Janine Budden v Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust T/A Fused Cafe Pender Place
[2016] FWCFB 4920
•27 JULY 2016
| [2016] FWCFB 4920 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust T/A Fused Cafe Pender Place
(C2016/2721)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 JULY 2016 |
Appeal against decision [2016] FWC 562 of Commissioner Saunders at Newcastle on 8 February 2016 in matter number U2015/13072 - no public interest in appeal identified -permission to appeal refused.
[1] Finke Enterprises Pty Ltd (the Respondent) dismissed Ms Janine Budden (the Appellant) from its employment on 21 September 2015 for reasons relating to the Appellant’s conduct. At the time of her dismissal, the Appellant had been employed for a period of approximately 7.5 months as a part time cook.
[2] The Appellant applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
[3] The Appellant’s unfair dismissal remedy application was heard and determined by Commissioner Saunders, who issued a decision on 8 February 2016 1 in which the Commissioner found that the Respondent had a valid reason to dismiss the Appellant based on her conduct. He concluded that the Appellant’s dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Act2 , and dismissed the application.3
[4] The Appellant seeks permission to appeal the Commissioner’s decision and that is the matter before us.
Consideration
[5] The appeal is one to which s.400 of the Act applies. 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’. 4 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[6] The task of assessing whether the public interest test is met, is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin6 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.” 7
[7] 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. 8 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.9
The Appellant’s grounds for appeal and submissions
[8] The Notice of Appeal lodged by the Appellant contains 21 grounds that are said to demonstrate significant errors of fact, and 5 grounds said to enliven the public interest. In accordance with Directions issued on 10 June 2016, the Appellant filed submissions in the form of a document which comprised 4 typed pages outlining what she believed to be public interest issues and errors of fact made by the Commissioner.
[9] The Notice of Appeal and submissions raise a number of matters that were agitated before Commissioner Saunders. During the hearing of this appeal, the Appellant stated that:
“I’ve come here today to lodge an appeal to clear my name. I feel strongly about the whole situation and I believe I have a case………and I’m just going to recap from September 10th……”
[10] The Appellant then proceeded to restate her version of events relating to the termination of her employment.
[11] It is clear that the Appellant disagrees with the conclusions reached by Commissioner Saunders. However that disagreement cannot be the basis of a successful permission to appeal application. An arguable case of appellable error needs to be shown and/or the public interest must be enlivened.
[12] There were two further matters raised by the Appellant during the appeal relating to the statutory declarations filed by the Respondent in the proceedings before Commissioner Saunders.
[13] First, the Appellant submitted that Mrs Carlson of the Respondent had inappropriately obtained statutory declarations from staff to support the Respondent’s case. This conduct was said to involve Mrs Carlson putting “all of girls…in one room on the 16 November and had the stat decs done together”. 10
[14] Second, the Appellant argued that the Commissioner had had regard to a statutory declaration of Ms Cormick, who at the time of the hearing was no longer employed by the Respondent and was not available for cross examination.
[15] It is clear that the staff for whom statutory declarations were admitted into evidence, were present at the hearing and available for cross examination. It is also clear that the Commissioner did not have regard to the statutory declaration of Ms Cormick. 11 We are not persuaded that an arguable case of appellable error is made out in this regard.
[16] We have given careful consideration to the issues raised by the Appellant. In our view, the matters upon which the Appellant relies do not demonstrate an arguable case for appellable error. The Commissioner’s decision contains a detailed and comprehensive consideration of the conflicting evidence and the application of the Act. There does not appear to us to be anything irregular in the Commissioner’s approach. The appeal is effectively a statement of dissatisfaction with the conclusions and findings of the Commissioner.
[17] We are therefore not persuaded that the Appellant has made out an arguable case for any significant error of fact on the part of the Commissioner.
[18] Further, the public interest is not enlivened by dissatisfaction with an outcome where there is no appealable error. None of the matters on which the Appellant relies as public interest grounds persuade us that the public interest is enlivened. On that basis, and as there are no other matters that enliven the public interest, we decline to grant permission to appeal.
[19] We make the following order:
1. Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
J Budden, on her own behalf.
L Carlson for the Respondent.
Hearing details:
2016.
Sydney:
July 12.
1 [2016] FWC 562.
2 Ibid at [66].
3 Ibid.
4 (2011) 192 FCR 78 at [43].
5 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 [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
6 (2010) 197 IR 266.
7 Ibid at [27].
8 [2001] FCA 1803 at [30].
9 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].
10 PN207.
11 [2016] FWC 562 at [24], foonote 2.
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