Eliana Construction and Developing Group Pty Ltd v Leyla Moghimi

[2015] FWCFB 7476

[2015] FWCFB 7476 [Note: refer to the Federal Court decision dated 18 August 2016 [2016] FCAFC 113 for result of appeal

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Eliana Construction and Developing Group Pty Ltd

v

Leyla Moghimi

(C2015/5674)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER JOHNS MELBOURNE, 6 november 2015

Appeal against decision [[2015] FWC 4864] of Commissioner Roe at Melbourne on 23 July 2015 in matter number U2015/2893 – Permission to appeal – Whether grounds of appeal attract the public interest – Permission to appeal not granted – Fair Work Act 2009 – ss. 394, 400 and 604.

Introduction

1. On 23 July 2015 Commissioner Roe issued a decision[1] and order[2] granting an application made by Leyla Moghimi under s.394 of the Fair Work Act 2009 (the Act). On 13 August 2015 Eliana Construction and Developing Group Pty Ltd (Eliana) lodged an appeal against the decision and order.

1. Eliana was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. The matter was listed for hearing on 27 October 2015.

1. As the application arises from an unfair dismissal decision, s.400 applies to the appeal. That section provides:

   “400 Appeal rights

(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.”

1. 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’.

1. Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, 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 counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[4]

Submissions of appellant

1. Eliana submitted that too much weight was placed on the issue of family violence committed outside the workplace, that it acted reasonably and diligently in not terminating the employment of Ms Moghimi’s former partner as requested, that family violence is an important issue as are institutional responses, and other matters.  It further submitted that there is currently little guidance on the subject of family violence, and it is not uncommon to have domestic partners working in the same workplace.[5]

The decision

1. In the decision under appeal the Commissioner found that Ms Moghimi had been dismissed (paragraphs 30-36), and that there was no valid reason for termination of employment (paragraphs 37-47).  He made findings about each of the other factors in s.387, and taking all of the factors into account found that her dismissal was harsh, unjust or unreasonable.

1. The findings about domestic violence were specific to the case in question, and related to Ms Moghimi’s absence from work because of domestic violence (paragraphs 30-31), and the consequent difficulties of Ms Moghimi and her former partner working together in the office (paragraphs 32-36). He made a specific finding of fact that Ms Moghimi was dismissed because Eliana believed that the intervention order directed at her former partner meant that Ms Moghimi could no longer work in the office (paragraph 41).  There is no issue of general application arising from these findings, and no issue of public interest.  They are findings specific to the evidence and submissions put to the Commissioner relating to the circumstances of Ms Moghimi and the workplace. The Commissioner was entitled to prefer the evidence of Ms Moghimi to other evidence. 

1. We refuse permission to appeal.

VICE PRESIDENT

Appearances:

Mr P. Caillard, of counsel, on behalf of Eliana Construction and Developing Group Pty Ltd.
Ms S. Clancy, of counsel, on behalf of Ms Moghimi.

Hearing details:

2015.
Sydney – Video Link to Melbourne.
27 October.

Final written submissions:

Eliana Construction and Developing Group Pty Ltd on 12 October 2015.

[1] [2015] FWC 4864.

[2] PR569547.

[3] (2011) 192 FCR 78 at paragraph 43.

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

[5] Appellant’s outline of submissions, paragraphs 1-9.

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