Dafallah v Fair Work Commission

Case [2014] FCA 328

FEDERAL COURT OF AUSTRALIA

Dafallah v Fair Work Commission [2014] FCA 328

Citation: Dafallah v Fair Work Commission [2014] FCA 328
Parties: MARIAM DAFALLAH v FAIR WORK COMMISSION and MELBOURNE HEALTH
File number: VID 705 of 2012
Judge: MORTIMER J
Date of judgment: 4 April 2014
Catchwords: INDUSTRIAL LAW – Applicant’s employment terminated for poor performance by second respondent – applicant seeks judicial review of decisions of Commissioner at first instance and Full Bench of the Fair Work Commission – whether decision of Full Bench affected by jurisdictional error – whether Full Bench should have found it was in the public interest to grant permission to appeal – whether second respondent contravened warnings provisions of certified agreement – whether breach of implied contractual term of mutual trust and confidence – whether breach of disciplinary procedure incorporated into employment contract – breach of agreement claim only successful – reinstatement not appropriate in circumstances of case – applicant seeks penalties to be paid to her – no penalties imposed – compensation awarded.
Legislation:

Crimes Act 1914 (Cth) s 4AA
Evidence Act 1995 (Cth) s 191
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3 Item 2, Sch 16 Items 2, 16
Fair Work Act 2009 (Cth) ss 12, 385, 387, 392, 400, 418, 539, 545, 546, 562, 563, 570, 577, 596, 604
Fair Work Amendment Act 2012 (Cth) Sch 9
Fair Work Amendment Act 2013 (Cth) Sch 6
Health Services (Governance) Act 2000 (Vic) ss 204, 221
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO(4)
Industrial Relations Act 1988 (Cth) s 170EE
Judiciary Act 1903 (Cth) s 39B
Workplace Relations Act 1996 (Cth)

Federal Court Rules 2011 (Cth) r 26.01

Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009 cl 38

Cases cited:

Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1
Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] ATPR 42-140; [2006] FCA 1730
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333
BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 171 ALR 680; [2000] FCA 430
Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Commonwealth Bank of Australia v Barker (2013) 214 FCR 450; [2013] FCAFC 83
Commonwealth v Cornwell (2009) 227 CLR 519; [2007] HCA 16
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148
Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228; [2001]…

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AGLC
Dafallah v Fair Work Commission [2014] FCA 328
Case
[2014] FCA 328
Decision Date

CaseChat Overview and Summary

Mariam Dafallah commenced proceedings against the Fair Work Commission (FWC) challenging the FWC's decision to refuse her leave to appeal a decision regarding her unfair dismissal by Melbourne Health. Ms Dafallah sought judicial review of the Full Bench decision on several grounds, including jurisdictional error, and claimed that the FWC's refusal to grant her leave to appeal was unreasonable, unfair and oppressive. Ms Dafallah further contended that the FWC failed to give her an opportunity to be heard and to act fairly in relation to her application for leave to appeal, and that the delay in the decision-making process affected the public interest. The court needed to determine if the Full Bench's decision to refuse leave to appeal was subject to judicial review on the grounds of jurisdictional error, and whether the FWC's decision was unreasonable, unfair or oppressive.

The court found that Ms Dafallah had not established any of her claims except her claims that Melbourne Health contravened cl 38 of the Health Services Union of Australia - Health and Allied Services, Administrative Officers - Victorian Public Sector - Multi Employer Certified Agreement 2006-2009. The court held that the Full Bench's decision was not affected by jurisdictional error and that Ms Dafallah had not demonstrated that the Full Bench failed to address the evidence and submissions put to it, misunderstood the operation of s 400 of the Fair Work Act 2009 (Cth) or failed to deal with the delay in the Commissioner’s decision as a matter capable of affecting the public interest. The court also found that the Full Bench's decision to refuse leave to appeal was not unreasonable, unfair or oppressive. The court concluded that the Full Bench had given Ms Dafallah a sufficient opportunity to be heard and to act fairly in relation to her application for leave to appeal, and that the delay in the decision-making process did not affect the public interest. The court found that Ms Dafallah was entitled to compensation in relation to the breach of cl 38 of the Agreement.

The court ordered Melbourne Health to pay Ms Dafallah compensation in the amount of $3,000 for the contravention of cl 38 of the Agreement, together with interest at the rate of 4% per annum from 1 September 2010 until the date of payment. The court dismissed the remainder of Ms Dafallah’s claims against the FWC and Melbourne Health.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which appear below, I have found Ms Dafallah has not established any of her claims except her claims that Melbourne Health contravened cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009. I have found she is entitled to compensation in relation to the breach.FACTS WHICH ARE NOT CONTROVERSIAL Pursuant to s 191 of the Evidence Act 1995 (Cth), the parties agreed some basic facts. On 15 May 2000 Mariam Dafallah commenced employment at Melbourne Extended Care Rehabilitation Service [MERCS], Parkville. On 1 July 2000, MERCS became part of the Melbourne Health network. The Melbourne Health network was established pursuant to the Health Services [Governance] Act 2000 which received royal assent on June 6 2000.Pursuant to ss. 204 and 221 of that Act, employees transferred to Melbourne Health were to be regarded as having been employed by Melbourne Health and having been employed on the same terms and conditions as applied immediately prior to transfer. In March 2005, Mariam Dafallah was transferred to the Royal Melbourne Hospital Campus of Melbourne Health.At all relevant times, Melbourne Health was bound by the Health Services Union of Australia - Health and Allied Services, Administrative Officers - Victorian Public Sector - Multi-Employer Certified Agreement 2006-2009 ['The Agreement'] [The Agreement is Annexure AD-4 to the Affidavit of Alan Duckworth sworn on May 31 2013].At all relevant times, Mariam Dafallah was entitled to the benefit of the Agreement. Mariam Dafallah was a Health and Allied Services employee under the Agreement and was designated as a Clinical Assistant.At the time of her termination, Mariam Dafallah was working full-time at Melbourne Health and was paid a base hourly rate of $20.37105. Ms Dafallah then brought a claim for unfair dismissal. The FWC (then Fair Work Australia) handed down its decision on 7 December 2011, finding that Ms Dafallah had not been unfairly dismissed from her employment by Melbourne Health: see Dafallah v Melbourne Health [2011] FWA 7340. Ms Dafallah sought permission to appeal from that decision. On 27 April 2012 the Full Bench refused permission to appeal: Dafallah v Melbourne Health [2012] FWAFB 3540. Her proceeding in this Court was commenced on 24 September 2012. The introductory part of the Full Bench decision on Ms Dafallah’s application for permission to appeal accurately summarises, I find, the key facts in terms of how Ms Dafallah came to be dismissed, what her complaints were about that process and what the decision-making was up to the point of the challenge to the Full Bench decision in this proceeding.[3] Ms Dafallah was employed as a full time clinical assistant by Melbourne Health from 15 May 2000. In 2005 she was transferred to the Royal Melbourne Hospital and was rostered to work across five wards from Tuesday to Sunday. [4] As a clinical assistant, Ms Dafallah was required to assist nursing staff and ward clerks with tasks of a non clinical nature. Her tasks included transporting patients, assisting with patient hygiene, making beds, restocking supplies, and delivering and collecting bloods and specimens. Ms Dafallah was on call for all nursing staff and ward clerks on her rostered wards and was required to be available to assist when called. Requested tasks were either communicated to her in person or via a pager.[5] Ms Dafallah was dismissed by Melbourne Health for alleged poor performance on 1 September 2010. The dismissal was based on several performance issues spanning from 2005 to 2010. In particular in 2009 and 2010 Melbourne Health considered that Ms Dafallah was not performing to a satisfactory level and issued formal warnings to her. After being issued with a third warning Melbourne Health considered that Ms Dafallah was still failing to perform her duties satisfactorily and dismissed her on the grounds of ongoing unsatisfactory performance. [6] Ms Dafallah and Melbourne Health both submitted lengthy explanations in regards to the circumstances giving rise to and surrounding the performance issues and we do not intend to go through these submissions in detail. In summary the performance issues relate to allegations in the form of complaints, reported to Melbourne Health by nursing staff, that Ms Dafallah failed to communicate her whereabouts to nursing staff, failed to respond to pages promptly, feel asleep while on duty, failed to undertake urgent tasks promptly and would arrive late for work. [7] Ms Dafallah disputed these performance allegations and for the purposes of her unfair dismissal application, submitted a detailed statement to justify her performance. In her original statement, dated 4 November 2010, she justified her conduct by relying on the demanding nature of her role as a clinical assistant and faults with her pager, which she contends resulted in miscommunication between her and nursing staff. [8] In particular Ms Dafallah outlined that unlike other staff, she was rostered to work short shifts on the weekends. Nursing staff would not realise these shorter hours and would therefore assume she was arriving late or would page her after she had handed over the pager to the incoming clinical assistant at the end of her shift. This resulted in nurses making complaints to Melbourne Health about her attendance and non response to pager requests.[9] Further, Ms Dafallah submitted that the performance issues that gave rise to her termination were a result of the difficulties that a clinical assistant faces from being on call from any nurse or ward clerk requiring assistance with no central point of coordination provided by Melbourne Health to manage the whereabouts of the clinical assistants. As a result, there is no one nurse or ward clerk who knows what a clinical assistant may be doing at a particular time which may result in the assistant being called by more than one person simultaneously. Ms Dafallah submitted that nursing staff would not realise this predicament and would make complaints that she was not answering pages or not responding promptly. Upon being terminated, Ms Dafallah submitted that, taking into account her circumstances as a clinical assistant in Melbourne Health’s workplace, the dismissal was unfair in all the circumstances.[10] Melbourne Health submitted that Ms Dafallah’s dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Act. Melbourne Health submitted affirmative answers to the factors in s.387 of the Act that Fair Work Australia must take into account to determine if a dismissal is harsh, unjust or unreasonable. In particular, Melbourne Health submitted that Ms Dafallah’s poor performance over a lengthy period of time was a valid reason for the termination of her employment.[11] Melbourne Health further submitted that there had been numerous issues with Ms Dafallah’s performance since she transferred to the Royal Melbourne Hospital in 2005. Melbourne Health submits that Ms Dafallah was given warnings about her performance prior to 2009 for the issues of not answering pages and not communicating with nursing staff. However, it was after July 2009 that a formal performance management process was entered into. Melbourne Health stated that the problems with Ms Dafallah’s performance did not cease despite written warnings being issued and ample opportunity given to improve. As such, Melbourne Health made the decision to terminate her employment. ….[14] The Commissioner found that there was a valid reason for the dismissal related to unsatisfactory work performance. Her conclusions are summarised in the following passage of her decision:“[174] On the basis of the findings set out paragraphs 144 to 173 above, I find that there was a valid reason for Ms Dafallah’s dismissal related to unsatisfactory work performance. This included being asleep during her shift; and, on a number of occasions, not responding to pages; being unaccountably absent from the ward and not informing the nurse in charge of her whereabouts. [175] The work performed by clinical assistants is critical to the smooth running of a ward. Given the importance of the role, it is not acceptable for a clinical assistant not to answer pages, to be unaccountably absent from the ward and to not communicate with the nurse in charge. It is of paramount importance that the clinical assistant’s whereabouts are known to the nurse in charge at all times and that they respond to pages. Between July 2009 and July 2010, Ms Dafallah was formally warned three times about not responding to pages and not communicating with the nurse in charge. Despite being on a final warning Ms Dafallah’s work performance appears not to have changed with the result that there were further allegations. These were with respect to not answering pages and not informing the nurse in charge of her whereabouts and what she was doing on 10 July 2010. Accordingly, I find that there was a valid reason for Ms Dafallah’s dismissal.”….[20] The Commissioner’s ultimate conclusion is expressed as follows:“[195] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on balance, that the termination of Ms Dafallah’s employment was not harsh, unjust or unreasonable. On the one hand, there was a valid reason for Ms Dafallah’s dismissal. On the other hand, the procedural aspects with respect to the written warnings were deficient as set out above. However, in balancing all of the factors set out in s.387, Ms Dafallah’s continued unsatisfactory performance outweighs the procedural deficiencies.”MS DAFALLAH’S CLAIMS IN THIS COURT

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, the tender by Ms Dafallah of a great deal of material constituting submissions before the Commission, replete with detailed references to the evidence before the Commission, can serve only a limited purpose in this proceeding. It might provide some evidentiary foundation for submissions on judicial review about jurisdictional error by the Full Bench or the Commissioner on the ground of, for example, denial of procedural fairness. However, it cannot operate as a substitute for evidence adduced to prove the truth of relevant facts about Ms Dafallah’s termination of employment. On some aspects of her claims, it appeared Ms Dafallah sought to rely on those submissions in that way, which was inappropriate.WHETHER THE FULL BENCH DECISION IS AFFECTED BY JURISDICTIONAL ERROR The kinds of errors which are jurisdictional in the exercise of the appellate jurisdiction under the FW Act are those which involve a Full Bench misunderstanding the nature of its jurisdiction, misconceiving its duty, misunderstanding the nature of the opinion it was required to form, or failing to apply itself to the matters which its appellate jurisdiction requires it to determine: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [31] per Gleeson CJ, Gaudron and Hayne JJ. Melbourne Health sought to contend that the matters identified as errors by Ms Dafallah were not capable of constituting jurisdictional errors. That submission should be rejected. The kinds of errors identified by Ms Dafallah involve an alleged failure to perform functions in the manner required by s 577 of the FW Act, a misunderstanding of the operation of s 400 of the FW Act, being the matter which conditions the power of the Full Bench to grant leave under s 604(1), and a failure to deal with the delay in the Commissioner’s decision as a matter capable of affecting the public interest under s 400. All those arguments, if successful, are capable of identifying jurisdictional error in the Full Bench’s decision. It was not contended by Ms Dafallah that this Court’s jurisdiction under s 562 of the FW Act differed in substance from its jurisdiction under s 39B of the Judiciary Act. A Full Court of this Court has held that there is no substantive difference: see Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at [45]. Accordingly, Ms Dafallah’s claims in respect of jurisdictional error can be dealt with together. It is also important to recall the nature of the Full Bench’s appellate function. If permission to appeal is granted under s 604(1), the appeal conducted by the Full Bench is by way of rehearing. It is not an appeal de novo — the Full Bench must be satisfied of an error in the decision under appeal before it can exercise its rehearing function: see Linfox [2013] FCAFC 157 at [14]. Ms Dafallah contended there were several errors affecting the Full Bench’s decision. First, she submitted the Full Bench failed to address the evidence and submissions put to it and this in turn meant it failed to perform its functions and exercise its powers in the manner required by s 577 of the FW Act. Second, she submitted the Full Bench wholly misunderstood and misapplied s 400 of the Act, by misunderstanding what the condition on its leave discretion — whether it was in the public interest to grant leave — required it to decide. Third, she submitted the Full Bench took an incorrect approach to her arguments about the delay in the Commissioner’s decision — rather than examining those arguments in the context of whether it was in the public interest to grant leave, the Full Bench treated the issue of delay as a matter for its own determination, and did so without any reference to the requirements of s 577 of the FW Act.The section 577 point

Ratio Decidendi

Legal Principle Established

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