Mrs Elizabeta Siljanovski v Deloitte Services Pty Limited T/A Deloitte Australia

[2014] FWCFB 7113

[2014] FWCFB 7113

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Mrs Elizabeta Siljanovski
v
Deloitte Services Pty Limited T/A Deloitte Australia
(C2014/4209)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 17 OCTOBER 2014
COMMISSIONER JOHNS

Appeal against decision [[2014] FWC 2487] of Commissioner Steel at Darwin on 11 April 2014 in matter number U2013/2693 - permission to appeal - employee employed on a s457 visa - no significant mistake of fact or appealable error -whether grounds of appeal attract the public interest - permission to appeal dismissed - Fair Work Act 2009 ss.394, 400.

Introduction

[1] This decision concerns an application for permission to appeal against a decision of Commissioner Steel handed down on 11 April 2014. The decision of the Commissioner concerned an unfair dismissal application made by Ms Elizabeta Siljanovski under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Deloitte Services Pty Ltd T/A Deloitte Australia (Deloitte).

[2] The parties agreed the matter would be heard on the papers. Written submissions have been filed on behalf of Ms Siljanovski and Deloitte.

The Decision under Appeal

[3]        Commissioner Steele commenced his decision with an overview. He said:

“Overview

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009

(the Act) for relief in respect to an alleged unfair dismissal by Ms Elizabeta Siljanovski (the applicant). The respondent is Deloitte Services Pty Ltd t/as Deloitte Australia (the respondent or Deloitte’s).

[2] There are no relevant jurisdictional matters and the applicant, due to her visa

restrictions, is ultimately seeking that her dismissal is found to be unfair and that as the primary remedy of reinstatement is impractical and inappropriate; that the Commission determines another remedy.

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[3] The transcript in this matter, which ran over four days, including a hearing in

Darwin and subsequent video links with parties in Darwin, Melbourne and the Commission in Adelaide, is unfortunately beset with gaps and indistinct recordings. Further issues occurred at times within the hearings with the availability of documentation. However the Commission is confident the application was given sufficient consideration based on an accurate perception of the evidence available.

[4] The applicant was recruited by the respondent from Europe for a position in

Darwin commencing 24 September 2012 as a Senior Analyst. The applicant was dismissed on 8 August 2013 “on account of unsatisfactory performance and a breakdown of the employment relationship of mutual trust and confidence.”

[5] The dismissal confirmation letter alleges in particular: the applicant demonstrated

continual under-performance when assessed against expectations of the role as discussed within feedback sessions and formal performance management discussions (on four occasions). Further, the applicant breached the employers personal leave policy and information technology policy. The applicant had received formal warnings, support and resources.

[6] The applicant was provided with four weeks pay in lieu of notice and outstanding

entitlements on termination of employment. The Commission further understands that the respondent currently accepts some obligations in respect to the repatriation of the applicant to her country of origin as her recruitment originated from Bosnia.”

(references omitted)

[4]        The Commissioner’s conclusions are expressed in the following passage from his

decision:

“Consideration

Was there a valid reason for the applicant’s dismissal?

[158] The Commission has considered the weight of evidence in this matter. All

parties are qualified professionals involved in a specialised field of commerce and consulting. The respondent has produced six witnesses, all of whom have had a direct involvement and professional interface with the applicant at different times and circumstances.

[159] The evidence from the respondent is consistent and reflects the repeated themes

of lack of performance of the applicant, a refusal to follow or carry out instructions and directions, an inability to achieve budget targets, an inadequacy in regard to paper work, difficult interpersonal relations at times and a lack of amiability in the workplace. The Commission has concluded there was a valid reason for dismissal of the applicant related to the applicant’s capacity and conduct. The evidence is more than sufficient to identify concern with her performance. The added issue of the breach of information policy on the evidence is also a valid performance issue and given its identification at the time of final review of the applicant’s performance it was appropriate to be an additional reason for dismissal.

[2014] FWCFB 7113

Was the applicant advised of the reason for dismissal?

[160] It is not in dispute the applicant was advised of the dismissal.

Was the applicant given the opportunity to respond to any reason related to the capacity or conduct of the person?

[161] It was not pressed by the applicant that at any time she did not have the

opportunity to respond and the evidence is clear she had such opportunities at all
relevant times.

Was there an unreasonable refusal by the employer to allow a support person by the employer to be present at any discussion relating to the dismissal?

[162] The applicant has not pressed this matter and the evidence is that there has been

no refusal by the employer.

Was a warning given about unsatisfactory performance?

[163] The applicant received two formal written warnings, one being a final warning.

What is the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal?

[164] The procedures followed were not impacted adversely by the size of the

employer’s workforce.

What would be the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal?

[165] The Commission concludes that there was sufficient expertise in the enterprise

to effect the dismissal appropriately and there was no adverse impact.

Are there any other relevant factors?

[166] It is apparent in this matter there existed a wide diversity of views, values and

perceptions between the parties. This may have been due to the applicant being a recent arrival from Bosnia. However the applicant is an intelligent, qualified, professional expert in various disciplines and she was successful in being appointed and serving a probationary period with the respondent.

[167] Serious questions arose after the probationary period as to her ability to adapt

and to accept instruction in her role. The Commission’s concern was directed to the issue of training and induction of the applicant in terms of a different or contrasting business culture that she would be required to adopt or adapt to. However what is clear in this matter is that the respondent had an involved and experienced staff that assisted the applicant. A variety of directors were provided to her to assist her performance and when she specifically requested a change of director this was also arranged. The respondent provided a significant time frame over the period between April and

[2014] FWCFB 7113

August 2013 to resolve the applicant’s issues and their concerns. The Commission therefore concludes the applicant was provided with sufficient opportunity and time to adapt if need be to the respondent’s requirements in regard to her role.

Was the applicant’s dismissal harsh, unjust or unreasonable?

[168] On consideration of all the relevant criteria and the weight of evidence the

Commission has concluded that the dismissal of the applicant by the respondent was not an unfair dismissal.”

Grounds of Appeal

[5] Ms Siljanovski contends that the decision is based on significant errors of fact. The specific allegations of error are contained in a Table attached to the written submission. By way of example, in relation to the finding that there was a valid reason for the termination, she contends that in most engagements, she did not refuse to follow directions but questioned the directions in terms of correctness, practicality, time required, compliance with internal directions by means of training courses and internal policies and procedures. She contended that her conduct should not be viewed merely as her actions, but rather reactions to the way she was treated by the directors and partner involved.

[6] In relation to other relevant factors Ms Siljanovski contends that neither the alleged breach of the information systems policy nor the breach of the leave policy could have been considered harmful with respect to the impact on the organisation and her intent. She submits that the alleged lack of performance is “seriously doubtful in terms of measures applied to arrive to the conclusion of what satisfactory performance is.” Ms Siljanovski submits that the Commissioner did not take into consideration the personal and economic impact of the termination on her.

[7] A large number of other errors are alleged in the table. We have considered that material in its entirety but do not repeat each of the submissions here.

Permission to Appeal

[8] In unfair dismissal matters, permission to appeal can be granted only if the Commission considers that it is in the public interest to do so: s.400(1) of the Act. The way in which the public interest may be attracted has been described as follows:[1]

“... 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.”

[1]GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27].

[9] 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’. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.[2]

[2014] FWCFB 7113

[2]Coal and Allied Mining Services Pty Ltd v Lawler & others [2011] FCAFC54.

[10] The decision under appeal is of a discretionary nature. Such a decision can usually only be successfully challenged on appeal if it is shown that the discretion was not exercised

correctly.[3]It is not open to an appeal bench to substitute its view on the matters that fell for

determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:[4]

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[3]House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.

[4]Ibid.

[11] Ms Siljanovski submits that granting the appeal is in the public interest on twelve grounds. The grounds substantially relate to her status as an employee working on a s457 working visa, the incidence of international workers in Australia, international workers commonly not insisting on their rights, comparability of entitlements between international workers and Australian workers, the failure of internal processes to resolve the dispute and the undesirability of Australian companies to force international and local employees to break professional standards and place their professional careers in jeopardy. While this summary is not exhaustive we have given consideration to the twelve aspects of the matter which are alleged to attract the public interest.

[12] Clearly Ms Siljanovski is significantly aggrieved by her experience in employment with Deloitte in Australia including the circumstances and impact of the termination of her employment. The experience is one that all concerned would hope was not repeated. Nevertheless, on termination of her employment Ms Siljanovski challenged the fairness of her termination under the unfair dismissal provisions of the Act. The hearing of the matter extended over four hearing days. The Commissioner gave consideration to the matters that had been raised. He found on the evidence that there was a valid reason for the termination. He recorded facts and circumstances such as the provision of formal warnings, including a final warning. He heard the evidence and made findings on the basis of that evidence. Where the evidence was in conflict he indicated the versions of events he preferred.

[13] In the application for permission to appeal an opportunity to provide grounds of appeal and full written submissions was provided. Our assessment of those grounds and submissions is that they essentially seek to restate the case run before the Commissioner and invite us to reach a different result. Such an approach is not sufficient to give rise to an appeal being allowed. We are satisfied that the Commissioner applied the correct test and took into account all relevant considerations. Ms Siljanovski has not established that the critical findings of the Commissioner involved any appealable error or significant mistake of fact. We are not [2014] FWCFB 7113

satisfied that there is any basis to find that it is in the public interest to grant permission to

appeal.

Conclusion

[14] For the above reasons, we are not of the view that the grounds of appeal have substance. Nor do we consider that, individually or collectively, the grounds attract the public interest. We therefore decline to grant permission to appeal. The application for permission to appeal is dismissed.

VICE PRESIDENT

Written submissions:

Elizabeta Siljanovski on 25 July 2014 and 25 September 2014.

Deloitte Services Pty Limited T/A Deloitte Australia on 3 September 2014.

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