Ms Deborah Reynolds v Highfields Preparatory and Kindergarten School Ltd T/A Highfields
[2016] FWCFB 5024
•3 AUGUST 2016
| [2016] FWCFB 5024 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009 s.604 - Appeal of decisions
v
Highfields Preparatory and Kindergarten School Ltd T/A Highfields
(C2016/1026)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 3 AUGUST 2016 |
Appeal against decision [[2016] FWC 1187] and Order [PR577340] of Commissioner Roberts at Sydney on 13 April 2016 in matter number U2015/12354.
Introduction
[1] This decision concerns an appeal against the Decision 1and Order2of Commissioner Roberts both dated 13 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 Deborah Reynolds on 19 October 2015.
[2] Commissioner Roberts rejected Ms Reynolds’ submission that she had been constructively dismissed from her employment with the respondent. He found that Ms Reynolds had resigned voluntarily from her employment with the respondent and he dismissed her application.
Background
[3] The background to this application was extensively summarised by Commissioner Roberts. We will not repeat that summary here. It is sufficient to state that the Commissioner found that Ms Reynolds was exposed to a number of difficult and emotionally distressing experiences in the course of her employment with the respondent. We do not disagree with his conclusion in this respect.
[4] After considering those distressing experiences and the respondent’ssubsequent conduct, Commissioner Roberts found that neither the respondent, nor its employee, Ms Cook, had engaged in a course of conduct designed to force a resignation from Ms Reynolds or to make her resignation inevitable by making her job impossible to perform. Having made that finding Commissioner Roberts determined there was no constructive dismissal of Ms Reynolds and that she had resigned her employment. Unable to find that there had been a dismissal Commissioner Roberts concluded that he was without jurisdiction and dismissed Ms Reynolds’ application.
Grounds of Appeal
[5] Mr King of counsel submitted on behalf of Ms Reynolds that the Decision manifests an injustice and the legal principles applied by Commissioner Roberts are disharmonious when compared with other recent decisions of the Commission dealing with similar matters. He asserted errors of jurisdiction, errors of law and significant errors of fact. 3 He submitted that the overwhelming weight of evidence supported a finding that Ms Reynolds’ resignation was forced upon her.
[6] Firstly, Mr King submitted that Commissioner Roberts erred in determining that the Commission had no jurisdiction to hear Ms Reynolds’ application for relief. Mr King submitted that Commissioner Roberts plainly misread s.386(1)(b) 4, misapplied and misapprehended the authorities and failed to apply the total wording of s.386(1)(a) and (b).5 It was an error to determine that the Commission’s jurisdiction can only exist where termination occurs at the initiative of the employer because this is a departure from the statutory framework set out in s.386 of the Act. In addition, Commissioner Roberts referred to the definition of “initiative” but no reference was made in his consideration to the definition of dismissal in s.386(1)(a) of the Act. He misapplied the authorities by narrowing the basis of his reasoning.6
[7] Section 386 of the Act is set out below:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[8] Commissioner Roberts concluded that the respondent “…did not engage in a course of conduct designed to force such a resignation or to make such a result inevitable by making her job impossible to perform”. 7 Mr King submitted that the use of the word “designed”, and the failure to refer to the unqualified word “conduct” in s.386(1)(b), involves a further patent error and a misreading of s.386. The Commissioner overlooked the leading authorities on constructive dismissal.
[9] Mr King submitted that the application before the Commissioner was concerned with merit, not jurisdiction. 8 He submitted that there was no basis for the Commissioner to deny jurisdiction.9 He submitted that any jurisdictional issues should be determined prior to conciliation10, that jurisdiction was not dealt with as a preliminary issue at the hearing11 and that Commissioner Roberts conflated the jurisdictional issue with merit. The Commissioner was not to determine the question of jurisdiction.12 Jurisdiction in this context means “…the authority to entertain a claim”. The Commissioner should have rejected the submission of the respondent that the Commission had no jurisdiction in the matter and then have proceeded to hear the application on the merits.13 Jurisdiction was clearly established because the application was made within time and satisfied each condition required by s.396 of the Act. The respondent’s objection should have been struck out. The consequences for the orderly disposition of such claims, if void ab initio for want of jurisdiction, would seriously undermine the work of the Commission.
[10] The Commissioner found that “Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred”. 14 Mr King submitted that the word only involves a patent error of law infecting the whole Decision.
[11] Mr King submitted that the Commissioner failed to give Ms Reynolds the opportunity to be heard on the question of whether she must prove that her resignation was also an outcome designed by the respondent, and hence failed to afford procedural fairness to the appellant.
[12] Mr King said that the Commissioner erred by making significant errors of fact in the manner contemplated by House v King 15. Dealing with Commissioner Roberts’ findings in more detail, he submitted that Commissioner Roberts erred:
● by finding that Ms Reynolds resigned voluntarily;
● by finding that there was no causal link between the acts and omissions of the respondent and Ms Reynolds’ resignation;
● by not giving full weight to the contradictory evidence provided by Ms Cook;
● by giving inappropriate weight to the fact that Ms Reynolds had sought legal advice prior to her decision to resign;
● by determining that the incident involving the Loughheads (parents of a student and a member of the Board of the respondent) and the performance review were not interrelated and part of the cause of Ms Reynolds’ resignation;
● by giving no weight to the fact that the Principal continued to raise the Loughhead incident in the subsequent investigation in relation to Ms Reynolds’ performance;
● by giving no weight to Ms Reynolds’ husband’s evidence that he approached the respondent’s Chairman on behalf of Ms Reynolds to raise concerns about the relationship with the respondent’s Principal, which were dismissed by the Chairman of the respondent in breach of the respondent’s Complaint Policy;
● by failing to give adequate consideration to the evidence of Dr Penny Adams regarding the health impacts on Ms Reynolds arising from the events preceding Ms Reynolds’ resignation;
● by failing to give adequate consideration to the evidence of Mr John Kleinig, and his views on the conduct of the respondent during the Loughhead incident, and the subsequent conduct of the principal;
● by failing to take all material into account in forming a view that Ms Reynolds made a personal decision to resign;
● by raising the bar too high in his determination that the resignation was not forced; 16
● by failing to properly consider the case upon an objective analysis of the facts; 17
● by failing to determine whether the applicant was forced to resign in the face of objective evidence provided by Dr Adams supporting Ms Reynolds’ claim; 18
● by disregarding Mr Kleinig’s evidence; 19
● by failing to follow the Full Bench in O’Meara 20 in that he failed toprovide an objective analysis of the applicant’s evidence regarding resignation,21 and
● by failing to find that the question of perception should have been addressed by the Principal of the school. 22
The Respondent’s Submissions
[13] The respondent submitted that:
● Ms Reynolds’ Notice of Appeal and written submissions rely on overlapping grounds. It is difficult to identify the real issues in dispute.
● Mr King does not indicate which authorities were “…considered out of context and misapplied”, nor does he point to any passages of analysis said to be in error. The Commissioner is said to have “…overlooked the leading authorities on constructive dismissal” but Mr King does not identify those authorities.
● Mr King does not explain which legal principles applied by the Commissioner are disharmonious with other recent decisions.
● Ms Reynolds can only succeed if she demonstrates that there were significant errors of fact in Commissioner Roberts’ decision.
● Ms Reynolds’ contentions are, in the main, that the Commissioner ought to have given certain items of evidence different weight. It is not an error if the Commissioner did not accept applicant’s submission that she was forced to resign. 23
● Ms Reynolds’ submissions include only one actual assertion of an incorrect finding of fact.
● It is not a significant error of fact to say that the Commissioner did not give sufficient weight to Dr Adams’ evidence. Dr Adams was a personal friend of Ms Reynolds, therefore, the respondent chose not to cross-examine Dr Adams 24 and, in any event, the findings of Commissioner Roberts are consistent with extracts from Dr Adams’ letter.25
[14] The Respondent also submitted that the evidence before Commissioner Roberts supports the following findings:
● The idea that Ms Reynolds’ health was so bad she had no option but to resign. 26
● That Ms Cook suggested that Ms Reynolds could have a performance plan that was designed to help her get better at her job, make the parents happy and take up a professional development course, all of which was refused by Ms Reynolds. 27
● That the performance plan was the correct course of action. 28
● That Ms Reynolds could have used the remainder of her sick leave and attended counselling sessions paid for by the respondent instead of resigning. 29
● Mr Kleinig’s evidence should not have been given any weight as his ‘opinion was based on the evidence of Ms Reynolds’ rather than a consideration of all party’s evidence. 30
● In relation to the Loughhead incident, the respondent commissioned a report that supported Ms Reynolds. 31
[15] As there are no legal issues of general importance involved in the appeal, and the appeal relates only to one employee, the Respondent submitted that permission should be refused. There is no public interest.
Permission to Appeal
[16] An appeal under s.604 of the 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. 32 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[17] 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.”
[18] 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”. 33 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.34 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.” 35
[19] 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. 36 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.”37
Conclusion
[20] Mr King’s submissions regarding the jurisdiction of the Fair Work Commission when resolving applications pursuant to s.394 of the Act are misconceived.
[21] There are a number of issues which are dealt with by the Commission prior to a merits arbitration hearing. The respondent to an application can seek to have these jurisdictional issues resolved prior to conciliation or arbitration on merit. They include applications for an extension of time for lodgement, whether an employer is a national system employer, whether the minimum employment period has occurred and whether an applicant’s earnings exceeded the high income threshold at the date of termination of employment. This is not an exhaustive list.
[22] There are other issues which are resolved prior to a merits arbitration hearing as a matter of convenience and cost saving in the proper administration of the Commission’s work. These may include the correct identification of the employer.
[23] There are other factual issues which are identified as jurisdictional, or as preliminary issues which require resolution to establish jurisdiction, which are heard with or as part of a merits arbitration because determination of the issue for the jurisdictional or preliminary issue requires a hearing on the same facts as does the merit arbitration.
[24] Ms Reynolds’ application was listed before Commissioner Roberts for arbitration on the merit of her application. It was not a listing for the purposes of resolving a jurisdictional issue. The issue in dispute was of the kind identified in the preceding paragraph. That issue was whether or not there had been a constructive dismissal of Ms Reynolds’ employment. If Commissioner Roberts had found that there had been a constructive dismissal the merits of Ms Reynolds application would also have been determined consistent with the usual process by which the Commission deals with such applications.
[25] Section 385 of the Act defines the necessary preconditions for a finding of unfair dismissal. It is set out below.
“A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[26] Whilst trite, it appears necessary given the submissions to say that for there to be an unfair dismissal there must first be a dismissal. Therefore, when determining an application for unfair dismissal a Member must first determine whether or not there has been a dismissal. This is an essential preliminary issue for consideration.
[27] When considering the facts in dispute in an application, a Member may conclude that there has been no dismissal. If that is the case the Member is under no obligation to proceed further and determine superfluous issues. At the hearing before him Commissioner Roberts heard the merits. He heard all of the evidence. What he did not do, and was not required to do, was proceed to make unnecessary findings once he was satisfied on the facts and found that there had been no dismissal.
[28] Commissioner Roberts considered the effect and application of s.386 of the Act. We are satisfied that the Commissioner applied the section correctly. He did not misread, misunderstand or misapply the authorities regarding constructive dismissal.
[29] Commissioner Roberts considered whether Ms Reynolds’ employment had been terminated on the employer’s initiative. In dealing with the issue of initiative he correctly applied the authorities. He did not ignore conduct. He considered the conduct of all involved in Ms Reynolds’ employment. He considered whether Ms Reynolds had resigned her employment but was forced to do so because of the conduct or course of conduct engaged in by the respondent. That was what he was required to do. There is nothing about the Commissioner’s use of the word “designed” that persuades us that he did not apply a proper construction to the words of s.386(1)(b). Having considered the transcript of proceedings before Commissioner Roberts and the Decision under appeal we are satisfied that the Commissioner gave those issues a detailed and comprehensive consideration. His conclusion on the facts on this issue was open to him on the evidence.
[30] The parties were given every opportunity to call the evidence on which they relied. There was no failure of procedural fairness. Ms Reynolds was given all necessary opportunities to present the evidence on which you relied and be heard.
[31] We are unable to identify any error of the kind outlined in House v King 38.
“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."
[32] We can identify no significant or other error of fact in this Decision.
[33] Ms Reynolds is unhappy with the outcome of her application. Before Commissioner Roberts she disputed the basis on which her cessation of employment took place. She still does so. Although the dismissal of her application is an understandably unpalatable outcome for Ms Reynolds her dissatisfaction with the outcome is not of itself a proper basis of appeal where the findings of fact are supported by the evidence.
[34] The task of the Commissioner was to determine on the evidence before him whether Ms Reynolds had been dismissed and, if so, whether that dismissal was harsh unjust or unreasonable. Commissioner Roberts examined the facts and drew a conclusion contrary to the submissions of Ms Reynolds. Commissioner Roberts did what was required by the Act and conducted a detailed forensic examination of the evidence before him. We are satisfied that his conclusions in relation to the alleged constructive dismissal of Ms Reynolds were available to him on that evidence.
[35] 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 Reynolds’ application was not counterintuitive. The legal principles applied by the Commissioner are in accordance with recent Full Bench decisions and judgements of the Federal Court of Australia and are harmonious with those decisions.
[36] We refuse permission to appeal and dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr King of counsel instructed by Lorne Havenstein, solicitor for the applicant.
Ms Oreb of counsel instructed by Corrs Chambers Westgarth for the respondent.
Hearing details:
2016
June 15
Melbourne and Sydney (videolink)
1 [2016] FWC 1187
2 PR577340
3 Transcript para 28
4 Transcript para 253
5 Transcript paras 126 - 129
6 [2016] FWC 1187 para 76
7 Ibid para 96
8 Transcript para 44
9 Transcript para 45
10 Transcript para 53
11 Transcript para 55
12 Transcript paras 60 - 63
13 Transcript para 96
14 [2016] FWC 1187 para 76
15 (1936) 55 CLR 499 at pp 504-505
16 Transcript para 121
17 Transcript para 130
18 Transcript paras 136 - 151
19 Transcript para 165
20 PR973462
21 Transcript paras 171 - 172
22 Transcript para 204
23 Transcript para 218
24 Transcript paras 229 - 230
25 Transcript para 231
26 Transcript para 232
27 Transcript paras 233 - 234
28 Transcript para 239
29 Transcript paras 240 - 241
30 Transcript paras 243 - 244
31 Transcript para 248
32 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
33 (2011) 192 FCR 78 at [43]
34 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]
35 [2010] FWAFB 5343 at [27], 197 IR 266
36 Wan v AIRC (2001) 116 FCR 481 at [30]
37 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].
38 (1936) 55 CLR 499 at pp 504-505
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