Deborah Brackenreg v Mens Legal Service Limited
[2024] FWCFB 398
•21 OCTOBER 2024
| [2024] FWCFB 398 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Deborah Brackenreg
v
Mens Legal Service Limited
(C2024/6416)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 21 OCTOBER 2024 |
Appeal against decision [2024] FWC 1770 of Commissioner Riordan at Sydney on 22 August 2024 in matter number U2024/2818 – permission to appeal refused.
Ms Deborah Brackenreg has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a decision[1] of Commissioner Riordan issued on 22 August 2024. The decision dealt with an application made by Ms Brackenreg against Mens Legal Service Limited pursuant to s 394 of the Act for an unfair dismissal remedy.
Ms Brackenreg’s application was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions. For the reasons that follow, permission is refused.
The decision
The decision records that Ms Brackenreg was dismissed from her employment as a lawyer with the respondent for serious misconduct, because she (a) misallocated financial time to obtain a financial benefit, (b) failed to follow a direction given during an investigation into her conduct, (c) failed to adhere to her duties to a client and the Court, (d) falsely claimed personal leave, (e) failed to record Court dates as directed, and (f) used inappropriate language and yelled at an opposing practitioner.
The Commissioner considered whether Ms Brackenreg’s dismissal was harsh, unjust or unreasonable having regard to s 387 of the Act. In summary, the Commissioner was satisfied that Ms Brackenreg used inappropriate language during a telephone discussion with an opposing practitioner. The Commissioner also regarded as “most serious” Ms Brackenreg’s admission that she had been what the Commissioner termed “gaming” the respondent’s timekeeping system to secure a financial gain for a colleague. The Commissioner concluded that Ms Brackenreg had “knowingly and deliberately” breached the respondent’s policy. Further, the Commissioner was satisfied that Ms Brackenreg had ignored the respondent’s direction to record Court dates in a centralised computer system, and did not accept Ms Brackenreg’s contention that she had not submitted the relevant medical certificate to the respondent as soon as she was able to. Accordingly, the Commissioner concluded that the respondent had a valid reason to dismiss Ms Brackenreg.
As to the other considerations in s 387 of the Act, the Commissioner was satisfied that Ms Brackenreg was notified of the reasons for her dismissal (s 387(b)); was afforded an opportunity to respond (s 387(c)); there was no unreasonable refusal of a support person (s 387(d)); Ms Brackenreg did not receive any warnings (s 387(e)); and the respondent was not a large employer, and did not employ dedicated human resources specialists (ss 387(f) and (g)).
In the context of s 387(h) of the Act, the Commissioner accepted Ms Brackenreg’s contention that the respondent’s investigation did not involve interviewing a relevant colleague, but was satisfied that this would not have altered the outcome. Further, the Commissioner took into account the economic and other impact upon Ms Brackenreg but was not otherwise satisfied that these matters rendered the dismissal unfair, having regard to the “multiple valid reasons” for the dismissal. Being satisfied that Ms Brackenreg’s dismissal was not harsh, unjust or unreasonable, the Commissioner dismissed the application for an unfair dismissal remedy.
Permission to appeal – principles
There is no right to appeal and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act and therefore s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[2]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Appeal grounds
Having regard to the Notice of Appeal and Ms Brackenreg’s written submissions, Ms Brackenreg raises two primary grounds of appeal. By appeal ground one, Ms Brackenreg contends that she was denied procedural fairness because:
(1)her application for an attendance order was declined by the Commissioner; and
(2)her reply materials were submitted 24 hours late and were not accepted.
By appeal ground two, Ms Brackenreg contends that the Commissioner made significant errors of fact, including by:
(1)referring to a meeting on 24 January 2024 which did not occur;
(2)concluding that Ms Brackenreg was not stood down with pay;
(3)concluding that Ms Brackenreg had “difficulty following time based directions”;
(4)by not accepting Ms Brackenreg’s contention that her “actions” on a client file were explained by being signed off by Counsel;
(5)concluding that Ms Brackenreg had been “gaming” the timekeeping system;
(6)concluding that Ms Brackenreg did not seek from her treating practitioner a duplicate medical certificate;
(7)concluding that Ms Brackenreg ignored the respondent’s direction to centrally record Court dates; and
(8)concluding that the s 387(h) factors did not override the multiple valid reasons for Ms Brackenreg’s dismissal.
Ms Brackenreg submits that it is in the public interest to grant permission to appeal including because the preservation of public confidence in the administration of justice is a matter of public interest that could be undermined by a decision that is manifestly wrong. Further, Ms Brackenreg contends that a “lens” should be placed on the operation of law firms and their treatment of staff.
Consideration
We are not satisfied that the grant of permission to appeal would be in the public interest, for the following reasons. First, of significance, the Commissioner made a series of factual findings which informed his conclusion that there were “multiple” valid reasons for Ms Brackenreg’s dismissal. Amongst other things, this includes finding that Ms Brackenreg used inappropriate language when speaking with an opposing legal practitioner, and that Ms Brackenreg misrepresented her billable hours in the respondent’s time recording system for the purposes of securing a financial gain for a colleague. We do not consider it to be arguable that the Commissioner’s valid reason findings involve significant errors of fact. It is apparent from the decision and our review of the material that there was an evidentiary foundation for the Commissioner’s factual findings, as well as the other findings made by the Commissioner which informed the valid reasons for the dismissal. This included the Commissioner’s acceptance of the evidence given by other witnesses, over that of Ms Brackenreg. In the context of Ms Brackenreg’s duties to her employer, the respondent’s clients, and the Court, the conclusion that Ms Brackenreg’s conduct was capable of justifying her dismissal was readily available.
Ms Brackenreg’s appeal grounds and submissions otherwise contend that the Commissioner should have made different factual findings, reached different conclusions or attributed weight to other matters. We are not persuaded that the other alleged factual errors identified by Ms Brackenreg are of significance in the Commissioner’s decision-making process or speak to any arguable error in the decision. Ms Brackenreg simply seeks a different result.
Further, whether a meeting occurred on 24 January 2024 or on an alternative date is not a significant error of fact, as required by s 400(2) of the Act. This is not a matter referred to by the Commissioner in his dispositive reasons, nor was it capable of affecting the outcome of the decision.
Second, Ms Brackenreg contends that the s 387(h) factors rendered her dismissal unfair. However, the Commissioner considered these matters and concluded that they did not “override” the multiple valid reasons for Ms Brackenreg’s dismissal. No arguable contention of error is disclosed in respect of this conclusion.
Third, the procedural fairness concerns relied upon by Ms Brackenreg do not disclose an arguable case of appealable error. The Commissioner declined to issue an order compelling the attendance of Ms Bateman (being Ms Brackenreg’s former lawyer in the application, as well as the barrister said to have “signed off” Ms Brackenreg’s actions on the client file) to give evidence. Having considered the reasons given, such a conclusion was available in the exercise of the Commissioner’s discretion, noting the material before him. Any contention that the evidence sought to be led from Ms Bateman may have displaced the Commissioner’s findings as to the “multiple” valid reasons justifying Ms Brackenreg’s dismissal appears to be devoid of merit.
Nor is there any other basis to conclude that Ms Brackenreg was denied procedural fairness, as contended. The decision not to accept the reply material filed outside the timeframe identified by the Commissioner’s extended directions falls short of demonstrating “pre-judgement,” as contended. Despite being advised that the issue could be raised at the hearing, Ms Brackenreg did not address the matter or seek to rely on any of the reply material at the hearing. Nor is there any indication that Ms Brackenreg addressed with the Commissioner the bias concerns now advanced before the Full Bench. In the absence of persuading us that there is an arguable basis for concluding that these procedural rulings could have affected the ultimate outcome, there is no basis for appellate relief.
Ms Brackenreg’s application for an unfair dismissal remedy was determined on the basis of its own particular facts. Ms Brackenreg’s appeal does not raise any issue of law or principle that might have a wider application. To the extent that the Commissioner may have been persuaded that the respondent was a small business employer (which Ms Brackenreg opposed) we observe that Ms Brackenreg’s application was assessed, to her advantage, against the broader considerations in s 387 of the Act, as opposed to the Small Business Fair Dismissal Code.
Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Determined on the papers.
Final written submissions:
Respondent, 11 October 2024
[1] [2024] FWC 1770
[2] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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