Mr Warren James v Saint Thomas Aquinas College T/A Saint Thomas Aquinas College

[2016] FWCFB 8193

[2016] FWCFB 8193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Warren James
v
Saint Thomas Aquinas College T/A Saint Thomas Aquinas College
(C2016/6046)

VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER SAUNDERS SYDNEY, 18 NOVEMBER 2016

Appeal against decision [[2016] FWC 6360] of Commissioner Bissett at Melbourne on 19 September 2016 in matter number U2016/5717.

[1] Mr Warren James (‘the Appellant’) has applied for permission to appeal and appealed against a decision 1 issued by Commissioner Bissett on 19 September 2016 (‘Decision’). In that Decision, the Commissioner found that the Appellant’s dismissal from his employment was not harsh, unjust or unreasonable. The Commissioner made an order2 dismissing the application for relief from unfair dismissal lodged by the Appellant.

[2] The Appellant’s application for permission to appeal was listed on 9 November 2016. At that time, the Appellant appeared for himself and Mr Millar, of Counsel, sought permission to appear for Saint Thomas Aquinas College (‘the Respondent’). This was a hearing to resolve the issue of permission to appeal only and not a full appeal and therefore, having regard to s.596 of the Fair Work Act 2009 (‘the Act’), permission to appear for the Respondent was not granted. 3

The Decision

[3] The principal findings made by Commissioner Bissett in her Decision were as follows:

(a) The Appellant was employed by the Respondent as a primary school physical education teacher, although he also taught mathematics and some year 7 classes for a short period of time in the period from 25 January 2008 until his termination on 8 March 2016;

(b) The Appellant was bound to act in accordance with all lawful policy and procedures stipulated by the Respondent and he was required to adhere to the obligations required of him through his employment with the Respondent;

(c) The Appellant exhibited a pattern of behaviour regarding his conduct with school children and his relationship with the Respondent that was unacceptable; and

(d) The Appellant’s dismissal was not harsh, unjust or unreasonable.

Permission to Appeal Principles

[4] Section 400 (1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 4 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 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.’ 6

[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 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.

Grounds of Appeal

[7] The Appellant submits that he was unfairly dismissed pursuant to s.394 of the Act. The principal grounds of appeal relied on by the Appellant are as follows:

(a) The Appellant was not afforded procedural fairness through the provision of an open investigation and a genuine opportunity to respond to the allegations;

(b) The Appellant was not given an opportunity to modify his work practices or behaviour in attempt to rectify any problems with the Respondent;

(c) There are significant errors of fact regarding the various alleged incidents; and

(d) The decision was harsh in that it was ‘disproportionate to the gravity of the misconduct’, failed to consider the contribution the Appellant made to the Respondent, and leads to severe consequences in his capacity as a teacher and from an economic perspective.

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 the Appellant was not harshly, unjustly, or unreasonably dismissed. We are not satisfied that there is an arguable case of error in relation to those findings.

[10] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.

[11] 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 counter intuitive; or

(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[12] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.

[13] Permission to appeal is not granted.

[14] The appeal is dismissed.

VICE PRESIDENT

Hearing details:

2016.

Sydney:

November, 9.

 1  [2016] FWC 6360.

 2   Ibid [164].

 3   Transcript, PN11.

 4   (2011) 192 FCR 78 [43].

 5   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, [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, [44]-[46].

 6   (2010) 197 IR 266 [27].

 7   GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].

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