Cammui Tunks v Commonwealth of Australia (acting through and represented by the Department of Defence)
[2015] FWCFB 6246
•10 SEPTEMBER 2015
| [2015] FWCFB 6246 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Commonwealth of Australia (acting through and represented by the Department of Defence)
(C2015/3710)
VICE PRESIDENT CATANZARITI | SYDNEY, 10 SEPTEMBER 2015 |
Appeal against decision of Deputy President Kovacic PR562844[2015] FWC 2398 at Canberra on 7 April 2015 in matter number U2015/7902.
[1] This decision concerns an application for permission to appeal against a Decision 1 and Order2 of Deputy President Kovacic issued on 7 April 2015. The Decision concerned an unfair dismissal application lodged by Ms Cammui Tunks on 16 June 2014 pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment on 27 May 2014 by the Commonwealth of Australia (acting through and represented by the Department of Defence).
[2] Mr Anferth of Counsel appeared for the appellant. Mr Glover of counsel appeared for the respondent.
Background
[3] Ms Tunks was dismissed for her alleged refusal to obey the terms of a direction to return to work and a direction to participate in a face-to-face mediation.
[4] Ms Tunks had notified complaints concerning the conduct of a fellow employee. Ms Tunks had also made a workers’ compensation claim arising from a stress related injury suffered in the workplace. At the time of the hearing before Deputy President Kovacic that application was before the Administrative Appeals Tribunal. Opinions were sought from psychiatrists. Ms Tunks had been absent from work and had returned. However, following a confrontation with the relevant employee Ms Tunks was absent from work as a result of a medical certificate of unfitness from 5 to 19 December 2013. She did not return to work thereafter. The subsequent key events were summarised in dot point form by Deputy President Kovacic at paragraph 16 of the Decision. We will not repeat that summary here.
[5] Deputy President Kovacic considered the history between the parties and, when applying the criteria set out in s.387 of the Act, he engaged in a detailed consideration of that history, the facts in dispute and the differing medical evidence, as well as the Defence Enterprise Collective Agreement 2012-2014 (DECA), the relevant provisions of the Defence Workplace Relations Manual and the Public Service Act (PSA).
[6] Having considered this material Deputy President Kovacic determined that there was a valid reason for dismissal of Ms Tunks and that the dismissal was not harsh, unjust or unreasonable. He dismissed the application.
Grounds of Appeal
[7] In the Grounds of Appeal at paragraph 2.1.4 eleven alleged errors by the Delegate for the purposes of dismissal under s. 29(1) of the PSA were identified. The appellant identified errors of law on the part of Deputy President Kovacic in failing to recognise the Delegate’s errors, adopting those errors and perpetuating them.
[8] The appellant identified four significant errors of fact in the Decision. These are set out below:
- The finding by the Commissioner that Ms Tunks had failed to co-operate and wanted her return to work only on her terms;
- The finding that Defence had accommodated Ms Tunks’s concerns about her return to work in the absence of addressing her central concern of any encounter with Ms Glynn either in the workplace or in the proposed mediation;
- The failure of the Delegate to have regard to the proportionality of the harshness of dismissal relative to the gravity of the appellant’s alleged failure to obey the specific direction to return to work;
- The failure to have regard to the other options open to the Delegate, including redeploying the appellant to another of the employer’s buildings away from Ms Glynn.
Permission to Appeal
[9] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 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 section 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.”
[10] 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’. 3 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[11] The test for determining the public interest has been described as follows: 4
“[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.”
[12] It is also 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 discretion was not exercised correctly. 5 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 an appealable nature in the decision at first instance. As the High Court said in House v The King:6
“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.”
Conclusion
[13] It is clear that the appellant disagrees with the conclusions reached by Deputy President Kovavic. That disappointment or disagreement cannot be the basis of a successful appeal.
[14] Deputy President Kovavic’s decision contains a detailed and comprehensive consideration of the conflicting evidence and the application of the Act in the context of the policies and legislation governing the employment of Ms Tunks. All of the findings of fact were open to the Deputy President on the material before him. There is no identifiable and significant error in those findings. The public interest is not enlivened by dissatisfaction with an outcome where there is no appealable error.
[15] We are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is refused and the application to appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr Anferth of Counsel for the Appellant
Mr Glover of Counsel for the Respondent
Hearing details:
2015.
Sydney/Canberra (by videolink):
15 July.
1 [2015] FWC 2398
2 PR562845
3 (2011) 192 FCR 78 at paragraph 43
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343
5 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ
6 Ibid.
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