Mrs Catharina Ollett v Sureway Employment and Training
[2019] FWCFB 4370
•24 JUNE 2019
| [2019] FWCFB 4370 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mrs Catharina Ollett
v
Sureway Employment & Training
(C2019/3365)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 24 JUNE 2019 |
Appeal against decision [2019] FWC 3160 of Deputy President Anderson at Adelaide on 9 May 2019 in matter number U2019/896.
Introduction and background
[1] Catharina Ollett has applied for permission to appeal a decision of Deputy President Anderson issued on 9 May 2019 1 (Decision) which found that she was not dismissed by Sureway Employment and Training (Sureway).
[2] The Appellant says there are both errors of fact and law in the Decision, related to the finding that she was not forced to resign from her employment with Sureway due to its conduct in connection with a performance management process.
Approach on permission to appeal
[3] An appeal under s.604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[4] This appeal is one to which s.400 of the Act applies. Under s.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.
[5] The test under s.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 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
[7] 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. 8
Consideration
[8] The grounds of appeal may be summarised as follows:
1. Failure to find that the Appellant’s dismissal had been predetermined, and omitting facts supporting the conclusion that dismissal was predetermined (Ground 1), including:
a. the unreasonable rapid escalation from an individual performance plan to a disciplinary performance improvement plan;
b. the Respondent’s “No excuses” motto and its related failure to take into account mitigating circumstances put forward by the Appellant, including in relation to drought, an abattoir fire and staff turnover;
c. an email threatening the Appellant with a formal warning;
d. the Respondent’s conduct in relation to a meeting proposed for 3 December 2018.
2. Failure to take into account the Respondent’s inappropriate conduct prior to the cessation of employment and the resulting procedural unfairness to the Appellant (Ground 2);
3. Finding that the Appellant resigned as a result of the performance improvement plan rather than because of the Respondent’s conduct, and finding that the decision to implement a performance improvement plan was open to the Respondent for legitimate business reasons (Ground 3);
4. Failure to have regard to the Appellant’s mental state at the time of her resignation; finding that her medical condition was limited to stress and anxiety; failure to have regard to the Respondent’s knowledge of her distress; and treating the Appellant’s choice to prioritise her health as equivalent to a choice to take a holiday (Ground 4); and
5. Making errors of fact (Ground 5) in:
a. omitting the Appellant’s evidence that she was unhappy about the Respondent’s conduct, felt targeted and the victim of a witch-hunt;
b. omitting the evidence of Arwen Anderson that she had offered an exit interview to the Appellant after her resignation;
c. recording the Respondent’s estimate of likely period of future employment as two weeks.
Grounds 1 and 2 – not finding that a dismissal decision was ‘predetermined’, having regard to the Respondent’s inappropriate conduct and resulting procedural unfairness
[9] This appeal ground concerns an alleged failure to find that dismissal was a predetermined outcome of the disciplinary process in relation to the Appellant, including because relevant facts supporting that contention were omitted.
[10] We are not persuaded that this ground discloses any arguable case of appealable error. There was evidence before the Deputy President about the status of the performance improvement plan (PIP) between the Appellant and the Respondent, and it is not seriously in contest that the PIP process never reached its conclusion. The Deputy President heard evidence to the effect that the Respondent had not formed a view on the final outcome of the PIP. 9 There is nothing before us to suggest that this evidence could not reasonably have been accepted, as it was at paragraph [78] of the Decision. That the Appellant held a contrary view does not alter that position.
[11] The Deputy President took into account the Respondent’s escalation of individual performance plan discussions to a disciplinary performance improvement plan at paragraph [74] of the Decision. He noted that a decision to dismiss was an increasingly possible outcome of the disciplinary process that had not yet been completed. He gave weight to the Appellant’s contentions in relation to the unfairness of the process and the unrealistic targets it relied upon at paragraph [80] of the Decision.
[12] The Deputy President considered the Respondent’s “All Sites – All Targets – No excuses” motto and found that the apparent weight being given to it by the Respondent contributed to the material risk of its conclusions in the disciplinary process being unbalanced at paragraph [80] of the Decision. This finding was made after having referred to “regional factors beyond” the Appellants control (at paragraph [79] of the Decision).
[13] The Deputy President recorded in the Decision at paragraph [33] that the Appellant had been advised during a meeting on 19 November that a formal warning would be issued to her absent any mitigating circumstances arising from that meeting, with that fact emphasised by the Deputy President in his summary of the facts. He found that there was a factual basis for both the Appellant’s contention that the Respondent applied pressure in relation to the disciplinary process while she was on personal leave, and that the pressure was in the form of advising that the incomplete PIP process would resume on her return to work. He gave weight to the matter (at paragraphs [65] to [68] and [73] – [74] of the Decision).
[14] Similarly, the Deputy President summarised the events related to the meeting of 3 December 2018 in the Decision at paragraphs [42] to [45] and as we have already noted, he considered the Respondent’s ‘escalating’ conduct in relation to the disciplinary process. In our view, it is likely that he took into account the email of 21 November 2018 referring to “four further performance concerns” (see paragraph [42] of the Decision).
[15] It follows that we are not persuaded there is an arguable case of error in the Deputy President omitting relevant facts in considering the contention that dismissal was a predetermined outcome. Our findings in this regard are sufficient to deal with both Grounds 1 and 2 of the appeal in so far as they might have disclosed arguable appealable error.
Ground 3 – mistaking the reason(s) for the resignation and the legitimacy of the PIP
[16] The Appellant contends that the Deputy President erred in finding that the Appellant’s resignation was as a result of the PIP rather than because of the Respondent’s conduct, and in failing to find that the Respondent had no right to engage in the PIP process because it was unfair or unreasonable.
[17] However, the Appellant’s letter of resignation begins with the following statement:
“As a result of the process of disciplinary action being taken against me, it became evident to me that I will receive an unfair dismissal as soon as I return work.”
[18] Further evidence as to the Appellant’s difficulty in dealing with the disciplinary process was given in the hearing. 10
[19] As to the legitimacy of the PIP, after considering the competing contentions in this regard, the Deputy President found at paragraph [81] that it was not unreasonable for the Respondent to seek accountability from its Area Manager for regional performance and to discuss the effect of that performance on job security. He noted at paragraph [80], correctly in our view, that questions of fairness were separate to the question of whether there had been a dismissal at law.
[20] We are not persuaded that any arguable error is disclosed in relation to Ground 3.
Ground 4 – misconstruing the Appellant’s mental state, the Respondent’s knowledge of it and related matters
[21] The Appellant contends that the Deputy President failed to have regard, or to give appropriate regard, to her mental state at the time of her resignation including because it was not limited to stress and anxiety and the Respondent knew of her distress. She contends that a choice to prioritise her health over her job was not comparable to the choice of a holiday or a job, referring to the Deputy President’s earlier, unrelated decision in Bengel v Gloss Accessories Pty Ltd 11.
[22] The medical evidence produced in the matter was limited to a statement from the Appellant’s doctor that he had been consulted by her about her “significant stress and anxiety” and agreed that workplace matters had been the cause of “current and persisting anxiety”. The Appellant separately gave evidence about her state of mind 12. It seems to us that the Deputy President took into account the “stress and anguish” the Appellant had experienced in connection with her employment (at paragraph [71] of the Decision) and that she was “deeply distressed and anxious by the events and the thought of returning to a disciplinary process (at paragraph [75] of the Decision. The finding that her decision to remove herself from the workplace “due to stress and anxiety” seems to us a finding that was open on the evidence.
[23] No arguable error is disclosed in relation to Ground 4.
Ground 5 – various errors of fact
[24] Finally, the Appellant raises what she contends are significant errors of fact in omitting her own evidence that she was unhappy about the Respondent’s conduct, felt targeted and the victim of a witch hunt, as well as evidence about a discussion with Ms Anderson after the employment had ceased. The Appellant says the Deputy President mistook the Respondent’s submissions as to her likely period of future employment.
[25] We are not persuaded that this ground is made out. As s.400(2) of the Act makes plain, an appeal on an error of fact in unfair dismissal proceedings can only be brought if the error is one of significance. The various errors of fact asserted, if they are indeed errors, could not in our view aptly be described as “significant errors of fact” in the context of the case as a whole.
Conclusion
[26] On our reading of the Decision, the Deputy President applied an orthodox approach to consideration of whether the Appellant’s employment was terminated at the initiative of the Respondent.
[27] We are not satisfied that the matter raises issues of importance and general application. It turns on its own facts and circumstances. We do not consider it arguable that the Decision manifests an injustice or leads to a counterintuitive result when read in light of the evidence as a whole. The legal principles applied in the Decision appear to us harmonious with other relevant decisions of the Commission.
[28] As set out earlier, 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. For the reasons given we are not satisfied that it is in the public interest to grant permission to appeal and accordingly permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms M Huikeshoven for the Appellant
Ms A Anderson for the Respondent
Hearing details:
2019.
Adelaide and Melbourne (via video):
June 14.
Printed by authority of the Commonwealth Government Printer
<PR709643>
1 Ollett v Sureway Employment and Training [2019] FWC 3160
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.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 (2011) 192 FCR 78 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
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, 197 IR 266 at [27]
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 388, 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]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 Transcript of 1 May 2019 at PN2378; PN2390; PN2406; PN2795
10 See for example evidence on transcript of 1 May 2019 at PN1326; PN1580; PN1740; PN1803
11 [2017] FWC 5434
12 See for example, Transcript of 1 May 2019 at PN1549
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