021. The dismissal concerned the Appellant’s failure to comply with the Respondent’s direction to receive at least one dose of an approved COVID-19 vaccination by 13 November 2021 and two doses by 25 December 2021 (the Direction). The Commissioner ultimately dismissed the Appellant’s application finding that she was not unfairly dismissed in accordance with the Act.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed written submissions and made further oral submissions at the hearing on 10 August 2022.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
On 13 October 2021, the Northern Territory COVID-19 Directions (No. 55) 2021 (the Direction) came into effect. The Direction provided that from 13 November 2021, a worker who had not received the first dose of an approved COVID-19 vaccination must not attend their workplace and from 25 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend their workplace.
On 13 October 2021, Ms Jodie Ryan, Chief Executive Officer, Department of the Chief Minister and Cabinet, Northern Territory Government, wrote to all Northern Territory Public Service employees regarding the Direction and confirming the requirement that all staff receive their first and second doses of an approved COVID-19 vaccine by the prescribed dates. The email correspondence noted the exemption for a proven contraindication.
On 14 October 2021, Ms Karen Weston, Chief Executive Officer (CEO) of the Department of Education, wrote to all Government School Staff acknowledging Ms Ryan’s email of 13 October 2021 and the requirement for all workers to be vaccinated. Various emails from the Respondent followed these communications, providing further information and clarification.
On 19 November 2021, Ms Robyn Thorpe, Principal of Dripstone Middle School, wrote to the Appellant to see whether she had made a decision regarding whether she would become vaccinated in accordance with the Direction. On 23 November 2021, the Appellant replied via email confirming that she is booked to have her first dose of a COVID-19 vaccination.
On 26 November 2021, the Respondent wrote to the Appellant directing her to provide vaccination information. This email stated that should the Appellant fail to comply with the Direction, within 14 days from the date in which she was due to return to work, the Respondent may decide to take action in relation to her employment. In response, the Appellant provided medical certificates which stated that she was unfit for her normal work from 25 November – 3 December 2021.
On 2 December 2021, the Respondent wrote to the Appellant advising that because she had not complied with the Direction, she could not attend her workplace. The Respondent advised that they had reasonable grounds to suspect that there were inability and performance issues in relation to her employment. The correspondence outlined the Respondent’s intention to suspend the Appellant without renumeration. The Appellant was given the opportunity to respond by 6 December 2021.
On 6 December 2021, the Appellant responded to the CEO advising that she was still sick and therefore unable to provide a full response to the correspondence. The Appellant requested 14 days to respond fully and attached a further medical certificate indicating she was unfit for work from 6 – 10 December 2021.
The Appellant was suspended from duty without remuneration on 8 December 2021.
On 10 December 2021, the Appellant provided a medical certificate which stated that she was unfit for work from 10 – 17 December 2021.
On 13 December 2021, the Respondent wrote to the Appellant acknowledging her replies and medical certificates. The Respondent noted that accessing personal leave did not prohibit them from taking action and that the Appellant is prohibited from attending her workplace as she had not complied with the Direction. Further, the Respondent advised they were unable to provide the Appellant with suitable alternate duties in a workplace that is not subject to the Direction and therefore they were satisfied that the Appellant was unable to perform the inherent duties of her position. The correspondence informed the Appellant that the Respondent had decided to terminate her employment and allowed the Appellant to make submissions on why they should not terminate her employment by 15 December 2021.
On 15 December 2021, the Appellant replied saying that she would respond properly when she was better.
On 16 December 2021, the Respondent wrote to the Appellant terminating her employment.
At first instance, the Appellant’s application was listed to be heard jointly with applications by three other employees of the Respondent who were also dismissed as a result of the vaccination mandate. The Commissioner then set out the Appellant’s and Respondent’s submissions.
Appellant’s submissions
The Appellant denied being an ‘anti-vaxxer’ and submitted that she is now vaccinated against COVID-19. The Appellant submitted that she arranged to receive her first dose of COVID-19 Pfizer vaccine on 26 November 2021. However, she submitted that on 25 November 2021 she contracted a respiratory disease and became unwell. The Appellant submitted that she postponed her vaccination appointment as she as she could not attend the appointment with respiratory symptoms. The Appellant attended doctor’s appointments and received medical certificates that certified she was unable to attend work from 25 November to 17 December 2021.
The Appellant submitted that there was no valid reason for her dismissal, submitting that she had every intention to comply with the Direction but was unable to do so due to contracting a respiratory illness. The Appellant did not dispute that she was notified of the reason for her dismissal and provided with an opportunity to respond. The Appellant submitted that the factors pertaining to a support person and unsatisfactory performance did not arise for consideration. She also submitted that the Respondent is a large organisation and had the benefit of dedicated human resources expertise. The Appellant restated that she is not an anti-vaxxer and that she had genuine, good faith reasons for not receiving a COVID-19 vaccination by the prescribed date. The Appellant submitted that the financial impact on her and her unblemished record are factors that go to the harshness of her dismissal. For these reasons, the Appellant submitted that her dismissal was harsh, unjust or unreasonable and she sought an order for compensation.
Respondent’s submissions
The Respondent submitted that the Appellant’s employment was not harsh, unjust or unreasonable. The Respondent submitted that the Appellant’s employment was terminated pursuant to s.46(1)(c) of the Employee Performance and Inability of the Public Sector Employment and Management Act (PSEM Act), on the basis that she was unable to perform the inherent requirements of her job. In terms of a valid reason for dismissal, the Respondent submitted that given the Appellant failed to comply with the Direction, and they were unable to place her in alternate duties where the Direction did not apply, they had no alternative but to terminate the Appellant’s employment.
The Respondent submitted that the Appellant was notified of the reasons for her dismissal and was provided an opportunity to respond. The Respondent submitted that the Appellant did not request to meet in person and therefore the issue of a support person does not arise. The Respondent submitted that the Appellant’s dismissal did not relate to unsatisfactory performance. The Respondent did not wish to raise the matter of whether the size of their enterprise impacted on the procedures followed and the impact of dedicated human resource management.
In addressing the Appellant’s submissions, the Respondent noted that at no point during the correspondence leading to the Appellant’s dismissal, did the Appellant mention that she was suffering from a respiratory illness and would need to overcome this illness before she could receive the vaccine. Nor did the Appellant provide any evidence of any bookings to receive the vaccine. Rather, the Appellant continued to state that she was simply ‘unwell’. The Respondent also submitted that the Appellant’s final medical certificate was from 10 – 17 December 2021, and that she received the first dose of the Novavax vaccine on 21 February 2022, being some 11 weeks later.
Appellant’s Reply
In reply, the Appellant stated that she was never asked to provide evidence that she had booked an appointment to receive the COVID-19 vaccine and denied that she was waiting for the Novavax vaccine. The Appellant advised that she contacted the clinic in which she booked her appointment, and they informed her that they do not keep records of bookings which are cancelled.
The Appellant submitted that the Respondent did not request information about the respiratory illness, being a cold, that she was suffering from. She submitted that on 25 November 2021, her doctor advised she could not get vaccinated whilst she had a cold and that she would need to cancel the appointment. The Appellant submitted that on 29 November 2021 she went back to her doctor who advised that if she was still unwell, she should not be at work. On 3 December 2021, she attended a further consultation with her doctor, as she was still experiencing cold symptoms, and was advised that she take few more days off work until she had fully recovered. The Appellant stated that on 10 December 2021, she attended a consultation with her doctor as her cold symptoms had eased but she was experiencing extreme fatigue. The Appellant submitted that as her employment was terminated on 16 December 2021, she did not feel that there was an immediate rush to receive the COVID-19 vaccine as she was no longer subject to a vaccine mandate.
Consideration
The Commissioner began by considering the criteria provided in s.387 of the Act.
Turning first to s.387(a), the Commissioner acknowledged that it was not in dispute that the Direction applied to the Appellant and that she obtained medical certificates from 25 November – 17 December 2021. The Commissioner acknowledged that the Appellant was asked on seven separate occasions to provide information in relation to her vaccination status before being terminated and she consistently and somewhat belligerently refused to engage in appropriate dialogue with the Respondent. Even when the CEO, in correspondence on 13 December 2021, advised the Appellant that she was going to be terminated unless she gave the CEO a reason why she should not be terminated, the Appellant provided the same non-descript response. The Commissioner added that if the Appellant was able to type a few lines in an email in response to the Respondent’s correspondence, then she was able to add another line to say that she was suffering from a respiratory illness so was not eligible to receive the vaccine at that point in time. Instead, the Appellant displayed traits of an ‘anti-vaxxer’ who was simply running down her sick leave. As a result of the lack of responses to the Respondent’s correspondence, the Commissioner was satisfied that the Respondent had a valid reason to terminate the Appellant.
The Commissioner noted that the factors in ss.387(b) and (c) were not in dispute. Further, he considered s.387(d) to be a neutral consideration. The Commissioner noted that the Appellant was not dismissed for unsatisfactory performance (s.387(e)) and that the Respondent is a large employer (ss.387(f)-(g)). Pursuant to s.387(h), the Commissioner considered it relevant that the Appellant could have had two doses of a COVID-19 vaccination after she felt better and before the end of the school holidays, which would enable her to undertake casual teaching work whilst waiting for her application to be finalised by the Commission.
The Commissioner also noted that the Respondent commenced the Appellant’s employment inability process earlier than they said they would. The Respondent commenced the process on day 4 of the Appellant’s scheduled return to work, not on day 14. The Commissioner found there was no reason given by the Respondent for this premature application of the policy and that this error shows a lack of attention to detail within the Department. He noted their processes were sloppy and unprofessional. However, he noted that even if the Respondent had waited until day 14 to commence its employment inability process the Respondent would still have been in the same position. The Commissioner did not accept that the Appellant could simply state she was unwell and not provide further detail of her illness. The Commissioner found, based on the evidence before him, that the Appellant deliberately waited for the Novavax vaccine to become available before she was prepared to be vaccinated because she was scared to be vaccinated with MRNA vaccines. Further, applying the Briginshaw standard of proof, the Commissioner was satisfied that the Appellant’s actions were deliberately undertaken to frustrate the Respondent’s enquiries into her vaccination status.
In conclusion, the Commissioner was satisfied that the Respondent had a valid reason to terminate the Appellant and he consequently dismissed her application.
Grounds of appeal and submissions
The Appellant has provided extensive material in her F7 Notice of Appeal, written submissions and additional material received at the hearing. We have summarised and distilled the appeal grounds as follows:
1. It was procedurally unfair for four cases to be ‘blended’ and heard together because the cases were ‘mixed up’ and treated inconsistently.
2. The Commissioner improperly applied the ‘fair go all round’ principle in s.381 of the Act. To substantiate this ground, the Appellant refers to the case of Ms Anna Gikas.[2] The Appellant submits that the Commissioner applied the fair go principle differently in her matter and that of Ms Girkas. The Appellant asserts that failing to properly apply this principle is a significant error of fact.
3. The Appellant submits the Respondent’s failure to wait the 14 days before commencing the employment inability process is a procedural error that demonstrates a lack of natural justice. Further, the Appellant submits that based on this the Commissioner should have found that her dismissal as harsh and submits that this is a significant appealable error which is in the public interest.
4. The Appellant submits that the Commission had jurisdiction pursuant to s.387(h) of the Act to consider whether the Respondent has conducted a procedurally fair process in accordance with s.5F(1) of the Public Sector Employment and Management Act 1993 (NT). The Appellant submits that her dismissal process was unfair as she was not given the opportunity to have face-to-face meetings with a support person or representative present. The Appellant relies on the case of Karen Jones v Northern Territory Commissioner for Public Employment to support this ground.[3]
5. The Appellant asserts further procedural errors in the dismissal process as the Respondent prematurely escalated her suspension to dismissal. She submits that the Respondent could have suspended her until she was in a better position to deal with the dismissal.
6. The Commissioner erred in his interpretation of the Direction as the Direction only applied to people who were at work and because the Appellant was on leave, she was not breaching the Direction.
7. The Appellant submits that the Respondent was not required to have any additional details on the Appellant’s illness as they are not doctors and would not be able to make a medical decision. To this end, the Appellant alleges a significant error of fact at [122] of the Decision: “I note that the Applicant was well enough to write an extensive and aggressive email on 6 December 2021. Unfortunately, it did not contain any explanation of her illness.” Further, the Appellant asserts a significant error of fact in that she did not withhold important information from the Respondent, and she did in fact advise the principal of Dripstone, Ms Thorpe, that her illness was of a nature where no doctor would provide her with a vaccination.[4]
8. The Commissioner erred by not making an adverse inference pursuant to Jones v Dunkel[5] as the Respondent failed to call Ms Bowden, who made the final decision on the Appellant’s dismissal, to give evidence at the hearing.
9. The Appellant submits that vaccine hesitation is no basis in and of itself for dismissal and refers to a Commission decision which found that not allowing a worker to wait to get the Novavax was unfair.[6] The Appellant further submits that she is not an anti-vaxxer and she was not tying to use up her paid sick leave as she had no paid leave left and was on unpaid sick leave.
10. The Commissioner did not properly apply the standard of proof that should have been applied.[7] The Appellant refers to [124] of the Decision as example, submitting that she did not purposefully try to frustrate the Respondents she was just sick and needed more time.
Principles on 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.[8] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
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.[9] The public interest is not satisfied simply by the identification of error,[10] or a preference for a different result.[11] 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 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...”[12]
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.[13] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto 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. However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.[14]
Consideration
Ground 1 and 2
Ground 1 asserts that the first instance proceedings were procedurally unfair as the Appellant’s matter was heard together with another related matter. The Appellant asserts that the cases were ‘mixed up’ and treated inconsistently.
By way of background, the Appellant’s unfair dismissal application was filed together with four other applicants’ applications. The Appellant’s representative requested the applications be dealt with together due to their similar factual matrix and the fact that all the applicants were all members of the AEU and the AEU had engaged the same legal representation for all of them. Subsequently, the Respondent’s representative wrote to the Commission opposing the joint hearing of these matters. The Commissioner considered these submissions and advised by way of email on 12 January 2022 that the applications would proceed jointly. On 26 April 2022, the Commission was informed that in principle agreements had been reached in two of the applications and therefore they would not be proceeding to hearing. Resultantly, the Appellant and Ms Gikas’ matters were heard together.
We have considered the Appellant’s submission and find that no error arises from the matters being heard together. The Appellant has failed to provide any evidence of where the Commissioner allegedly ‘mixed up’ the matters. We also note that it is not unusual for matters with related parties and similar factual circumstances to be jointly heard. The Commissioner’s decision to hear the matters jointly was open to him and appropriate in the circumstances, especially as it was the Appellant’s own representative who requested joint proceedings.
In terms of inconsistency between the two matters, Ground 2 asserts that the Commissioner failed to properly apply the ‘fair go all round’ principle in the Appellant’s case. The Appellant submits that the Commissioner applied the fair go principle differently in her matter and that of Ms Gikas. The Appellant refers specifically to the Commissioner’s decision in Ms Gikas’ matter at [110]:
“[110] Every employer and employee is entitled to a “fair go all round” in compliance with s.381 of the FW Act. I am of the view and find that the Applicant did not receive her statutory entitlement to this fair go. No employee should be terminated for following their doctors’ advice to get a specialist medical opinion – particularly when there is no chance of breaching the CHO Direction No. 55.”[15]
At [125] of the Decision, the Commissioner considered whether the Appellant had received a fair go all round and made the following finding:
“[125] I have previously found that the Respondent had a valid reason to terminate the Applicant. I find that none of the other considerations in s.387(b)-(h) of the FW Act are of such significance to interfere with this finding. Section 381(2) requires the Commission to ensure that there is a ‘fair go all round’. I am satisfied and find that the Applicant has received a fair go from the Respondent.”
We are satisfied that the Commissioner approached the task of assessing whether the Appellant had received a ‘fair go all round’ in an orthodox manner. The fact that the Commissioner reached a different conclusion in Ms Gikas’ case is neither relevant nor an indication of inconsistency. It was in our view a factual finding that was open on the evidence before the Commissioner and no appealable error is disclosed.
Accordingly, Grounds 1 and 2 are dismissed.
Ground 3, 4 and 5
It is convenient to deal with Grounds 3, 4 and 5 together as they all relate to alleged errors of procedural fairness in the dismissal process.
Ground 3 alleges that the Commissioner made a significant error by not placing more weight on the Respondent’s failure to wait the required 14 days before commencing the employment inability process. At [120] of the Decision the Commissioner made remarks on this issue, noting that the error showed a lack of attention to detail and that the Respondent’s processes were sloppy and unprofessional. However, the Commissioner ultimately found at [121] of the Decision that even if the Respondent had waited the full 14 days, they would have still been in the same position in relation to enforcing the Direction.
As to Grounds 4 and 5, which allege that the dismissal process was unfair because the Appellant was not afforded the opportunity to have a face-to-face meeting with a support person and that the dismissal process prematurely escalated to dismissal. We note that the Commissioner already dealt with these issues at [52] and [53] of the Decision and that at first instance the Appellant did not dispute that she had an opportunity to respond and that the question of a support person did not arise.
Further, in relation to the Appellant’s assertion that the process prematurely escalated to dismissal, we are satisfied that the Commissioner considered this submission at [106] where he noted:
“The Applicant was asked on seven separate occasions to provide information in relation to her vaccination status before being terminated. The Applicant consistently and somewhat belligerently refused to engage in appropriate dialogue with the Respondent.”
Overall, we are satisfied that the Commissioner’s consideration of whether the Appellant’s dismissal process was procedurally unfair was orthodox and open to him on the evidence and these Grounds do not disclose any appealable error.
Ground 6
Ground 6 alleges error in the Commissioner’s interpretation of the Direction. The Appellant submits that the Direction only applied to employees who were at work and because the Appellant was on leave, she was not breaching the Direction. This submission was put to the Commissioner and dealt with at first instance. Relevantly, the Commissioner found at [105] that even though the Appellant was on leave, the Respondent had an expectation that at the expiry of each period of sick leave that the Appellant would be returning to work. In these circumstances, the Commissioner acknowledged that knowing the vaccination status of the Appellant was important to ensure that teacher coverage of her classes could be maintained. We are satisfied that this finding was open to the Commissioner on the evidence and that his interpretation of the Direction was sound. Accordingly, we reject Ground 6.
Grounds 7 and 9
We will consider Grounds 7 and 9 together as they are both submissions which the Appellant made at first instance which she is now attempting to reagitate on appeal.
In regard to Ground 7, the Commissioner dealt with the fact that the Appellant failed to provide specific details of her illness and respond to the Respondent’s requests to confirm her vaccination status at [107] – [110] and [121] – [122] of the Decision.
In Ground 9 of the Notice of Appeal, the Appellant presses that there was a significant error of fact concerning the finding that she was an ‘anti-vaxxer’. In this respect, the Appellant points to paragraphs [37] and [56] of the Decision in which the Commissioner articulates the Appellant’s denials of being an anti-vaxxer. However, we do not agree that the Commissioner fell into error. First, we are not satisfied that the Commissioner made a significant error of fact as no finding was reached that the Appellant was an ‘anti-vaxxer’. The Commissioner’s reference to the Appellant displaying traits of an ‘anti-vaxxer’, whilst constituting an observation, does not present as a finding. It is evident that the Commissioner concluded there was a valid reason for the Appellant’s dismissal premised on the Appellant’s lack of response to the Respondent inquiring as to whether she was compliant with the Direction.[16] It can therefore be seen that the Commissioner’s observation of ‘traits of an anti-vaxxer’ was immaterial to the ultimate finding drawn and conclusion reached. Further, insofar as it is apposite, the Commissioner’s observation that the Appellant was ‘running down her sick leave’ was open to find on the materials filed, albeit, it must again be restated that it was not material to his conclusion that there was a valid reason for the Appellant’s dismissal or to his conclusion that the Appellant’s dismissal was not unfair.
Whilst it is unclear from the materials filed that the Appellant asserts the Commissioner fell into error when finding her to be ‘vaccine hesitant’, we note the Notice of Appeal makes reference to the Commissioner having emphasised the Appellant’s hesitance at paragraph [123] of the Decision. For the sake of fulsomeness, we address this point.
Towards the end of the Decision at paragraph [123] the Commissioner provides a view that the Appellant had deliberately waited for the Novavax vaccine because she was scared to be vaccinated with the MRNA vaccines. The Commissioner acknowledges in that same paragraph that it was the Appellant’s ‘right’ to do so. The Commissioner thereafter speculates what may have occurred should the Appellant have adopted a different approach in her communication to the CEO. Whilst the Commissioner refers to what may be termed as the Appellant’s ‘vaccine hesitancy’, it is evident that he has not relied upon the observation to arrive at the conclusion that the Appellant’s dismissal was not unfair. Instead, the Commissioner refers to the Appellant’s ‘vaccine hesitancy’ in the context of again calling into question the Appellant’s approach in her communication with the CEO which, as we have already observed, premised his conclusion of there having been a valid reason for dismissal. We identify no error in this respect.
Ground 8
Ground 8 alleges that the Commissioner erred by not making an adverse inference as to the Respondent’s failure to call Ms Bowden to give evidence at the first instance hearing, as she made the final decision on the Appellant’s dismissal. We have considered this ground of appeal and are satisfied that whether or not Ms Bowden gave oral evidence at the hearing was irrelevant to the Commissioner’s ultimate finding. Whilst Ms Bowden made the final decision to terminate the Appellant’s employment, given the Commissioner’s finding that there was a valid reason for the Appellant’s dismissal, Ms Bowden was simply complying with the Direction as she was legally required to in circumstances where the Appellant remained unvaccinated. Therefore, we reject this ground of appeal.
Ground 10
Ground 10 alleges that the Commissioner misapplied the Briginshaw standard of proof at [124] of the Decision by finding that the Appellant’s actions were deliberately undertaken to frustrate the Respondent’s inquiries into her vaccination status. The Appellant submits she was not purposefully trying to frustrate the Respondent, asserting that she was just unwell and needed more time to respond. We are satisfied that the Commissioner’s decision is not inconsistent with the discussion of Briginshaw[17] in Commission decisions, such as Brinks Australia Pty Ltd v TWU.[18] There is nothing before us to suggest that the Commissioner fell into error in weighing the evidence and we consider that the findings reached in the Decision were reasonably open to the Commissioner on the evidence.
Public Interest
Having regard to the above matters and in light of the conclusions reached, we are not satisfied that appealable error has been identified in the Decision. It is apparent that the Commissioner applied a thorough and orthodox approach to the determination of the Appellant’s unfair dismissal application.
Further, we are not satisfied for the purposes of s.400(1) that this appeal attracts the public interest. In particular, we do not consider that:
·There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
·The appeal raises issues of importance and/or general application;
·The Decision at first instance manifests an injustice, or the result is counter intuitive; or
·The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
VICE PRESIDENT
Appearances:
Mr G Goodluck for the Appellant.
Mr B Mappas for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
10 August.
[1] [2022] FWC 1606 (‘the Decision’).
[2] [2022] FWC 1133 at [110].
[3] [2012] FWA 7069.
[4] Transcript at PN1048.
[5] 101 CLR 298.
[6] Robyn Pskiet v Maicap Unit Trust T/A Nocelle Foods[2022] FWC 1534.
[7] Briginshaw v Briginshaw [1938] HCA 34; Jennifer Walker v Salvation Army (NSW) Property Trust trading the Salvation Army – Salvo Stores[2107] FWC 32.
[8] 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).
[9] 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].
[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[11] 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].
[12] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[13] Wan v AIRC (2001) 116 FCR 481 at [30].
[14] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[15] [2022] FWC 1133 at [110].
[16] Decision [111].
[17] Briginshaw v Briginshaw (1938) 60 CLR 336.
[18] PR922612.
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