Lyndoch Living Inc T/A Lyndoch Warrnambool v S Bolden
[2014] FWCFB 5969
•1 SEPTEMBER 2014
| [2014] FWCFB 5969 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
S Bolden
(C2014/4740)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 1 SEPTEMBER 2014 |
Appeal against decision [[2014] FWC 3259] of Commissioner Bissett at Melbourne on 23 May 2014 in matter number U2014/15240 – permission to appeal granted, appeal upheld in respect of remedy – decision quashed in respect of remedy.
[1] This decision arises from an application by Lyndoch Living Inc T/A Lyndoch Warrnambool (the Appellant) for permission to appeal and, if granted, an appeal under s.604 of the Fair Work Act 2009 (the Act) against an order 1 and decision2 of Commissioner Bissett made on 23 May 2014. In the decision, the Commissioner found that the Appellant had unfairly dismissed Ms S Bolden (the Respondent) and ordered that the Appellant reinstate the Respondent “by appointing her to another position, not in the high care unit, on terms and conditions no less favourable than those on which she was employed immediately prior to her dismissal”, together with ancillary orders.
Background
[2] The Appellant operates an aged care facility that includes a high care area. The Respondent is a Registered Nurse—Division 2. The Appellant summarily dismissed the Respondent for reasons of serious misconduct on 2 October 2013. The serious misconduct alleged by the Appellant related to the Respondent’s conduct in respect of an incident on 14 September 2013 within the Appellant’s high care area in relation to a resident (the Resident) who suffered from dementia and exhibited challenging behaviours.
[3] The incident involved staff, including the Respondent, changing the Resident’s continence aid, changing her nightgown and putting her to bed. It occurred over a period of around five minutes. The dismissal related to the conduct of the Respondent in putting the Resident to bed.
[4] On 18 September 2013, the Respondent was provided with a letter which stated that serious allegations of professional misconduct had been made against her and she was stood down from her employment, pending an investigation of the Respondent’s conduct in the incident.
[5] The allegations of the Appellant, put to the Respondent in a letter dated 24 September 2013, were threefold:
1. It was alleged that the Respondent used an unreasonable degree of force with the Resident, in that she physically assaulted the Resident, by grabbing her arms to forcefully move her towards and onto her bed, causing bruising to her arms;
2. It was alleged that after the alleged incident outlined at allegation 1 above, the Respondent unreasonably restricted the Resident to her room; and
3. It was alleged that the Respondent raised her voice and was aggressive in her approach to the Resident when attempting to change her continence aid and again when she told her to go to bed and stay in her room.
[6] On 2 October 2013, the Respondent received a letter from the Chief Executive Officer of the Appellant in which the Appellant found the allegations in the letter of 24 September 2013 to be substantiated. The Respondent was summarily dismissed for the reason of serious misconduct.
[7] In the hearing before Commissioner Bissett, the Appellant relied on the misconduct reflected in the allegations put by it to the Respondent and which it found to be substantiated. In addition, the Appellant advanced further conduct by the Respondent which, it contended, provided further valid reasons for the termination:
1. Dishonestly denying to the Appellant’s management during its investigation that the incident occurred; and
2. Removing confidential health information and records about the Resident from the Appellant’s premises, contrary to an express direction not to do so and contrary to the Appellant’s Privacy and Confidentiality Policy.
The decision of Commissioner Bissett
[8] In her decision, Commissioner Bissett set out the background to the termination (including the investigation), the evidence on matters in contention, relevant policies of the Appellant and a summary of the contentions of the parties.
[9] The Commissioner then set out her findings in relation to the conduct of the Respondent, applying the standard of proof in Briginshaw v Briginshaw and Another (Briginshaw). 3 The Commissioner made various findings in relation to the matters agitated in the appeal:
• In relation to the allegation that the Respondent physically assaulted the Resident by grabbing her by the arms to forcefully move her towards and onto the bed, Commissioner Bissett:
- found that the Respondent “did have some physical contact with the Resident to get her to bed and/or to return her to bed”, on each of the “occasions she guided the Resident to bed”. The Commissioner found that this contact was “unwarranted and was contrary to the policies of the Respondent”; 4
- was not satisfied that there “is evidence to allow me to find, on the balance of probabilities, that Ms Bolden pushed the Resident down a number of times once she was in bed”; 5 and
- found that the Respondent used a “degree of force to move the Resident to bed and to make the Resident stay in bed”, but it was “not possible to determine the degree of force used; that is, whether it was a push or nudge or enough to leave bruising on the Resident”. 6
- in finding that the Respondent did have some physical contact with the Resident, the Commissioner accepted the evidence of Ms Runganga and Ms McDowell in preference to the evidence of the Respondent. 7
- in her findings had regard to the evidence of the Respondent who denied any contact with the Resident in the bedroom and Ms Runganga, that there was physical contact by the Respondent and Ms McDowell whose earlier statements made no mention of force whilst her evidence in proceedings before the Commissioner was that there was physical contact and force on multiple occasions. The findings were also informed by the evidence that neither Ms Runganga nor Ms McDowell intervened when they saw physical contact which the Commissioner found suggested that “the contact was not of such force as to be of immediate concern to them” and the actions of the Respondent in returning to check on the Resident was at least in part to determine if there were any injuries on the Resident.
- found that on the basis of the evidence, and in particular evidence of a further incident with the Resident on 15 September 2013, the Commissioner was not satisfied that the actions of the Respondent caused bruising on the Resident’s arms. 8
- found that the Respondent closed the door of the Resident’s bedroom after guiding her to bed but did not find that the Respondent held the door closed to stop the Resident exiting the room. 9 She did not find that “the Resident was trying to exit her bedroom except when she first sought to follow the staff out of the bedroom”,10 that the Resident was distressed beyond behaviours she normally exhibited around the times she was put to bed11 or that the Respondent was aggressive in her approach when she told the Resident to go to bed and stay in her room.12
- found that “the Respondent did speak forcefully to the Resident at a point in time but that, generally, she kept up a stream of chatter to the Resident in a firm voice”, but there was no evidence on which to conclude that the Respondent “spoke aggressively or with an inappropriately raised voice at any time during the incident to the Resident”. 13 Similarly, the Commissioner found no evidence to support a finding that the Respondent was “aggressive to the Resident in changing her continence aid”.14
- was not satisfied that the Respondent “removed” confidential patient records from the Respondent’s premises, 15 but found that the Respondent did remove an incident report in relation to the incident on 14 September 2013 from the Respondent’s premises.16
- to the extent that she found the Respondent’s conduct did occur—that the Respondent did have some physical contact with the Resident —and to the extent that the Respondent did not “admit to that conduct she may have misled the investigation”. 17
[10] On the basis of her findings, Commissioner Bissett then considered whether the Respondent was unfairly dismissed, making findings in relation to ss.385(a), (c) and (d) of the Act and then determining whether the dismissal was harsh, unjust or unreasonable (s.385(b)), reaching conclusions in relation to each of the matters in s.387 of the Act.
[11] In respect of valid reason, the Commissioner repeated her earlier finding that the Respondent did use force to get the Resident to bed but that she could not know the “degree of force used”. She was satisfied the incident did not occur as put by the Appellant to the Respondent or in its reasons for termination of her employment. 18 The Commissioner also found that to the extent, that the Respondent did use physical contact to encourage the Resident to go to bed that was not warranted, there was a valid reason for the dismissal.19
[12] Whilst satisfied that the Respondent denied the allegations put to her by the Appellant, the Commissioner was not satisfied that she “lied in the investigation such that it alone would constitute serious misconduct justifying dismissal”. 20 Further, the Commissioner found that the Respondent did not remove notes on the Resident from the Appellant’s premises, although the Commissioner accepted that once they came into the Respondent’s possession she did not return them. The Commissioner also accepted that the Respondent removed an incident report, which tangentially referred to the Resident. The Commissioner did not consider that either action constituted a valid reason for the termination.21
[13] Commissioner Bissett was satisfied that the Respondent was notified for the reason for her dismissal, was provided with an opportunity to respond and was allowed to have a support person. 22
[14] Section 387(e) of the Act was found not to be a relevant consideration and ss.387(f) and (g) were found to be neutral considerations. 23
[15] In relation to s.387(h)—any other matters, the Commissioner found that:
• The Respondent had worked for the Appellant for eight years and was subject to verbal counselling. Whilst the matters were relatively minor, they did not “demonstrate a pattern of inappropriate conduct and are not of the type of conduct with which this matter is concerned”; 24 and
• The Appellant’s managers did not consider that the “conduct of any other employee during the incident to warrant an investigation or any disciplinary action”, despite the action of other staff in allowing the conduct by the Respondent of the nature alleged by the Appellant to continue without intervention. 25
[16] The Commissioner weighed up her findings in relation to the conduct and the s.387 matters, finding, on balance, that the termination was harsh and that the Respondent had been unfairly dismissed. 26
[17] The Commissioner then considered the question of remedy, finding that:
“[203] In circumstances where this is a single incident involving inappropriate use of physical contact with the Resident, I am satisfied, subject to the form of orders I propose, that reinstatement is the appropriate remedy.
[204] I am not satisfied, however, that Ms Bolden should be reinstated to the position she occupied prior to the incident in that I do not consider she should work in a high care area such as that in which the incident occurred.”
[18] Commissioner Bissett ordered that the Respondent be “appointed to an equivalent position but not in the high care unit” of the Appellant’s business, “placed in an appropriate position where the demands of the residents are not as onerous as in the unit in which she was working when the incident occurred”, with terms and conditions of employment no less favourable then they were prior to the Respondent’s dismissal. 27
[19] The Commissioner made associated orders that the Respondent undergo immediate training in Elder Abuse and Restraint, 28 the Appellant pay the Respondent “an amount equal to 12 weeks’ ordinary remuneration” in respect of lost of remuneration29 and the Respondent’s employment be continuous with the Appellant and the continuity of service be maintained.30
The Appeal Grounds
[20] The Appellant brought 16 appeal grounds going to both liability and remedy. In the appeal, the grounds were advanced in five groups:
1. Valid reason
[21] In relation to the factual issue of whether the Respondent physically assaulted the Resident by grabbing her by the arms to forcefully move her towards and onto the bed, the Appellant submitted that, on the basis of the evidence Ms Runganga and Ms McDowell, which the Commissioner accepted at paragraph 133, the Commissioner should have found that the assault occurred. It further submitted that the Commissioner’s finding at paragraph 135 that “I am not satisfied that there is evidence to allow me to find, on the balance of probabilities, that Ms Bolden pushed the Resident down a number of times once she was in bed” is plainly wrong, as is the finding at paragraph 136 that “[i]t is not possible to determine the degree of force used by the Respondent”. The Appellant submitted that the Commissioner mistook the facts, and the error is significant.
[22] The Appellant further submitted that, based on the Commissioner’s findings, including that the Respondent “may have misled” the Appellant, and her acceptance of the evidence of Ms Runganga and Ms McDowell, the Commissioner should have found that the Respondent was dishonest with the Appellant during the investigation and that this amounted to a separate valid reason justifying dismissal. 31
2. Other matters (s.387(h))
[23] In finding, at paragraphs 194–200, that the Respondent’s dismissal was harsh, the Commissioner:
• failed to take into account that:
- the Respondent may have misled the Appellant;
- the Respondent’s complicity in the removal of confidential personal health records relating to the Resident;
- the Respondent’s printing and removal of a confidential “Riskman” incident report; and
- the assault, the confinement and the verbal abuse occurred,
• and gave undue weight to:
- adverse effects on the economic, personal and professional circumstances of the Respondent;
- flaws in the Appellant’s investigation and the findings of that investigation;
- the positive consideration by the Respondent that no investigation was required into the conduct of any other employee involved in the incident; and
- no action was taken against any other person involved in the incident.
[24] The Appellant submitted that the Commissioner had mistaken the facts because the evidence was that all employees involved in the incident were investigated and it was irrelevant that other employees involved in the incident were not suspended, disciplined or dismissed. Their conduct amounted to reporting a case of elder abuse to their employer and not conduct comparable to the assault, the confinement or the verbal abuse by the Respondent.
3. Denial of natural justice
[25] The Appellant argued that:
• The Commissioner never put the Appellant’s failure to take action against the employees who witnessed the incident to it during the hearing as a consideration in assessing whether the Respondent’s dismissal was harsh.
• The Commissioner did not put to the Appellant that reinstatement may occur on the basis of appointing the Respondent to another position, not in the high care unit, on terms and conditions no less favourable than the position the Respondent had held.
4. Remedy
[26] The Appellant submitted that there was no evidence before the Commissioner which enabled her to undertake a full, fair and proper evaluation of the appropriateness of reinstatement on the conditions she ordered, as a result of her failure to alert the Appellant to the possibility and allow it to call evidence and make submissions about the existence of such positions and the practicability of such reinstatement.
5. Inadequacy of reasons
[27] The Appellant contended that the Commissioner failed to give reasons in relation to all material, legal and factual issues in the case: in respect of whether the Respondent’s dishonesty during the investigation established a valid reason which in itself justified the Respondent’s dismissal, the Commissioner’s findings in relation to valid reason and the Commissioner’s findings in relation to the Appellant’s failure to take adverse action against other employees.
[28] The separately grouped grounds in respect of remedy flow from the alleged denial of natural justice by the Commissioner, in not alerting the Appellant to the possibility of an order reinstating the Respondent by appointing her to a position other than that from which she was terminated. It does not raise a separate basis of appeal and will be considered by us in relation to the natural justice ground in respect of remedy.
Approach to the Appeal
[29] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker. 32
[30] The majority of the High Court of Australia in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others 33 explained in the following passage how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986) 161 CLR 513 at 518-519]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.” 34
[31] The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King 35 in these terms:
“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”; 36
and
“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.” 37
[32] An appeal under s.604 of the Act may only be pursued with the permission of the Fair Work Commission (the Commission). Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. However, there is a note following the subsection to the effect that this does not apply in relation to an application to appeal from an unfair dismissal decision, having regard to s.400 of the Act.
[33] The effect of s.400 is twofold. First, the Commission may only grant permission to appeal from an unfair dismissal decision where it considers it is in the public interest to do so (s.400(1)). 38 The test under s.400(1) of the Act is a “stringent one”.39 Secondly, an appeal of an unfair dismissal decision, to the extent that it is an appeal on a question of fact, may only be made on the ground that the decision involved a significant error of fact (s.400(2)).
Consideration
[34] We deal, in turn, with the Appellant’s grouping of appeal grounds dealing with valid reason and other (s.387(h)) matters, the inadequacy of reasons and denial of natural justice/remedy.
Valid reason
[35] The Appellant’s grounds of appeal against the decision of the Commissioner in relation to valid reason seek to challenge the Commissioner’s findings of fact and the conclusions reached by the Commissioner. They also allege failure to reach conclusions based on particular findings made. To succeed in the appeal on these grounds, it is necessary for the Appellant to demonstrate that the Commissioner has miscarried her discretion by acting upon a wrong principle, allowing extraneous or irrelevant matters to guide her, mistaken the facts, or failed to take into account some material consideration. It is necessary for the Appellant to demonstrate error on the part of the Commissioner and, in context of a matter of the kind she determined, a significant error of fact. We are not persuaded that it has done so.
[36] The Appellant contended that Commissioner Bissett erred in not finding that the Respondent physically assaulted the Resident by forcefully moving her towards and onto the bed, submitting that on the basis of the evidence Ms Runganga and Ms McDowell, which the Commissioner accepted at paragraph 133, the Commissioner should have found that the assault occurred and was wrong to find that it was is not possible to determine the degree of force used by the Respondent.
[37] In reaching her conclusions as to the physical actions of the Respondent, the Commissioner carefully assessed all of the evidence, finding on the evidence of Ms Runganga and Ms McDowell that the Respondent did have some physical contact with the Resident but finding on the basis of the totality of the evidence that it was not possible, to the Briginshaw standard, to determine the degree of force used. The Commissioner assessed the evidence in a comprehensive manner and reached relevant findings which were reasonably available to her on the evidence, as was her ultimate finding that to the extent that the Respondent did use physical contact to encourage the Resident to go to bed that was not warranted and was a valid reason for dismissal. The balancing of that consideration against others within the s.387 considerations was available to her and her ultimate conclusion was reasonably available on the evidence.
[38] We see no significant error of fact or other appellable error in relation to the Commissioner’s other findings in relation to valid reason, concerning the alleged dishonesty toward the Appellant during the investigation, the Respondent’s accessing of personal records and the Riskman incident report.
Other matters (s.387(h))
[39] The Appellant argued that in finding that the Respondent’s dismissal was harsh, the Commissioner failed to take into account her findings that the Respondent may have misled the Appellant, was complicit in the removal of confidential personal health records, had removed the Riskman incident report; had assaulted the Resident, had confined that Resident contrary to policy and had verbally abused the Resident. Further the Appellant submitted that the Commissioner gave undue weight to adverse affects of the dismissal on the Respondent, to the flaws in the Appellant’s investigation and its findings, and to the absence of an investigation of and action against the conduct of any other employee involved in the incident.
[40] These grounds involve a combination of a challenge to or misstatement of the findings of the Commissioner as to the contact between the Respondent and the Resident and subsidiary allegations (confinement and verbal abuse and the misleading evidence) and a misstatement of the Commissioner’s findings in relation to the health records and incident report and the absence of any investigation into the actions of other employees involved in the incident.
[41] In respect of the records and incident report, the Commissioner made findings adverse to the Respondent but concluded that the conduct did not provide a valid reason for dismissal. In respect of the other employees the Commissioner did not find that adverse action should have been taken against the other employees. Rather, she found that the failure of the Appellant to consider the need to investigate the other employees in circumstances where they did not intervene in respect of actions by the Respondent, which the Appellant believed to be abuse warranting summary dismissal, was a factor which weighed in favour of the Respondent is an assessment of whether the dismissal (found to have been for a valid reason) was nevertheless harsh. That conclusion was reasonably open to the Commissioner and supported by the evidence that whilst the other employees were interviewed in the investigation of the Respondent’s conduct, none was investigated in respect of the absence of intervention by them in respect of that conduct.
[42] The Commissioner made findings in relation to each of the matters and balanced the various considerations and findings in reaching her ultimate conclusion that the termination was harsh. The findings of the Commissioner were reasonably open to her and we see no error in the balancing exercise undertaken by the Commissioner and the weight accorded to the various considerations. Absent a manifest error on the part of the Commissioner, there is no basis for intervention on appeal.
Inadequacy of reasons
[43] The inadequacy of reasons ground relied on by the Appellant focussed on the Commissioner’s decision rejecting its contention that the Respondent’s dishonesty during the investigation itself provided a valid reason for the termination of the Respondent’s employment. The Commissioner found that to the extent that the Respondent’s conduct did occur – that the Respondent did have some physical contact with the Resident – and to the extent that the Respondent did “not admit to that conduct that she may have misled the investigation”. 40 The Commissioner found that the Respondent’s conduct during the investigation fell short of the circumstances in Streeter v Telstra Corporation Ltd (Streeter).41
[44] In our view, the Commissioner’s decision in this regard adequately explains her reasoning and meets her obligation to give reasons. 42 The evidence of the questioning of the Respondent during the Appellant’s investigation discloses that she did deny the allegations which were put to her of assault of the Resident. The evidence does not disclose questioning as to whether physical contact, shortness of the assault, had occurred between the Respondent and the Resident. A failure by the Respondent to disclose some physical contact with the Resident falls well short of the circumstances in Streeter in which the employee denied activities she knew had occurred, refused to respond to questions reasonably put to her and in which the employee conceded she lied to her employer during the investigation.43 In our view, the Commissioner’s decision in this regard adequately explains her reasoning and meets her obligation to give reasons.44
[45] The inadequacy of reasons ground of the Appellant were otherwise directed in general terms to the Commissioner’s reasons in respect of valid reason and the Appellant’s failure to take adverse action against other employees in relation to her conclusions as to s.387(h) matters. In our view, Commissioner Bissett properly set out the basis of her reasoning on these matters. She has set out and assessed the relevant evidence and made findings reasonably available to her on the evidence in each case and, in doing so, disclosed her reasoning process.
Denial of natural justice/Remedy
[46] The Appellant raised two instances in which it was said that the Commissioner denied it the opportunity to address issues in respect of which the Commissioner made findings adverse to its interests.
[47] First, the Appellant contended that the Commissioner did not put to the Appellant that she was considering taking into account its failure to investigate other employees in assessing whether the Respondent’s dismissal was harsh. There is no basis for this proposition. This contention was squarely raised by the Respondent in proceedings in its opening, cross-examination and in its closing submissions before the Commissioner. 45
[48] Secondly, the Appellant submitted that the Commissioner did not put to it that reinstatement may occur on the basis decided by her—of reinstating the Respondent to another position, not in the high care unit, on terms and conditions no less favourable than the position she had held. The Appellant submitted that the failure to alert it to that possibility and allow it to call evidence and make submissions about the existence of such positions and the practicability of reinstatement on that basis constituted a denial of natural justice.
[49] Whilst the Respondent pressed for reinstatement at all times in the proceedings before Commissioner Bissett and cross-examined in relation to barriers to reinstatement, the question of reinstatement was pursued in general terms and did not raise the possibility of reinstatement qualified on the basis that the Respondent should not work in a high care area such as that in which the 14 September 2104 incident occurred, 46 as the Commissioner ultimately determined. The Appellant was not alerted to that possibility and had no opportunity to put evidence and submissions in relation to the practicality of that outcome which was a relevant consideration in determining whether reinstatement, on that basis, was inappropriate.
[50] We are satisfied that the failure to alert the parties, and the Appellant in particular, to the possibility of reinstatement qualified on the basis that the Respondent should not work in a high care area constituted a denial of natural justice and an error of jurisdiction on the part of Commissioner Bissett. As a result we grant permission to appeal, uphold the appeal in this respect and quash the decision of the Commissioner in respect of remedy and set aside the consequential order giving effect to that decision.
[51] As we have not found any other appellable error by the Commissioner nor disturbed her findings, conclusion and decision that the dismissal was unfair, we think the best course is to remit the matter to Commissioner Bissett to hear evidence and submissions on the question of whether reinstatement of the Respondent into a position not involving work in a high care area is appropriate and determine a remedy having regard to such evidence and submissions, together with the evidence and submissions already before her.
[52] We remit the matter to Commissioner Bissett on that basis.
Conclusion
[53] Save for the natural justice point in respect of remedy, there is no other appellable error in the decision of Commissioner Bissett which would enliven the public interest sufficiently to warrant the granting of permission to appeal.
[54] However, we find jurisdictional error on the part of the Commissioner in respect of the remedy granted. The error identified manifests an injustice and enlivens the public interest.
[55] As a result, we grant permission to appeal the Commissioner’s decision as to remedy and uphold that part of the appeal. We quash that part of the decision, set aside the consequential order and remit the matter to Commissioner Bissett to determine remedy as set out in paragraph 51 above.
SENIOR DEPUTY PRESIDENT
Appearances:
J Tracey of Counsel on behalf of the Appellant.
S Keating of Counsel on behalf of the Respondent.
Hearing details:
2014.
Melbourne:
August 18.
1 PR550963.
2 [2014] FWC 3259.
3 (1938) 60 CLR 336 at 362–363.
4 [2014] FWC 3259, at para 134.
5 [2014] FWC 3259, at para 135.
6 [2014] FWC 3259, at para 136.
7 [2014] FWC 3259, at para 133.
8 [2014] FWC 3259, at para 138.
9 [2014] FWC 3259, at para 147.
10 [2014] FWC 3259, at para 148.
11 [2014] FWC 3259, at para 149.
12 [2014] FWC 3259, at para 162.
13 [2014] FWC 3259, at para 158.
14 [2014] FWC 3259, at para 161.
15 [2014] FWC 3259, at para 166.
16 [2014] FWC 3259, at para 167.
17 [2014] FWC 3259, at para 168.
18 [2014] FWC 3259, at para 175.
19 [2014] FWC 3259, at para 179.
20 [2014] FWC 3259, at para 182.
21 [2014] FWC 3259, at paras 183–184.
22 [2014] FWC 3259, at paras 185–188.
23 [2014] FWC 3259, at paras 189–190.
24 [2014] FWC 3259, at para 191.
25 [2014] FWC 3259, at paras 192–193.
26 [2014] FWC 3259, at paras 194–201.
27 [2014] FWC 3259, at para 205.
28 [2014] FWC 3259, at para 206.
29 [2014] FWC 3259, at para 208.
30 [2014] FWC 3259, at para 209.
31 Streeter v Telstra Corporation Ltd, (2008) 170 IR 1 at para 23 per Acton SDP and Cartwright SDP and Jetstar Services Pty Ltd v Ishak, [2013] FWCFB 7030, at paras 31, 35 and 49.
32 See Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 205.
33 ibid.
34 ibid., at para 21.
35 (1936) 55 CLR 499.
36 ibid., at p.505.
37 ibid., at pp. 504–505.
38 The way in which the public interest requirement in s.400(1) of the Fair Work Act 2009 may be attracted has been described as follows in GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at para 27:
“. . . 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 . . .”
39 Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at para 43.
40 [2014] FWC 3259, at para 168.
41 (2008) 170 IR 1.
42 Edwards v Giudice and Others (1999) 94 FCR 561, at pp. 566 and 572–573.
43 Streeter v Telstra Corporation Ltd, (2008) 170 IR 1 at para 14 per Acton SDP and Cartwright SDP.
44 Edwards v Giudice and Others (1999) 94 FCR 561, at pp. 566 and 572–573.
45 Transcript, at paras 41, 3428–3421 and 3718 in matter U2014/15240 before Commissioner Bissett.
46 [2014] FWC 3259, at paras 204–205.
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