Kim v Orc International Pty Ltd

[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

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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

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

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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

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dealing with similar matters.”