Celeste Ryan-Dengate v Sunraysia Murray Group Training
[2017] FWCFB 2805
•2 JUNE 2017
| [2017] FWCFB 2805 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Sunraysia Murray Group Training
(C2017/2397)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2017] FWC 2086 of Deputy President Gooley at Melbourne on 13 April 2017 in matter number U 2016/14308.
Introduction and background
[1] Ms Celeste Ryan-Dengate has applied for permission to appeal a decision of Deputy President Gooley issued on 13 April 2017 1 (Decision). In the Decision, the Deputy President found that Ms Ryan-Dengate’s dismissal by Sunraysia Murray Group Training Ltd (SMGT) was not unfair, and dismissed her application for an unfair dismissal remedy. In the Decision the Deputy President found firstly that Ms Ryan-Dengate had altered timesheets for 25 July and 1 August 2016 after they had been signed so that they showed she was at work on those two days when she was not; and further that she incorrectly completed her timesheets for 22 and 23 August 2016 to show her to have been at work when she was not.
[2] The Deputy President found that although Ms Ryan-Dengate had provided incorrect information during the investigation meeting on 3 November 2016, she had not done so deliberately. In finality the Deputy President was satisfied that there was a valid reason for the termination of Ms Ryan-Dengate’s employment, being that Ms Ryan-Dengate had not complied with her obligations as an employee by altering timesheets after they were signed and claiming for hours worked when she was ill. The Deputy President further found that procedural fairness had been afforded to Ms Ryan-Dengate, and that there were no other matters the Commission considered relevant that would lead to a finding that her dismissal was unfair or was harsh by reason of it being a disproportionate response to her conduct.
[3] At the hearing of her application for permission to appeal, Ms Ryan-Dengate was represented by her father, Mark Dengate. SMGT was represented by Andrew Jones, a paid agent. SMGT was given permission by the Full Bench to be represented by a paid agent in these proceedings pursuant to the provisions of s.596(2)(a) of the Fair Work Act 2009 (FW Act) for the reason that Full Bench was satisfied of the efficiency that would be brought to the proceedings if SMGT were to be represented.
Consideration
[4] 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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[5] 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.
[6] 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”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. 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.” 5
[7] 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. 6 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.7
[8] 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. 8
[9] Ms Ryan-Dengate advanced four grounds for appeal, three of which were related to the findings made by the Deputy President and her conclusions, and the fourth relating to her decision to permit SMGT to be represented in the hearing before her by a paid agent.
[10] The decision by the Deputy President to permit SMGT to be represented by Mr Jones in the hearing before her took into account two reasons advanced for seeking permission for representation; the first went to the efficiency that would come from a grant of representation, taking into account the complexity of the matter before the Deputy President (s.596(2)(a)); the second ground related to what was said to be SMGT’s inability to represent itself effectively including for the reason of the company’s CEO being on long service leave until after the hearing (s.596(2)(c)). The Deputy President’s decision shows that she granted permission for representation on the second ground, being a decision pursuant to s596(2)(b) of the FW Act.
[11] It has been said in relation to decisions to grant permission for representation that the task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion. 9 Ms Ryan-Dengate points to no matters that would cause us to form the view that the Deputy President exercised her discretion inconsistently with the evidence before her or otherwise fell into appealable error.
[12] In relation to the other matters raised by Ms Ryan-Dengate, which go to the findings made by the Deputy President and her conclusions, the Full Bench finds each was consistent with the evidence and was appropriate for her to make.
[13] The Deputy President found that Ms Ryan-Dengate did not dispute in the hearing that she was not at work on the relevant days 10 and that she neither provided any explanation as to how the top copy of the timesheets for 25 July and 1 August 2016 came to be altered after they had been signed,11 or even disputed that she had altered the time sheets after they had been signed by the host employer.12 The Deputy President found on the balance of probabilities that these errors were not by mistake.13
[14] Further, the Deputy President found that Ms Ryan-Dengate was unable to explain why the timesheets from 22 and 23 August 2016 recorded her as being at work when she was not and that when she incorrectly completed them, on the balance of probabilities, she did not do so by mistake. 14
[15] In the hearing of this matter, Mr Dengate advanced the proposition that Ms Ryan-Dengate’s explanation for not being at work on the dates in question was that she had not been given adequate study time in the course of her employment and that she was actually studying. That proposition was a development of arguments put forward in Ms Ryan-Dengate’s witness statement, which included the contention that lack of study time caused tensions with her host employer, and amplified by Mr Dengate in closing submissions before the Deputy President.
[16] Ms Ryan-Dengate did not point to any evidence which could lead to a conclusion that because of these contentions or for any other reason it was not open to the Deputy President to make the finding that Ms Ryan-Dengate did not make the alterations to all four timesheets by mistake. Nor did she demonstrate that the evidence before the Deputy President could not support the findings that Ms Ryan-Dengate knew the procedure for recording personal leave and annual leave; that she altered the timesheets for 25 July 2016 and 1 August 2016 after they had been signed and she did not do this by mistake; or that Ms Ryan-Dengate incorrectly completed the timesheets for 22 and 23 August 2016 which was also not by mistake.
[17] Mr Dengate also argued that because of things said to him in the course of the original conciliation of the matter, he and Ms Ryan-Dengate had incorrectly formed the view that he could not be both her advocate and a witness, and this caused prejudice in the conduct of her case. However this matter was not raised before the Deputy President. A consideration of the whole of the material before the Deputy President, including the evidence of Ms Ryan-Dengate as a whole, and the conduct of the cross-examination of the SMGT’s witnesses, does not lead to a finding that, for any reason, Ms Ryan-Dengate was not accorded a fair hearing with the opportunity to bring forward all such evidence as she desired and was relevant. As Mr Dengate conceded, any evidence he would have given could only have borne upon post-dismissal events, and therefore could not have displaced the critical conclusions the Deputy President reached concerning the alteration of the timesheets.
[18] In her decision the Deputy President carefully analysed and weighed all of the evidence before her and made appropriate findings about the evidence she preferred. Ms Ryan-Dengate has pointed to no part of the evidence that could cause us to conclude that these findings were in made in error. Ms Ryan-Dengate has not identified any issue in the appeal that raises matters of importance or general application that would enliven the public interest for permission to appeal to be given. In light of her findings on the evidence, the decision made by the Deputy President was neither counter-intuitive nor disharmonious with other decisions of the Commission.
[19] For the reasons stated, we do not consider that it would be in the public interest to grant permission to appeal. Therefore, as required by s.400(1) of the FW Act, permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Dengate on behalf of the Appellant.
A. Jones on behalf of the Respondent.
Hearing details:
2017.
Sydney:
29 May.
1 [2017] FWC 2086
2 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
3 (2011) 192 FCR 78 at [43]
4 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]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]
10 [2017] FWC 2086 at [26]
11 Ibid at [27]
12 Ibid at [30]
13 Ibid at [37]
14 Ibid at [27] and [38]
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