Ms Lorraine Williams v Northern Land Council
[2017] FWCFB 2492
•8 MAY 2017
| [2017] FWCFB 2492 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Northern Land Council
(C2017/1894)
VICE PRESIDENT CATANZARITI | MELBOURNE, 8 MAY 2017 |
Appeal against decision [2017] FWC 281 of Commissioner Wilson at Melbourne on 20 March 2017 in matter number U2016/11568.Permission to appeal only – Permission to appeal refused.
[1] On 20 March 2017 Commissioner Wilson handed down a Decision 1 and Order2 dismissing an application by Ms Lorraine Williams for unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act).
[2] On 10 April 2017 Ms Williams (Appellant) filed an appeal against this decision. The one-hundred-and-thirteen appeal grounds included allegations that precedent decisions were not followed on the issue of consultation before redundancy and other issues; that consultation which was required did not occur; allegations that her evidence should have been accepted and the evidence of others rejected; and a range of submissions questioning the conclusions reached by the Fair Work Commission (Commission) in finding that the termination was a genuine redundancy.
[3] At the hearing before us, the Appellant represented herself, and C. Ellison from the Chamber of Commerce, represented the Respondent. Pursuant to s.596(4) of the Act, Ms Ellison did not require the Commission’s permission to represent the Respondent.
Decision under appeal
[4] In the decision under appeal, the Commission found that Ms Williams’ dismissal was a case of genuine redundancy:
“[26] I am satisfied from the evidence that, at the time she was dismissed, the NLC no longer required Ms Williams’ job to be done by anyone because of changes in the operational requirements of its enterprise. After she had left the organisation, the work that Ms Williams had performed was distributed to others.
…
[31] I am satisfied that the foregoing clause applies to the circumstances from which Ms Williams lost her job and that obligations on the Northern Land Council were to consult with the group of employees affected about the matters set out within the clause. Further, I am satisfied that it followed its obligations in this regard when Mr Brown spoke with employees about the Respondent’s decisions. The fact that Ms Williams was not at the meeting on 4 July 2016 does not change that the Northern Land Council fulfilled its obligations under the clause, and it does not give rise to a separate obligation to consult directly with her. While there is a divergence of evidence between Mr Brown and Mrs Williams about whether he spoke directly with her on the subject after the general meeting, I prefer his evidence in this regard and am satisfied that he did so.
…
[37] I am satisfied that the financial circumstances faced by the NLC at the time of Ms Williams’ dismissal were such that it was not in a position to redeploy Ms Williams elsewhere in the NLC. I consider it more likely than not that the reason her employment opportunity had come about and its probable limited duration was communicated to Ms Williams when she did begin employment, and that her role was unavoidably at the mercy of the surplus funding. I have taken into account the NLC’s overarching objectives in providing meaningful employment opportunities as and when they arise, as well as its subjection to funding and budgetary constraints. I have also taken into account the circumstances of the dismissal itself, in particular Ms Williams’ absence from the workplace in the weeks leading up to the dismissal, the verbal stoush which eventuated, and Ms Williams subsequently having permanently left the workplace. Such circumstances lead me to the view that the NLC was limited in its ability to discuss and consider redeployment opportunities. Nevertheless, I am satisfied that redeployment was not reasonably open to it.
[38] For the reasons set out above, I am satisfied that the Northern Land Council’s dismissal of Ms Williams was a genuine redundancy within the meaning of the Act. The merits of her unfair dismissal application are therefore unnecessary to consider.”
Authorities on appeal
[5] This appeal is one to which s.400 of the FW 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.
[6] In the Federal 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(1) as “a stringent one”. 3
[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 4. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
[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.
[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.’ 5 [citations omitted]
[8] 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. 6 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.7
Consideration
[9] The Appellant repeated many of the detailed appeal grounds in putting oral submissions, and also put additional submissions on the background to the matter, the nature of her job, and the need for casual employees to be consulted. She submitted that the Commission erred in its conclusions at first instance.
[10] The submissions put by the Appellant were in the nature of an attempt to persuade us that the Commission at first instance, should have reached a different conclusion on the facts. This was an attempt to, in effect, reargue the case put below and seek a different outcome. In the absence of permission to appeal being granted and appealable error found at first instance, it is not open to an appeal bench to substitute its view of the matters that fell for determination at first instance. The Commissioner was also not required to refer to all of the decisions referred to by the Appellant.
[11] There is nothing in the Appellant’s appeal grounds or submissions which raise 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.
[12] As we have mentioned, s.400 (1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly permission to appeal is refused.
VICE PRESIDENT
Appearances:
L. Williams, Appellant
C. Ellison, Chamber of Commerce, for the Respondent.
Hearing details:
3 May
Sydney
2017
1 [2017] FWC 281.
2 PR589384.
3 (2011) 192 FCR 78 at [43].
4 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].
5 [2010] FWAFB 5343 at [26] - [27], 197 IR 266.
6 Wan v AIRC (2001) 116 FCR 481 at [30].
7 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].
Printed by authority of the Commonwealth Government Printer
<Price code A, PR592686>
0
6
0