Grove v Help Enterprises
[2014] FWCFB 6288
•15 SEPTEMBER 2014
| [2014] FWCFB 6288 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Help Enterprises
(C2014/4875)
VICE PRESIDENT CATANZARITI | SYDNEY, 15 SEPTEMBER 2014 |
Appeal against decision [2014] FWC 3168 of Senior Deputy President Richards at Brisbane on 21 May 2014 in matter number U2013/16788.
[1] This is an appeal by Mrs Linda Grove (the Appellant) against a decision 1 (Decision) of Senior Deputy President Richards in relation to an application that the Appellant made under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for what she contended was an unfair dismissal.
[2] The Senior Deputy President found that, in the circumstances, the Appellant’s dismissal was not harsh, unjust or unreasonable and that therefore there was no unfair dismissal. As a result, the Senior Deputy President dismissed the Appellant’s application.
[3] At the hearing of this appeal, the Appellant was not represented. Help Enterprises (the Respondent) sought permission to be represented by Mr A Harding of Counsel. Permission was granted on the basis that doing so would enable the matter to be dealt with more efficiently. While the matter was not significantly complex, the circumstances of the matter, including the nature of the Appellant’s submissions, created a sense of complexity in identifying the Appellant’s argument and formulating an appropriate response such that we were satisfied that permission to be represented should be allowed.
Background
[4] The Appellant was employed by the Respondent on 3 April 2013 as a full time Senior Employment Consultant. Her employment was terminated on 11 December 2013. The employer claimed that the reason for her termination was that her position was no longer required due to a restructure of the enterprise.
[5] While the employer contended that the Appellant’s position was no longer required, it did not press a claim under s.389 of the Act. Thus, the Senior Deputy President did not determine whether or not there was a genuine redundancy as defined by s.389. The Senior Deputy President considered all of the factors he was required to consider under s.387 of the Act and concluded that, in all the circumstances, the dismissal was not harsh, unjust or unreasonable and therefore that the application should be dismissed.
The Appeal
[6] The Appellant’s primary contention on appeal is that she was denied procedural fairness on the basis that there were witnesses who she would have liked to compel to attend the Fair Work Commission (the Commission), but the Senior Deputy President did not allow the Appellant to compel the attendance of all of these witnesses. It is the Appellant’s submission that had these witnesses been in attendance, the Appellant would be able to prove that the true reason for her dismissal was that she had exposed a fraud that had occurred within the organisation.
[7] The Senior Deputy President made the following findings in relation to the Appellant’s submissions on the fraud issue:
“Ms Grove may contend that the decision making was unnecessary and that her role should not have been displaced for reasons of the creation of additional management positions at the Nundah site. But in the end, it is the prerogative of management to determine the structure of the business and how it might contribute to its effective operation. There is nothing in the evidence whatsoever to suggest that the decision-making in this regard had as its purpose or had as a collateral purpose the intention to bring about the dismissal of Ms Grove. Ms Grove sought to locate such a motive on the part of her employer at times over the hearing - by reference to a fraud concern she alleged she had communicated. But none of this was in any way sustainable as a proposition of fact and the witness evidence made that so: the decision making of the employer was driven by operational need with negligible regard - if that - for any (claimed) past complaint (if it was that).”
[8] It is clear from the Deputy President’s decision that he considered the fraud issue as alleged by the Appellant, and that evidence was received in relation to this issue. Despite the Appellant’s submission that further witness evidence would have led to a different result, the Appellant provided no basis on which to conclude that the further witness evidence might lead to a different conclusion. The only reason put forth by the Appellant for having further witnesses in attendance at the first instance hearing was that the CEO of the Respondent would likely be interested in hearing of the Appellant’s fraud allegations. This submission misapprehends the purpose of having a witness attend a hearing in the Commission. Witnesses are called in order to provide evidence, not to ensure that they witness the proceedings taking place before the Commission.
[9] The proper test in relation to an alleged denial of procedural fairness of this nature was set out by the High Court of Australia in Stead v State Government Insurance Commission 2 as follows:3
“The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board, in these terms:
‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’
That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”
(Citations omitted)
[10] A Full Bench of this Commission recently considered the issue with respect to the refusal of an adjournment request as follows: 4
“The Appellants need not establish that the evidence that would have been adduced by the CFMEU if an adjournment had been granted would have affected the decision, they need only establish that the failure to grant an adjournment deprived them of the possibility of a successful outcome.”
(Citations omitted)
[11] In circumstances where it is not clear that there is any relevant evidence that could be provided by the witnesses who were not compelled to attend the Commission, we are not satisfied that the Appellant was not afforded procedural fairness. However, even were the Appellant to have been denied procedural fairness, we are not satisfied that she has established that not having the witnesses in attendance deprived her of the possibility of a successful outcome.
[12] The Appellant further submitted that the Senior Deputy President erred in not placing sufficient emphasis on the following factors in considering his decision:
● The proximity between the date of the reporting of the alleged fraud and the date of the Appellant’s dismissal;
● That the Appellant was the only person made redundant at that time; and
● That a new position was created shortly after the Appellant’s dismissal that was, in the Appellant’s submission, substantially similar to her role.
[13] We are not satisfied that the Senior Deputy President has made an error either of law or of fact in relation to the above issues. We are satisfied that the Senior Deputy President adequately addressed the relationship between the Appellant’s fraud allegation and her termination as extracted above. The Senior Deputy President addressed the new role that was created subsequent to the Appellant’s dismissal as follows:
“True it is that subsequent positions became available in January/February 2014. But at the time of the decision making in relation to Ms Grove’s position, those positions were not available. As is set out above, prospective staffing vacancies were suspended until such time as the new General Manager was provided an opportunity to consider how and if those vacancies might be acted upon or otherwise reconsidered. As it was, the incoming General Manager created a new position on the basis of her assessment of the needs of the organisation. And other vacancies only emerged after the termination - as I have discussed above.” 5
[14] We are not satisfied that any error can be found in the Senior Deputy President’s reasoning as set out above. Further, while the Appellant submits that she was the only person made redundant at the time, it is clear from the evidence that the Respondent was in the process of a significant restructure and there were a number of changes being made to the composition of the Respondent’s workforce. In any event, even if the Appellant were the only person to be made redundant during the course of the Respondent’s restructure, that would not be a sufficient basis on which to find that the dismissal was unfair, unjust or harsh given the totality of the evidence before the Senior Deputy President.
[15] The Appellant identified a number of other grounds of appeal in her Notice of Appeal that were not referred to in oral argument. The Appellant submitted that the conciliations that took place prior to the hearing before the Senior Deputy President were handled incorrectly and that the matter never should have gone to hearing. This is not an appropriate ground of appeal. Any conciliation process that occurred prior to hearing is not the subject of this appeal. We note that a formal complaint has been made via the appropriate channels. In these circumstances, it would not be appropriate to comment further on this issue.
[16] The Appellant made various submissions around the fact that the dismissal occurred prior to Christmas, and that she had pre-approved leave planned for the week after her termination. The Senior Deputy President addressed the expedited timeframe of the Appellant’s dismissal in his Decision 6 and we can see no error in his reasoning.
[17] Finally, the Appellant made repeated reference to the fact that there were no issues with her work performance and that she was recognised on a number of occasions for her job performance. However, this was never a contested issue. The evidence below shows that the dismissal was not related to any unsatisfactory performance on the Appellant’s behalf. This was expressly found to be the case by the Senior Deputy President, 7 and we can see no error in His Honour’s reasoning in relation to this issue.
Conclusion
[18] Section 604(1) of the Act requires the permission of the Commission in order to appeal a decision made by the Commission. In order to grant the Appellant permission to appeal, we must be satisfied that it is in the public interest to do so. 8 In GlaxoSmithKline Australia Pty Ltd v Colin Makin9 a Full Bench summarised the concept of public interest in the following terms:
“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...”
[19] We are not satisfied that it is in the public interest to grant the Appellant permission to appeal the Decision of the Senior Deputy President at first instance. The conclusions reached by the Commissioner were reasonably open to him, and we are not satisfied that the Senior Deputy President has made an error of the kind described in House v The King. 10 There is, therefore, no utility in allowing permission to appeal.
[20] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
L Grove appeared on her own behalf.
A Harding for Help Enterprises.
Hearing details:
2014.
Brisbane:
September 4.
1 Mrs Linda Grove v Help Enterprises[2014] FWC 3168.
2 (1986) 161 CLR 141.
3 Ibid 145.
4 Construction, Forestry, Mining and Energy Union [2014] FWCFB 174, [38].
5 Mrs Linda Grove v Help Enterprises[2014] FWC 3168, [49].
6 Ibid [47]–[52].
7 Ibid [36].
8 Fair Work Act 2009, s.400(1).
9 [2010] FWAFB 5343 at [27].
10 House v The King (1936) 55 CLR 499.
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