Kim v Orc International Pty Ltd

[2016] FWCFB 2642

[2016] FWCFB 2642

DECISION

Fair Work Act 2009
s.604—Appeal of decision
Andrew Kim
v
ORC International Pty Ltd
(C2016/574)
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT HAMILTON	SYDNEY, 6 MAY 2016
COMMISSIONER SAUNDERS

Appeal against decision [2016] FWC 1029 and order PR577119 of Deputy President Gooley

at Melbourne on 19 February 2016 in matter number U2015/13199.

Introduction

[1]        On 11 March 2016 Mr Andrew Kim (the appellant) lodged a notice of appeal in which

i ii

he sought permission to appeal a decision and order issued on 19 February 2016 by Deputy

President Gooley (decision). Deputy President Gooley dismissed an unfair dismissal remedy

application under s.394 of the Fair Work Act 2009 (FW Act) which Mr Kim had lodged in

respect of his alleged dismissal from employment with the respondent. She found that

Mr Kim was not dismissed by the employer, and did not resign his employment because of

conduct or a course of conduct engaged in by the employer.

Representation

[2] The respondent applied under s.596 of the FW Act for permission to be represented by

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a legal representative. This application was granted	.
Appeal

[3]        Mr Kim alleged that Deputy President Gooley did not consider a number of previous

authorities, and made significant errors of fact. In his written submission he also raised the

issue of apprehended bias, and provided examples of what were said to be significant errors of

fact.

Consideration

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[4]	This appeal is one to which s.400 of the FW Act applies	. Section 400 provides:
[2016]	FWCFB 2642

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a

decision made by the FWC under this Part unless the FWC 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.

[5]        In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v

Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised

v

the test under s.400 as “a stringent one”. The task of assessing whether the public interest test

vi

is met is a discretionary one involving a broad value judgment . 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

vii

dealing with similar matters.”

[6]        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

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of appealable error. However, the fact that the Member at first instance made an error is not

ix

necessarily a sufficient basis for the grant of permission to appeal.

Decision

[7]        The Deputy President gave due regard to relevant authorities, including Kylie Bruce v

x xi

Fingal Glen Pty Ltd (in liquidation) ; O’Meara v Stanley Works Pty Ltd (2006) ; Pawel v

xii xiii

Advanced Precast Pty Ltd ; Mohazab v Dick Smith Electronics Pty Ltd (No 2) ; ABB

xiv

Engineering Construction Pty Ltd v Doumit ; Elgammal v BlackRange Wealth Management

xv xvi

Pty Ltd ; Victorian Association for the Teaching of English Inc v Debra de Laps It is not

enough to list a number of authorities and claim that the decision is in disharmony with them.

In fact the Deputy President made her decision having regard to relevant authorities.

[8]        The appellant has not demonstrated that the Deputy President made a significant error

of fact. The appellant raised a number of factual disputes but none relate directly to the issue

of whether or not there was a dismissal by the employer, or whether or not the Deputy

President was in error in finding that there was not a dismissal. They relate to other issues

xvii

such as whether or not there was regular and systematic employment , and a complaint

xviii

made against Mr Kim . We are not satisfied that the Deputy President made errors of fact,

let alone significant errors of fact which have any relevance to the decision to dismiss

Mr Kim’s application. The complaint of bias is without foundation. The Deputy President was

entitled to ask questions and raise issues of principle and law during proceedings.

[2016] FWCFB 2642

Conclusion

[9]        There is no public interest in granting permission to appeal. The matter does not raise

issues of importance and general application, there is no 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, the result is not counter intuitive, and the legal principles applied do

not appear disharmonious when compared with other recent decisions dealing with similar

matter. We refuse permission to appeal and dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Andrew Kim, the applicant

Mr Andrew Maher for the respondent

Hearing details:

2016

Sydney and Melbourne (video)

12 April

Printed by authority of the Commonwealth Government Printer

<Price code A, PR579494>

xiv

Unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996, Print N6999

xv

[2011] FWAFB 4038

xvi

[2014] FWCFB 613

xvii

Applicant Outline of Submissions, paragraphs 16-23

xviii

Ibid, paragraphs 24-28

i

[2016] FWC 1029

ii

PR577119

iii

PN15

iv

See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]

v

(2011) 192 FCR 78 at [43]

vi

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) 192 FCR 78 at [44] -[46]

vii

[2010] FWAFB 5343 at [27], 197 IR 266

viii

Wan v AIRC (2001) 116 FCR 481 at [30]

ix

GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied

Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on

judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett

McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

x

[2013] FWCFB 5279

xi

58 AILR 100 [23]

xii

Unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904

xiii

(1995) 62 IR 200