Isatu Sesay v Connecting Families Disability Services Pty Ltd
[2023] FWCFB 109
•18 AUGUST 2023
| [2023] FWCFB 109 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Isatu Sesay
v
Connecting Families Disability Services Pty Ltd
(C2022/6563)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 18 AUGUST 2023 |
Appeal against decision of Deputy President Easton at Sydney on 8 September 2022 in matter number U2022/2182 – permission to appeal refused.
Ms Sesay has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] and associated order[2] of Deputy President Easton issued on 8 September 2022, for which permission to appeal is required.
Ms Sesay filed a Notice of Appeal on 27 September 2022. A hearing to deal with permission to appeal was initially listed 6 December 2022. That date was vacated at Ms Sesay’s request. The matter was subsequently relisted before us to 4 July 2023. At that hearing, Ms Sesay requested a further adjournment. The reason for the adjournment was that Ms Sesay had anticipated appearing with a designated ‘support person’ to assist her. It appears – although the explanation was unclear – that Ms Sesay’s support person did not wish to assist any further and only made that known to Ms Sesay at the last minute. Ms Sesay was granted an opportunity to provide further written material. The matter was ultimately relisted for hearing on 17 August 2023.[3]
The decision under appeal
The Deputy President’s decision concerned an application, brought by Ms Sesay, for an unfair dismissal remedy against the respondent, Connecting Families Disability Services Pty Ltd, pursuant to s 394 of the Act.
Ms Sesay’s employment commenced on 15 July 2021 and ended six months and 17 days later on 31 January 2022.[4] The Deputy President dismissed Ms Sesay’s application because he found Ms Sesay had not met the ‘minimum employment period’ of six months under the Act, due to a series of ‘unauthorised absences’ that could not be counted toward the six month minimum period of service.
The decision records that Ms Sesay did not work between 30 November 2021 and the termination of her employment on 31 January 2022, save for a brief attendance at a training seminar on one occasion in December 2021.[5] There was no substantive challenge by Ms Sesay about these dates, although we note that the decision records that the respondent’s position was that the final day actually worked was 28 November 2021. The Deputy President assumed for the purpose of his decision that the last date was 30 November 2021, a point in Ms Sesay’s favour.
In her Notice of Appeal, the period of absence in December 2021 and January 2022 is not challenged. What was in dispute was whether Ms Sesay filed medical certificates to cover the period of absence from 30 November 2021 until her dismissal. The decision records[6] there was a factual dispute as to whether any of Ms Sesay’s medical certificates for the period of absence in January 2022 were submitted during that period or were only submitted on 31 January 2022, being the day her employment was terminated.
At the hearing before the Deputy President, Ms Sesay was provided a further opportunity[7] to tender any evidence to prove that she had provided medical certificates or psychologists reports to Ms Irma Sabic (an employee called as a witness by the respondent) or anyone else. During the course of the hearing, she (re)submitted emails and medical certificates that she had already filed.
We note from the Digital Court Book prepared for the hearing before the Deputy President that Ms Sesay included medical certificates for various periods prior to her dismissal, dated as follows (copies of which were included in the court book):
· 26 October 2021 (2 days)
· 4 November 2021 (4 days)
· 7 November 2021 (4 days)
· 10 November 2021 (2 days)
· 12 November 2021 (3 days)
· 16 November 2021 (2 days)
· 19 November 2021 (4 days)
· 8 December 2021 (3 days)
· 19 January 2022 (3 days)
· 31 January 2022 (7 days beginning 29 January 2022).
For the period from 30 November 2021 onwards, in which Ms Sesay was absent save for one brief training event, the Deputy President made the following findings:
· The absence from 30 November 2021 onwards was not a period of authorised leave.
· The only medical certificates possibly provided during the period of absence in December 2021 and January 2022 were the three certificates in the above list (highlighted in bold for reference) dated 8 December 2021, 19 January 2022, and 31 January 2022.
In relation to the question of whether Ms Sesay’s leave was authorised, the Deputy President reviewed various email correspondence from the respondent to Ms Sesay. It is unnecessary to set them out but, in summary, Ms Sesay had been directed to perform work at a different location due to complaints that had been made about her at her original location. Ms Sesay’s employment contract was found to expressly allow such directions. It is sufficient to note that an email sent on 6 December 2021 referred to such matters before stating that “The scheduling team have also offered you work elsewhere however you have declined.”[8]
The author of the email sent on 6 December 2021 also stated that “I have advised the payroll team to process your leave should you have enough accrued hours.” The Deputy President rejected an argument from Ms Sesay that the sentence just quoted was proof that Ms Sesay was on authorised sick leave.
The Deputy President also considered the competing testimony of Ms Sesay and Ms Sabic. It seems tolerably clear to us that the Deputy President preferred the evidence of the respondent to the evidence of Ms Sesay on both the question of whether Ms Sesay’s absences in December 2021 and January 2022 were authorised and to the (non-)receipt of medical certificates.[9]
Nonetheless, on the question of medical certificates, the Deputy President was prepared to accept (in Ms Sesay’s favour)[10] that the three medical certificates referred to in December 2021 and January 2022 had been submitted at around the date of those documents. Even making those assumptions, the Deputy President found that the remaining period of unauthorised absences totalled 34 days between 30 November 2021 and 31 January 2022. Deducting those 34 days from the total period of Ms Sesay’s employment (being six months and 17 days), the Deputy President found that Ms Sesay was employed for less than six months in total for the purpose of s 22 and s 384 of the Act.
For completeness, we note in Ms Sesay’s appeal material that she states that her last day of work before being absent due to illness was 6 December 2021 (not 30 November 2021). That assertion did not form part of Ms Sesay’s appeal grounds, described below, but even if that later date was accepted, it would not alter the arithmetic regarding the Deputy President’s conclusion that Ms Sesay did not complete the minimum employment period.
Ms Sesay’s application was accordingly dismissed, as the Deputy President found he did not have jurisdiction to hear the matter.
Principles – permission to appeal
An appeal under s 604 of the 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.[11] There is no right to appeal and an appeal may only be made with the permission of the Commission.
By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the Act, which includes an application for an unfair dismissal remedy.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] The public interest is not satisfied simply by the identification of error,[13] or a preference for a different result.[14] 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...”[15]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[16] This is so because an appeal cannot succeed in the absence of appealable error.[17] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[18] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Fresh evidence
The documentary material, including witness statements, before the Deputy President was contained in the Digital Court Book prepared by his chambers, which we have considered.
As part of her material, Ms Sesay has also lodged numerous emails, many with attachments. Unhelpfully, there is a vast amount of duplication in her material, not simply due to the same document being submitted multiple times but also because materially identical paragraphs and written argument were reproduced across different documents.
Some of that material appears to be new. It was not clear to us how much of Ms Sesay’s material on appeal was potentially ‘new’ - although it appears limited - that she also intended to submit as new evidence (as opposed to submission).
In addition to the material we have described above, Ms Sesay filed a statement on 22 July 2023, which was clearly a new document. The statement attached various academic records from Ms Sesay’s studies, which were also new documents not before the Deputy President.
Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information” on appeal, however it is by no means a matter of course that it will do so.
It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank.[19] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.[20]
It has been recognised by Full Benches of the Commission that, in considering whether to exercise the discretion in s 607(2), it is permissible in an appropriate case to depart from the principles set out in Akins and the principles need not be strictly applied.[21]
However, the Full Bench decisions referred to indicate it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.
We are prepared to have regard to Ms Sesay’s written statement filed 22 July 2023 as submission. So far as Ms Sesay’s various written submissions or any other material were intended to be relied upon as fresh evidence, we do not admit it, as we are not satisfied that the requirements of Akins are met or that the material is otherwise appropriate to admit.
Grounds of appeal
In a document titled “Appeal against decision regarding unfair dismissal of Isatu Sesay”, Ms Sesay describes the following two broad grounds of appeal:
Ground 1
“I am appealing against this decision because I have submitted all of my medical certificates both to my former workplace and to [the Associate] (the Associate to Deputy President Easton). Ms. Sabic claimed that she did not receive medical certificates from me – however, she emailed me to submit my annual leave documents in lieu of sick leave, which I did. [The Associate] did not add all of my medical and psychology certificates into the digital calendar for Deputy President Easton. Please see copy of digital calendar as opposed to the medical certificates provided. I called [the Associate] on several occasions out of concern that she had not added all of my medical certificates to the calendar – however she was not polite to me and she hung up the phone on me on several occasions.
I have evidence that I supplied all certificates for November 2021, December 2021, January 2022, and Febuary 2022 (including psychology reports) even though I was still working until 6th December 2021. Please see attached all of my medical certificates that were tendered both to the Commission and to the Human Resource Department (Ms. Sabic) of Connecting Families.”
Ground 2
“Regardless of whether I worked for 6 months and 17 days of employment, factors relating to workplace stress and bullying should be taken into consideration for this legal decision. According to The Fair Work Act (2009), people have the right to feel safe at work and not be subjected to bullying and harassment. Additionally, I state that I did submit all required medical certificates to my place of former employment (please find attached), and that my former employers have mendaciously lied about this.”
The reference to the “digital calendar” described in ground 1 is evidently a reference to the “Digital Court Book” circulated by the Deputy President’s chambers to the parties prior to the hearing of the matter before him.
Consideration
While grounds 1 and 2, above, raise different issues, we do not consider that either ground discloses an arguable case of appealable error nor do we consider it would be in the public interest to grant permission to appeal for either ground. We will briefly state our reasons why.
For ground 1, the issue raised is whether or not there were medical certificates submitted to cover the full period of December 2021 and January 2022. The Deputy President’s factual findings were that, at most, only three certificates were issued. Those were the three certificates described at paragraph [33] of the decision and bolded at paragraph [8] above.
It is well established that an appellate body will not interfere with the factual findings of a trial decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[22]
Far from there being a suggestion that the Deputy President erred, he was, if anything, overly generous to Ms Sesay by his willingness to accept that those three certificates had been submitted at around the date of each document. No other medical certificate was shown to the Deputy President nor further certificate sought to be admitted on appeal.
While Ms Sesay does not appear to expressly challenge the allied finding that, during December 2021 and January 2022, she was on unauthorised leave, there is no arguable basis to conclude the Deputy President’s factual findings about that matter (which were based upon the testimony of Ms Sabic and documentary evidence) were wrong, let alone contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.
It follows that the Deputy President’s conclusion about the period of relevant service being less than six months was a simple question of arithmetic. Noting that the total period of employment was six months and 17 days, the amount deducted from that period which was not authorised leave nor covered by medical certificates brought that period under six months.
A person cannot obtain a remedy for unfair dismissal unless they were ‘protected from unfair dismissal’ at the time they were dismissed: s 390(1). An employee is not ‘protected from unfair dismissal’ unless, at the time they were dismissed, they had completed a period of employment with his or her employer of at least the minimum employment period: s 382(a). For Ms Sesay, the ‘minimum employment period’ was six months, excluding unauthorised leave.
As Ms Sesay had not completed the ‘minimum employment period’, she was not ‘protected from unfair dismissal’ and, for the above reasons, ground 1 discloses no arguable error on appeal.
Ground 2 seeks to argue the substantive merits of an unfair dismissal claim, as though the express requirements of the Act regarding the need to be ‘protected from unfair dismissal’ could be disregarded. We accept – as the Deputy President accepted – that these matters are important to Ms Sesay but they are matters that could only be relevant if Ms Sesay was ‘protected from unfair dismissal’. As there is no arguable basis to suggest Ms Sesay was protected from unfair dismissal, accordingly, ground 2 discloses no arguable error of appeal on any relevant matter.
We have also considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400 that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· the decision manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
We do not consider that any reasonably arguable case has been advanced that the decision of the Deputy President was attended by appealable error. In this case, as we are also not persuaded that it would be in the public interest to grant permission to appeal we “must not” grant permission to appeal: s 400(1).
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
I. Sesay on her own behalf with M. Vanday
A. Chand of Employsure Law Pty Ltd for the respondent
Hearing details:
2023.
Melbourne (by video via Microsoft Teams):
17 August.
[1] [2023] FWC 276.
[2] PR745630.
[3] At the hearing on 17 August 2023, we granted permission for the respondent to be legally represented, being satisfied it was appropriate to do so in accordance with s 596(2)(a) of the Act. The adjournment also required a reconstitution of the Full Bench.
[4] Decision at [3].
[5] Decision at [5].
[6] Decision at [29].
[7] Decision at [32].
[8] Decision at [13] – [27].
[9] Decision at [29] – [32].
[10] Decision at [36].
[11] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[12] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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].
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 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; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[15] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[16] Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267 at 275.
[17] Wan v AIRC (2001) 116 FCR 481 at [30].
[18] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[19] (1994) 34 NSWLR 155.
[20] Cited in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936.
[21] JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [17]; C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11].
[22] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] – [29].
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