Michelle Rawson v Mudgee Golf Club Ltd
[2021] FWCFB 2703
•12 MAY 2021
| [2021] FWCFB 2703 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Michelle Rawson
v
Mudgee Golf Club Ltd
(C2021/1786)
DEPUTY PRESIDENT SAUNDERS | SYDNEY, 12 MAY 2021 |
Appeal against decision [2021] FWC 1171 of Commissioner Cambridge at Sydney on 10 March 2021 in matter number U2020/2622 – appeal from compensation order in unfair dismissal proceedings – permission to appeal refused.
Introduction
[1] Ms Michelle Rawson (Appellant), a Head Chef formerly employed by the Mudgee Golf Club Ltd (Respondent), has appealed against a decision of Commissioner Cambridge on 10 March 2021 1 (Decision). The Decision concerned an unfair dismissal application by the Appellant against the Respondent.
The nature of unfair dismissal appeals
[2] An appeal under section 604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing. 2 An appeal may only be made with the permission of the Commission.
[3] This appeal is one to which section 400 of the Act also applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
[4] The test under section 400 has been characterised as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin5 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] 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
[6] 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. 7 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Commissioner’s Decision
[7] The Commissioner found that there was a valid reason for the Appellant’s dismissal in relation to her misconduct in connection with three separate incidents. 8 The Commissioner also concluded that there were significant procedural errors in the process followed by the Respondent in making its decision to dismiss the Appellant.9 It was found by the Commissioner that those procedural errors denied the Appellant natural justice and gave rise to a finding that the dismissal was harsh and unreasonable.10
[8] On the question of remedy, the Commissioner determined that reinstatement would not be appropriate having regard to the Appellant’s serious misconduct. 11 The Commissioner determined that compensation would be appropriate and went on to consider the factors required by s 392 of the Act.12 The Commissioner found that the Appellant’s employment would have continued for a further period of one week had she not been dismissed and instead remained in employment with the Respondent.13 That finding was clearly linked to the significant procedural errors found by the Commissioner and his assessment that the Appellant’s employment “would have finalised in accordance with a proper and just contemplation of her misconduct”.14 Put another way, the period of one week was assessed on the basis that the nature of the Appellant’s misconduct was such that the Respondent was going to terminate her employment, but to do so in a procedurally fair way would have taken a further week.
[9] The Commissioner found that the Appellant would have been likely to receive remuneration of approximately $1,000 per week if she had not been dismissed. 15 The Commissioner then reduced the amount of compensation by 50% on account of the Appellant’s misconduct.16 In the result, the Commissioner made an order that the Respondent pay the Appellant compensation in the sum of $500.17
Appellant’s grounds of appeal and public interest contentions
[10] The Appellant does not challenge the Commissioner’s decision not to order her reinstatement. The Appellant challenges the compensation order made by the Commissioner. 18
[11] The Appellant’s notice of appeal identifies the following grounds for the appeal:
2.1 There was failure to afford procedural fairness.
2.2 Failure to take into account relevant considerations that the decision maker was bound to take into account.
2.3 The decision maker failed to provide proper reasons in his decision.
2.4 The decision maker identified the wrong issues; asked the wrong questions; ignored relevant material.
2.5 There was no clear and cogent proof before the Commission to conclude, on the balance of probabilities, that the allegations were made out.
2.6 The decision is so unreasonable that no reasonable decision maker would make it.
2.7 The decision maker failed to take into account legislation and case law.
2.8 The decision maker erred in failing to award just compensation to the Appellant.
2.9 The Commission has gone about the fact finding process in such an unorthodox manner or such a way that it is likely to produce an unfair result so that it would be in the interest of justice for it to be reviewed.
2.10 If the Appellant has been deprived of a “significant possibility” or a chance which was fairly open that a different and more favourable result would have been achieved the Full Bench may be satisfied that the Appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
[12] In summary, the Appellant argues that granting permission to appeal would be in the public interest for the following reasons:
(a) The Commissioner acted upon the wrong principle, was guided by irrelevant factors, was mistaken as to the facts, and failed to take into account some material considerations. The principles in GlaxoSmithKline Australia Pty Ltd v Makin are engaged.
(b) The Respondent’s response to the Appellant’s unfair dismissal application was filed late and did not attach any documents to substantiate the allegations in the response. It is in the public interest to require adherence to the legislation, and limit the exception of “out of time” applications without first providing reasons and secondly seeking leave from the Commission.
(c) The public interest is significant where there are cultural problems in an employer’s workplace particularly in relation to discrimination on the basis of gender. The Appellant contends that she was discriminated against on the basis of gender.
(d) It is in the public interest to have a detailed explanation from the employer and Clubs NSW why no support network was available to a woman employee alleged of serious misconduct.
Consideration
[13] One of the major arguments advanced on behalf of the Appellant in support of her application for permission to appeal concerns the late filing by the Respondent of its response to the Appellant’s unfair dismissal application. The Appellant’s unfair dismissal application was filed on 6 March 2020. The Respondent’s response to that application was filed on 6 April 2020. Rule 19 of the Fair Work Commission Rules 2013 (Rules) provides that a “respondent to an unfair dismissal application must lodge with the Commission a response to the application, together with any supporting documents, within 7 calendar days after the day on which the respondent was served with the application”. Accordingly, the Respondent’s response was filed more than three weeks late.
[14] The Appellant repeatedly agitated this point before the Commissioner and sought default judgment on the basis of the failure of the Respondent to file its response on time and to attach supporting documents to its response. In correspondence dated 1 December 2020 from the Commissioner’s chambers to the representative of the Appellant, he was informed that:
“We wish to acknowledge receipt of the Form F1 - Application filed by you, and note it repeats an earlier Application made seeking to have a Default Judgement issued.
As indicated when you made this Application on the previous occasion, the Commissioner rejects the Application and declines to issue any Default Judgement. The issue that you are re-agitating appears to be based upon a proposition that because the Respondent did not file its Form F3 - Response to Unfair Dismissal Application (Form F3) within the time prescribed by the Rules, that this somehow deprives the Respondent of jurisdiction. This proposition is plainly wrong, and to the extent that the Respondent failed to comply with any procedural Rules regarding filing of the Form F3, pursuant to section 586 of the Fair Work Act 2009, the Fair Work Commission waives any requirement that may exist and permits correction of any procedural contravention regarding any delay with the Respondent’s filing of the Form F3.”
[15] The Appellant contends that exceptional circumstances must exist before a member of the Commission can exercise their discretion to extend time for the filing of a response to unfair dismissal application. We reject that contention. The requirement for there to be exceptional circumstances before a discretion can be exercised to extend time applies where an application for unfair dismissal or general protections (involving a dismissal) is filed outside the 21 day period applied by the Act. 19 No such requirement exists where a response to an unfair dismissal application is filed outside the seven day period prescribed by the Rules. Rule 6(1) provides that the “Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliant arises”. Section 586 of the Act also confers a discretion on the Commission to “(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or (b) waive an irregularity in the form or manner in which an application is made to the FWC”.
[16] The Commission is not a court of strict pleading. The Rules do not provide for default judgement to be entered if a response is not filed within the prescribed timeframe. The purpose behind requiring a party to file a response to an application is so that, at least in broad terms, the applicant understands the position of the respondent in response to their application and the parties can participate in a meaningful conciliation conference to see if the matter can be resolved. If no such resolution is reached, the standard practice of the Commission, which was followed in the present case, is for directions to be made requiring each party to file and serve the witness statements, documents and submissions on which they wish to rely at the hearing. Compliance with such directions before the hearing ensures that each party is afforded procedural fairness and understands the case being put against them. That is precisely what happened in the proceedings at first instance before the Commissioner. Having regard to those matters, we do not consider there to be an arguable case that the Commissioner failed to afford natural justice to the Appellant or erred in waiving the requirement for the Respondent’s response to be filed within seven days or not ordering default judgment in favour of the Appellant.
[17] The procedural fairness arguments advanced on behalf of the Appellant in support of her application for permission to appeal include that the Appellant was not allowed by the Respondent to submit a response to its show cause letter or termination letter before the decision was made to terminate her employment. Those were matters which the Commissioner identified and took into account in (a) finding that there were significant procedural errors in the process followed by the Respondent in making its decision to dismiss the Appellant and (b) concluding that the dismissal was harsh and unreasonable. These procedural fairness points concern the Respondent’s process leading up to termination, not the conduct of proceedings before the Commissioner. We do not consider there to be any arguable error that the Commissioner failed to afford procedural fairness to the Appellant.
[18] In our view, there is no arguable case that the Commissioner failed to take into account relevant considerations. It is clear from the reasons for Decision that the Commissioner undertook a detailed examination of the evidence relating to each allegation of misconduct advanced by the Respondent. Many of the adverse findings made by the Commissioner against the Appellant in relation to these allegations were based on an assessment of her credibility as compared with the credibility of other witnesses who gave evidence in the proceedings. The Appellant’s contention that the Respondent’s witnesses failed to submit any copies of their licenses, qualifications or experience is not persuasive. It was not explained in the permission to appeal application how such documents were of any relevance to the issues which the Commissioner had to determine at first instance.
[19] The Commissioner gave detailed reasons for his findings on the relevant issues he had to determine. There is no arguable case that the Commissioner failed to provide proper reasons for his Decision.
[20] As to the contention that the Commissioner identified the wrong issues, asked the wrong questions and ignored relevant material, the appellant submits that her submissions at first instance was supported by witness statements and supporting documentation but there were no “independent documents” provided to the Commission supporting the Respondent’s evidence. There is no suggestion that the Respondent failed to produce any relevant CCTV footage, photographs or other evidence relevant to the factual issues between the parties. Much of the contest between the parties at first instance related to what various witnesses did, saw and heard. In order to make findings about those matters, the Commissioner was required to, and did, assess the credibility and reliability of the evidence given by the various witnesses. We do not discern any arguable case of error in relation to the credit findings and findings of fact the Commissioner made at first instance, nor do we consider there to be any arguable case that the Commissioner identified the wrong issues, asked the wrong questions, ignored relevant material, or made a decision that was so unreasonable that no decision maker would make it.
[21] There is no direct challenge to the Commissioner’s finding that the Appellant would only have remained in employment for a further week (while the Respondent conducted a procedurally fair process) if she had not been dismissed at the time she was. Instead, the Appellant’s case in support of her application for permission to appeal is primarily focused on the findings the Commissioner made that the Appellant engaged in misconduct. In our view, there is no arguable error in the Commissioner’s findings in that regard.
[22] The Appellant submitted that although the matter was not “agitated fully” at the hearing at first instance, she was treated differently and adversely by the Respondent because she was a female. The Appellant’s concession that her allegations of gender-based discrimination were not “agitated fully” before the Commissioner is, in our view, an understatement of the way the case was run below. We were not taken to any particular evidence on this topic, nor any transcript in which allegations of gender-based discrimination were raised with any of the Respondent’s witnesses. Further, the Commissioner’s reasons for Decision do not reveal any argument or findings in relation to gender-based discrimination. Instead, the Commissioner’s reasons demonstrate that he focused on the allegations of misconduct made against the Appellant, considered and weighed up the competing evidence in relation to each of those allegations, and made findings of fact as to what occurred. We do not consider that the Commissioner made any arguable errors in the Decision in relation to the topic of gender-based discrimination.
[23] In our view, the grounds of appeal are not sufficiently arguable to justify the grant of permission to appeal.
[24] We do not consider that the Decision raises any issue of importance or general application that would enliven the public interest. It concerned the dismissal of an employee who was found by the Commissioner to have engaged in various acts of misconduct. The case turned on its own facts.
[25] There is not a diversity of decisions at first instance in relation to the issues raised on appeal, so that guidance from a Full Bench is required.
[26] 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 recent decisions dealing with similar matters.
[27] Finally, we are not satisfied that any substantial injustice would ensue to the Appellant if permission to appeal is not granted. That is because no arguable case of appealable error is disclosed in the Decision.
Conclusion
[28] In all of the circumstances, we are not persuaded that it would be in the public interest to grant permission to appeal.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr S York on behalf of the Appellant
Ms N Shaw, Legal Counsel of Clubs NSW, on behalf of the Respondent
Hearing details:
2021.
Sydney (by videoconference and telephone):
May 3.
Printed by authority of the Commonwealth Government Printer
<PR729774>
1 [2021] FWC 1171
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to section 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 Coal & Allied Mining Services Pty Ltd v Lawler and others (Buchanan, Marshall and Cowdroy JJ) (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; (2011) 192 FCR 78 at [44] -[46]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
8 Decision at [73]
9 Decision at [87]-[88]
10 Decision at [89]
11 Decision at [91]
12 Decision at [92]-[104]
13 Decision at [99]
14 Decision at [98]
15 Decision at [97]
16 Decision at [101]
17 Decision at [104]
18 Appellant’s notice of appeal at page 4
19 Sections 394 and 366 of the Act
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