Ms Esther Vladislavovna Rikkone v New South Wales Masonic Club
[2023] FWCFB 258
•18 DECEMBER 2023
| [2023] FWCFB 258 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Esther Vladislavovna Rikkone
v
New South Wales Masonic Club
(C2023/5243)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 18 DECEMBER 2023 |
Appeal against an oral decision on 16 August 2023, decision [2023] FWC 2872 and order PR767552 of Deputy President Boyce at Sydney on 24 October 2023 in matter C2023/3633 – permission to appeal refused
Ms Esther Vladislavovna Rikkone has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against two decisions[1] and an order[2] of Deputy President Boyce, for which permission to appeal is required. The application concerned a general protections claim brought by Ms Rikkone against the New South Wales Masonic Club pursuant to s 365 of the Act.
This matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Procedural history
The respondent is a not-for-profit registered and licenced club. Ms Rikkone was employed by the respondent as a casual food, beverage and gaming attendant for the period between 2 June and 15 June 2023. It is not in dispute that Ms Rikkone performed six casual shifts for the respondent, many involving induction and training.[3]
Ms Rikkone filed a s 365 general protections application in the Commission dated 23 June 2023, alleging various breaches of the general protections provisions of Part 3-1 of the Act. The respondent objected to the application on the basis that Ms Rikkone was not dismissed but rather resigned from her employment. The matter was listed for a jurisdictional objection to determine whether Ms Rikkone was dismissed, this being an antecedent issue requiring determination before Ms Rikkone’s s 365 general protections application could proceed.[4]
By a Notice of Appeal dated 31 August 2023, Ms Rikkone appealed an interlocutory decision issued orally on 16 August 2023 in which the Deputy President declined to make an order for the production of documents sought by Ms Rikkone (interlocutory decision). Ms Rikkone’s Form F52 application sought the production of financial statements; documents demonstrating any personal or financial interest of the respondent’s management; the respondent’s constitution; work contracts; pest control documents; fingerprint policies; fingerprint records; privacy policies; work health and safety policies; membership list; employee list; diversity statistics; the Registered Clubs Act 1976 (NSW); and the Registered Clubs Regulation 2015 (NSW).
The Form F52 application demonstrates that Ms Rikkone sought these documents to examine the respondent’s compliance with payment and membership policies; government protocols and directives; privacy; collection of biometrical and other data; storage of data; and underpayments. The Form F52 states that this material would allow “unbiased” and “fair” judgement, the observance of human rights and an understanding of the respondent’s compliance with its constitution.[5]
At the time Ms Rikkone’s Notice of Appeal was allocated to this Full Bench, the respondent’s jurisdictional objection had been the subject of a hearing before the Deputy President, on 1 September 2023. The Deputy President’s decision with respect to the question of whether Ms Rikkone was dismissed from her employment was reserved.
In these circumstances, with the parties’ consent, Ms Rikkone’s appeal of the Deputy President’s interlocutory decision was stayed pursuant to s 589(2) of the Act, pending resolution by the Deputy President of whether Ms Rikkone was dismissed from her employment.
On 24 October 2023, the Deputy President issued a decision in which he determined, in summary, that Ms Rikkone was not dismissed within the meaning of s 386(1) of the Act (jurisdictional decision). Having regard to Ms Rikkone’s specific complaints, considered later in this decision, we consider it unnecessary to recite the full details of that decision. The Deputy President relevantly rejected (a) Ms Rikkone’s contention that she was dismissed by the respondent during a meeting on 15 June 2023 at its initiative; and (b) Ms Rikkone’s contention that she was forced to resign during the 15 June 2023 meeting within the meaning of s 386(1)(b). The Deputy President was satisfied that Ms Rikkone’s employment ended at her own hand, and she thereafter acted with intent in “advising other employees of her resignation, returning her uniform, and requesting that her fingerprints be deleted from the Respondent’s electronic fingerprint system.”[6]
Having upheld the respondent’s jurisdictional objection, the Deputy President concluded that the Commission was not empowered to proceed further with Ms Rikkone’s general protections application and ordered that the application be dismissed.
On 26 October 2023, directions were issued for the progression of Ms Rikkone’s Notice of Appeal. Having regard to Ms Rikkone’s submission that the jurisdictional decision is affected by “administrative error,” the Full Bench proceeds on the basis that the appeal concerns both the interlocutory decision and the jurisdictional decision. We grant leave to the extent necessary to amend the Notice of Appeal to this effect.
Principles - permission to appeal
An appeal under s 604 of the Act is an appeal by way of rehearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker.[7] There is no right to appeal and an appeal may be made only with the permission of the Commission.
Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[8] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[9] The public interest might be attracted where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, 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]
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, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[12] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[13]
Grounds of appeal
The Notice of Appeal does not set out any appeal grounds.
In relation to the interlocutory decision, we understand Ms Rikkone contends that her Form F52 application was determined “without rules of procedural fairness.” In support of this contention, Ms Rikkone says that (a) the Deputy President accepted evidence from the respondent without affidavits, (b) the proceeding was conducted without an interpreter, (c) the mention was convened at short notice, and (d) the mention was conducted while Ms Rikkone was at a train station, and she was not able to adequately hear.
Ms Rikkone seeks review of the jurisdictional decision on the basis that she does not feel that she was heard, the Deputy President had a conflict of interest in dealing with her application, and the hearing was convened absent an interpreter. Ms Rikkone contends that the Deputy President did not wish to hear about “anything” except for the 15 June 2023 meeting between Ms Rikkone and the respondent. Accordingly, Ms Rikkone says that all of the facts were not considered, or were considered erroneously, and the Deputy President arrived at a decision that was unjust and which contains errors of law.
Ms Rikkone says that there is public interest in the Commission granting permission to appeal for the following reasons:
“… if there is a corruption in regards of covering unfair club conduct and violations of the law and Constitution, especially the fascination of Mr Brasch with Asian Fish Market philosophy given recent not green Olympics and above safe level amount of dioxin in Homebush harbor which might cause cancer and immune diseases, it might be just a covering up the corruption and exploitation of the workers on grand scale, using bullying and harassment and it shall be referred to anti Corruption commission as it cause unhealthy culture, public safety and mental health. Lack of Protection and harassment behavior I believe damage the society.”
Consideration
We are not satisfied that it would be in the public interest to grant permission to appeal for two reasons.
First, as far as we can discern, the appeal grounds do not involve any challenge to the core findings made by the Deputy President which founded his decision to dismiss Ms Rikkone’s s 365 application. As earlier explained, the Deputy President found that Ms Rikkone had resigned from her employment voluntarily, such resignation was not forced and there was not a termination at the respondent’s initiative. Having regard to the matters identified earlier in this decision which constitute the grounds for Ms Rikkone’s appeal, it is impossible to identify any contention (let alone an arguable contention) that the Deputy President erred in finding that Ms Rikkone had not been dismissed pursuant to s 386(1) of the Act.
The appeal grounds advanced by Ms Rikkone instead relate to a diverse range of trivialities or are simply spurious. With respect to the interlocutory decision, there is no arguable basis to conclude that Ms Rikkone was denied procedural fairness. The material sought by Ms Rikkone pursuant to the Form F52 application concerned a range of documents and materials that have no apparent relevance to the narrow issue requiring determination in Ms Rikkone’s s 365 application.[14] Ms Rikkone was advised of such by way of email from the Deputy President’s Chambers on 16 August 2023. We are not persuaded that the Deputy President’s determination not to make a production order in the terms sought by Ms Rikkone could have had any meaningful consequence for the outcome of the proceedings. Any suggestion that the documents sought may have displaced the Deputy President’s findings on the question of whether Ms Rikkone was dismissed is without merit.
The proposition that the Deputy President conducted the hearing at short notice and absent an interpreter does not demonstrate any arguable appealable error. There is no material on the Commission’s file demonstrating that Ms Rikkone sought an adjournment of the mention. Ms Rikkone’s correspondence of 14 August 2023 preceded the notice of listing being issued for the mention, and Ms Rikkone did not contend otherwise. Further, it is apparent from Ms Rikkone’s Form F8 application that an interpreter was not requested, nor was such a request subsequently made.
The allegation that the respondent violated the proceedings by filing witness statements and not “affidavits” is of no merit in circumstances where the directions issued by the Deputy President on 18 July 2023 specify that the parties are to file and serve, amongst other things, “witness statements” to support their respective positions. The Deputy President addressed Ms Rikkone’s concerns that the respondent’s materials were not in affidavit form in the jurisdictional decision:[15]
“In rejecting each and every objection or complaint made by the Applicant in relation to the evidence of the Respondent’s witnesses, I make the following points:
a) affidavit evidence is not normally required to be filed by parties to proceedings before the Commission, but it will be a matter for each Commission member in that regard. In this case, I took the approach that parties are able to file written witness statements, which are then adopted by the relevant witness under oath in the witness box, meaning that their written witness statement evidence becomes sworn testimony (that can then be tested under oath via cross-examination)…”
Ms Rikkone’s Notice of Appeal and submissions before us do not challenge this conclusion.
Nor do Ms Rikkone’s grounds of appeal regarding the jurisdictional decision demonstrate an arguable case of appealable error. With respect to Ms Rikkone’s complaint that the hearing proceeded absent an interpreter, we refer to and repeat our conclusion at [24] above. If Ms Rikkone considered an interpreter to be desirable, it was open to her to request one.
It is apparent that Ms Rikkone sought to advance a series of wide-ranging submissions, replete with allegations unsupported by evidence and of no apparent connection to the issue to be determined. No arguable case of appealable error arises from the contention that the Deputy President sought to focus the parties’ evidence on the events of the 15 June 2023 meeting, from which the facts in issue relevantly arose. Contrary to Ms Rikkone’s allegation, the jurisdictional decision demonstrates that the parties’ respective contentions, as they related to material facts in issue, were the subject of detailed consideration.
Ms Rikkone relies upon a broad and unparticularised allegation that the Deputy President made erroneous factual findings. There is no basis advanced capable of founding a conclusion that any findings were contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences in the sense described at [16] above. Further, other than to express her disagreement with the determination reached, Ms Rikkone does not address the specific legal errors said to result in the jurisdictional decision being unjust. Having considered Ms Rikkone’s written submissions and the evidence upon which the jurisdictional decision relies, no arguable error is disclosed.
Finally, we regard Ms Rikkone’s contention that there was a conflict of interest to be spurious. There is no indication on our review that Ms Rikkone addressed her concerns with the Deputy President. In the absence of doing so, no appealable error arises from the Deputy President proceeding to determine the application before him.
Second, neither the Notice of Appeal nor any aspect of either decision points to any matter in the public interest that might support the grant of permission to appeal. The matter was determined entirely on the basis of its own facts. We are not satisfied, for the purposes of s 604(2), that there is a diversity of decisions at first instance so that guidance from an appellate body is required; the appeal raises issues of importance and/or general application; the decisions at first instance manifest an injustice or are counter intuitive; or the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Because we are not satisfied that the grant of permission would be in the public interest or that there are any other grounds that would support the grant of permission to appeal, permission to appeal is refused under s 604(1) of the Act.
DEPUTY PRESIDENT
Appearances:
Ms E Rikkone, with a translator of the Russian language, on her own behalf
Ms N Shaw, with Ms L Gramoski, of ClubsNSW on behalf of the respondent
Hearing details:
2023.
Perth:
6 December.
[1] Issued orally on 16 August 2023, and [2023] FWC 2872
[2] PR767552
[3] Decision at [10]
[4] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152
[5] Form F52 Application for an order for production of documents, records or information to the Commission dated 12 August 2023
[6] Decision at [44]
[7] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[8] O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46]
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 [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 388, 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]
[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; (2010) 197 IR 266
[11] Wan v AIRC (2001) 116 FCR 481 at [30]
[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[13] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29]
[14] Clermont Coal Operations Pty Ltd v Brown & Dews and Others[2015] FWCFB 2460 at [19]
[15] Decision at [32]
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