Keira Fletcher v Little Darlings Early Development Center
[2016] FWCFB 2810
•5 MAY 2016
| [2016] FWCFB 2810 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Little Darlings Early Development Center
(C2015/8012)
VICE PRESIDENT WATSON |
|
Appeal against order PR572915 and decision [2015] FWC 7556 of Commissioner Johns at Brisbane on 13 October 2015 and Sydney on 10 November 2015 in matter number U2015/11175 – Whether grounds of appeal attract public interest – Whether arguable case of appealable error – Fair Work Act 2009 ss. 394, 400, 604.
Introduction
[1] On 1 April 2016 we issued a decision 1 in which we noted that given there may have been a dispute about the effective date of Ms Fletcher’s dismissal, and we referred the matter to Deputy President Gooley to conduct a hearing or conference on all the contested matters of fact and report back to the Full Bench.
[2] On 26 April 2016 a hearing was conducted by Deputy President Gooley at which Ms Fletcher and Ms Kable on behalf of LDEDC gave evidence and were cross-examined.
Grounds of appeal
[3] Ms Fletcher raised two grounds of appeal.
- Ms Fletcher was not advised of her dismissal when it occurred; and
- Evidence given to the Commission at first instance was inaccurate.
Public interest
[4] Ms Fletcher submitted that it was in the public interest to grant permission to appeal because her employment was terminated after she made a complaint to the Office of Early Childhood Education & Care and she was acting in the best interests of the children in her care.
Principles on appeal
[5] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Fair Work Act 2009 (the Act). 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’. 2
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 In GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 4
[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 an appealable error. 5 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.6 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.
[8] 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. 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: 7
“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.”
The decision at first instance
[9] Ms Fletcher was directed to file material in support of her application addressing each of the criteria in s.394 of the Act. LDEDC was provided with an opportunity to respond. As no party requested a hearing of the matter, Commissioner Johns determined the application on the material before him.
[10] Ms Fletcher filed an application for an unfair dismissal remedy on 20 August 2015. In her application she advised that she had not worked since 28 July 2015 but that her employer had not notified her of her dismissal.
[11] In its employer response LDEDC advised that Ms Fletcher had not been dismissed. Further LDEDC objected to Ms Fletcher’s application on the grounds that it had been lodged more than 21 days after her last day of work.
[12] In her material filed with the Commission in support of her application for an extension of time, Ms Fletcher acknowledged that she had not worked since 27 July 2015.
[13] Ms Fletcher was employed as a casual child care worker. She was employed to cover absent staff. She averaged four days per week. On 23 July 2015, Ms Fletcher anonymously contacted the Office of Early Childhood Education & Care and lodged a complaint about safety issues.
[14] She said that on 27 July 2015 she was called to a meeting with the Director and told she was no longer needed for that day and she was sent home. On 28 July 2015, a staff meeting was held but Ms Fletcher could not attend.
[15] She was told by other staff that the Director had said that only staff with a Diploma were to be called in. As Ms Fletcher only had a Certificate 3, the Director confirmed with the staff present that she was not to be called in. It was not clear from the material before Commissioner Johns when Ms Fletcher received this advice. Ms Fletcher said that it was not unusual for relief staff not to be called in for a full week.
[16] Ms Fletcher said that as a casual staff member she was unaware that she had a right of appeal and she said her lack of knowledge affected the timing of her application. As she had not been formally advised that she had been dismissed she considered her application to be within time.
[17] In its response LDEDC said that on 27 July 2015 Ms Fletcher was advised that she was not going to be assured of any hours on and around 27 July 2015 which coincided with a new directive from head office that they were not to employ any relief staff unless they were Diploma qualified or studying for a Diploma. It was not disputed that LDEDC did not formally advise Ms Fletcher that her services were no longer required. LDEDC said it was not aware that it was required to inform Ms Fletcher that she would not be called into work anymore. It said Ms Fletcher was made aware of the directive about the employment of relief staff. However it did not say when Ms Fletcher was given this advice.
[18] In his decision Commissioner Johns found that the last day that Ms Fletcher worked was 27 July 2015 and that was the date from which the 21 days ran. It can be inferred that Commissioner Johns found that the dismissal took effect on that date.
[19] He found that Ms Fletcher’s lack of awareness was not a basis to grant an extension of time. He found that ignorance of timeframe is not an exceptional circumstance. He found that the reasons for the delay advised by Ms Fletcher were not out of the ordinary, unusual or uncommon.
[20] In relation to when Ms Fletcher first became aware of the dismissal Commissioner Johns set out the parties’ submissions but made no findings. Commissioner Johns found that this weighed against extending time.
[21] Commissioner Johns found that her lack of action to dispute the dismissal also weighed against extending time.
[22] Commissioner Johns found that the lack of prejudice to LDEDC was a neutral consideration. He further found that Ms Fletcher’s application was not without merit and this weighs in favour of extending time.
[23] Commissioner Johns found that as there were no other persons in Ms Fletcher’s position, the final criterion was a neutral consideration.
The evidence before the Full Bench
[24] Ms Fletcher gave evidence that she was told by Ms Kable on 27 July 2015 that she was to go home. She gave evidence that that night she was told by another staff member that at a staff meeting held that day Ms Kable had advised staff that Ms Fletcher was not to be called in to perform work again.
[25] Ms Kable accepted that she made this statement at the meeting and that she did not advise Ms Fletcher of that decision.
[26] Minutes of the staff meeting were tendered. 8 It was not disputed that Ms Fletcher was not at that meeting. Ms Kable advised staff that three staff would be able to sign up for a Diploma course the next day. Staff were advised that they could not call in any staff who had a Certificate 3 unless they were enrolled in Diploma course. Ms Kable advised that the relief roster had been corrected to have only people with Diplomas on the list.
[27] The relief roster was tendered 9. Of the seven staff, six were listed as having Diplomas and one was listed as having a Certificate 3. The instruction on the relief roster still appeared to permit a Certificate 3 staff member to be on duty.
[28] Ms Kable gave evidence that on 6 July 2015 she received an email from head office which told her that she was no longer able to employ staff who held a Certificate 3 qualification unless the person is enrolled in a Diploma course. 10 She said she placed the email in the staffroom. It was Ms Fletcher’s evidence that she did not read the email.
[29] Ms Kable said she had a discussion with Ms Fletcher about this requirement. Ms Fletcher accepted that there had been some discussion about her upgrading her qualifications but this was in the context of Ms Kable wanting to hire her as a group leader. Ms Fletcher said she was never told that she would not be offered further shifts if she did not upgrade her qualifications.
[30] When asked why Ms Fletcher was offered shifts after 6 July 2015 Ms Kable said that coverage of employees on leave had already been organised. Leave forms for staff on leave up to 10 July 2015 were tendered. When asked why Ms Fletcher was offered shifts after 10 July 2015 Ms Kable said that they were developing new procedures.
[31] Ms Fletcher said she did not take any steps to contact Ms Kable after she was told by another staff member that she was not to be offered shifts.
[32] Ms Fletcher did not consider she had been dismissed because there was no formal notification by her employer.
[33] Ms Kable accepted that she did not notify Ms Fletcher of the decision because she was a casual employee and she did not think she was required to notify her.
[34] Ms Fletcher’s evidence in relation to merits was that LDEDC still engages Certificate 3 qualified staff. Ms Kable tendered statements by three staff who stated that they are upgrading their qualification to a Diploma. These staff members were not called to give evidence.
[35] Ms Kable gave evidence that no new staff had been employed unless they are studying for Diploma.
[36] Ms Fletcher said she was dismissed because she made a complaint to the Office of Early Childhood Education & Care and that Ms Kable had admitted to other staff that that was why Ms Fletcher was not being offered work. These persons were not called to give evidence and Ms Fletcher did not name the employees because they still work at LDEDC.
[37] Ms Kable denied making the decision not to offer Ms Fletcher work because she made a complaint.
[38] As is usual in these matters there are factual disputes between the parties as to the merits of the application which were not able to be resolved at this hearing.
Grounds of appeal
[39] Ms Fletcher disputes Commissioner Johns’ finding that she was notified of her dismissal. However this misunderstands Commissioner Johns’ finding. Commissioner Johns accepted that Ms Fletcher was not formally notified of her dismissal. Despite that lack of formal advice, Commissioner Johns found that the dismissal took effect on 27 July 2015.
[40] Ms Fletcher gave evidence to the Full Bench that she was aware that Ms Kable had decided to not offer her any more shifts on the 27 July 2015 as she was informed by another staff member that night about what Ms Kable had said at the staff meeting that day.
[41] We are therefore not satisfied that Commissioner Johns erred when he found that Ms Fletcher’s employment ended on 27 July 2015 and the 21 days ran from that date.
[42] We are further not satisfied that Commissioner Johns erred when he found that the criterion set out in s.394(3)(b) weighed against a finding of exceptional circumstances. It is clear from her own evidence that she knew that a decision had been taken on 27 July 2015 to not offer her further shifts and therefore she had the full 21 days to lodge her application.
[43] Ms Fletcher disputed Ms Kable’s evidence that she was aware of the reasons why she was not offered more shifts and also disputed the reasons given by Ms Kable. However her claim that she was dismissed because she made a complaint was considered by Commissioner Johns and he found the merits of Ms Fletcher’s application weighed in favour of extending time. We are satisfied that Commissioner Johns did not err in this conclusion.
[44] No other errors were identified in this appeal.
[45] We note that Commissioner Johns did not conduct a hearing in relation to this matter despite there being a dispute about the date of dismissal. We accept that normally this would a sufficient reason to grant permission to appeal. 11
[46] However having provided the parties with a hearing in relation to all disputed facts and having considered the evidence ourselves, we do not consider it is in the public interest to grant permission to appeal. Apart from the error identified above which was corrected on appeal, the decision in this matter turned on its own facts and raises no broader issue of law or policy. We therefore refuse permission to appeal.
VICE PRESIDENT
Appearances:
Keira Fletcher on her own behalf.
Cathy Kable on behalf of Little Darlings Early Development Center.
Hearing details:
2016.
Brisbane.
26 April.
Final written submissions:
Keira Fletcher on 13 April 2016.
Little Darlings Early Development Center on 22 April 2016.
1 [2016] FWCFB 2076.
2 [2011] FCAFC 54 at [43].
3 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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44]-[46].
4 [2010] FWAFB 5343 at [27].
5 Wan v Australian Industrial Relations Commission [2001] FCA 1803 at [30].
6 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].
7 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
8 Exhibit R7.
9 Exhibit R10.
10 Exhibit R8.
11 Shields v The Trustee for the Jell Discretionary Trust t/as Frank Jell Commissioning Services Pty Ltd[2015] FWCFB 2945.
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