Mr Joby Cherunkunnel v Alfred Health
[2015] FWCFB 3398
•22 MAY 2015
| [2015] FWCFB 3398 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Alfred Health
(C2015/2350)
VICE PRESIDENT WATSON | MELBOURNE, 22 MAY 2015 |
Appeal against decision [[2015] FWC 1127] of Commissioner Cribb at Melbourne on 12 March 2015 in matter number C2014/3503 - Permission to appeal - Whether grounds of appeal attract the public interest - Fair Work Act 2009 s.604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Commissioner Cribb handed down on 12 March 2015. The decision of the Commissioner concerned a dispute lodged by Mr Joby Cherunkunnel under clause 22 of the Victorian Public Mental Health Services Enterprise Agreement 2012-2016 (the Agreement). The dispute concerned the decision by his employer, Alfred Health to issue Mr Cherunkunnel with a final warning.
[2] At the hearing of the matter on 13 May 2015 Mr M Champion and Ms A Kapitaniak of counsel appeared on behalf of Mr Cherunkunnel and Mr N Harrington of counsel appeared on behalf of Alfred Health. At the conclusion of the hearing of the matter we announced our decision to refuse leave to appeal. These are the reasons for that decision.
The Decision of the Commissioner
[3] The dispute before the Commissioner alleged breaches of the procedural requirements in the Agreement regarding disciplinary action as well as the ultimate decision to issue a final warning. The appeal is only sought to be progressed in relation to the substantive disciplinary decision. After considering the various details of matters raised by the parties in evidence the Commissioner concluded:
“On the basis of the evidence before me, I find that Alfred Health, in not terminating Mr Cherunkunnel’s employment but deciding to issue him with a final warning, in accordance with clause 23.5(g), together with providing him with support (the Performance Improvement Plan) to transition to the new model of care, took an appropriate approach in dealing with the issues relating to Mr Cherunkunnel’s nursing practice.”
The Nature of the Appeal
[4] The Discipline clause of the Agreement provides that a dispute over the disciplinary clause is to be dealt with under the Dispute settlement procedure in the Agreement. The Dispute settlement procedure provides that a determination made by the Commission is binding on the persons bound by the Agreement. However, such a determination is, with leave of the Full Bench, subject to appeal. The parties accept that the approach to granting leave to appeal should be same as the approach to granting permission to appeal under the Act.
[5] There are two bases in s.604 of the Fair Work Act 2009 (the Act) for granting permission to appeal. If the Commission is satisfied that it is in the public interest to grant permission it must do so. Otherwise the conventional considerations for granting permission apply - if there is sufficient doubt about a decision to warrant its reconsideration or an injustice may result if permission is not granted. 1
The Grounds of Appeal
[6] Mr Cherunkunnel advanced three grounds of appeal. First, the Commissioner did not act logically and rationally in relation to what was termed “surrounding evidence”. Secondly, the Commissioner did not give sufficient reasons for her conclusion that the conduct constituted misconduct warranting termination. Thirdly, the conclusion was unreasonable or plainly unjust.
Leave to Appeal
[7] We are not satisfied that any of the matters attract the public interest such as to warrant leave being granted. The dispute concerned a warning given to one employee. The circumstances were unique to the employee and the employer. That the issues raised concerned misconduct is not of itself unusual. The Commissioner was required to hear evidence about the matters relied upon for giving a warning, make relevant findings of fact, and determine whether the action taken was in accordance with the discipline clause of the Agreement.
[8] Further, we are not satisfied that there is an alternative basis for granting leave to appeal. The decision is very detailed. It fulfils the requirements to make findings of fact and determine the dispute. The findings of fact have not been demonstrated to be erroneous. The conclusion is considered and logically based on the factual findings. We are not satisfied that the Commissioner made an error in exercising the discretion involved in determining that the misconduct warranted termination and was otherwise reasonable.
[9] We also note that the future effect of the disciplinary action is limited. The warning was issued on 22 January 2014 and the Agreement provides that all adverse reports relating to a final written warning must be removed from the employee’s personnel file after 18 months from the date of the warning.
[10] We are not satisfied that there is sufficient doubt about the decision to warrant its reconsideration or that an injustice may result if leave is not granted. For these reasons we declined to grant leave to appeal on 13 May 2015.
VICE PRESIDENT
Appearances:
Mr M Champion and Ms A Kapitaniak of counsel for Mr Cherunkunnel.
Mr A Harrington of counsel for Alfred Health.
Hearing details:
2015.
Melbourne.
13 May.
Final written submissions:
Mr Cherunkunnel on 27 April 2015.
Alfred Health on 12 May 2015.
1 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.
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