Ms Elizabeth Atkinson v L.R.G Catering Pty. Ltd T/A Marine Provisioning Australia
[2015] FWCFB 5362
•6 AUGUST 2015
| [2015] FWCFB 5362 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
L.R.G Catering Pty. Ltd T/A Marine Provisioning Australia
(C2015/4099)
VICE PRESIDENT CATANZARITI | MELBOURNE, 6 AUGUST 2015 |
Appeal against decision [2015] FWC 3046 of Senior Deputy President Richards at Brisbane on 7 May 2015 in matter number U2015/2248.
Introduction
[1] This decision concerns an application for permission to appeal against a decision 1 of Senior Deputy President Richards handed down on 7 May 2015 (Decision). The Decision concerned an unfair dismissal application made by Ms Elizabeth Atkinson on 12 January 2015 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by L.R.G catering Pty. Ltd T/A Marine Provisioning Australia (Respondent).
[2] At the hearing of the appeal matter on 14 July 2015 the Applicant represented herself and Mr Lorenzen appeared via telephone for the Respondent.
Background
[3] The Respondent provides catering services to day cruises in the Whitsundays and a bowls club. The Applicant began performing duties in the cleaning/kitchen duties role since approximately July or August 2013.
[4] In the matter at first instance, there was a host of conflicting facts. The Applicant claimed that she was dismissed from her employment following a particular set of circumstances that occurred on 31 December 2014 and 2 January 2015 in which she alleges her manager, Mr Lorenzen yelled at her abusively following an altercation and dismissed her from the premises. The Respondent contended that the Applicant abandoned her employment on 31 December 2014 and was not dismissed. The detailed facts are set out extensively at paragraphs [4]-[46] of the Decision and are not necessary to reproduce here.
[5] Section 386(1) of the Act requires that to be eligible for an unfair dismissal remedy, an employee must have been dismissed at the initiative of the employer or else resigned because he or she was forced to do so because of conduct or a course of conduct, engaged in by his or her employer. In the matter before him, the Senior Deputy President was required to determine whether or not the Applicant was dismissed within the meaning of s.386(1) of the Act or whether she abandoned her employment.
[6] The Decision sets out a number of irregularities in the Applicant’s evidence when compared to the Respondent’s evidence at paragraphs [47] - [65] of the Decision. In particular, two witnesses of the Respondent, Mr King and Mr Morley, gave evidence that was completely at odds with the Applicant’s version of events.
[7] The Senior Deputy President’s conclusions in relation to the issue of dismissal are expressed in the following passage from his decision:
“[65]Whilst I am not in a position to be able to identify every exchange that occurred between the parties on 2 January 2015, on the balance of probabilities I prefer Mr Lorenzen’s construction of events. I do so for the reasons given above. I also found that Mr Lorenzen did not seek to be dogmatic about his evidence. He offered evidence that was not directly in his interests - by volunteering that he had indeed “yelled” at Ms Atkinson on 31 December 2014 when he asked her to “Go”, and conceded he called Ms Atkinson a “silly old cow” on 2 January 2015 (as set out above).
[66]Having had the benefit of hearing the witnesses in this matter, and comparing Ms Atkinson’s evidence to that of Mr King and Mr Morley, and considering the inconsistencies in Ms Atkinson’s evidence, I am of the view that Ms Atkinson has greatly exaggerated her claims in respect of Mr Lorenzen’s conduct.
[67]Whilst Ms Atkinson portrayed herself as a victim in the face of Mr Lorenzen's relentlessly abusive conduct, Mr Morley and Mr King gave no such evidence in support of her claims in this regard, even though they were well-placed to observe a range of the relevant interactions on 31 December 2014 and 2 January 2015.
[68]On the balance of probability I have reached the view that Ms Atkinson’s conduct on 31 December 2014 had reached an intolerable point and that Mr Lorenzen dismissed Ms Atkinson when he ordered her to leave the premises. Mr Lorenzen conceded he yelled “Go” to Ms Atkinson.
[69]But with the employment relationship re-established on 2 January 2015, it was Ms Atkinson herself who initiated her departure from the workplace that day by her conduct in refusing to perform prescribed duties, speaking in coarse terms to Mr Lorenzen and leaving the workplace. Mr Lorenzen’s comment to Ms Atkinson that she was a “silly old cow” only came after Ms Atkinson returned to the workplace on 2 January 2015 (after already leaving once on that day) and does not constitute words or conduct relevant to the Applicant’s decision to repudiate her employment. After all, Ms Atkinson had not returned for any purpose relating to her employment or for purposes of re-establishing the employment relationship.
[70]When the evidence is considered as a whole - and particularly so on the basis that it has been heard directly - I consider that Ms Atkinson was not dismissed from her employment at the initiative of her employer - Mr Lorenzen - but rather resigned (or otherwise repudiated) her employment herself on 2 January 2015. Ms Atkinson did not perform the duties she was directed to perform, personally abused Mr Lorenzen and left the workplace at her own initiative. Ms Atkinson had come close to taking this course of action on 31 December 2014, and on 2 January 2015, she gave effect to that impulse.
[71] Further, it seems to me on the balance of probability that Ms Atkinson did so not in circumstances where she was forced to do so because of the conduct of her employer, but rather did so in circumstances where other options were available to her. One of these options was to engage constructively with Mr Lorenzen, but her impulses (as observed by Mr King and Mr Morley) were to a more negative effect altogether.”
[8] After considering the requirements of s.385 and 386 of the Act, the Senior Deputy President concluded:
“[74]Because of my findings as made above, Ms Atkinson’s application is not competent for reason she was not dismissed at the initiative of her employer, nor was she forced to resign because of Mr Lorenzen’s conduct or course of conduct. Reasonably, in the context of the overall conduct, Mr Lorenzen accepted service of Ms Atkinson’s effective resignation after she exited the premises on 2 January 2015. Ms Atkinson made no subsequent effort to rescind her effective resignation or to seek clarity as to her employment status thereafter, which is an indicator of the definitive nature of the intended result of her conduct that day.
[75]In light of these findings, I must dismiss Ms Atkinson’s application as made under s.394 of the Act.”
Grounds of Appeal
[9] The grounds of appeal advanced in the Applicant’s Notice of Appeal in relation to errors of fact can be summarised as follows:
- the statements that were submitted by the Respondent at first instance in relation to the incidents on 31 December 2014 and 2 January 2015 were not true and false allegations were made against the Applicant;
- the Witnesses were not on the premises for most of the time that the alleged abusive incidents occurred; and
- the Applicant did not resign as she would not have walked off a job that she needed to survive and was enjoying. The reason she left the workplace on 2 January 2015, was that she was frightened that Mr Lorenzen was going to hit her and was told to “get out” and called “an old cow”.
[10] At the hearing, the Applicant made further oral submissions. The Applicant submitted that the Respondent was “controlling and bulling and being very assertive with his nature” at the first instance hearing and that the Senior Deputy President should have taken this into account. 2 She also reemphasise that she did not resign from her employment and only left the workplace because she feared for her life and was told to get out. In short, the Applicant was challenging the factual findings made at first instance and in particular the finding that she was not dismissed at the employer’s initiative and abandoned her employment. In the Applicant’s view, this finding could not have been made on the facts, particularly given that it would have been difficult for her to find another job in the area of Airlie Beach and as a result of losing the job, she has lost her house and lives in a shed. Further, she submitted that the Senior Deputy President’s acknowledgement that she was called “an old cow” and told to “get out” was inconsistent with the ultimate finding that she was not dismissed.
[11] The Respondent made some brief oral submissions in reply, noting that the Applicant only worked 8 hours a week for the Respondent and had other sources of income so it was unlikely that the termination of her employment with the Respondent had caused her to lose her house. He also noted that the Respondent had offered the Applicant additional work, which she turned down. He denied the allegations that he was controlling in the proceedings at first instance and said the proceedings speak for themselves. In the Respondent submissions, there was no appealable error in the Decision of the Senior Deputy President.
Permission to Appeal
[12] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[13] 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’ 3. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’
[14] The test for determining the public interest has been described as follows: 4
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[15] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 5 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:6
“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.”
Conclusions
[16] It will often be the case that a party to an unfair dismissal proceeding believes a different result should have been reached or that certain aspects of the circumstances are not expressed in accordance with the views of that party. However that is an insufficient basis for a successful appeal. That is essentially the case here. The Senior Deputy President’s Decision contains a detailed and comprehensive consideration of the conflicting evidence of the parties and his ultimate decision was underpinned by a finding that the Applicant had “greatly exaggerated her claims”. 7 We consider that this finding was reasonably open to the Senior Deputy President, on the basis of the material before him. Absent any identifiable and significant error in the factual findings or in the decision-making process, mere dissatisfaction with an outcome will never enliven the public interest.
[17] We have reviewed all the relevant material before the Commissioner and we are not persuaded an arguable case of appealable error has been demonstrated by the Appellant. No basis upon which the public interest is attracted has been identified. We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1), permission to appeal is refused and the matter is dismissed.
VICE PRESIDENT
Appearances:
E Atkinson in person.
G Lorenzen for the Respondent.
Hearing details:
14 July
2015.
Sydney via video - link to Brisbane.
1 [2015] FWC 3046.
2 PN12-13.
3 (2011) 192 FCR 78 at paragraph 43.
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
5 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
6 Ibid.
7 [2015] FWC 3064 at [66].
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