Katherine Ikechukwu v Goodwin Aged Care Services Limited T/A Goodwin Aged Care Services
[2014] FWCFB 6405
•15 SEPTEMBER 2014
| [2014] FWCFB 6405 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Goodwin Aged Care Services Limited T/A Goodwin Aged Care Services
(C2014/2612)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 15 SEPTEMBER 2014 |
Appeal against decision [2013] FWC 10064 of Commissioner Deegan at Canberra on 20 December 2013 in matter number U2013/11308.
[1] Ms Ikechukwu has appealed Commissioner Deegan's decision 1 to dismiss her application for an unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act) against Goodwin Aged Care Services Limited (Goodwin).
[2] In her decision Commissioner Deegan determined that there was a valid reason for the termination of Ms Ikechukwu’s employment based on misconduct identified as the mistreatment of a resident identified as Resident C. She was also satisfied that Ms Ikechukwu was notified of the reason(s) for her dismissal from employment; that she was provided with an opportunity to respond at two meetings on 20 June 2013 and 21 June 2013; that she was provided with procedural fairness; and that Ms Ikechukwu was given an opportunity to have a support person present to assist at relevant discussions.
[3] Taking into account all those matters referred to in s.387 of the Act, including the nature of Goodwin's business involving reporting obligations and obligations to elderly and vulnerable residents, Commissioner Deegan determined that the termination of Ms Ikechukwu’s employment was not harsh, unjust or unreasonable. Commissioner Deegan dismissed Ms Ikechukwu’s application.
[4] At the hearing of the appeal on 1 September 2014 Ms Ikechukwu represented herself with the assistance of her father Mr Ikechukwu. Prior to the hearing of the appeal Goodwin sought and was granted permission to be legally represented. At the appeal Goodwin was represented by Mr Vuleta, solicitor from Chamberlains, Solicitors.
[5] Ms Ikechukwu relied upon an undated submission 2, a statement dated 20 August 20143 and further matters as elaborated in Mr Ikechukwu’s oral submissions.Goodwin relied on Outline of Submissions dated 28 August 2014.4
[6] Ms Ikechukwu’s Grounds of Appeal and submissions concentrated on alleged errors of fact which she identified in Commissioner Deegan's decision.
[7] A recent Full Bench 5of the Fair Work Commission discussed the principles applicable to appeals from unfair dismissal applications as follows:
“[11] In unfair dismissal matters, permission to appeal can be granted only if the Commission considers that it is in the public interest to do so: s.400(1) of the Act. The way in which the public interest may be attracted has been described as follows:
“... 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.”
[12] The decision under appeal is a discretionary one. Such a decision can be successfully challenged on appeal only if it is shown, for instance, that the discretion was not exercised correctly. 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:
“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.”” [Endnotes not reproduced]
[8] This is the approach we have applied to our consideration of Ms Ikechukwu’s appeal.
[9] We are not satisfied that there is any substance in Ms Ikechukwu’s Grounds of Appeal. We have considered all of the material provided by Ms Ikechukwu and her father. We can identify no error in Commissioner Deegan's consideration of facts of Ms Ikechukwu’s application. Had we been persuaded by Ms Ikechukwu’s submissions that any of the factual matters identified by her or her father were in fact errors, we would still not be persuaded that any of those were, either individually or cumulatively, significant. We are not satisfied that any of the errors identified by Ms Ikechukwu, either individually or cumulatively, could have, if Commissioner Deegan had relied upon them, contributed to her reaching a conclusion supportive of Ms Ikechukwu’s application. None of the Grounds of Appeal outlined by Ms Ikechukwu is sufficient to attract the public interest. There is no appealable error. We refuse permission to appeal and, to the extent necessary, dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms K Ikechukwu on her own behalf with the assistance of her father Mr F Ikechukwu.
Mr S Vuleta of Chamberlains for Goodwin Aged Care Services
Hearing details:
2014.
Sydney/Canberra by videolink
1 September
1 PR546139
2 Exhibit Ms Ikechukwu 1
3 Exhibit Ms Ikechukwu 2
4 Exhibit Goodwin 1
5 Baker v Patrick Projects Pty Ltd[2014] FWCFB 2293 [PR549389]
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