New England and Western Tenants Advice and Advocacy Service Inc v Annabel Doherty

[2013] FWCFB 9206

[2013] FWCFB 9206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

New England and Western Tenants Advice and Advocacy Service Inc
v
Annabel Doherty
(C2013/6060)

VICE PRESIDENT HATCHER
COMMISSIONER MCKENNA
COMMISSIONER BULL SYDNEY, 21 NOVEMBER 2013

Appeal against decision [2013] FWC 6385 of Deputy President Booth at Sydney on 30 August 2013 in matter number U2012/6647.

[1] This decision reproduces in edited form the reasons for decision and order which we stated on transcript at the conclusion of the hearing of this appeal earlier today.

[2] This is an appeal against a decision issued by Deputy President Booth on 30 August 2013. 1 In that decision, the Deputy President determined that there was a valid reason for the dismissal of the respondent by the appellant but, having regard to the other matters required to be taken into account under s.387 of the Fair Work Act 2009 (the Act), found the dismissal to have been harsh, and awarded the respondent 14 weeks’ pay as a remedy.

[3] The appellant in its grounds of appeal and submissions has alleged that in a number of respects the Deputy President erred in matters of fact or law. We have carefully considered those submissions. As to the alleged errors of fact, s.400(2) of the Act requires that an appeal from an unfair dismissal decision on a question of fact must be made on the ground that the decision involved a significant error of fact. We do not consider that any of the factual matters raised by the appellant meets that threshold. Nor do we consider that the Deputy President erred on any question of law as contended by the appellant.

[4] There is one matter in the decision, not the subject of any of the appellant’s grounds of appeal, which calls for some comment. It was not in dispute that the appellant was a “small business employer” as that expression is defined in s.23 of the Act. The Small Business Fair Dismissal Code (Code) therefore had application to the dismissal. Under s.385(c) of the Act, a requirement for a finding that a person has been unfairly dismissed is that “the dismissal was not consistent with the Small Business Fair Dismissal Code”.

[5] In paragraph [13] of the decision, the Deputy President stated:

“[13] At the time of the dismissal the respondent was a small business employer as defined in s.23 of the Act however the respondent does not seek to rely in these proceedings on the Small Business Fair Dismissal Code pursuant to s.388 of the Act.”

[6] The appellant confirmed in its appeal submissions that it had not sought to rely on the Code in its defence of the unfair dismissal application. As a result of this course, it appears that the Deputy President was not properly addressed on the matter by either party.

[7] We do not consider that the Commission in an unfair dismissal case is entitled not to consider and deal with the question of whether a dismissal is consistent with the Code on the basis that the parties decline to deal with the question in their respective cases. The Act requires the matter to be dealt with even where the parties do not address it.

[8] However that does not mean that we should interfere with the decision under appeal, for two reasons. Firstly, as earlier stated, the appellant did not contend in its appeal that the decision should be quashed for this reason. Secondly, it is clear from the Deputy President’s findings that, had she considered the issue, she would have to have found that the dismissal was not consistent with the Code. The dismissal here was a summary one. In respect of summary dismissals, the Code requires that the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. That effectively requires there to have been reasonable grounds to believe that serious misconduct had been committed, consistent with the common law position and as the examples in the Code demonstrate. The Deputy President found at paragraph [95] of the decision that the respondent’s behaviour did not rise to the level of serious misconduct, and her reasons for decision read as a whole indicate that there was not a reasonable basis for any contrary conclusion. Therefore, the Deputy President’s omission of a finding concerning the Code could not have affected the outcome.

[9] Section 400(1) of the Act requires the Full Bench not to grant permission to appeal unless it is in the public interest to do so. We consider that the decision made by the Deputy President was one which was reasonably open to her to make, albeit we may not have made the same decision ourselves. We do not consider that any House v The King 2error has been demonstrated, or that any other issue that would attract the public interest has been identified. This case was determined on its particular facts and does not have the precedent value that the appellant contended it would have. Permission to appeal is refused. We so order.

VICE PRESIDENT

Appearances:

C. McArdle, solicitor, for the appellant.

M. Daly, solicitor, for the respondent.

Hearing details:

2013.

Sydney:

21 November.

 1  [2013] FWC 6385

 2   (1936) 55 CLR 499

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