Dr Teressa Belachew v Commonwealth of Australia as represented by the Australian Bureau of Statistics
[2016] FWCFB 4777
•20 JULY 2016
| [2016] FWCFB 4777 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Commonwealth of Australia as represented by the Australian Bureau of Statistics
(C2016/3727)
SENIOR DEPUTY PRESIDENT DRAKE |
|
Appeal against decision [[2016] FWC 2532] and order [PR579337] of Deputy President Kovacic at Canberra on 21 April 2016 in matter number U2015/4543.
[1] Dr Teressa Belachew has applied for permission to appeal a Decision 1 and Order2 issued by Deputy President Kovacic on 21 April 2016 (the Decision). The effect of the Decision and Order was to dismiss Dr Belachew’s application for relief from unfair dismissal. Dr Belachew was employed by the Australian Bureau of Statistics (ABS) at the time his employment was terminated.
Grounds of appeal
[2] Dr Belachew submits that it is in the public interest to grant him permission to appeal because the injustice that occurred to him might happen to others and society would be better served if such matters were exposed.
[3] Dr Belachew’s grounds of appeal are that the Deputy President fell into error by not taking into account the facts contained in documents before him. In particular, Dr Belachew submits that there was misinformation and misrepresentation by ABS concerning his circumstances, and that the material produced by ABS and the basis on which it made its decision to terminate his employment, and hence the information before the DP, was biased and fabricated.
[4] Specifically, Dr Belachew says that there was no valid reason for his dismissal because the said underperformance was based on manipulation of his personnel file and the implementation of a performance improvement plan that featured wrong information with conclusions based on falsified or fabricated evidence. Further, he says that the conclusions reached in the performance management plan were also based on falsified and fabricated evidence.
[5] In particular, be says that the Deputy President failed to take into account information contained in Documents A, AA, C and D.
The Decision
[6] In his decision, the Deputy President said:
[30] One of the recurring concerns regarding Dr Belachew’s performance was his failure to meet deadlines. With regard to the underperformance process it is not disputed that Dr Belachew met the first two deadlines specified in the underperformance work plan but failed to meet the rest, despite some of those deadlines being pushed back. Dr Belachew pointed to factors beyond his control as to reasons for not meeting those deadlines, whereas ABS effectively submitted that it was his lack of initiative. During Dr Belachew’s oral evidence the Commission asked Dr Belachew a question as to why, in circumstances where the importance of obtaining the required data from the client area was consistently emphasised to him, he did not push the client area sooner or harder to provide the data or, alternatively, escalate the issue. Dr Belachew’s response was that he wanted to maintain the relationship with the client area even if it meant losing his job. Apart from being surprising, the response suggests a lack of judgement and in my view reinforces the integrity of Mr Frazer’s report and conclusions. It also supports a finding that there was a valid reason for Dr Belachew’s dismissal based on his performance. Further, drawing on the language in Rode, I am satisfied that Dr Belachew’s termination was not “capricious, fanciful, spiteful or prejudiced.”
[7] The Deputy President also found that Dr Belachew had been notified of the reason for dismissal, 3 was given an opportunity to respond4 and that the ABS had warned Dr Belachew about the unsatisfactory performance prior to his dismissal.5
[8] The Deputy President concluded:
[47] Drawing on the above analysis, I find that there was a valid reason for Dr Belachew’s dismissal; that Dr Belachew was notified of that reason and given an opportunity to respond to that reason; that Dr Belachew had been warned about his performance before his dismissal, as well as being given opportunities to improve his performance; and that there are no other relevant matters. Beyond this, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case.
[48] Having considered all of the criteria in s.387 of the Act I find that Dr Belachew’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.
Consideration
[9] An appeal under s.604 of the FW 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. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[10] This appeal is one to which s.400 of the Fair Work Act 2009 (the FW Act) applies. 7 Section 400 of the FW Act 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.
[11] In the Federal Court Full Court decision 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”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 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. 10
[12] 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. 11 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.12
[13] Dr Belachew’s material before the Commission was voluminous. His witness statement went to some 627 paragraphs (although much of this was transcripts of tapes he had made of meetings in relation to his performance). He provided to the Commission all of the documentation arising from his performance management programme. This included the report prepared in relation to his underperformance by Mr Brett Frazer and all of the documentation attached to that report including minutes of weekly meetings, his response to these minutes and a myriad of other documents (Document C). The totality of this report and attachments goes to some 350 pages.
[14] Also included in the material Dr Belachew presented to the Commission in support of his claim was a bundle of documents (Document D) of 168 pages which seems to consist of various documents including those relating to his Development and Performance Agreement (DPA) documents consisting of his supervisor’s comments, his response and any relevant reply from his supervisor from 2011 onwards, warnings issued to him with respect to his performance, notes in relation to meetings about his performance improvement plan initiated in June 2014 (which occurred prior to the performance management program outlined in the papers in Document C), various emails and so on.
[15] In the material put before the Deputy President, Dr Belachew included the detailed written responses he had provided to the DPA documents and the regular meetings held during his performance management process. It is apparent that the Deputy President did consider all the material before him including the response documents contained in the material from Dr Belachew. This is evidenced by the Deputy President’s recognition in the Decision of Dr Belachew’s response to claims. In the decision, the Deputy President says, for example;
[12] Dr Belachew provided an email response on 10 March 2015 which disputed key findings of Mr Frazer’s report. In his response Dr Belachew stated, inter alia, that:
“While I have been expecting a promotion for my contributions … to date, the turnaround of the situation to underperformance has caught me by real surprise. In my view, the whole process that took place between 13 March 2014 and 11 September 2014 is unfair and unjust if not more. The way the underperformance issue came to surface following a feedback I gave to my supervisor on the ways things progressed between 13 March 2014 and 15 April 2014.” 13
[13] Dr Belachew subsequently met with Ms Nicholson on 11 March 2015, with the minutes of that meeting provided to Dr Belachew on 13 March 2015. Dr Belachew also wrote to Ms Nicholson on 16 March 2015.
[16] At paragraphs [16]-[18] of the Decision, the Deputy President outlined a summary of the material and submissions of Dr Belachew.
[17] In reaching his conclusion as to valid reason, the Deputy President clearly considered the submissions of Dr Belachew 14.
[18] Dr Belachew does not point to any error in the Deputy President’s conclusion that Dr Belachew was given an opportunity to respond to the reasons for his dismissal prior to the decision to dismiss him being made.
[19] Whilst Dr Belachew says that the Deputy President fell into error by not considering the totality of the material before him, it is difficult to discern, amongst the material, what Dr Belachew says should have been taken into account that was ignored or improperly considered by the Deputy President such that he fell into significant error in his decision or such that the findings were not reasonably open to him on the material. It is not the case that because the Deputy President reached a conclusion different to that of Dr Belachew that he made an error.
[20] It is evident that the Deputy President considered all of the material before him, including the witness statement and materials and submissions of Dr Belachew, in reaching his conclusion. That his decision is at odds with Dr Belachew’s submissions is not indicative of error.
[21] Dr Belachew has not taken this Full Bench to any specific errors said to have been made by the Deputy President in making his findings. We are not satisfied that the Deputy President made any error. The findings made by the Deputy President were open to him on the evidence.
[22] In these circumstances, we are not satisfied that there is any error in the decision of the Commission, nor are we convinced that the decision is counter intuitive or manifests an injustice. The decision was reasonably open to the Deputy President on all of the material before him.
[23] We are therefore not satisfied that it would be in the public interest to grant permission to appeal. As required by s.400(1), permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
T. Belachew on his own behalf.
Hearing details:
2016.
Melbourne and Canberra (video link):
June 17.
1 [2016] FWC 2532.
2 PR579337.
3 [2016] FWC 2532 at paragraphs [34] and [35].
4 Ibid at paragraph [37].,
5 Ibid at paragraph [42].
6 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
7 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].
8 (2011) 192 FCR 78 at [43].
9 O’Sullivan v Farrerand Another (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].
10 [2010] FWAFB 5343 at [27], 197 IR 266.
11 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
12 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 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
13 U2015/4543, Exhibit B1 at page 42 of Tab B.
14 [2016] FWC 2532 at paragraph [30].
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