Joycelyn Wright v MSS Security Pty Limited T/A MSS Security
[2015] FWCFB 6172
•9 SEPTEMBER 2015
| [2015] FWCFB 6172 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
MSS Security Pty Limited T/A MSS Security
(C2015/4199)
VICE PRESIDENT CATANZARITI | SYDNEY, 9 SEPTEMBER 2015 |
Appeal against decision [2015] FWC 3232 of Senior Deputy President Richards at Brisbane on 15 May 2015 in matter number U2015/8865 – Application for permission to appeal - Permission to appeal not granted – Fair Work Act ss. 394, 400 and 604.
[1] This decision concerns an application for permission to appeal against a Decision and Order of Senior Deputy President Richards issued on 15 May 2015. 1 The Decision concerned resolution of a jurisdictional objection to an unfair dismissal application lodged by Ms Joycelyn Wright on 21 August 2014 pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment on4 September 2014 by MSS Security Pty Ltd (MSS). MSS contended that the termination of Ms Wright’s employment arose from a genuine redundancy.
[2] At the hearing of the application for permission to appeal the parties appeared by telephone link. Ms Wright was self-represented. Ms Stinson appeared for MSS. Both parties relied on their written submissions.
Background
[3] MSS contended that the contract between it and the Rockhampton Regional Council (the Council) was amended in accordance with the terms of their agreement to provide services or checked baggage screening and kerbside services at Rockhampton Airport. A proposal was initiated to consolidate supervisory positions and, as a result, the supervisory position occupied by Ms Wright became redundant and her tasks were redistributed.
[4] Ms Wright contended that the decision to make her position redundant arose as a consequence of criticism of the proposal to restructure the parking arrangements at the Rockhampton Airport.
[5] Senior Deputy President Richards considered the arrangements between the Council and MSS. He considered the contradictions in the evidence and determined that Ms Wright’s submissions were not reconcilable with the factual evidence. He engaged in a detailed consideration of that history, the facts in dispute and the differing evidence. Senior Deputy President Richards determined that the Council decided to vary the services provided by MSS in accordance to its contract and that its decision was unrelated to any correspondence regarding the parking at the Rockhampton Airport.
[6] Whilst Senior Deputy President Richards was not persuaded that there was any statutory requirement for consultation, he was satisfied that MSS did consult regarding redeployment in accordance with its policies.
[7] Having considered his factual findings, Senior Deputy President Richards determined that Ms Wright was not an employee who was protected from unfair dismissal and that she was therefore not able to proceed with her application pursuant to s.394 of the Act. He dismissed her application.
Grounds of Appeal
[8] Ms Wright provided a written submission. It is extracted below.
“With regard to Public Interest of my appeal I would like to make the following statement:
I refer to the decision document (2)
This position appears to involve supervising of Kerbside Security Services.
Therefore I would like to put to you a question of Supervisor position could not be distributed to a group of Kerbside officers as my role was to
Prepare Rosters
Obtain a high standard of Customer Service
Report to the Client (Rockhampton Regional Council)
Maintain Files
Maintain Training
Supervise 6 Kerbside Officers
Monthly Reporting
Enforce training and SOP
Respond to calls 24 hours a day 7 days a week
Fill all unfilled shifts
Maintain staff to ensure they were in full uniform
Report to Crispian Murphy with any matters concerning Kerbside
Attend meetings
Attend simulated programs and fire procedure practices
Maintain a clean and tidy workplace and staff members
Order car park equipment through Rockhampton Regional Council as required
Maintain a documented record of all spare parts
Keep stock in supply as needed
Request services to be conducted on Car Park equipment as required
Check and record points system that was performed on nightly patrols
Maintenance Requests
Incident Reporting
And much more.
So in saying that I would like to refer to Section 389
A person’s job is no longer required to be carried out by anyone.
My position was and still is being carried out by the Screening Point Supervisor and it has been stated that parts of my position have been appointed to other Kerbside Officers.
There is no part of my position that could possibly have been distributed to anyone but another Supervisor.
(b) The employer complied with any obligation in a modern award or enterprise agreement.
Up until the final hearing date it was stated by the Commission, United Voice Union and MSS Security that I was covered by the MSS Enterprise agreement and suddenly on the hearing day I was not.
I cross examined Mr Crispian Murphy (my supervisor) on the day of the hearing and he could not answer the questions I put forward to him regarding this issue.
MSS did not consider my position as redundant until such time as they were instructed by the Commission it was.
I refer to Conclusion Statement (68)
Ms Wright had extensive opportunity for consultation.
Consultation with Ms Wright was non existent and find this to be unfair and unjust.
I refer to Conclusion Statement (68)
A number of alternative positions were offered to Ms Wright:
MSS stated that they offered several redeployment offers and there was only the one at Proserpine which also was an unfair offer as I was currently on $27.50 approx an hour and the position in Proserpine was $19.87 approx. I felt this was an unfair offer and not only a decrease in wages but the expense of relocating would have been quite extensive.
The request for the meeting to be held on 1st August 2014 was misleading which was also unfair.
I have still to this day not seen any correspondence in regards to the decision to dismiss Ms Wright as an employee, all discussions were conducted by telephone, the proposed roster when discussions began had Ms Wright’s name listed and then suddenly it was decided to annul her position and not keep her in the Kerbside Operational area.
There is a few loop holes in this matter and I feel I have been unfairly treated and unjustly dismissed.
Loyalty goes both ways and Ms Wright had the utmost respect and loyalty to her employer and her Client.
If this is the way that the law is and the employee is disrespected and unfairly treated and their employers can manipulate the process to make it seem as though they have followed correct procedures well I think it’s time that the process be revised.
I feel as though I am wasting my time requesting this appeal as I know there will be no benefit to me by doing so.
This is not a matter of money or revenge it is the fact that I feel as though that I was very unfairly treated and was not given fair opportunity to stay in the employment of MSS Security.”
Permission to Appeal
[9] 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 section 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.”
[10] 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’. 2 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[11] The test for determining the public interest has been described as follows: 3
“[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 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.”
[12] 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. 4 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner 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:5
“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.”
Conclusion
[13] It is clear that the appellant disagrees with the conclusions reached by Senior Deputy President Richards. That disappointment or disagreement cannot be the basis of a successful appeal.
[14] Senior Deputy President Richards decision contains a detailed and comprehensive consideration of the conflicting evidence and the application of the Act. All of his findings of fact were open to the Senior Deputy President on the material before him. There is no identifiable or significant error in those findings. The public interest is not enlivened by dissatisfaction with an outcome where there is no appealable error.
[15] 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:
Ms J. Wright, on her own behalf.
Ms M. Stinson and C. Grasso, for MSS Security
Hearing details:
2015.
15 July.
Sydney – Video Conference Link to Brisbane.
1 [2015] FWC 3232.
2 (2011) 192 FCR 78 at paragraph 43.
3 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343
4 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
5 Ibid.
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