Callychurn v Australia and New Zealand Banking Group

[2016] FWCFB 1944

[2016] FWCFB 1944

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Meenakshi Callychurn

v

Australia and New Zealand Banking Group T/A ANZ

(C2016/406)

VICE PRESIDENT WATSON

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 19 APRIL 2016

COMMISSIONER GREGORY

Appeal against decision [2016] FWC 526 of Commissioner Wilson at Melbourne on 3

February 2016 in matter number U2015/7113 – Whether grounds of appeal attract public

interest – Whether arguable case of appealable error – Fair Work Act 2009 ss. 387, 394, 400,

604.

Introduction

[1]        This decision concerns an application for permission to appeal against a decision of

Commissioner Wilson handed down on 3 February 2016. The decision of the Commissioner

concerned an unfair dismissal application made by Meenakshi Callychurn on 23 April 2015

under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her

employment by Australia and New Zealand Banking Group T/A ANZ (ANZ).

[2]        At the hearing of the permission to appeal application on 17 March 2016, Mr R.

Frugtniet appeared with Ms M. Callychurn on her behalf and Ms E. Holt of counsel, with Mr

A. Lambert, appeared on behalf of ANZ.

Background

[3]        Ms Callychurn was employed by ANZ as a Credit Assessment Officer in 2009. Her

employment was terminated on 2 April 2015. ANZ formed the view that she was no longer

able to perform the inherent requirements of her role because a media article that came to the

attention of Ms Callychurn’s Team Manager identified her as having been banned from

engaging in credit activities for a period of five years and cancelled the Australian credit

licence of her company. ANZ further noted that it had lost trust and confidence in Ms

Callychurn’s ability to be open and transparent with the company due to her failure to seek

approval and declare her outside business interest, and also to be forthright during the

disciplinary meetings held with her in relation to these matters.

[4] The Commissioner considered each of the legislative factors contained in s.387 of the

Act. In relation to the existence of a valid reason for dismissal the Commissioner said “that it
[2016] FWCFB 1944

was reasonable Ms Callychurn likely could no longer perform the inherent requirements of

her position and that it was reasonable the ANZ could no longer have trust and confidence in

her as an employee. Together, these matters lead me to find that the ANZ had a valid reason

for Ms Callychurn’s dismissal.” He then said that “having considered in detail all of the

criteria within s.387 of the Act I find that there are no matters that would cause me to find that

irrespective of there being a valid reason for the dismissal of Ms Callychurn, her dismissal

was otherwise harsh, unjust or unreasonable.” The Commissioner thereby concluded that Ms

Callychurn was not unfairly dismissed within the meaning of the Act.

Grounds of Appeal

[5]        Ms Callychurn submits that the Commissioner made the following errors in his

decision:

 A significant error of fact and law in determining that, pursuant to the National

Consumer Credit Protection Act 2009, Ms Callychurn could not perform the

inherent duties of her job as a Credit Assessment Officer;

 In failing to take into account relevant considerations of Ms Callychurn’s

employment contact with respect to possible alternative arrangements or a

redeployment to duties that would not be inconsistent with the banning order;

 In determining that a family trust may not have concluded because there was no

written evidence of this and not accepting Ms Callychurn’s evidence that she did not

understand the full implications of the trust;

 In failing to take into account that the time provided for Ms Callychurn to be given

an opportunity to respond in relation to her capacity or conduct was short and denied

her procedural fairness;

 In failing to take into account relevant considerations in relation to the attendance of

Ms Callychurn’s support person at disciplinary meetings;

 In failing to take into account relevant considerations in relation to policy documents

which identified the person authorised to approve Ms Callychurn’s termination of

employment; and

 In failing to take into account relevant considerations that Ms Callychurn’s ability to

respond to the allegations was impeded due to advice given to her by her solicitor for

the requirement for confidentiality.

[6]        Ms Callychurn submits that it is in the public interest to grant permission to appeal as

the Commissioner failed to take relevant factors into account. She also submits that he took

irrelevant factors into account which shaped his decision in making factual findings that could

not be supported.

[7]        Ms Callychurn further submits that the public interest is enlivened on the basis that the

decision manifests substantial injustice, has a result that is counterintuitive, applies legal

principles in a manner that is disharmonious when compared with other recent decisions
[2016] FWCFB 1944

dealing with similar matters, and that the decision is attended with sufficient doubt to warrant

its reconsideration.

Permission to Appeal

[8]        An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.

604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These

requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which

provides:

“400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a

decision made by FWA under this Part unless FWA 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.”

[9]        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

1

one’ . The Commission must not grant permission to appeal unless it considers that it is ‘in

the public interest to do so’

2

[10]      The test for determining the public interest has been described as follows:

“[26] Appeals have lain on the ground that it is in the public interest that leave should

be granted in the predecessors to the Act for decades. It has not been considered useful

or appropriate to define the concept in other than the most general terms and we do not

intend to do so. The expression ‘in the public interest’, when used in a statute,

classically imports a discretionary value judgment to be made to be made by reference

to undefined factual matters, confined only by the objects of the legislation in question.

[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing

O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although 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, it seems to us that none of those elements is present in

this case.”

[11]      It is important to note that the decision under appeal is of a discretionary nature.

Usually, such a decision can only be successfully challenged on appeal if it is shown that the

3

discretion was not exercised correctly. It is not open to an appeal bench to substitute its view

on the matters that fell for determination before the Commissioner in the absence of error of
[2016] FWCFB 1944

an appealable nature in the decision at first instance. As the High Court said in House v The

4

King:

“The manner in which an appeal against an exercise of discretion should be determined

is governed by established principles. It is not enough that the judges composing the

appellate court consider that, if they had been in the position of the primary judge, they

would have taken a different course. It must appear that some error has been made in

exercising the discretion. If the judge acts upon a wrong principle, if he allows

extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he

does not take into account some material consideration, then his determination should

be reviewed and the appellate court may exercise its own discretion in substitution for

his if it has the materials for doing so. It may not appear how the primary judge has

reached the result embodied in his order, but, if upon the facts it is unreasonable or

plainly unjust, the appellate court may infer that in some way there has been a failure

properly to exercise the discretion which the law reposes in the court of first instance.

In such a case, although the nature of the error may not be discoverable, the exercise of

the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[12]      We have reviewed the grounds of appeal and the decision of the Commissioner. In our

view, the decision is detailed and well-reasoned. It addresses the relevant statutory factors

relating to the fairness of the dismissal and makes findings on the evidence which we consider

to be available on the evidence before him. In our view, there was clearly a valid reason for

dismissal and ANZ followed a fair process to determine the disciplinary action to be taken.

The Commissioner’s findings appear to us to be entirely correct.

[13]      The circumstances in this case are quite unusual and confined. There is little need to

consider other cases. There are no issues of principle involved. Further, we are not persuaded

that there are any significant errors of fact. The result does not appear to us to be counter-

intuitive or to manifest an injustice. The grounds of appeal allege that certain matters were not

taken into account. In our view, this has not been established. It appears to us that Ms

Callychurn is seeking to re-argue her case and her only real dispute is with the result reached

by the Commissioner. Her submissions do not establish an arguable case of appealable error.

Conclusion

[14]      We are not satisfied that any of the grounds of appeal attract the public interest.

[15]      The application for permission to appeal is dismissed.

VICE PRESIDENT

[2016] FWCFB 1944

Appearances:

Mr R. Frugtniet, with Ms M. Callychurn, on behalf of Ms M. Callychurn.

Ms E. Holt of counsel, with Mr A. Lambert, on behalf of ANZ.

Hearing details:

2016.

Melbourne.

17 March.

Final written submissions:

Ms M. Callychurn on 10 March 2016 and on 21 March 2016.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578443>

1

(2011) 192 FCR 78 at paragraph 43.

2

GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

3

House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

4

Ibid.