Dr Debbie Obatoki v Mallee Track Health & Community Services
[2015] FWCFB 4758
•22 JULY 2015
| [2015] FWCFB 4758 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mallee Track Health & Community Services
(C2015/4115)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 JULY 2015 |
Appeal against decision [[2015] FWC 3089] of Commissioner Cribb at Melbourne on 7 May 2015 in matter number U2014/6367 – Permission to appeal – Whether grounds of appeal attract the public interest – Permission to appeal not granted – Fair Work Act ss. 394, 400 and 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Commissioner Cribb handed down on 7 May 2015. The decision of the Commissioner concerned an unfair dismissal application made by Debbie Obatoki on 8 April 2015 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Mallee Track Health & Community Services (Mallee Track). The Commissioner found that the termination was harsh, unjust and unreasonable, determined that reinstatement was not appropriate and proposed to make an order of compensation after ascertaining certain additional information regarding Dr Obatoki’s earnings. The appeal concerns the conclusions of the Commissioner in relation to remedy.
[2] As in the case at first instance, at the hearing of the appeal matter on 14 July 2015 Dr Obatoki’s husband Dr V. Obatoki appeared for his wife and Mr B. Tallboys, of counsel, appeared, with permission, for Mallee Track.
Background
[3] Dr Obatoki resigned from her employment with Mallee Track by an email sent to her employer on 12 December 2013. Following a series of communications the parties agreed to extend the notice given so that termination of Dr Obatoki’s employment with Mallee Track took effect on 12 April 2014. 1
[4] In the matter before her, the Commissioner was required to determine whether Dr Obtaoki was “dismissed’ within the meaning of s.386(1)(b) of the Act. This section provides that a person has been dismissed if they have resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. The Commissioner found that Dr Obatoki was dismissed within the meaning of the Act and that her dismissal was harsh, unjust or unreasonable. Her decision then considers the appropriate remedy in light of the circumstances.
[5] The Commissioner’s conclusions in relation to the issue of reinstatement are expressed in the following passage from her decision:
“(i) Reinstatement
[77] Section 390(3) states that the Fair Work Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).
[78] Dr Debbie did not give any oral evidence in relation to remedy. In the Applicant’s written submissions, reinstatement was sought or, in the alternative, the maximum compensation. On behalf of the Applicant, it was strongly argued that the primary remedy of reinstatement should be awarded to Dr Debbie. Detailed reasons were given as to why the remedy should be reinstatement rather than compensation.
[79] On the other hand, Mallee Track equally strongly opposed an order for reinstatement. This was on the basis that reinstatement would be inconsistent with the whole premise of the Applicant’s forced resignation; that there has been a mutual breakdown in trust and confidence and that Dr Debbie would have been made redundant in any event.
[80] I have carefully considered the submissions of the parties on this issue. Taking all of the circumstances of this case into account, I am satisfied that reinstatement of Dr Debbie is inappropriate. I accept Mallee Track’s submissions that there has been a mutual breakdown in trust and confidence between Dr Debbie and Mr Senior. However, more importantly, to return Dr Debbie to the situation that caused her to resign in the first place, in the absence of any evidence that the working relationship between Mallee Track and Dove Investments has been resolved, is unconscionable.”
Grounds of Appeal
[6] Dr Obatoki contends that permission to appeal should be granted as the Commissioner erred in both law and fact. Dr Obatoki submits that the Commissioner failed to consider all the circumstances of the matter as required of her by s.390(3)(b) of the Act. She further contends that the Commissioner did not consider other relevant provisions of the Act requiring that matters are dealt with in a way that is “fair and just” (s.577(a)) and so that a “fair go all round” (s.381(2)) is provided to the parties. The grounds of appeal advanced in Dr Obatoki’s Notice of Appeal in relation to errors of fact are as follows:
- The Commissioner erred when she stated that “However, more importantly, to return Dr Debbie to the situation that caused her to resign in the first place, in the absence of any evidence that the working relationship between Mallee track and Dove investments has been resolved, is unconscionable” as the working relationship had already been dissolved;
- The Commissioner erred when she stated that “I accept Mallee track’s submissions that there is a mutual breakdown in trust and confidence between Dr Debbie and Mr. Senior” as there was very little interactions between the two in their daily functions, roles and duties.
- The Commissioner erred when she failed to consider that Dr Obatoki had been made to serve out 4 months of a notice period without being paid that period;
- The Commissioner erred when she stated “In the applicant’s submissions, reinstatement was sought or, in the alternative, the maximum compensation” as Dr Obatoki did not seek compensation and had pointed out the difficulties that would be encountered even if the maximum compensation were to be awarded to her; and
- The Commissioner also erred when she stated “It is clear from the evidence that Mallee track was not in a position, at any stage, to pay Dr Debbie a salary if that salary was not then being reimbursed by Dove Investments” as there was no evidence to substantiate this claim and it suggests that, despite this, the submission of Mallee Track that they were not able to pay Dr Obatoki’s salary was accepted.
Permission to Appeal
[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[8] 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’ 2. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’
[9] The test for determining the public interest has been described as follows: 3
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[10] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 4 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:5
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Conclusions
[11] We have considered the circumstances of this matter and the grounds of appeal advanced by Dr Obatoki. In our view, the decision of the Commissioner in relation to reinstatement is a conventional exercise of the discretion required by s.390. The Commissioner applied the correct test and considered the relevant circumstances. The question of whether reinstatement is appropriate required a broad judgement based on the circumstances. Having heard the evidence and submissions of the parties the Commissioner was well placed to exercise that judgment. The Commissioner made certain findings of fact after considering the evidence and submissions of the parties. It has not been demonstrated that any significant errors of fact were made or that the discretion was not properly exercised. The Commissioner’s decision adequately summarises the reasons for her decision.
[12] The appeal grounds seek to challenge the weight given to certain factors and allege that certain matters were not taken into account because they are not articulated in detail in the decision. In our view, the appeal does nothing more than seek a reconsideration of the primary question before the Commissioner. It is inappropriate for this appeal bench to do so in the absence of demonstrable error. No such error has been demonstrated.
[13] The appeal does not give rise to any public interest considerations. Permission to appeal is denied. The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Dr V. Obatoki for Dr D. Obatoki.
Mr B. Tallboys, of counsel, for Mallee Track.
Hearing details:
2015.
Sydney – Video Conference Link to Melbourne.
14 July.
1 [2014] FWC 5967.
2 (2011) 192 FCR 78 at paragraph 43.
3 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
4 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
5 Ibid.
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