Jessica Watson v National Jet Operations Services Pty Ltd
[2022] FWCFB 103
•15 JUNE 2022
| [2022] FWCFB 103 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jessica Watson
v
National Jet Operations Services Pty Ltd
(C2021/7734)
| VICE PRESIDENT CATANZARITI | SYDNEY, 15 JUNE 2022 |
Appeal against decision [2021] FWC 6182 of Deputy President Lake at Brisbane on 22 October 2021 in matter number C2021/3114 – permission to appeal refused.
Background
Ms Jessica Watson (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against a decision (the Decision)[1] of Deputy President Lake issued on 22 October 2021. The Decision concerns an application brought by the Appellant under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions of Part 3-1 of the Act associated with her alleged dismissal by her employer, National Jet Operations Services Pty Ltd (the Respondent).
This matter was listed for permission to appeal only. Accordingly, directions were issued for the filing of material by the Appellant. The Appellant indicated that she consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing, subject to the Full Bench allowing an additional written submission. The Appellant’s additional written submission requested that Full Bench only rely on the material set out in the Appellant’s additional submission and not on the grounds included in her Form F7 Notice of Appeal. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
Decision Under Appeal
The Appellant commenced working for the Respondent on or around 23 January 2013 as a member of their aircraft cabin crew. In October 2020, the Respondent mandated the wearing of facemasks for employees performing duties as cabin crew.
The Appellant disputed the reasonableness of the mask direction, submitting that she could not wear a mask and that the Respondent did not provide any exemptions to the wearing of masks. The Respondent submitted that on the evidence presented to them, they were not satisfied that the Appellant was unable to wear a mask.
Having regard to the circumstances and evidence before him, the Deputy President found that the mask mandate was a lawful and reasonable direction in the context of the COVID-19 pandemic and that the Respondent had a clearly documented exemption process whereby exemptions had been granted in appropriate cases. Accordingly, the Deputy President found that the Appellant was offered the reasonable adjustment of wearing a face shield instead of a mask. Also finding that the Respondent directed the Appellant to attend an independent medical examination (IME) to investigate whether she did in fact have a medical condition which would allow for an exemption, which the Appellant chose not to attend.
The Deputy President then turned to determine whether the Appellant was dismissed within the meaning of s.386(1) of the Act, having regard to the detailed correspondence exchanged between the parties between May and August 2021.
The Deputy President was not satisfied that the Respondent’s letter of 7 May 2021 directing Ms Watson to return to work and comply with its mask direction amounted to a repudiation of the employment contract by the Respondent. Instead, finding that as of 7 May 2021, the Appellant’s employment remained on foot. The Appellant did not attend her rostered shift on 16 May 2021.
The Deputy President had regard to the Respondent’s letter of 2 June 2021, finding that this letter did not dismiss the Appellant, constructively or otherwise. It expressly stated that her employment remained on foot and acknowledged that if she did not want to return to work, she could resign. If the Appellant wished to return to work, the letter noted that she would be required to attend an IME so that the Respondent could confirm that she could perform the inherent requirements of her role. On 3 June 2021, the Appellant confirmed that she would not be attending an IME.
On 20 August 2021, the Appellant wrote to the Respondent maintaining that she had resigned her employment on 13 May 2021, and is therefore entitled to payment and accrued benefits up until that date and to four-weeks in lieu of notice. Also stating that any amount paid beyond these entitlements would be treated by her as “damages for [NJS]’s unlawful conduct.”[2]
Furthermore, the Deputy President considered the correspondence on 24 August 2021 whereby both the Appellant and the Respondent again acknowledged that the Appellant had resigned from her employment. Considering these communications between the parties, the Deputy President concluded that the Appellant resigned from her employment on 13 May 2021.
The Deputy President then went on to consider the Appellant’s submission, that the circumstances constitute constructive dismissal under s.386(1)(b) of the Act. The Deputy President considered the applicable authorities and then summarised the Appellant’s submissions on her having no other choice but to resign. The Deputy President rejected this submission and found that the Appellant was not constructively dismissed as follows:
[171] The Applicant’s submissions were set out in more detail above. However, in short, she alleged that NJS’s implementation of the mask mandate and refusal to accept the correspondence and certificates from her doctor with respect to her inability to wear a mask, when considered objectively, left the Applicant with no other choice but to resign. In that way, NJS’s conduct directly resulted in the Applicant taking the action that she did and thus her resignation was not voluntary.
[172] I am not satisfied that such an argument can stand. In the Respondent’s letter of 7 May 2021, the Applicant was told that the medical evidence provided thus far by the Applicant was not sufficient to demonstrate that she had any medical condition or symptom that prevented her from complying with the mask mandate. As such, she was directed to return to her flying duties on 14 May 2021 and comply with the requirement to wear either a face mask or shield. The letter confirmed that any failure to do so could result in disciplinary action up to or including termination. At that point, the Applicant had a number of options. She could attend work as directed or she could attend an IME to try to obtain medical evidence that would support her assertions that she had a medical condition which prevented her from wearing a face mask. The Applicant chose not to do either of those things, but instead instructed her lawyer to communicate her resignation. That was certainly an option available to her. Importantly, it was an option that she chose to take. NJS’s conduct did not, on any reasonable view, leave the Applicant with no real choice but to resign. Rather, the Applicant evaluated the options available to her and decide to leave her employment with NJS. The Applicant resigned.
[173] The Applicant submitted that the Mask Direction was not the sole reason for the Applicant’s termination of her employment. She asserts that an addition reason was that the Respondent has engaged in discriminatory conduct, bullying and harassment since 26 October 2020 after she disclosed that she was unable to wear a face mask, particularly for extended periods. I reject the assertion that the Respondent or any of its staff, engaged in discriminatory conduct, bullying or harassment which contributed to her decision to resign and, in the Applicant’s submissions, her constructive dismissal. On the contrary, the evidence before me demonstrates an organisation who attempted to engage in reasonable management action by trying to obtain accurate and specific medical evidence regarding an employee’s medical condition so an assessment could be undertaken as to whether she was fit to work in a safety critical industry.”
In conclusion, the Deputy President was not satisfied that the Appellant was dismissed within the meaning of the Act. The Deputy President dismissed the application.
Principles on 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.[3] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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 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]
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, 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 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. However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.[9]
Grounds of Appeal
We have distilled the Appellant’s grounds of appeal to be as follows, taking into account the Appellant’s request that the Full Bench solely rely on her additional written submission:
Ground 1
The Decision is null and void at law because it was decided absent jurisdiction and impermissibly contravenes the Act. The Appellant submits that no power exists in the jurisdiction to decide questions of law however the Decision impermissibly did so, as follows:
“[148] For the reasons stated below, I am satisfied on the evidence before me that the mask mandate was a lawful and reasonable direction in the context of the COVID pandemic.” (Underlining added)
The Appellant therefore submits that the involved an impermissible exercise of judicial power and must be set aside.
Ground 2
The Appellant submits that the Decision involved a significant error of fact and the Full Bench should therefore declare that there was no jurisdiction to hear or decide the case on a question of law. The Appellant referred to Kara Lee v Virgin Australia 2022 FWC 269, where the President of the Commission “declared that determining existing rights is a matter for the courts.”
The Full Bench should therefore “declare that it is a fact that no jurisdiction exists for the Commission to hear or decide a matter on a question of law and that the Decision was made on a question of law.”
Public Interest
With respect to the public interest test in s.604(2) the Appellant submits that COVID-19 has heavily disrupted society. The tribunals have never been so overloaded with cases seeking redress to this disruption to lives, families, mortgage failures, marriage/family failures, business failures and economic destruction that will burden generations with unimaginable debt to be repaid, a further burden on global and national society. The Appellant submitted that major government mandates are being overturned globally, for example: Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, 25 February 2022.
The Appellant also referred to comments by Federal Court Justice, Debra Mortimer stating that a lack of consultation and risk assessment before directing staff to have a vaccine could constitute adverse action and it is unlawful for an employer to take adverse action against an employee for exercising a workplace right, such as the right to be consulted about Workplace Health and Safety matters. Furthermore, the Appellant submitted that forced masks are identical to forced COVID-19 injections, whereby both are forced by Chief Health Officers unlawfully mandating such responses.
Consideration
Ground 1
The Appellant contends that the Deputy President impermissibly exercised judicial power when by finding that the mask mandate was a lawful and reasonable direction in the covid of the COVID-19 pandemic.
We consider the Deputy President’s approach to deciding whether the Respondent’s direction was lawful was orthodox and open to him on the evidence. This finding was not an exercise of judicial power, and further does not give rise to an appealable error. We therefore reject Ground 1 of the appeal.
Ground 2
Ground 2 refers to a significant error of fact in the Decision. However, the Appellant has failed to substantiate this ground by identifying which parts of the Decision, or indeed, which facts in the Decision were wrongly decided. Further, we consider that Ground 2 in reality is a repetition of Ground 1.
Therefore, Ground 2 does not disclose any instance of appealable error. We reject Ground 2 of the appeal.
Public Interest
We are not satisfied that there is an arguable case of error in this instance. We are also required to and have considered whether this appeal attracts the public interest. We have considered what the appellant has put to us regarding the public interest and we are not satisfied, for the purposes of s.604(2) 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 at first instance 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
Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
By the Appellant, 30 March 2022.
[1] Jessica Watson v National Jet Systems Ltd[2021] FWC 6182.
[2] Ibid [166].
[3] 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).
[4] O’Sullivan v Farrer (1989) 160 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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] 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].
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
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