Julia Elana Miroch v Powercor Australia Ltd - [2023] FWCFB 3

[2023] FWCFB 3

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Julia Elana Miroch
v

Powercor Australia Ltd

(C2022/7464)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER YILMAZ

SYDNEY, 12 JANUARY 2023

Appeal against decision [2022] FWC 1880 of Deputy President Bell at Melbourne on 21 October 2022 in matter number U2022/4126 – permission to appeal refused.

Background

Julia Elana Miroch (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Bell issued on 21 October 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Powercor Australia Ltd (the Respondent) pursuant to s.394 of the Act. The Appellant’s dismissal concerned her failure to comply with the Respondent’s direction to become vaccinated against COVID-19. The Deputy President dismissed the application finding that the Appellant was not unfairly dismissed in accordance with the Act.

Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed written submissions and made further oral submissions at the hearing on 6 December 2022. The Respondent filed written submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. At the hearing, the Full Bench refused permission for the Respondent to be legally represented.

We will first deal with some preliminary matters. At the hearing, the Appellant’s representative submitted there was a “potential conflict of interest” and asked the Full Bench to declare their COVID-19 vaccination status. The Full Bench declined to answer this question and as a result the Appellant’s representative proceeded to request an adjournment so that he could refer the issue to the President for further determination. The Full Bench refused to grant the adjournment request on the basis that the Full Bench’s vaccination status was irrelevant to the appeal and an adjournment was therefore unnecessary, inefficient and would only delay the appeal. The Vice President informed the Appellant’s representative that despite his adjournment request being refused he was still able to make a complaint to the President. In response, the Appellant’s representative submitted that a potential conflict of interest remained and alleged the Full Bench could not make an unbiased decision. We reject this submission and find there is no legitimate basis to assert a conflict which would impact the Full Bench’s ability to make an unbiased decision.

For the reasons that follow, permission to appeal is refused.

Decision Under Appeal

The Appellant commenced employment with the Respondent in 2005 in a temporary role. Over the following years, the Appellant remained employed by the Respondent in different capacities. From April 2016, the Appellant worked as a part-time Case Officer. Prior to March 2020, the Appellant performed all of her duties from the Respondent’s office, however from March 2020 she worked from home due to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 3
Decision Date: 12 JANUARY 2023

CaseChat Overview and Summary

Julia Elana Miroch has appealed a decision of Deputy President Bell of the Fair Work Commission, who dismissed her unfair dismissal remedy application against Powercor Australia Ltd. The appeal concerns the Appellant's dismissal, which was due to her refusal to comply with the Respondent's direction to become vaccinated against COVID-19. The Full Bench of the Commission was asked to consider whether permission to appeal the Deputy President's decision should be granted. The Full Bench found that no such permission should be granted as it was not in the public interest.

The appeal raised several grounds, primarily focusing on the Deputy President's perceived errors in handling the Appellant's submissions and the relevance of COVID-19 vaccinations. The Full Bench found that most of these grounds were misconceived and had no basis in law. The Full Bench was particularly critical of the Appellant's attempt to use her misunderstanding of the public interest criterion to justify the appeal. They concluded that the Appellant had not demonstrated a reasonably arguable case of error, and therefore, the appeal did not meet the stringent public interest test required for permission to appeal.

The Full Bench was satisfied with the Deputy President's application of legal principles and his consideration of the evidence. They noted that the Deputy President had thoroughly addressed all of the Appellant's submissions and that his findings were reasonably open on the evidence before him. The Full Bench also dismissed the Appellant's claims regarding the Deputy President's vaccination status and the relevance of COVID-19 vaccinations to the appeal.

In conclusion, the Full Bench found that the appeal did not meet the criteria for the public interest test and refused permission to appeal.

Orders