Lynelle Ajax v Credit Union Australia Ltd
[2021] FWCFB 5140
•19 AUGUST 2021
| [2021] FWCFB 5140 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lynelle Ajax
v
Credit Union Australia Ltd
(C2021/3629)
VICE PRESIDENT CATANZARITI | SYDNEY, 19 AUGUST 2021 |
Appeal against decision [2021] FWC 3165 of Commissioner Hunt at Brisbane on 4 June 2021 in matter number U2020/9873 - permission to appeal refused.
[1] Ms Lynelle Ajax, (the Appellant), has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a decision 1 (the Decision) of Commissioner Hunt (the Commissioner) issued on 4 June 2021. The Decision dealt with an application, brought by the Appellant, for an unfair dismissal remedy under s 394 of the Act. The Appellant alleged that she had been unfairly dismissed by Credit Union Australia Ltd (the Respondent).
[2] The Commissioner found that the Appellant’s dismissal was not harsh, unjust, or unreasonable and therefore, she was not satisfied that the Appellant was unfairly dismissed. Accordingly, the Appellant’s application for an unfair dismissal remedy was dismissed.
[3] On 1 July 2021, directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any submissions and they did not do so. On that same date, a notice of listing was also sent to the parties, advising them that the matter was listed for hearing on 2 August 2021. The Appellant did not file an Appeal Book within the 7-day time frame prescribed by rule 56(3) of the Fair Work Commission Rules 2013 (the Rules). The Appellant also did not file any written submissions by the date prescribed in the directions. On 16 July 2021, the chambers of Vice President Catanzariti wrote to the Appellant asking that she advise the Commission as to when she anticipates she will file the Appeal Book. No response was received from the Appellant. On 27 July 2021, the chambers of Vice President Catanzariti wrote to the Appellant again, indicating that the Commission had not received an Appeal Book or written submissions. The Appellant was asked to advise if she intended to continue with the appeal. The Appellant was also advised that if chambers did not hear from her by 5pm (AEST) on Wednesday 28 July 2021, her appeal may be dismissed. Again, no response was received from the Appellant.
[4] On the day of the hearing, the Appellant was not in attendance at the time proceedings were due to commence. Shortly after the scheduled start time of the hearing, the Appellant wrote a lengthy email to the chambers of Vice President Catanzariti, detailing the personal circumstances which she contended had prevented her from filing an Appeal Book and written submissions. The Appellant also queried whether she could bring the appeal at a much later date. After giving consideration to the Appellant’s correspondence, the Full Bench decided to give the Appellant the opportunity to file any written submissions she wished to make by close of business on 6 August 2021. The Full Bench indicated that the matter would be determined on the papers without the need for an oral hearing regardless of whether the Appellant chose to file material or not.
[5] The Appellant filed written submissions on 6 August 2021. As foreshadowed by the Full Bench, the appeal was conducted on the basis of written submissions only. For the reasons that follow, permission to appeal is refused.
The Decision under appeal
[6] The Appellant commenced employment with the Respondent on 21 July 2014 until she was dismissed on 1 July 2020. At the time of her dismissal, she held the role of Customer Service Specialist. One of the duties she performed at work involved providing complimentary beverages to customers who were waiting for a lengthy period of time. The Appellant would obtain the beverages from Hard Coffee, a nearby local café. The cost of the beverages was charged to the Respondent’s account with the café. Use of the Respondent’s account was limited to these “business situations” only and it was not open to the Respondent’s staff to utilise the account for themselves.
[7] In early June 2020, Ms Cardillo, the Brisbane branch manager for the Respondent made enquiries with Ms Nichol, the manager of Hard Coffee about the accounts being charged to the Respondent. Ms Nichol made a comment to the effect, “I warned them, I told them they would get caught…”. Ms Cardillo made further enquiries with Ms Nichol regarding this comment on 9 June 2020, at which time Ms Nichol named the Appellant and another employee, Ms AB 2 as using the Respondent’s account with Hard Coffee for personal use. On 29 June 2020, the Appellant was issued with a letter alleging she misused the Respondent’s account with Hard Coffee to pay for her own orders consisting of five coffees in March 2020 amounting to $20.71, sixteen coffees in April 2020 amounting to $67.20 and three coffees in May 2020 amounting to $13.79. Following an investigation, the Appellant’s employment was terminated with immediate effect on 1 July 2020 by a letter which found the Appellant’s conduct constituted theft and was serious misconduct.
[8] The Commissioner then detailed, at length, the witness evidence given by the Appellant, Ms AB, Ms Nichol, Ms Cardillo and a number of other employees of the Respondent who worked at the same branch as the Appellant. The Commissioner also made several interim procedural orders for the production of certain documents, including bank statements to accounts held by the Appellant and internal documents from the Respondent relevant to the investigation leading up to the Appellant’s termination. The Commissioner then outlined the submissions of both parties before considering each of the criteria in s 387 of the Act in order to determine whether the Appellant’s dismissal was unfair.
[9] Regarding whether there was a valid reason for dismissal, the Commissioner was satisfied that, on the balance of probabilities, the Appellant and Ms AB jointly misused the Respondent’s account with Hard Coffee. The Commissioner found that on an objective assessment, the Appellant’s conduct constituted a valid reason for dismissal.
[10] The Commissioner then considered all the other legislative provisions set out in s 387(b) – (h) of the Act and found that the Appellant engaged in serious misconduct which justified the termination of her employment. The Commissioner was not satisfied that the dismissal was harsh, unjust or unreasonable and therefore, the Appellant was not unfairly dismissed. Accordingly, the Appellant’s unfair dismissal application was dismissed.
Principles of Appeal
[11] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[12] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 3
[13] 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 appealable error. 4 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[14] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 5 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
[15] The Appellant’s Notice of Appeal and written submissions primarily contend that there was insufficient evidence before the Commissioner to conclude that the Appellant had misused the Respondent’s account with Hard Coffee. The Appellant also contends that she was terminated as a tactic by the Respondent to reduce costs.
[16] The Appellant has failed to identify any appealable error in the Decision. Her submissions do not go beyond mere statements contending it was impossible to conclude, on the evidence, that she had been the one to misuse the Respondent’s account. We do not find any error in the Commissioner’s consideration of the evidence and the conclusion she reached based on the evidence before her was reasonably open to the Commissioner. Regarding the contention that the Appellant had been terminated as a cost-cutting measure by the Respondent, this was not a submission that was put in the matter at first instance. In any event, it is not a submission that identifies any appealable error in the Decision.
[17] Regarding the public interest, the Appellant again simply repeats that there was insufficient evidence to ground a finding that she had engaged in misconduct. We are not satisfied that there are any sustainable public interest grounds upon which permission to appeal should be granted. We do not consider that the Decision raises any issue of importance or general application that would enliven the public interest. There is no diversity of decisions at first instance in relation to the issues raised on appeal so that guidance from an appellate body is required. We do not consider that the result of the Decision is counter-intuitive or that the legal principles applied appear disharmonious when compared with other decisions dealing with similar matters.
[18] Ultimately, this was a case that turned on its own particular factual circumstances. The conclusion reached by the Commissioner from the evidence was reasonably open to her to make and we find no arguable case of appealable error.
Conclusion
[19] For the above reasons, permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant’s written submissions dated 6 August 2021.
Printed by authority of the Commonwealth Government Printer
<PR732980>
1 Lynelle Ajax v Credit Union Australia Ltd (2021) FWC 3165.
2 Ms AB’s identity has been anonymised in accordance with order PR730470 issued by the Commissioner on account of Ms AB’s resolution of her unfair dismissal claim with the Respondent on confidential terms.
3 (2010) 197 IR 266 at [27].
4 Wan v AIRC (2001) 116 FCR 481 at [30].
5 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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