Epworth Healthcare v Tamer Selcuk
[2015] FWCFB 2085
•31 MARCH 2015
| [2015] FWCFB 2085 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Tamer Selcuk
(C2015/1417)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 31 MARCH 2015 |
Appeal against Decision [2015] FWC 437 and Order PR560199 of Commissioner Ryan at Melbourne on 16 January 2015 in matter number U2014/8741; public interest not enlivened - permission to appeal refused.
[1] Epworth Healthcare (the appellant) had employed Mr Tamer Selcuk (the respondent) for over 10 years until 24 July 2014 when it dismissed him summarily on the ground of serious misconduct. The respondent was employed by the appellant initially as a cleaner and later in the position of Environmental Services Supervisor, which position the respondent occupied at the time of his dismissal. The respondent applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act) on 12 August 2014.
[2] The appellant’s unfair dismissal remedy application was heard and determined by Commissioner Ryan, who issued a decision on 16 January 2015 1 in which the Commissioner concluded that the respondent’s dismissal was harsh,2 unjust3 and unreasonable4. The Commissioner concluded that reinstatement as a remedy was inappropriate5 and that compensation was appropriate.6 The Commissioner determined the amount of compensation that should be paid to the respondent as $32,500.7 An order giving effect to the compensation remedy was also made.8
[3] The appellant seeks permission to appeal the Commissioner’s decision and order and that is the matter before us.
[4] The decision the subject of this appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. 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’. 9 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. 10 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.” 11
[6] 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. 12 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.13
[7] The notice of appeal lodged by the appellant contains numerous grounds that are said to demonstrate an appealable error. It is unnecessary for us to recite those grounds and it is sufficient for present purposes to note that the appellant advances four categories of error said to have been made by the Commissioner. In relation to the first category, the appellant submitted that the Commissioner’s finding that the dismissal of the respondent was harsh, unjust or unreasonable was not open to him. This was because the Commissioner, having concluded the appellant engaged in misconduct constituting a valid reason, failed to apply ‘the correct weight’ to the other matters to which he was required to have regard under s.387 of the FW Act.
[8] Secondly, the appellant submitted that the Commissioner took into account irrelevant considerations or if relevant, that he gave those considerations inappropriate weight. It was also submitted under this category that the Commissioner had failed to take into account the relevant consideration the respondent was a supervisor and that the misconduct as found by the Commissioner showed that the respondent was breaching his responsibilities as supervisor.
[9] Thirdly, it is said that by denying the appellant the opportunity to adduce additional evidence concerning the respondent’s knowledge of the “Carps” reports (a system utilised by the appellant to allocate work) and by allowing the respondent to adduce additional evidence, the Commissioner denied the appellant procedural fairness.
[10] Fourthly, the appellant submitted that the Commissioner’s order for compensation was erroneous, although as was the case in the hearing at first instance, little attention was given by the appellant to the question of compensation during the hearing before us.
[11] The first category of error identified by the appellant is misconceived. The appellant’s real complaint is that the Commissioner did not accord the weight that the appellant believes should be accorded to his finding that the respondent had engaged in misconduct. This does not amount to an appealable error. The way in which an appellate body should deal with question of weight is set out in the judgement of Gibbs CJ in Mallet v Mallet 14 as follows:
“The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham C.J. in Lovell v Lovell, 15 as follows:
“If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.” 16”
[12] It is clear from the Commissioner’s decision that he took account of his conclusion that the respondent had engaged in misconduct and that but for the considerations he identified and took into account under s.387(h), the Commissioner would have concluded that the dismissal of the respondent was not harsh, unjust or unreasonable. 17 Further, on our review of the material before the Commissioner and of his decision there is no basis upon which it could be said that that the weight attributed by the Commissioner to his finding of misconduct amounted to a failure to exercise his discretion.
[13] Turning to the second category of error identified by the appellant. The appellant submitted that the Commissioner’s:
- consideration of the respondent’s age and length of service should have been a marginal consideration and that these considerations are simply a factor to be taken into account; 18
- criticism of the process adopted by the appellant was incorrect and that its process was not unfair to the respondent; 19
- criticism of the employer’s requirement of strict confidentiality was misplaced; 20
- conclusion as to differential disciplinary treatment as between various employees were incorrect and irrelevant; 21
- failure to take into account the respondent’s breach of his supervisory duties was a failure to take into account a relevant consideration; 22 and
- consideration of the practice of employees of the appellant using wash up time to leave work early in the assessment whether the respondent’s dismissal was harsh unjust or unreasonable was also irrelevant. 23
[14] We deal with each of these matters in turn below.
[15] The Commissioner was entitled take into account the respondent’s age and length of service in the assessment of whether the dismissal was harsh unjust or unreasonable. The appellant’s description of these considerations as “marginal” is no more than a complaint about the weight attributed to the considerations. There is no substance in the appellant’s criticism of the Commissioner’s decision in this regard.
[16] The appellant’s criticism of the Commissioner’s consideration of the appellant’s process adopted in relation to the respondent’s dismissal is also without substance. The Commissioner does not criticise the appellant because it failed to put allegations of misconduct to the respondent. Nor does he criticise the appellant for not giving the respondent an opportunity to respond to the allegations. The Commissioner took into account the fact that the respondent had in its possession material in the form of Carps reports which informed the allegations and that it did not provide that material to the respondent. 24 It is in that context that the Commissioner concludes that the process was unfair to the respondent. This consideration is relevant and one that the Commissioner was entitled to take into account under section 387(h) of the FW Act.
[17] As to the confidentiality requirement, the Commissioner deals that matter as follows:
“[163] Whilst it is clearly understandable that an employer may wish to restrict the ability of employees under investigation from talking to other employees that restriction appears to be completely unreasonable once the investigation has been completed by the employer.
[164] In the present matter Epworth Healthcare in its letter of 16 July 2014 to Mr Selcuk and in which Epworth Healthcare set out the allegations against Mr Selcuk it also said:
“Please note that throughout this process you are directed to maintain strict confidentiality and are not to discuss any details of this investigation including with any other Epworth HealthCare employees, except any support person or representative you may have. Should you fail to comply with this direction, you will be subject to a separate disciplinary process.”
[165] The overt threat of further and separate disciplinary action against Mr Selcuk operates as a very effective bar to Mr Selcuk gaining statements or evidence to support his response to the allegations made.” 25
[18] In the proceedings before us the appellant submitted the confidentiality requirement was plainly confined to the investigation process and, contrary to the Commissioner’s finding, did not apply to discussions between the appellant and the respondent once investigation was complete. The appellant submitted that the words of the letter to the respondent setting out the confidentiality requirement make this clear. 26
[19] We firstly observe that the appellant did not point to any evidence (other than the terms of the letter to the respondent containing the confidentiality requirement) which suggested that the respondent was made aware that the confidentiality requirement applied only in the limited way contended by the appellant. Secondly, the appellant did not point to any submission that it made to the Commissioner that the confidentiality requirement had the limited effect that is now asserted. Thirdly, the letter upon which it is said that the limit of the confidentiality requirement is made clear also contains the following:
“As briefly discussed, I wish to advise you that a meeting has been arranged for you to attend at 10 AM, Friday 18 July 2014, in the Executive Office, level 3, Erin Street building. Miguel Barros, Environmental Services Manager, and I will be attending this meeting. You are encouraged to bring a support person or representative to this meeting.
. . .
Due to the serious nature of the allegations, I advise you that you are not to attend for duty for the duration of the investigation and that you will be paid for any rostered days off that you are absent until the investigation is complete. You are however required to remain in contact during this period and attend for meetings as requested.” 27
[20] Ms Cate Morris, the author of the letter gave evidence that at the conclusion of the meeting with the respondent on 18 July 2014 (at which the allegations were discussed with the applicant and that which his response was sought) she:
“. . . reiterated the confidentiality that both the applicant and Mr Bennett are bound by; that any breach of this may result in a separate disciplinary action. Further, the applicant was advised that he remains on stand down and that the investigation was continuing” 28
[21] Ms Morris also gave evidence that she:
“. . . called the applicant on Monday, 22 July 2014 and confirmed the applicant was to remain on stand down and that Mr Benedict would be taking over the investigation due to my upcoming annual leave.” 29
[22] According to the evidence, the respondent received a telephone call from Mr Benedict on 23 July 2014 advising him that he was required to attend a further meeting with the appellant on 24 July 2014 and that he should also write a letter to the respondent responding to the allegations. 30 The respondent’s employment was terminated during the meeting on 24 July 2014.
[23] It is clear from the above that the appellant’s submission about the limited effect of the confidentiality requirement is not only lacking substance but is contrary to the evidence led by the appellant through Ms Morris at first instance.
[24] It seems to us that the Commissioner’s construction of the scope of the confidentiality requirement was correct. The Commissioner was entitled to take this matter into account under s.387(h) of the FW Act.
[25] As to the submission that the Commissioner erred in his conclusion that there was unfair differential disciplinary treatment by the appellant of various employees compared with the respondent, it seems to us that the appellant’s complaint is based on a wrong premise. That is, the appellant’s premise is that the misconduct justified dismissal, rather than starting from the Commissioner’s actual finding that is the respondent’s misconduct provided a valid reason for dismissal. The appellant submitted that the respondent was a senior employee in charge of other employees at the appellant’s workplace and that his status as a supervisor elevated his conduct to a serious level which warranted summary dismissal. The appellant does not challenge the Commissioner’s findings as to the acts of the respondent which constituted the misconduct. Moreover the appellant does not challenge the Commissioner’s conclusion that certain of the allegations which formed the basis of the dismissal were not made out during the hearing and that the evidence did not establish that the respondent had wilfully and deliberately acted in a manner inconsistent with his continuing employment contract as alleged by the appellant before the Commissioner in its letter of termination. 31
[26] The Commissioner’s conclusions as to differential treatment is to be assessed through the prism of his findings about the respondent’s misconduct, which are not challenged, and the rejection of the other allegations of misconduct, which also is not challenged. The Commissioner’s conclusion that the dismissal of the respondent did not appear to be an appropriate or proportionate response to the proven misconduct 32 having regard to the nature of the disciplinary action taken against others involved in the incidents involving the respondent33 is therefore to be to be assessed against the unchallenged finding of fact relating to the respondent’s misconduct. It seems to us that as other employees were involved in incidents involving the respondent, the disciplinary action taken against these other employees was relevant. Evidence of that involvement and of the subsequent disciplinary action was before the Commissioner. Given the unchallenged factual findings made by the Commissioner about the respondent’s misconduct, the assessment made by the Commissioner about the disproportionate treatment, was one that was open to him on the evidence.
[27] The appellant’s contention that the Commissioner did not take into account the respondent’s breach of his supervisory duties is also without foundation. The Commissioner clearly had regard to this consideration. The Commissioner concluded that:
“[144] The evidence in this matter supports a finding that there was inadequate supervision of staff by Mr Selcuk allowing for inappropriate practices and/or fraudulent behaviour to occur, and that Mr Selcuk was aware of and a part of the practice of staff regularly being away from work and/or leaving the hospital on paid time.
[145] The facts supporting this finding are: (1) that Mr Selcuk did leave the workplace on occasions as part of the smoking group and (2) that Mr Selcuk through his participation in the practice of some employees leaving the workplace to buy food allowed an inappropriate practice whereby some employees were away from work on paid time.” 34
[28] The Commissioner also concluded:
“[146] The evidence in this matter does not support a finding that there was inadequate supervision of staff by Mr Selcuk allowing for inappropriate practices and/or fraudulent behaviour to occur, and that Mr Selcuk was aware of and a part of any or all the practice of:
- false tasks or jobs being created on afternoon shift;
- deliberate duplication of existing tasks and the deliberate creation of unnecessary tasks
- permanent staff not being directed to work productively.
[147] The evidence in this matter does not support the reason given by Epworth Healthcare that Mr Selcuk had “willfully (sic) and deliberately behaved in a manner that is inconsistent with the continuation of your employment contract with Epworth” 35
[29] As we have earlier indicated, the conclusions reproduced above in [27]-[28] are not challenged. The import of the respondent’s role and duties as supervisor is informed by these conclusions. It becomes clear therefore that the appellant’s real complaint is as to weight attributed by the Commissioner to the consideration and no more.
[30] As to the final matter under this category, we agree that the Commissioner’s consideration of the practice of employees of the appellant using wash up time to leave work early was not relevant to the assessment whether the respondent’s dismissal was harsh unjust or unreasonable was not relevant. In our view the circumstances of the wash up time practice and that the misconduct found to have been engaged in by the respondent are materially different and did not warrant consideration whether by reason of differential treatment or because of any condoning of particular behaviour by the respondent.
[31] However, it does not follow that the identification of this error results in the grant of permission to appeal. This is so for two reasons. First, it is clear from the Commissioner’s decision that the existence of the practice was a factor that he took into account in determining that the dismissal was unreasonable. 36 The Commissioner had already and separately concluded that the dismissal was harsh because, the penalty of dismissal would operate harshly on him, having regard to the respondent’s circumstances.37 The Commissioner had also already and separately concluded that the dismissal was unjust by reason of the appellant’s failure to provide the respondent with relevant material which might have enabled him to better respond to the allegations before it dismissed him.38
[32] As McHugh and Gummow JJ explained in Byrne v Australian Airlines Ltd 39 as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 40
[33] The Commissioner’s conclusion that the dismissal was harsh, or his conclusion that the dismissal was unjust, were each a sufficient basis for the Commissioner’s ultimate conclusion that the dismissal was unfair. It was not strictly necessary for the Commissioner to also conclude that the dismissal was unreasonable. Thus even if the appellant’s appeal was upheld on this ground the result would be the same. On that basis the appeal on this ground has no utility.
[34] Secondly, the Commissioner concluded that the dismissal was unreasonable on two separate not cumulative bases. So much is clear from the following passages from the Commissioner’s decision:
“[174] The dismissal of Mr Selcuk does not appear to be an appropriate or proportionate response to the proven misconduct of Mr Selcuk.
[175] The proven misconduct would appear to be less than that of Mr Sidhu and potentially less serious than that of Mr Besino but certainly not more serious than that of Mr Besino and is certainly more serious than that of Ms Hassan. This would suggest that an appropriate and proportionate response to the proven misconduct of Mr Selcuk was disciplinary action less than dismissal.
[176] The proven misconduct of Mr Selcuk also needs to be considered in light of the tolerance of Epworth Healthcare to practices engaged in by other employees which appear to be inappropriate or possibly fraudulent.
. . .
[183] The dismissal is unreasonable. In the context of the disciplinary action taken against other employees and in the context of the tolerance of “custom and practice” which appears to constitute inappropriate behaviour by other employees of Epworth Healthcare it was not a reasonable response to the misconduct of Mr Selcuk to have dismissed him.” 41
[35] It is therefore tolerably clear that the Commissioner concluded that the dismissal was unreasonable by reason of the disproportionate disciplinary action and separately because of the appellant’s tolerance of the custom and practice. For all these reasons it follows that an appeal on this ground, even if successful, would be of no utility.
[36] As to the third category of error, the appellant says that it was denied procedural fairness because the Commissioner did not give it the opportunity to adduce additional evidence concerning the respondent’s knowledge of the Carps reports and that he allowed the respondent to adduce additional evidence. We have reviewed the transcript passages in which the procedural rulings made by the Commissioner are recorded and we are satisfied, given the circumstances in which each application to adduce material was made, that the Commissioner was entitled to make rulings that he did. Moreover, even if it is accepted that the appellant was denied the opportunity to adduce evidence as to the respondent’s knowledge of the Carps reports this would only have assisted the appellant in relation to the Commissioner’s conclusion that the dismissal was unjust. The material would not have advanced the appellant’s case any further in relation to the Commissioner’s conclusion that dismissal was harsh, or that dismissal was unreasonable.
[37] We now turn to the fourth category of error; that the Commissioner’s order of compensation was erroneous. In the proceedings at first instance the appellant’s submissions in relation to compensation were limited. Apart from a submission that there should be no order of compensation the appellant submitted that the Commission should, if satisfied that there was misconduct and that the misconduct contributed to the dismissal, reduce the amount of compensation that might otherwise be ordered. The appellant did not put any other submissions as to compensation. Indeed it is clear from the transcript of the proceedings before the Commissioner that, apart from the misconduct deduction, the appellant did not take issue with the submissions made by the respondent in relation to the calculation of compensation having regard to the matters set out in s.392. The transcript of the proceedings records the following:
“MR ADDISON: So, yes, we accept that. I’m not going to take any issue with what my friend put with regards to the rest of 392. They’re matters for you, however I would say that you should factor in, should you be against us, should you find that the termination is harsh - for instance, you should take into account section 392(3). There is clearly misconduct here. There’s clearly misconduct from the applicant and we say 392 subsection (3) applies. If the commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person the commission must reduce the amount it would otherwise order under section (1) by the appropriate amount in accord with the misconduct.
Now, I go back just a step to say this is a breach of the most egregious kind and we say there should be no order for compensation, even if you think the dismissal was harsh. I don’t think there’ an authority on this, but even if you think the dismissal is - - -
THE COMMISSIONER: Yes, there are authorities.
MR ADDISON: Is there?
THE COMMISSIONER: Remedy is totally discretionary.
MR ADDISON: Yes. Anyway, we say - - -
THE COMMISSIONER: And you don’t have to give a remedy even if there is a finding of harsh, unjust or unreasonable dismissal.
MR ADDISON: True, Commissioner. That’s right. You are right. You remind me. We say the misconduct was of such a nature, the misconduct of this applicant was of such a nature, that even if you come to the conclusion it was harsh - and you might. Twenty years’ employment is a long time. The applicant’s circumstances have been set out by his representative. I don’t think there’s any evidence with regards to those particular circumstances so I’m not sure of the basis of that submission, but I can well imagine that the applicant is not in the best position in the world, but even if you come to the view that it’s harsh, we say the misconduct is of such a nature that no remedy should flow. Commissioner, just bear with me one second. Commissioner, they’re the submissions for the respondent.” 42
[38] The appellant therefore reaped that which it sowed. The Commissioner accepted that the misconduct as found contributed to the appellant’s decision to dismiss the respondent and reduced the amount of compensation by half. 43 It is clear that the Commissioner correctly turned his mind to the other factors set out in the s.392 of the FW Act. The Commissioner’s assessment of the relevant matters is as follows:
“[193] An amount of compensation is to be calculated by the Commission taking into account all of the circumstances of the case including the specific criteria in s.392(2)(a) to (g) inclusive but without including any amount proscribed by s.392(4).
[194] A concession was properly made by Mr Addison for Epworth Healthcare that an order for compensation would not affect the viability of Epworth Healthcare. (PN6908)
[195] If Mr Selcuk had not been dismissed it is very clear to the Commission that Mr Selcuk would have remained in employment with Epworth Healthcare for many years. Even if Mr Selcuk had been given a First and Final Warning and even if Mr Selcuk had been removed from afternoon shift and placed on day shift and even if Mr Selcuk had accepted a voluntary demotion all of the evidence before the Commission points to Mr Selcuk working for Epworth Healthcare for many years.
[196] The evidence of Mr Lu was that Mr Selcuk was a very good worker but that he did cleaning work that he should have allocated to others. Mr Selcuk’s own evidence was that he constantly did cleaning tasks and other hands on work when he saw the need. Mr Selcuk described his relationship with his work and work colleagues as: “That place is like my home. That's like family to me.” In closing submissions Mr Vasilars, in the context of the issue of reinstatement, said: “He would even be prepared to return to work on a lesser paying role. That’s how bad he wants to go back to Epworth.
[197] The very fact that Mr Selcuk has been employed with Epworth Healthcare for 20 years is a relevant matter in considering how long Mr Selcuk would have continued to be employed if he had not been dismissed and assists the Commission in coming to a concluded view that Mr Selcuk would have remained in employment for many years.
[198] Using the current base rate for a General Services Supervisor without shift allowances or any other allowance Mr Selcuk, if he had continued to be employed by Epworth Healthcare for at least the next 5 years, would have earnt at least $270,000. Even if Mr Selcuk had voluntarily accepted a demotion to an Environmental Services Assistant position Mr Selcuk would have earnt over $206,000 in the next 5 years. This latter figure is the appropriate figure to use for the purpose of s.392(2)(c).
[199] Mr Selcuk gave evidence that he had made efforts to mitigate the loss he has suffered because of the dismissal. The Commission accepts that the efforts made by Mr Selcuk were appropriate and that no reduction should be made to the amount of compensation which would otherwise be calculated.
[200] Mr Selcuk gave evidence that he had earnt nothing since his dismissal and was not likely to earn any money in the period up to the payment of any compensation in this matter. I accept the submission from Mr Vasilaras that Mr Selcuk’s prospects for gaining paid employment are quite low.
[201] There are no other matters that the Commission considers relevant to the calculation of an amount of compensation under s.392(2).
[202] The initial value of an amount of compensation that should be paid to Mr Selcuk is $206,000 and this amount does not include any component for shock, distress or humiliation, or other analogous hurt, caused to Mr Selcuk by the manner of the dismissal. The specific criteria in s.392(2)(b), (d), (e), (f) or (g) do not require any alteration to be made to the initial amount of compensation.
[203] Any amount of compensation must be reduced if the Commission is satisfied that misconduct of Mr Selcuk contributed to Epworth Healthcare’s decision to dismiss Mr Selcuk. The findings made by the Commission in relation to the misconduct of Mr Selcuk lead to the proper conclusion that the misconduct of Mr Selcuk did contribute to the decision of Epworth Healthcare to dismiss Mr Selcuk.
[204] In the present matter s.392(3) requires that an appropriate reduction be made to the amount of compensation that the Commission would otherwise order be paid to Mr Selcuk. I would reduce the amount of compensation to be paid by half.
[205] The amount of compensation that should be ordered to be paid to Mr Selcuk is $103,000. This amount however is greater than the compensation cap set by s.392(5) and (6). The maximum amount of compensation that can be awarded to Mr Selcuk is $32,500.” 44[Endnotes omitted]
[39] The appellant did not point to any error of fact or principle in the Commissioner’s assessment of compensation recited above. Absent any such error, and given the limited submissions made by the appellant during the first instance proceedings, the appellant’s submission that the Commissioner erred in his assessment and calculation of compensation is best described as ambitious.
[40] For the reasons given the appellant has not made out an arguable case for any appealable error. Moreover there is nothing in the appellant’s submissions made during the hearing of the application for permission to appeal that would suggest that some issue of importance or general application is to be agitated in the appeal; or that there is a diversity of decisions at first instance such that guidance from a full bench is required; or that 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. The appellant’s appeal is no more than an indication of its dissatisfaction with the result at first instance. The public interest is therefore not enlivened.
[41] 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. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
PRESIDENT
Appearances:
The Appellant: Mr M Addison, Solicitor
The Respondent: Mr A Vasilaras, Solicitor
Hearing details:
Melbourne
19 March 2015
1 [2015] FWC 437
2 Ibid at [181]
3 Ibid at [182]
4 Ibid at [183]
5 Ibid at [189]-[191]
6 Ibid at [192]
7 Ibid at [205]
8 PR560199
9 (2011) 192 FCR 78 at paragraph 43
10 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
11 (2010) 197 IR 266 at paragraph 27
12 Wan v AIRC [2001] FCA 1803 at [30]
13 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] at the
14 (1984) 156 CLR 605 at 614
15 [1950] HCA 52; (1950) 81 CLR 513, at p 519
16 Ibid at 614
17 [2015] FWC 437 at [180]
18 Submissions of the appellant at [22]
19 Ibid at [23]-[24]
20 Ibid at [25]
21 Ibid at [26]- [28]
22 See notice of appeal ground 12
23 Submissions of the appellant at [29] – [30]
24 [2015] FWC 437 at [166]-[169]
25 Ibid at [163]-[165]
26 Submissions of the appellant at [25]
27 AB862
28 AB814 at [39]
29 AB814 at [40]
30 AB718
31 [2015] FWC 437 at [146]-[147]
32 Ibid at [174]
33 Ibid at [170]-[175]
34 Ibid at [144]-[145]
35 Ibid at [146]-[147]
36 Ibid at [183]
37 Ibid at [181]
38 Ibid at [182]
39 (1995) 185 CLR 410
40 Ibid at 465
41 [2015] FWC 437 at [174]-[176] and [183]
42 AB 707, at transcript PN 7030-PN7037
43 [2015] FWC 437 at [204]
44 Ibid at [193]-[205]
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