Ms Candy Choi v Country Fire Authority T/A CFA
[2013] FWCFB 1809
•22 MARCH 2013
[2013] FWCFB 1809 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Country Fire Authority T/A CFA
(C2013/3015)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 22 MARCH 2013 |
Appeal against decision [[2013] FWC 469] of Commissioner Roe at Melbourne on 23 January 2013 in matter number U2012/9766 - permission to appeal refused - appeal dismissed.
[1] This is an appeal by Ms C Choi (the Appellant), pursuant to s.604 of the Fair Work Act 2009 (the Act) against the decision of Commissioner Roe on 23 January 2013 1 in which the Commissioner dismissed the Appellant’s s.394 application for relief in respect of the termination of her employment by the Country Fire Authority T/A CFA (the Respondent).
[2] Section 604(1) of the Act provides for an appeal against a decision by a Member of the Fair Work Commission, conditioned by permission to appeal. Section 604(2) of the Act provides that “Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so”.
[3] However, in relation to an appeal against a decision arising under Part 3–2—Unfair dismissal of the Act, the right to appeal a decision, with permission, under s.604, is modified by s.400,such thatpermission to appeal will only be granted if the Fair Work Commission considers that it is in the public interest to grant permission and appeals concerning a question of fact can only be made on the ground that the decision involved a significant error of fact.
[4] It is clear from s.604 of the Act and, in respect of termination of employment matters, s.400 that the appeal process in the Act does not provide an opportunity for a party to reargue a case, and have it determined by an Appeal Bench afresh, as if the decision of the single member at first instance had not been made. An Appeal Bench will only reconsider and determine an application itself, if satisfied that permission to appeal ought be granted because it is in the public interest to do so and the decision appealed reflects error and, in relation to an appeal in respect of a termination of employment matter, a significant error of fact where the appeal concerns a question of fact.
[5] The Appellant submitted that Commissioner Roe failed to have regard to or placed insufficient weight on, her allegation that the performance management process to which she was subjected constituted part of a pattern of bullying of which warnings given and the ultimate termination of her employment were a part. Commissioner Roe considered the Appellant’s contentions that the performance management from November 2010 constituted bullying, and the evidence relating to that contention, and found that, despite possible exceptions in relation to some isolated criticisms of her behaviour and performance, the wide range of performance and conduct allegations raised by managers were valid and were not made as part of a campaign of bullying or harassment. 2 His findings in this regard were available to him on the evidence and do not reflect error, much less significant error of fact.
[6] The Commissioner considered and made findings in relation to the statutory considerations in s.387 of the Act. We are satisfied that his findings do not reflect error, having regard to the evidence before him.
[7] The central issue raised by the Appellant in relation to the s.387 matters, concerned the Commissioner’s finding 3 that there was a valid reason for the termination, a finding based on intermediate findings concerning the Appellant’s performance, conduct, communication and responses to direction and feedback and the Commissioner’s findings in relation to three warnings received by the Appellant. The Commissioner’s ultimate finding and his intermediate findings were reasonably open to him on the evidence and do not reflect error.
[8] To the extent that the Appellant raised a myriad of events which arose during the latter part of her employment and the impact of the termination upon the Appellant by way of mitigation, the finding that the mitigating factors were insufficient to render termination a disproportionate response was reasonably available to the Commissioner.
[9] The extensive appeal grounds and submissions of the Appellant were directed to alleged errors in the findings made by the Commissioner from the evidence, contending, variously that he had placed no or too little weight on particular propositions or evidence or reached conclusions which the Appellant otherwise challenged. The Appellant’s case had a distinct flavour of contesting the decision of the Commissioner on the basis that the Appellant disagreed with findings made by him, rather than of establishing significant error on his part. Following our consideration of the submissions put in the appeal, and the evidence before Commissioner Roe, we are unable to discern any significant error of fact.
[10] The public interest ground advanced by the Appellant was essentially that the matter raised allegations of bullying. The bullying issues raised by the Appellant relate to the specific circumstances of the matter before Commissioner Roe, about which he made findings on the evidence. No broader issue arises which attracts the public interest. We are not persuaded that the bullying issues specific to the current matter or any other matter provides a basis upon which permission to appeal should be granted in the public interest.
[11] Permission to appeal is refused. The appeal is dismissed.
[12] In its written submissions, 4 the Respondent submitted that the Fair Work Commission should order that:
“. . . the Appellant bear the costs of CFA under section 611(2) of the Act in relation to this appeal, on the basis that the appeal was instituted vexatiously, without reasonable cause, or that it should have been reasonably apparent to the Appellant that the appeal had no reasonable prospect of success”.
[13] No further submissions were put to us in support of the making of an order for costs against the Appellant in respect of the appeal. On the limited basis upon which it was sought, the Full Bench is not persuaded that such an order should be made.
SENIOR DEPUTY PRESIDENT
Appearances:
C Choi on her on behalf.
L Mumme with N Black an A Millar for the Respondent.
Hearing details:
2013.
Melbourne:
March 14.
1 [2013] FWC 469.
2 [2013] FWC 469, at para 19.
3 [2013] FWC 469, at para 52.
4 Exhibit R1, at para 11.
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