Mrs Christine Cox v Dr Elizabeth Varughese
[2016] FWCFB 5018
•28 JULY 2016
| [2016] FWCFB 5018 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Dr Elizabeth Varughese; Eve O & G T/A Doctor Elizabeth Varughese
(C2016/3474)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 28 JULY 2016 |
Appeal against decision [2016] FWC 1861 of Deputy President Sams at Sydney on 14 April 2016 in matter number U2015/9370.
Introduction
[1] This decision concerns an appeal against the Decision 1 of Deputy President Sams dated 14 April 2016. The Decision arose from an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) lodged by Ms Christine Cox on 14 July 2015.
[2] Deputy President Sams found that the respondent, a small business, believed on reasonable grounds that Ms Cox had misappropriated money from its practice. On the basis of that finding the Deputy President concluded that the dismissal of Ms Cox from its employment was not harsh, unjust or unreasonable. He dismissed the application.
Background
[3] The background to this application was extensively summarised by Deputy President Sams. We consider that it is only necessary to confirm that Ms Cox was employed in a medical practice conducted by an obstetrician, Dr Elizabeth Varaghese. Ms Cox’s employment was terminated for serious misconduct arising from the respondent’s belief that Ms Cox was stealing from her practice.
Grounds of Appeal
[4] Ms Cox filed a Notice of Appeal and a Form of Submissions.
[5] The permission to appeal hearing was listed at 9:30 am on 15 June 2016. Ms Cox had some difficulty with the video link listing. Following the permission to appeal hearing Ms Cox was given an opportunity to provide a further Response and was provided with the transcript of proceedings to assist her. Her further response was received on 14 July 2016.
[6] In summary Ms Cox submitted that thedecision of Deputy President Sams:
● Incorrectly applied Pinawin v Domingo 2 (Pinawin) regarding whether or not the employer held a belief on reasonable grounds. She submitted that the circumstances in Pinawin are distinguishable from her application. In this case, the appellant and the respondent had a falling out of sorts before the allegations of serious misconduct were raised. Pinawin states that it is necessary for the employee to be provided with an opportunity to respond, whereas in Deputy President Sams decision he stated only that it would have been preferable. This issue is in the public interest because Pinawin is the leading case on the application of the Small Business Fair Dismissal Code regarding serious misconduct.
● Reversed the onus concerning whether the employer held a belief.
● In its entirety is plainly unreasonable and unjust.
[7] Ms Cox identified errors of fact in the Decision at transcript paragraph numbers 26 to 56 which included those identified in her Notice of Appeal and written submissions. In summary those were chiefly as follows:
● The decision was incorrect in asserting that the applicant did not request further details or access to information or records in response to the ‘show cause’ letter.
● The decision was incorrect in stating that the applicant had already been diagnosed with cancer before she went to Brisbane with the respondent for surgery.
● The decision was incorrect in stating that the applicant’s consistent position was that other casual staff members may have been responsible for the discrepancies and irregularities.
● The decision was incorrect to state that there was no evidence to cogently contradict Ms Appleby’s opinion or conclusions (an auditor engaged by Dr Varughese).
● The decision incorrectly stated that the claim of medical negligence made by Ms Cox may have occurred, but was only a theory without evidentiary foundation.
● The decision was incorrect in stating that the serious misconduct engaged in by the applicant was theft or fraud.
The Respondent’s Submissions
[8] The respondent made oral submissions at the permission to appeal hearing. It submitted:
● Matters raised by Ms Cox in the permission to appeal hearing were put before Deputy President Sams. 3
● The conduct of Ms Cox on 26 May 2015 at the respondent’s premises which led to the show cause letter was verified by Helene May in uncontested evidence. 4
● Although Ms Cox was not provided with the audit report it was quoted verbatim in the show cause letter. Ms Cox provided a detailed response to the show cause letter. That response did not change during proceedings. 5
● Deputy President Sams was incorrect in his understanding of the trip to Brisbane for cancer treatment. 6
● There was no evidence before Deputy President Sams to establish medical negligence. 7
Permission to Appeal
[9] This appeal is one to which s.400 of the Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[10] In the Federal Court Full Court decision 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”. 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 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.” 10
[11] 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. 11 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.12
Conclusion
[12] We can identify no significant error of fact in this decision. Although the respondent concedes that the Deputy President was in error in determining that a trip to Brisbane was made when the appellant was suffering from cancer, that factual finding was not determinative of the matters before the Deputy President. We have considered all of the factual errors asserted by Ms Cox. None of those findings were determinative of the matters before the Deputy President.
[13] Ms Cox is unhappy with the outcome of her application. Before Deputy President Sams she joined issue on the factual contests and disputed the basis on which her termination of employment took place. She still does so. Although the dismissal of her application is an understandably unpalatable outcome for Ms Cox, her dissatisfaction with the factual findings and outcome is not of itself a proper basis of appeal where those findings of fact are supported by the evidence. The task of the Deputy President was to determine relevant issues on the evidence before him. He did so, and we are satisfied that his conclusions were available to him.
[14] In her final submissions Ms Cox suggested that Deputy President Sams had made up his mind against her from the commencement of the hearing. Having perused the transcript of proceedings, and considered the factual matters determined in the Decision, we are not satisfied that this submission has been made out. Deputy President Sams conducted a detailed forensic examination of the evidence before him and we are not able to identify any bias or prejudice against Ms Cox in the manner that examination took place or in his conclusions.
[15] We are not satisfied that there is any public interest in granting permission to appeal. There are no matters of importance or general application raised by the appeal. There is no diversity of decisions at first instance requiring appellant guidance. The outcome of Ms Cox’s application was not counterintuitive. The legal principles applied by the Deputy President followed recent Full Bench decisions and are harmonious with those decisions.
[16] We refuse permission to appeal and dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms Cox on her own behalf
Mr Thorburn of Bennett & Philp Lawyers for the respondent.
Hearing details:
2016
June 15
Melbourne and Brisbane (via video link)
Tamworth (via telephone link)
Printed by authority of the Commonwealth Government Printer
<Price code B, PR583302>
1 PR578326
2 [2012] FWAFB 1359
3 Transcript para 74
4 Transcript para 76
5 Transcript para 76
6 Transcript para 79
7 Transcript para 80
8 (2011) 192 FCR 78 AT [43]
9 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]
10 [2010] FWAFB 5343 at [27], 197 IR 266
11 Wan v AIRC (2001) 116 FCR 481 at [30]
12 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 288, 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].
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