Maria Salagaras v Audika Australia Pty Ltd
[2024] FWCFB 279
•5 JUNE 2024
| [2024] FWCFB 279 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Maria Salagaras
v
Audika Australia Pty Ltd
(C2024/2901)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 5 JUNE 2024 |
Appeal against order PR774398 of Commissioner Platt at Adelaide on 1 May 2024 in matter number U2024/2268 – permission to appeal refused.
Ms Maria Salagaras has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against an order[1] of Commissioner Platt issued on 1 May 2024, for which permission to appeal is required. The order states:
“Further to the Ex-Tempore Decision handed down on transcript at the Hearing on 1 May 2024, I am satisfied Ms Maria Salagaras’ dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Fair Work Act 2009 and accordingly her s.394 application is dismissed.”
In his reasons for decision, the Commissioner relevantly concluded as follows, before dismissing the application:[2]
(a)On 17 February, 19 February and 20 February 2024, Ms Salagaras engaged in excessive and inappropriate non-work related activities during work hours, using the computer facilities of the respondent, Audika Australia Pty Ltd. Ms Salagaras had been directed to cease such conduct on 16 February 2024.
(b)Ms Salagaras’ activities called into question client data privacy, involved the use of inappropriate language and gave rise to reputational and other risk on the part of the respondent. Ms Salagaras’ conduct constituted a breach of a lawful and reasonable direction given to her by the respondent on 16 February 2024.
(c)These matters gave rise to a valid reason for Ms Salagaras’ dismissal. While she was provided with limited detail about these concerns, Ms Salagaras provided a response to them when they were discussed at a meeting on 29 February 2024.
(d)Taking into account each of the considerations in s 387 of the Act, the dismissal was not harsh, unjust or unreasonable.
Grounds of appeal and public interest
Ms Salagaras has filed multiple Form F7 Notices of Appeal which are substantially similar. In summary, the appeal notices contain a discursive summary of “the facts” and Ms Salagaras’ responsive views to the termination of her employment. As best we can discern, Ms Salagaras contends that she did not engage in misconduct or serious misconduct. Further, it is said that the decision was harsh because Ms Salagaras was targeted by the respondent, and she was not advised who identified and reported her inappropriate computer use at work.
In relation to the public interest, Ms Salagaras states that she is representing herself, she does not want the matter on the Commission’s website, and she would like to salvage her reputation and that of the respondent.
Permission to appeal – principles
There is no right to appeal and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act and therefore s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “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] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
Having regard to the Notices of Appeal and voluminous submissions, Ms Salagaras has not alleged any matter that demonstrates an arguable case of appealable error. A decision made under s 394 of the Act is a decision involving a “discretion” to which the principles in House v The King[8] apply. For there to be legal error, it would need to be shown that the Commissioner acted on a wrong principle, took into account irrelevant matters, has mistaken the facts, or is manifestly wrong. Ms Salagaras does not allege such matters.
It is apparent from Ms Salagaras’ materials that she seeks to reagitate issues that were the subject of consideration in the proceedings at first instance. Far from demonstrating appealable error, it appears that Ms Salagaras simply seeks a different outcome.
The appeal does not raise any genuine issue of law, principle or wider application. Accordingly, the public interest is not enlivened. It follows that we must refuse permission to appeal pursuant to s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
M Salagaras, on her own behalf.
K Stewart, of counsel, for the respondent.
Hearing details:
2024.
Melbourne, Sydney (by video):
June 5.
[1] PR774398
[2] Transcript of proceedings dated 1 May 2024 at PN878-PN892
[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[4] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[8] (1936) 55 CLR 499 at 505
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