Catherine Allan v Lane Cove Retirement Units Association Ltd t/a Pottery Gardens Retirement Village
[2017] FWCFB 722
•3 FEBRUARY 2017
| [2017] FWCFB 722 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Lane Cove Retirement Units Association Ltd t/a Pottery Gardens Retirement Village
(C2016/6699)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 7504 of Commissioner McKenna at Sydney on 21 October 2016 in matter number U2016/8798.
Introduction
[1] Ms Catherine Allan has applied for permission to appeal and appealed a decision of Commissioner McKenna issued on 21 October 2016 1 (Decision). In the Decision, the Commissioner found that Ms Allan’s dismissal by the respondent, Lane Cove Retirement Units Association Ltd t/a Pottery Gardens Retirement Village was not unfair, and dismissed her application for an unfair dismissal remedy.
[2] At the hearing before us, permission was granted, under s.596 of the Fair Work Act 2009 (FW Act), for the respondent to be represented by Ms K Edwards of counsel. Permission was granted on the grounds that the Commission would be assisted by having counsel appear for the respondent as it would allow the matter to be dealt with more efficiently, taking into account the various factual considerations raised by the appellant’s Notice of Appeal and submissions and the appellant’s application to adduce fresh evidence in the appeal.
[3] As a preliminary matter, the appellant sought to adduce new evidence in the appeal pursuant to s.607(2). The new evidence was a covert recording of the dismissal meeting on 5 August 2016 and a partial transcription of this recording. The recording was said to go to the credibility of the respondent’s witnesses and to the Decision in circumstances where the Commissioner chose to accept the respondent’s version of the conversation over Ms Allan’s version. We declined to admit this material because, Ms Allan having had possession of the recording at all times since it was made, no reason was demonstrated as to why it could not have been placed into evidence at the hearing before the Commissioner. A hearing on permission to appeal is not an opportunity to allow new evidence to be adduced on the basis that a party has been unsuccessful at first instance and has made certain forensic decisions which have not turned out to be to its advantage.
The Decision
[4] In the Decision, the Commissioner addressed s.385 of the FW Act and the requirements of the Small Business Fair Dismissal Code – Other Dismissal (the Code). The Commissioner considered the question of whether there was a valid reason for the appellant’s dismissal related to the appellant’s capacity or conduct. The Commissioner’s findings are as follows:
“[27]The applicant’s evidentiary contention was that the reasons given for her dismissal “are fabricated and are denied”. The applicant’s evidence further indicated that it appeared to her that the respondent’s board of directors decided to dismiss her once the board perceived that the applicant “was no longer essential (after managing the village when for 6 weeks I was the only employee and after training the new manager).”
[28]Despite the matters raised in such respects by the applicant, I am satisfied there was a valid reason for the dismissal related to the applicant’s capacity (relevantly as to the applicant’s capacity to properly perform key responsibilities of her role as Administrative Officer). For the reasons I have outlined earlier, I have doubts, however, that the applicant’s conduct, in and of itself, would have given a valid reason for dismissal (relevantly as to incurring expense, at least in the instance concerning the antennae work, without consultation/authority). The evidence overwhelmingly indicates the applicant’s inability to properly undertake rudimentary aspects of her key record-keeping responsibilities as the respondent’s Administration Officer, at least in the period from about April 2016 to around the date of dismissal on 5 August 2016.”
[5] The Commissioner went on to consider whether the appellant was notified of the reason for the dismissal and found that she had been. 2
[6] The Commissioner then considered whether the appellant was given an opportunity to respond to any reason related to her capacity or conduct and found the following:
“[30]On 5 August 2016, the applicant was informed by Ms Di Vito that there was to be a meeting later that afternoon with regard to her position. The meeting was attended by the applicant, Mr Hargrave and Ms Di Vito. In the meeting, and while there was dispute as to the specific content, there was at least some discussion around matters which were relied upon as grounds for dismissal. The applicant considered she was not given any “meaningful opportunity” to respond to allegations of poor performance and that, in effect, the first she knew of the allegations was during the meeting in which the dismissal itself ensued. The applicant’s evidence further indicated her understanding was that she would be given some written advice about those matters, albeit, as it transpired, that written advice was provided in the letter advising of the termination of employment which was handed to her during the meeting. The respondent’s case was that the applicant was given the opportunity to address the respondent’s concerns about the two principal matters, but declined to do so.”
[7] With respect to whether there was any unreasonable refusal by the employer to allow the appellant to have a support person, the Commissioner found that there was no unreasonable refusal by the respondent to allow the appellant to have a support person present at the meeting on 5 August 2016. The Commissioner also found that the appellant was invited to bring someone with her but that the appellant declined to do so. 3
[8] In terms of whether the appellant had been warned about her unsatisfactory performance, the Commissioner considered this question in detail and made findings as follows:
“[32]The evidence of both parties made it plain there was no prior warning given to the applicant about her unsatisfactory performance before the dismissal.
[33]The lack of warning requires some context. It is plain that the applicant could not satisfactorily perform key aspects of her book-keeping or record-keeping part of the job, and the applicant was the only person within the employ of the respondent who was actually charged with the responsibility of attending to such matters as set out in her position description. There was, for instance, no evidence that it was the responsibility of Mr Samson to personally attend to the performance of the accounts-related Quickbooks tasks and reconciliations described in the applicant’s position description as being included in her key responsibilities.
[34]No warnings were given to the applicant by Ms Di Vito, who took a distinctly non-confrontational approach to the matters giving rise to her concerns. That is, upon becoming aware of the first questionable invoice Ms Di Vito requested a copy of relevant records from the applicant so she could review them. Further, Ms Di Vito put in place the new request form concerning approvals - effectively for reasons including closer vetting of expenditure of the respondent’s funds. Ms Di Vito did not otherwise escalate with the applicant any matters in relation to her emerging concerns. Moreover, while Ms Di Vito thought it was “odd” that the applicant could not show her how to use Quickbooks to issue invoices and record payments received, and the applicant had also stated to her that there was a problem in the records that the applicant hoped might be resolved by the incoming Administration Manager, Ms Di Vito left matters where they then lay; she expected that the applicant would take appropriate steps. Ms Di Vito otherwise praised the applicant in an email, adopting what might be characterised as a positive reinforcement-type approach (albeit she was only later to learn that the maintenance records relevantly did not include any information about the loans-related works).
[35]In late-May 2016, Ms Di Vito advised Mr Samson that, while the board was aware of some issues with the applicant, Mr Samson should endeavour to maintain a positive relationship with the applicant for reasons including the small size of the respondent’s office. Accordingly, Ms Di Vito advised Mr Samson that it would be better if he did not performance-manage the applicant, but, rather, he should encourage and train her as best he could to maintain office “harmony”. Ms Di Vito added that if anything needed to be done, that would be attended to by the board to protect him. In this regard, Ms Di Vito’s oral evidence further indicated that the board did not want to embroil Mr Samson in relation to matters which had preceded his appointment.
[36]When Mr Samson subsequently had conversations with Ms Di Vito about matters including what he personally had by then come to consider as involving the applicant’s evasiveness about her work, Ms Di Vito advised Mr Samson she would consider what to do about the applicant. In particular, in circumstances where Ms Di Vito had advised Mr Samson that she did not consider it appropriate that he personally should performance-manage the applicant, she asked him to “work with her to keep the office happy”.
[37] On about 4 August 2016, Ms Di Vito informed Mr Hargrave that the applicant was “just not improving” (and that Mr Samson was “unhappy”). Relevantly, Mr Hargrave responded that this should be put to the applicant and if she could justify continuing “we may try, if not she has to go”.
[38]No warnings were given to the applicant by Mr Samson, despite his alarm about the applicant’s performance of her work, given what Ms Di Vito had conveyed to him about not performance-managing the applicant, and endeavouring to work harmoniously with the applicant to keep the office happy. Mr Samson demonstrated considerable managerial forbearance concerning the applicant’s lack of capacity or aptitude even at a time when, for example, Mr Samson was attending work on additional days to endeavour to correct and reconcile what the applicant could not reconcile in the accounts.
[39]I again note the applicant herself described Mr Samson as having been “horrified” by what he discovered as to the state of the records, being records for which the applicant had been personally responsible for at least a year. I do not, in passing, accept the submissions for the applicant that the respondent’s performance-related concerns of 5 August 2016 came as “a bolt out of the blue” for want of prior warning. The applicant cannot reasonably have been oblivious to the existence of concerns about the way she had attended to her accounts-related responsibilities despite Mr Samson’s uniformly cordial approach in his dealings with the applicant.
[40]It was on the advice of the volunteer chair of the board as to her wish for a happy workplace that Mr Samson, as the applicant’s manager, was effectively precluded from taking a step such as warning the applicant about her work performance, or even passing comment adversely upon it to her - as Mr Samson might otherwise reasonably have been minded to do, given that the applicant reported to him and he was alarmed about her work and the poor state of the record-keeping for which she had responsibility in her employment with the respondent.”
[9] In relation to the degree to which the size of the employer’s enterprise would likely impact on the procedures followed, the Commissioner found that:
“[41]The respondent employed only two part-time employees and is run by a volunteer board of management. I consider that the size of the enterprise had a significant impact on the procedures followed in effecting the dismissal. It was the respondent’s wish, communicated to Mr Samson through Ms Di Vito, to encourage and train the applicant - rather taking a more direct approach of warning her that she would be dismissed if her work did not improve. The nature of a workplace with only two employees did not lend itself to processes of formal warning and performance management of a type that may be available in a larger workplace. The procedures followed did, however, involve Mr Samson otherwise providing what I accept was considerable effort to remediate the applicant’s account-keeping and to assist and advise her about matters including what needed to be done to achieve reconciliations.”
[10] With respect to the degree that the absence of dedicated human resources specialists would likely impact the procedures followed, the Commissioner made detailed findings as follows:
“[42]The applicant’s case pointed to Mr Samson’s employment background in criticising, for example, the procedural defect of a lack of managerial warning preceding the dismissal. However, there is nothing in the evidence to indicate that Mr Samson was involved in advising upon or determining the procedures followed by the board. On the contrary, Ms Di Vito had advised Mr Samson that it was she who would “work out what to do” and her evidence also made it plain that she did not wish to have Mr Samson personally involved in matters concerning the applicant’s employment apart, for example, from the goal of having a happy and harmonious workplace.
[43]The applicant referred also to the fact that Mr Hargrave is a solicitor, apparently with some background in appearances before industrial tribunals. Mr Hargrave was in attendance at the meeting and it was he, rather than Ms Di Vito, who spoke to the applicant in the meeting on 5 August 2016. The already-prepared letter of dismissal, on behalf of the board and under Mr Hargrave’s signature, was handed to the applicant after what was, it is common ground, a short meeting. While preparation of a letter advising of dismissal in advance of a meeting to discuss employment matters typically raises all its own issues of concern in terms of procedural fairness and pre-determined outcomes, I accept Mr Hargrave’s evidence and the related submissions for the respondent to the effect that the preparation of the letter was a type of contingency and it had not been finally determined that the dismissal would be effected in the meeting because matters would turn on what unfolded in the discussions.
[44]Mr Hargrave’s evidence was that he had prepared the termination letter because, if the meeting proved to be unsatisfactory, he “did not want to prolong the difficulties in the office”. Here, the respondent’s evidence, which I accepted, indicated that when it was put to the applicant that there were concerns mainly around her not being able to use the accounting system, especially Quickbooks, and spending money without authority, and the applicant was asked if she had anything to say, her response was: “Well is there any point?” When it was stated to the applicant that she was being given an opportunity to respond, which was open to her to take or otherwise, that the applicant stated: “I don’t see any point”. It was at that stage that the applicant was then advised by Mr Hargrave: “OK, then I’m afraid we have to terminate your employment. You do not need to work out your notice …”. The applicant was apparently given the letter confirming the same.”
[11] Finally, the Commissioner set out those other matters that she considered relevant. These were:
“[45]Mr King, the applicant’s representative in her application for an unfair dismissal remedy, was formerly employed by the respondent. Part of Mr King’s own evidence went to loans-related matters, as well as other matters. Mr King’s evidence was that it was he who approved the loans to residents for works on their own residences concerning balcony awnings and ceiling fans. While Mr King approved the loans for works to residents’ units, the records the applicant provided to Ms Di Vito in response to her request for the maintenance records did not disclose, or properly or informatively disclose, the loans-related records - albeit the applicant had sent Mr Samson an email about invoicing which, among other matters, commented that two residents were paying more than the rent because they were paying-off, respectively, the costs of an awning installation and a ceiling fan (and advising that one of those matters was invoiced separately from his rent).
[46]The applicant’s evidence, I am bound to say, did not satisfactorily address why the information the applicant provided following Ms Di Vito’s request for records - in the specific context of Ms Di Vito having raised concern about one particular invoice which appeared to involve the making of a loan to a resident without the authority of the board - did not include information concerning loans-specific works. The applicant seemed to suggest in her evidence that she separately recorded loan-specific works, although where such matters were recorded or entered is unclear. It is also unclear why, given the applicant’s evidence as to her separate recording of such expenditure, the applicant did not provide any such discretely-recorded information to Ms Di Vito.
[47]The existence of loans and/or repayments of loans initially came to the attention of Mr Samson when a resident presented at the administration office to make a repayment of $100.00 in cash towards a loan for a ceiling fan. In early-August 2016, Mr Samson later found in the accounts some form of record concerning a loan of $1,060.00 to another resident which the resident was permitted to repay at $20.00 a week over four years, interest-free. Mr Samson said, as of the time of the hearing, it was still unclear how many such unauthorised loans had been made, but he considered that the loans had been “done by or with the express knowledge of the applicant and not reported to me or the board”. Moreover, there was also a suggestion, which fell from Ms Di Vito’s examination, that the applicant may have received cash repayments concerning loans but had not receipted such amounts.
[48]Some questions put in cross-examination squarely went to the issue of whether the applicant had engaged in deliberate concealment concerning the loans, which was denied. It is appropriate, therefore, to record in this decision there is no evidence which established the applicant engaged in deliberate concealment concerning the loans for reasons, for example, involving any impropriety. Notwithstanding the thrust of some of the questions put in cross-examination, the respondent did not seek to rely on any such matter in the reasons given to the applicant for the dismissal and nor, in these proceedings, did the respondent invite the Commission to draw any inferences in such respects.”
[12] The Commissioner set out her conclusion as follows:
“[49]I am not satisfied that the applicant has established a case that her dismissal was harsh, or unjust, or unreasonable. While the dismissal was characterised by what typically are considered as procedural deficiencies in terms of process (including the lack of prior warning and the preparation of a letter of dismissal before the meeting on 5 August 2016), such deficiencies are not sufficient to render this dismissal harsh, unjust or unreasonable. I am satisfied the dismissal was sound, defensible and well-founded given the applicant’s demonstrated inability to competently perform key responsibilities concerning the routine incidents of accounts/record-keeping and associated reconciliations, despite assistance and instruction about such matters within the small business environment of the respondent’s operations. “
Appellant’s case for the grant of permission to appeal
[13] The appellant contended that permission to appeal should be granted on the basis that it is in the public interest to do so. The appellant’s submissions identified three grounds for the grant of permission to appeal:
1. The decision raises issues of importance and general application.
2. The decision manifests an injustice or the result is counterintuitive.
3. The Commissioner made significant errors of fact.
1. Issues of importance or general application
[14] The appellant argued that issues of importance and general application were raised by the Decision because the Commissioner’s conclusions had treated the obligations of voluntary directors and paid directors differently. It was stated that the legal requirements of directors are the same, irrespective of whether they are paid or voluntary directors. However, the appellant submitted that the Commissioner, on five occasions in the Decision and throughout the transcript, referred to the directors as volunteers and was said to have implied that this lessened their obligation to comply with their legal obligations compared with paid directors of larger companies.
[15] Secondly, the appellant submitted that the Commissioner should have concluded that the respondent had the resources to properly manage employee performance. It was stated that the respondent had eight directors and one professional manager. One of the directors gave evidence that he had previous senior staff management experience and was also experienced in human resources. Another director was stated to be a practising solicitor with experience in appearing before industrial tribunals. The appellant contended that it is therefore in the public interest that permission to appeal be granted in order to establish that more than just the number of employees needs to be considered when assessing the capacity of an employer to properly manage its staff.
2. An injustice or the result is counterintuitive
[16] With respect to the second ground, the appellant submitted that the Decision is manifestly unjust and the end result is counter intuitive on two grounds. The first ground was that, contrary to the evidence that there had not been any verbal or written warnings, the Commissioner had erred in finding that the appellant could not reasonably have been oblivious to the existence of concerns about her accounts related work and ought to have known that her employment was at risk. The evidence of Ms Di Vito and Mr Samson was said to be that they had not given the appellant any verbal or written warnings. Further, it was contended that the Commissioner had erred by placing a lot of weight on the alleged efforts of the respondent to maintain a happy and harmonious workplace as justification for not providing clear and explicit warnings. The appellant argued that this meant that the Commissioner was condoning the Respondent deceiving the appellant and lulling her into a false sense of security in relation to her employment.
[17] Secondly, it was contended by the appellant that no opportunity was provided to respond to the alleged poor performance. The appellant’s version of what occurred during the meeting on 5 August 2016 was said to differ markedly from that of Mr Hargrave. The Commissioner accepted Mr Hargrave’s version but provided no reasons for doing so. Even if the Respondent’s versions of the conversation were accepted, it was argued that there was no interest in providing the appellant with an adequate opportunity to respond to the allegations. The appellant argued that there is sufficient doubt as to the adequacy of the opportunity to respond that permission to appeal should be granted.
3. Significant errors of fact
[18] In terms of the third ground, the appellant contended that serious factual errors had been made by the Commissioner. The first two errors concerned the lack of warnings or opportunity to respond, discussed in [16] and [17] above. The third factual error was said to be the failure of the Commissioner to properly assess and consider the alternative reason for the dismissal put forward by the appellant. The alternate reason was that the Board perceived that the appellant was no longer essential after managing the village for six weeks by herself and then training the new manager.
[19] The fourth significant error by the Commissioner concerned her acceptance of the respondent’s reason for the dismissal – the appellant’s lack of knowledge of the QuickBooks accounting system which was a key part of the appellant’s role. Three particular errors were identified by the appellant in relation to this ground. The first one was that the Commissioner had erred as there was no evidence that the appellant was unable to perform her duties between 7 April 2016 and 23 May 2016 when she was working on her own. The second error was said to be that Ms Di Vito’s statement in relation to the residents in credit allegation, which was accepted by the Commissioner, was discredited under cross examination. Thirdly, it was contended that the Commissioner had erred in concluding that the appellant was unable to perform her QuickBook duties from the time the new manager was appointed on 23 May 2016 until her dismissal. The Commissioner was also said to have failed to take into account the appellant’s total responsibilities and had instead concentrated on a small part of the role. It was stated that the appellant was required to train the new manager in addition to performing her own duties.
[20] The appellant submitted that the fifth error of fact concerned the Commissioner’s assessment that the appellant was receiving a significant level of training from the manager, Mr Samson. It was argued that, given the evidence of Mr Samson during cross examination that there was limited opportunity to train the appellant, the Commissioner erred by assigning any weight to the training provided by Mr Samson. The appellant contended that the Commissioner’s conclusion in this respect would have significantly affected the Commissioner’s subsequent conclusion that the dismissal was fair.
[21] With respect to the sixth significant error, the appellant argued that the Commissioner erred by not considering the totality of the appellant’s key responsibilities in relation to alleged issues with the use of QuickBooks. It was contended that the appellant had a wide variety of responsibilities and that the use of QuickBooks was only a small part of her role. The appellant submitted that the Commissioner also should have taken into account the appellant’s overall good performance and the fact that she managed the village on her own for six weeks. Mr Samson’s evidence that the QuickBooks issue was not serious enough, on its own, to warrant dismissal, was highlighted.
[22] The seventh significant error concerned the issues raised in the first ground of appeal – the Commissioner’s failure to fully consider the resources available to the employer. This is set out in [15] above.
Consideration
[23] 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[24] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC 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.
[25] In the Federal Court Full Court decision 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”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... 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
[26] 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. 8 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.9
[27] 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. 10
[28] We are not persuaded that any of the grounds of appeal, on which the appellant relies, raise issues of importance or general application or an arguable case of error.
Issues of importance or general application
[29] In relation to the first ground, we have not been persuaded that permission to appeal should be granted in the public interest. We do not consider that the Commissioner made her decision based on the fact that the organisation had a volunteer board. There was a reference, made by the Commissioner, to the board of management being volunteers and that there were only two part-time employees, in assessing whether the size of the organisation had an impact on the procedures followed. This was a statement of fact by the Commissioner as to the size of the employer. Under s.387(f), the Commissioner was required to make an assessment of any potential impact on the dismissal process due to the employer’s size. Further, in considering under s.387(g) whether the absence of human resources specialists had affected the procedures followed, the Commissioner made specific reference to the appellant’s submissions regarding Mr Samson’s and Mr Hargrave’s professional backgrounds and experience and took that into account. In doing so the Commissioner accepted the evidence of Mr Samson and that of Mr Hargrave, which we consider the Commissioner was entitled to do.
An injustice or the result is counterintuitive
[30] We are not persuaded that, in relation to the second ground, the public interest is enlivened and permission to appeal should be granted on this basis. There were two issues raised by the appellant in relation to this ground. These were that the Commissioner erred in finding that the appellant should have been aware of the concerns about her accounts related work and in, secondly, finding that no opportunity to respond was provided to the appellant. In relation to the first of these findings, in the Decision, the Commissioner clearly stated that it was the evidence of both parties that no warnings had been given to the appellant prior to her dismissal. The Commissioner then went on to state that the “lack of warning requires some context” 11 and set out a number of considerations in relation to the context. These considerations included a detailed assessment of the evidence before her in relation to the issue of the appellant’s performance of the bookkeeping related tasks and the Commissioner set out a chronology of the pertinent events. As part of this assessment, the Commissioner accepted the evidence of the appellant that Mr Samson was horrified by the state of the records.
[31] The Commissioner also found that she did not accept the appellant’s submissions that the respondent’s performance related to concerns of 5 August 2016 had come out of the blue for want of prior warning. In weighing up the evidence before her, we consider that it was open to the Commissioner to reach the conclusion that the appellant could not reasonably have been oblivious to the concerns about her work performance in relation to her accounts related responsibilities. In making this finding, we do not accept that the Commissioner made a significant error of fact.
[32] Secondly, it was contended by the appellant that the Commission erred in finding that an opportunity to respond was accorded to the appellant during the meeting on 5 August 2016. On reading the Decision, the Commission does not appear to have made a specific finding as to whether or not the appellant was given an opportunity to respond. In the Decision, the Commissioner set out the evidence before her including the appellant’s evidence. The Commissioner noted that there was a dispute between the parties about the specific content of the meeting on 5 August 2016 but found that there was some discussion about the grounds for dismissal. In not making a specific finding about whether the appellant was given an opportunity to respond, we do not consider that the Commissioner has erred. It is evident from the Decision as to the basis on which the Commissioner reached the conclusion she did. Various findings were made along the way to the conclusion and the thinking of the Commissioner as to why she reached her conclusion is apparent from the Decision. We do not accept that, in not making a specific finding in relation to this procedural factor, the Commissioner made a significant error of fact.
Significant errors of fact
[33] With respect to the third ground, the appellant enumerated seven significant errors of fact that it was contended were made by the Commissioner. We have dealt with the first three errors in [29] – [31] above. The remaining four significant errors said to have been made by the Commissioner concern:
● the failure to properly assess and consider the alternative reason for the dismissal put forward by the appellant;
● the acceptance of the reason put forward by the Respondent for the dismissal i.e. the appellant’s lack of knowledge of the QuickBooks accounting system;
● the assessment that the appellant was receiving a significant level of training from Mr Samson; and
● the failure to consider the totality of the applicant’s key responsibilities in relation to the alleged issues with the use of QuickBooks.
[34] We have not been persuaded that an arguable case of error has been made out with respect to the appellant’s various contentions of significant error by the Commissioner.
[35] With regard to the submission by the appellant that the Commissioner erred by failing to accept the appellant’s alternative reason for the dismissal, we consider that this is a question of the weight given by the Commissioner to the evidence of the various witnesses. We consider that the Commissioner was entitled to prefer the respondent’s reason for the dismissal and that in doing so, no significant error of fact was made by the Commissioner.
[36] As to the Commissioner’s acceptance of the reason given by the respondent for the dismissal, the Commissioner relied on the appellant’s own evidence, together with that of Mr King and Mr Samson, to conclude that the appellant was unable to properly undertake basic elements of her accounting related responsibilities. We consider that the Commissioner was entitled to make this finding on weighing the evidence before her. Further, the appellant also contended that Ms Di Vito’s statement was discredited under cross-examination in relation to the residents in credit allegation. We have reviewed the relevant passages of the transcript and do not consider this submission to be properly made.
[37] With respect to the submission that the Commissioner erred in finding deficiencies in the appellant’s ability to use QuickBooks, we do not consider that the Commissioner has erred. In the Decision, the Commissioner relied on the evidence of Mr Samson and Mr King together with the appellant’s own evidence that Mr Samson was horrified at the state of the books. We consider that the evidence supports the conclusion of the Commissioner that the appellant was unable to perform her accounting related duties and that there is no significant error in the Commissioner making this finding.
[38] As to the Commissioner’s assessment that Mr Samson had provided the appellant with a significant level of training, specific reference was made to a meeting on 21 July 2016. In the Decision, the Commissioner explicitly preferred the evidence of Mr Samson, over that of the appellant, in relation to the meeting on 21 July 2016 when he said that he was again providing training to the appellant. No arguable case of error is disclosed.
[39] With respect to the submission, that the Commissioner erred by not assessing the seriousness of the appellant’s poor performance in the context of her overall duties, we do not consider that an arguable case of significant factual error is disclosed. In the Decision, the Commissioner found, based on the key responsibilities listed in the appellant’s contract of employment, that the accounting related activities were key responsibilities of the appellant’s role. In weighing the evidence before her, the Commissioner concluded that the appellant’s inability to perform her key accounting related duties was a valid reason for the dismissal.
Conclusion
[40] For these reasons, we do not consider that it would be in the public interest to grant permission to appeal. In accordance with s.400(1) of the FW Act, permission to appeal must therefore be refused.
VICE PRESIDENT
Appearances:
M. King on behalf of C. Allan.
K Edwards of counsel on behalf of Lane Cove Retirement Units Association Ltd t/a Pottery Gardens Retirement Village.
Hearing details:
2016.
Melbourne:
14 December.
1 [2016] FWC 7504
2 Decision at [29]
3 Decision at [31]
4 This is so because on appeal the Commission has 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
5 (2011) 192 FCR 78 at [43]
6 O’Sullivan v Farrer (1989) 168 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 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
11 Decision at [33]
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