Frances Bertrand v Navitas Professional Institute Pty Ltd
[2015] FWCFB 6833
•6 OCTOBER 2015
[2015] FWCFB 6833
The attached document replaces the document previously issued with the above code on 6 October 2015 and corrects typographical errors made in paragraphs [1]-[2] of the decision.
Shomaice Zowghi
Associate to Vice President Catanzariti
Dated 6 October 2015.
| [2015] FWCFB 6833 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Navitas Professional Institute Pty Ltd
(C2015/4092)
VICE PRESIDENT CATANZARITI | SYDNEY, 6 OCTOBER 2015 |
Appeal against decision [2015] FWC 3147 of Deputy President Sams at Perth on 7 May 2015 in matter number U2014/6268 – Application for permission to appeal – Permission to appeal refused - Fair Work Act ss. 394, 400 and 604.
[1] This decision concerns an application for permission to appeal against a Decision and Order 1 of Deputy President Sams issued on 7 May 2015. The Decision2 concerned an unfair dismissal application lodged by Ms Frances Bertrand on 24 November 2014pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the cessation of her employment with Navitas Professional Institute Pty Ltd (Navitas) on 31 March 2014.
[2] Ms Bertrand represented herself. Mr Ratu represented Navitas with permission of the Full Bench (which was not opposed by the applicant).
Background
[3] Ms Bertrand’s employment as the Head of Student Learning Support with Navitas ended, Navitas submitted, by reason of Ms Bertrand’s position being declared redundant as a result of a restructure. Ms Bertrand filed an application for an unfair dismissal remedy disputing that the termination of her employment was a “genuine redundancy”. Ms Bertrand sought reinstatement.
[4] Deputy President Sams considered the evidence of the three witnesses and all of the material filed in the proceedings. He made relevant findings of fact. He applied the statutory criteria relevant to assessing whether the termination of the applicant’s employment was a genuine redundancy under section 389 of the FW Act.
[5] When applying the relevant criteria the Deputy President engaged in a detailed consideration of the relevant legal authorities as they apply to redundancies, his factual findings and the submissions of the parties.
[6] Having considered all the material before him, Deputy President Sams determined that “the applicant’s dismissal was a case of ‘genuine redundancy’ within the meaning of s.389 of the [FW] Act” 3 and dismissed the application. In coming to his conclusion, the Deputy President found that,
a) “the rationale for the restructure of the SLS service was soundly based, educationally positive, in the best interests of the students and a sensible business decision.” 4
b) “Navitas no longer required the applicant’s job to be performed by anyone because of changes in the operational requirements of the Colleges.” 5
c) “Given the applicant’s intransigence and non-acceptance of the factual reality, there was nothing more the College could have done to fulfil its consultation obligations under the Award and the [FW] Act.” 6
d) “Navitas … complied with its consultation obligations.”
e) “The two roles were substantially different both in scope of skills and responsibilities required.” 7
f) “… it would not have been reasonable, in all the circumstances, the applicant to be redeployed to another position within the Colleges.” 8
Grounds of Appeal
[7] Ms Bertrand’s Notice of Appeal identified eight grounds of appeal, including that the Deputy President:
a) ought to have disqualified himself from hearing the case on the ground of real and or apprehended bias;
b) erred in:
i. finding that Navitas had fulfilled its obligation to consult in relation to the redundancy;
ii. denying Ms Bertrand natural justice by refusing her an opportunity to respond to attacks on her credibility made by Navitas in its final written submissions;
iii. allowing Navitas to be legally represented;
iv. in his factual findings;
v. requiring Ms Bertrand answer a question in respect of which she claimed the privilege against self-incrimination;
vi. in excluding evidence from a LinkedIn profile; and
vii. failing to draw an adverse inference against the respondent because it failed to call a particular witness.
[8] Ms Bertrand also filed very detailed submissions expanding upon the grounds of appeal contained in her Notice of Appeal. We have had regard to those submissions which addressed:
a) the employer’s redundancy obligations;
b) the principles relevant to the privilege against self-incrimination;
c) what was said to be significant errors of fact;
d) what was said to be actual or apprehended bias on behalf of the Deputy President;
e) permission to be represented in proceedings before the Fair Work Commission; and
f) an applicant’s right of reply
[9] In essence, however, Ms Bertrand’s grounds of appeal amount to a dispute concerning the factual findings of the Deputy President about whether:
a) Navitas no longer required her job to be performed by anyone because of operational requirements;
b) Navitas complied with its consultation obligations; and
c) she could have been redeployed into a new, more senior position.
Permission to Appeal
[10] 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 s.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.”
[11] 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’.
[12] The test for determining the public interest has been described as follows: 10
“[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.”
[13] 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. 11 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Deputy President 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:12
“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.”
Public Interest
[14] In her Notice of Appeal Ms Bertrand set out a number of matters which she believed invested the matter with public interest such that we should grant her permission to appeal. Ms Bertrand submitted there was public interest in:
a) the public having confidence in the Commission hearing and determining cases impartially;
b) upholding the fundamental right of a witness to not incriminate themselves;
c) findings and decisions of the Commission being reasonable;
d) the Commission not granting a party permission to be represented unless it does so in accordance with s.596 of the FW Act;
e) the Commission respecting and upholding fundamental legal principles and conducting its proceedings in accordance with the FW Act;
f) the Commission determining that an employer’s consultation obligations have been followed (only if they have in fact been followed);
g) the Commission clarifying its position in respect of the requirement of impartiality of its members, natural justice, and legal representation should be granted against self-represented parties, the admission of relevant evidence and what must occur for a dismissal to be found to be a genuine redundancy.
[15] Before us Ms Bertrand substantially confined her oral submissions to the issue of the privilege against self-incrimination. She correctly observed that the privilege has been long recognised as a fundamental legal right and that the FW Act does not expressly remove the right. Ms Bertrand asserted that the Deputy President had required her to answer a question (which she refused to answer) and that the Deputy President to a large extent based his reasons for decision on her refusal to answer that question in circumstances where he was not entitled to draw an adverse inference against her because she had relied upon the privilege against self-incrimination.
[16] We explored with Ms Bertrand how she thought the self-incrimination privilege issue was a factor in the reasoning of the Deputy President in so far as he was required to determine the statutory elements of a genuine redundancy. Having provided Ms Bertrand with the opportunity to explain the link between the finding of credit made by the Deputy President and the findings made by the Deputy President in relation to s.389 we are not satisfied that Ms Bertrand has established any such link. We consider the finding of credit made by the Deputy President was of marginal relevance and not significant in terms of determining whether there was a genuine redundancy. The issue of credit was not of critical importance to the substantive reasoning of the Deputy President. The self-incrimination privilege point advanced by Ms Bertrand does not invest this matter with public interest.
[17] Having considered all the material before us in the appeal we are also not persuaded that any aspect of the decision of the Deputy President:
a) raises issues of importance and general application;
b) involves matters where there is a diversity of decisions at first instance so that guidance from a Full Bench of the Commission is required;
c) manifests an injustice;
d) is counter intuitive; or
e) is one where the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
Conclusion
[18] It is clear that Ms Bertrand disagrees with the conclusions reached by the Deputy President. Further, Ms Bertrand is clearly disappointed by the findings as to her credit. However, that disappointment or disagreement cannot be the basis of a successful appeal.
[19] The decision of the Deputy President contains a detailed and comprehensive consideration of the conflicting evidence and the application of the FW Act and authorities concerning redundancy. All of his findings of fact were open to the Deputy President on the material before him. There is no identifiable and significant error in those findings. The public interest is not enlivened by dissatisfaction with an outcome where there is no appealable error.
[20] We are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is refused and the application to appeal is dismissed.
VICE PRESIDENT
Appearances:
F. Bertrand, on her own behalf.
Mr Ratu for the respondent.
Hearing details:
2015.
July 14.
Sydney.
1 PR567118.
2 [2015] FWC 3319.
3 Ibid at para [271].
4 Ibid at para [243].
5 Ibid at para [245].
6 Ibid at para [258].
7 Ibid at para [268].
8 Ibid at para [269]
9 (2011) 192 FCR 78 at paragraph 43.
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343
11 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
12 Ibid.
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