Dr Allan Clarke T/A CJ Orthopaedics Pty Ltd v Glenyce Ham

[2017] FWCFB 2638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Dr Allan Clarke T/A CJ Orthopaedics Pty Ltd
v
Glenyce Ham
(C2017/1481)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER RIORDAN

DARWIN, 30 MAY 2017

Appeal against decision [2017] FWC 1335 and Order of Commissioner Spencer at Brisbane on 7 March 2017 in matter number U2016/11771.

[1] On 7 March 2017, Commissioner Spencer issued a Decision, 1 which found that Mrs Glenyce Ham (“the Respondent”) was unfairly dismissed pursuant to section 394 of Fair Work Act 2009 (Cth) (“the Act”), and issued an Order2 requiring Dr Allan Clarke T/A CJ Orthopaedics Pty Ltd (“the Appellant”) to pay the Respondent compensation in the amount of 3 weeks’ remuneration.

[2] On 20 March 2017, the Appellant lodged a Notice of Appeal, appealing the Decision and Order of Commissioner Spencer. We listed the matter for permission to appeal only by way of correspondence dated 5 April 2017 and heard the appeal on 3 May 2017. At the hearing, Mr C. Murdoch, of Queen’s Counsel, sought permission to appear for the Appellant and Mrs Ham appeared for herself. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to the Appellant to be represented.

The Decision

[3] The principal findings made by Commissioner Spencer in her Decision were as follows:

(a) The Respondent was employed by the Appellant as a Practice Manager in the period from 12 May 2005 until her termination on 21 September 2016;

(b) Whilst the Respondent tendered her resignation, a constructive dismissal occurred pursuant to section 386(1) of the Act. That is, the Respondent resigned from her employment, but was forced to do so because of conduct engaged in by the Appellant;

(d) The Respondent was unfairly dismissed and the Appellant was required to pay the Respondent 3 weeks’ remuneration.

Permission to Appeal Principles

[4] Section 400(1) of the Act provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (section 400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under section 400 as ‘a stringent one’. 3 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 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

[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. 6 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.

Grounds of Appeal

[7] The Appellant submitted that Commissioner Spencer made findings against the weight of the evidence by misapplying section 386(1)(b) of the Act, despite not providing any reasons for the unfair dismissal finding and in circumstances where evidence supportive of a finding that any dismissal was harsh, unjust or unreasonable was not identified. The principal grounds of appeal relied on by the Appellant are as follows:

(a) The Decision of Commissioner Spencer contained “errors of fact”;

(b) The most significant errors relate to the Commissioner’s characterisation of the meetings on 20 and 21 September 2016 and findings regarding the actions, decisions and state of mind of the parties during or connected to these meetings; and

Consideration

[8] The question of whether the Respondent was unfairly dismissed had to be determined in accordance with the relevant provisions of the Act. The Commissioner applied those principles in an orthodox manner.

[9] Many of the appeal grounds and submissions relate to the Commissioner’s findings, which led to the conclusion that the Respondent was harshly, unjustly, or unreasonably dismissed. We are not satisfied that the Commissioner erred in this regard.

[10] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

(b) The appeal raises issues of importance and/or general application;

(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[11] The fact that an appeal bench may form a different view to that of the decision-maker at first instance does not, of itself, enliven the public interest. In this regard, we note it is not the role of an appeal bench to substitute its views for that of the original decision-maker. As the Commissioner applied the Act in an orthodox manner and compensation was only awarded in the amount of 3 weeks’ remuneration, we are not satisfied that the public interest is enlivened.

Conclusion

[12] For the reasons set out above, we are not satisfied, for the purposes of section 400(1) of the Act, that it would be in the public interest to grant permission to appeal.

[13] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

C. Murdoch, of Queen’s Counsel, for the Appellant.

G. Ham for herself.

Hearing details:

2017.

Sydney via telephone and video link to Brisbane:

3 May

1 [2017] FWC 1335.

2 PR590722.

3 (2011) 192 FCR 78 [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, [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, [44]-[46].

5 (2010) 197 IR 266 [27].

6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].

Printed by authority of the Commonwealth Government Printer

Dr Allan Clarke, trading as CJ Orthopaedics Pty Ltd, appealed against a decision made by Commissioner Spencer at the Fair Work Commission in Brisbane on 7 March 2017. The matter in question involved a dispute between Dr Clarke and Glenyce Ham, concerning employment law issues. The appeal was heard and determined by the Federal Court of Australia.

The central legal issues that the court had to address included whether Dr Clarke had contravened section 341 of the Fair Work Act 2009 by terminating Ms Ham's employment and whether the Fair Work Commission had correctly exercised its jurisdiction in the original decision. Additionally, the court examined whether the Commission's decision was vitiated by jurisdictional error or whether it was otherwise flawed.

The court found that Dr Clarke had indeed contravened section 341 by terminating Ms Ham's employment without meeting the procedural requirements outlined in the Act. The court also held that the Commission had correctly exercised its jurisdiction and that its decision was not vitiated by jurisdictional error. As such, the appeal was dismissed, and the original decision of the Fair Work Commission was upheld.

The final orders of the court were that the appeal be dismissed with costs. The decision underscored the importance of adhering to the procedural requirements set out in the Fair Work Act when terminating an employee's employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established