Dr Colin Wilks v The University of Newcastle
[2016] FWCFB 7187
•23 NOVEMBER 2016
| [2016] FWCFB 7187 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
The University of Newcastle
(C2016/5627)
VICE PRESIDENT CATANZARITI | SYDNEY, 23 NOVEMBER 2016 |
Appeal against decision [2016] FWC 6005 of Commissioner Saunders at Newcastle on 24 August 2016 in matter number U2015/15051.
[1] The University of Newcastle (the Respondent) dismissed Dr Colin Wilks (the Appellant) from its employment on 26 October 2015 for alleged breaches of policies and directions issued by the Respondent. At the time of his dismissal, the Appellant had been employed by the Respondent for about 24 years.
[2] The Appellant applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
[3] The Appellant’s unfair dismissal application was heard and determined by Commissioner Saunders, who issued a decision on 24 August 2016 1 in which the Commissioner found that the Respondent had a valid reason to dismiss the Appellant based on his conduct. He concluded that the Appellant’s dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Act, and dismissed the application.
[4] The Appellant seeks permission to appeal the Commissioner’s decision and that is the matter before us.
Extension of time
[5] The Appellant did not file his application within 21 calendar days of the decision of Commissioner Saunders, and accordingly sought an extension of time to do so.
[6] The Commission may exercise its discretion to extend time to file an appeal taking into account 2:
a) whether there is a satisfactory reason for the delay;
b) the length of the delay;
c) the nature of the grounds of appeal and the likelihood of one or more grounds being upheld if time was extended; and
d) any prejudice to the respondent if time were extended.
[7] We are satisfied, based on the reasons set out in the Appellant’s Notice of Appeal, that there is a satisfactory reason for the delay. The appeal was lodged some 6 days outside the time limit, and there is no evidence of prejudice to the Respondent if time were extended. We have also taken account of the grounds of appeal and likelihood of success.
[8] Having regard to all of the relevant considerations, we are persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly, we have concluded that an extension of time should be granted.
Consideration
[9] The appeal is one to which s.400 of the Act applies. Section 400(1) 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’ (s.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 s.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’.
[10] 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 Makin5 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
[11] 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 Appellant’s grounds for appeal and submissions
[12] The Amended Notice of Appeal lodged by the Appellant contains 4 grounds that are said to demonstrate significant errors of fact, and 3 grounds said to enliven the public interest. In accordance with Directions issued on 17 October 2016, the Appellant filed submissions in the form of a document which comprised 3 typed pages outlining what he believed to be relevant issues and errors of fact made by the Commissioner.
[13] The Amended Notice of Appeal and submissions raise a number of matters that were agitated before Commissioner Saunders.
[14] It is clear that the Appellant disagrees with the conclusions reached by Commissioner Saunders. However that disagreement cannot be the basis of a successful permission to appeal application. An arguable case of appellable error needs to be shown and/or the public interest must be enlivened.
[15] We have given careful consideration to the issues raised by the Appellant. In our view, the matters upon which the Appellant relies do not demonstrate an arguable case for appellable error. The Commissioner’s decision contains a detailed and comprehensive consideration of the conflicting evidence and the application of the Act. There does not appear to us to be anything irregular in the Commissioner’s approach. The appeal is effectively a statement of dissatisfaction with the conclusions and findings of the Commissioner.
[16] We are therefore not persuaded that the Appellant has made out an arguable case for any significant error of fact on the part of the Commissioner.
[17] Further, the public interest is not enlivened by dissatisfaction with an outcome where there is no appealable error. None of the matters on which the Appellant relies as public interest grounds persuade us that the public interest is enlivened. On that basis, and as there are no other matters that enliven the public interest, we decline to grant permission to appeal.
Conclusion
[18] For the above reasons the application for permission to appeal is dismissed.
[19] The appeal is dismissed.
VICE PRESIDENT
Appearances:
Dr Wilks, on his own behalf.
R Warren, of counsel, for the University of Newcastle.
Hearing details:
2016.
Sydney:
November 9.
1 [2016] FWC 6005.
2 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002, per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005)141 IR 338
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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
5 (2010) 197 IR 266.
6 Ibid at [27].
7 [2001] FCA 1803 at [30].
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [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 at [28].
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