Malcolm Bigg v Nortec Employment & Training Limited
[2017] FWCFB 39
•18 JANUARY 2017
| [2017] FWCFB 39 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
NORTEC Employment & Training Limited
(C2016/7260)
VICE PRESIDENT CATANZARITI | SYDNEY, 18 JANUARY 2017 |
Appeal against decision [2016] FWC 8163 of Commissioner Cambridge at Sydney on 22 November 2016 in matter number U2016/7185.
[1] Malcolm Bigg (“the Appellant”) has applied for permission to appeal against a Decision 1 issued by Commissioner Cambridge on 22 November 2016. In that Decision, the Commissioner found that, notwithstanding the valid reason for the dismissal of the Appellant, the dismissal was implemented by way of an unreasonable and unjust process, thereby denying the Appellant procedural fairness. On this basis, the Commissioner deemed that compensation was an appropriate remedy and awarded the Appellant four weeks remuneration, totalling $3,520.00. In the Notice of Appeal lodged by the Appellant, the Appellant asserted that this was not an appropriate remedy.
[2] The Appellant’s application for permission to appeal was listed on 11 January 2017. At the hearing, the Appellant appeared via telephone for himself and Mr M. Pegg appeared for NORTEC Employment & Training Limited (“the Respondent”).
Decision
[3] The principal findings made by the Commissioner in his Decision were as follows:
(a) The Appellant was employed by the Respondent as a Skills for Employment and Education (“SEE”) Teacher/Assessor for four years;
(b) The Appellant’s employment with the Respondent was beset by four significant issues that contributed to his dismissal from his employment;
(c) There was a valid reason for the Appellant’s dismissal as the Respondent established performance and conduct inadequacies on the part of the Appellant. However, the dismissal was implemented by way of an unreasonable and unjust process, thereby denying the Appellant procedural fairness; and
(d) The Commissioner, therefore, deemed that compensation was an appropriate remedy and awarded the Appellant four weeks remuneration, totalling $3,520.00.
Permission to Appeal Principles
[4] This appeal is one to which section 400 of the Act applies. 2 Section 400 provides that:
“(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 the test under section 400 as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 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.” 5
[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 of appealable error. 6 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.7
Grounds of Appeal
[7] The Appellant outlined 6 grounds of appeal, which we summarise below:
1. The Appellant contended that the Commissioner allowed for the Appellant to be dismissed without a valid reason;
2. The Appellant contended that the Decision was counterintuitive insofar as the Respondent dismissed the Appellant based upon an invalid reason, but the invalid reason was allowed to be justified by past performance issues that, in all practicability, were untested;
3. The Appellant submitted that the Commissioner’s Decision was not harmonious with other cases;
4. The Appellant asserted that the Commissioner mistook the facts in evidence and was guided by irrelevant factors;
5. The Appellant also stated that the Commissioner drew conclusions without justification; and
6. The Appellant asserted that the Commissioner failed to rule on the issue of differential treatment alleged by the Appellant.
Consideration
[8] The question of whether the Appellant was unfairly dismissed had to be determined in accordance with the relevant provisions of the Act. The Commissioner applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.
[9] Many of the appeal grounds and submissions relied upon by the Appellant relate to the Commissioner’s findings, which led to the conclusion that there was a valid reason for dismissing the Appellant, however, the dismissal denied the Appellant procedural fairness. We are not satisfied that there is an arguable case of error in relation to those findings.
[10] In the Notice of Appeal, the Appellant contended that the remedy was “unfairly calculated” by the Commissioner. We are not satisfied that there is an arguable case of error in relation to the Commissioner’s calculation of the remedy awarded to the Appellant.
[11] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.
[12] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counterintuitive; or
(d) The legal principles applies by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[13] For the reasons set out above, we are not satisfied, for the purpose of section 400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[14] Permission to appeal is not granted.
VICE PRESIDENT
Hearing details:
2017.
Melbourne:
January, 11.
1 [2016] FWC 8163.
2 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].
3 (2011) 192 FCR 78 at [43].
4 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].
5 [2010] FWAFB 5343 at [27], 197 IR 266.
6 Wan v AIRC (2001) 116 FCR 481 at [30].
7 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].
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