Diane Wiburd v Grandbridge Limited
[2018] FWCFB 2612
•10 MAY 2018
| [2018] FWCFB 2612 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Diane Wiburd
v
Grandbridge Limited
(C2018/1967)
VICE PRESIDENT CATANZARITI | BRISBANE, 10 MAY 2018 |
Permission to appeal sought against decision [2018] FWC 1900 of Deputy President Beaumont at Perth on 29 March 2018 in matter number U2016/14894 – permission to appeal refused.
Introduction and background
[1] Mrs Diane Wiburd was summarily dismissed by Grandbridge Limited (Grandbridge) on 28 November 2016. It was not contested that Grandbridge was, at the time of the dismissal, a small business.
[2] Mrs Wiburd made a claim of unfair dismissal and the application was determined by Deputy President Binet in ([2017] FWC 2363). The Deputy President determined that the dismissal was not consistent with the Small Business Fair Dismissal Code (Code) pursuant to s.388 of the Fair Work Act 2009 (Act), and concluded that the matter would then be subject to further consideration relevant to s.387 of the Act.
[3] The decision of Deputy President Binet was appealed by Grandbridge to a Full Bench in ([2017] FWCFB 6732). On 14 December 2017 the Full Bench upheld the appeal, quashed the decision of the Deputy President, and remitted the matter to Deputy President Beaumont to determine the question of whether Grandbridge complied with the Code in relation to Mrs Wiburd’s dismissal.
[4] It was agreed by the parties, that the material before Deputy President Binet would be used for the rehearing before Deputy President Beaumont, such that the question of compliance with the Code would be determined ‘on the papers’.
[5] Having considered the materials, Deputy President Beaumont determined that Mr David Breeze, Director of Grandbridge, had reasonable grounds to believe that Mrs Wiburd’s conduct was sufficiently serious to justify immediate dismissal. 1 The Deputy President was satisfied that the Code had been met and the application was dismissed.
[6] On 13 April 2018, Mrs Wiburd lodged an appeal, for which permission to appeal is required, against the Decision 2 of Deputy President Beaumont. On 2 May 2018 we heard the parties on the question of permission to appeal. In the hearing, Mr N. Van Hattem, of counsel, sought permission to appear for the Appellant and Mr D. Howlett, of counsel, sought permission to appear for the Respondent. Having regard to s.596(2)(a) of the Act, permission to appear was granted to both parties.
Permission to appeal principles
[7] An appeal under s.604 of the 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act states:
‘Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).’
[8] This appeal is one to which s.400 of the 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.’
[9] 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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. 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.” 6
[10] 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. 7 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.8
The Appeal
[11] In the Notice of Appeal dated 13 April 2018, the Appellant submitted that the Deputy President erred when she held that Mr Breeze believed on reasonable grounds that Mrs Wiburd’s conduct was sufficiently serious to justify immediate dismissal. The particulars pleaded are as follows:
‘A. The Deputy President erred in relying on Mr Breeze’s suspicions where the Code imports the higher legal test of belief on reasonable grounds.
B. The Deputy President erred in holding that Mr Breeze had conducted a reasonable investigation in the circumstances of this matter. The inadequacy of Mr Breeze’s investigation was such that any belief that he may have subjectively held was not a belief on reasonable grounds.
C. While evidence reviewed by Mr Breeze indicated that on one occasion Mrs Wiburd had acceded to Ms Ambrosini’s request to misrepresent Ms Ambrosini’s late attendance to Mr Breeze, the totality of the evidence considered by Mr Breeze on 28 November 2016 did not provide reasonable grounds for Mr Breeze to believe that Mrs Wiburd’s conduct was sufficiently serious to justify her immediate dismissal.’
[12] The Appellant submitted that it was in the public interest for the Commission to grant permission to appeal because ‘the appeal raises important questions of general application about the application and interpretation of the Code sufficient to attract the public interest’. 9
[13] The Appellant submitted that the Deputy President conflated the suspicion that Mr Breeze held about Mrs Wiburd with the requirement in the Code for Mr Breeze to have a belief. It was submitted that belief is a different and stronger state of mind than suspicion. 10
[14] It was submitted that because Mr Breeze could only have suspected that Mrs Wiburd was involved in some dishonesty, it could not be concluded that he subjectively believed that she was so involved. Even if Mr Breeze did believe she was so involved, he had no reasonable basis for that belief. 11
Consideration – Permission to Appeal
[15] In determining permission to appeal, we note that the public interest argument advanced by the Appellant is simply a restatement of the Full Bench’s reasons for granting permission to appeal in matter no. (C2017/4267). 12 No other submissions concerning the public interest have been made with respect to this appeal. Notwithstanding, we have considered the matters raised by the Appellant above and we are not satisfied that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
[16] The basis on which the Deputy President reached her Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The correct legal principles were applied and no significant error of fact has been disclosed.
[17] The Deputy President did not base her Decision on whether Mr Breeze held a suspicion; rather the Decision demonstrates that the Deputy President found throughout her consideration that Mr Breeze held a belief, and he did so on reasonable grounds. The Deputy President therefore had reasonable grounds to reach the Decision that she did, and as such, we are not satisfied that there is an arguable case of appealable error in relation to any aspect of the Decision.
Conclusion
[18] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[19] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr N. van Hattem, of counsel, for the Appellant.
Mr D. Howlett, of counsel, for the Respondent.
Hearing details:
Sydney with video link to Perth.
2018.
May 2.
Printed by authority of the Commonwealth Government Printer
<PR606956>
1 [2018] FWC 1900 at [82].
2 [2018] FWC 1900.
3 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.
4 (2011) 192 FCR 78 at [43].
5 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].
6 [2010] FWAFB 5343, 197 IR 266 at [27].
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 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].
9 [2017] FWCFB 6732 at [16].
10 Appellant’s Outline of Submissions dated 30 April 2018 at [19].
11 Ibid at [34].
12 See paragraph [12] of this decision.
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