Palak Rani v Limitless Ventures Toscas Pty Ltd t/a Toscanis Mackay
[2015] FWCFB 8216
•10 DECEMBER 2015
| [2015] FWCFB 8216 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Limitless Ventures Toscas Pty Ltd t/a Toscanis Mackay
(C2015/6987)
VICE PRESIDENT HATCHER | SYDNEY, 10 DECEMBER 2015 |
Permission to appeal against decision [[2015] FWC 6429] of Senior Deputy President Richards at Brisbane on 25 September 2015 in U2015/3939.
[1] On 25 September 2015 Senior Deputy President Richards issued a decision 1 dismissing an application for an unfair dismissal remedy made by Ms Palak Rani under s.394 of the Fair Work Act 2009 (the Act). On 20 October 2015 Ms Rani lodged an appeal against the decision.
[2] The matter was listed for hearing on 26 November 2015. On 28 October 2015 a notice of listing, information sheet and directions were sent to Ms Rani at the email address and residential address set out in her appeal application. Ms Rani was directed to file and serve, by 19 November 2015, an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. Ms Rani did not file an outline of submissions by 19 November 2015.
[3] On 23 November 2015 the Commission contacted Ms Rani and sent to her another copy of the directions and notice of listing. Ms Rani said she would file an appeal book and submissions by express post. Ms Rani also indicated she would attend the hearing in person. Ms Rani did not file an appeal book or submissions prior to the hearing.
[4] On the day of the hearing, Ms Gagan Kaur appeared for the respondent. Ms Rani did not appear, nor could she be contacted. Accordingly, the only material upon which Ms Rani’s application for permission to appeal may be considered is her notice of appeal.
Consideration
[5] As the decision was from an unfair dismissal decision, s.400 applied to the appeal. That section provides:
400 Appeal rights
(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 considering whether permission to appeal should be granted, the Full Bench will consider whether it is in the public interest to grant permission to appeal. The “public interest” is not defined in the Act, but it generally refers to a benefit or advantage to the whole community, as opposed to an individual. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 2 In GlaxoSmithKline Australia Pty Ltd v Makin3 a Full Bench 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...”
[7] Subject to the appellant demonstrating an arguable case of appealable error, the Commission has a broad discretion as to the circumstances in which it can grant permission to appeal. Some examples of considerations which have traditionally been adopted in granting leave include:
● that the decision is attended with sufficient doubt to warrant its reconsideration;
● that the Commission at first instance may have exceeded its jurisdiction; and
● that substantial injustice may result if leave is refused.
[8] In her appeal grounds Ms Rani said that the decision gave her no relief, and claimed that she provided several witnesses while the respondent only provided two witnesses. She also referred to a case pending before the Fair Work Ombudsman, said that she did not accept the termination, and requested the Commission to “look into the matter”.
[9] We have considered the very limited material before us, and we are not satisfied that there are any public interest grounds which warrant the grant of permission to appeal. The matter does not involve issues of importance and general application, there is no diversity of decisions, the decision does not manifest an injustice, and the legal principles are not disharmonious. No arguable case of appealable error has been identified. We dismiss the application for permission to appeal.
VICE PRESIDENT
Appearances:
No appearance by the Appellant.
G. Kaur for the Respondent.
Hearing details:
2015.
Sydney:
26 November.
1 [2015] FWC 6429
2 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]
3 [2010] FWAFB 5343
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