Rocky Bay Limited v
[2024] FWCFB 256
•7 MAY 2024
| [2024] FWCFB 256 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rocky Bay Limited
v
Ms Sandra Conrad
(C2023/6863)
| VICE PRESIDENT CATANZARITI | SYDNEY, 7 MAY 2024 |
Appeal against decision [2023] FWC 2727 of Deputy President O'Keeffe at Perth on 18 October 2023 in matter number U2023/4334 – permission to appeal refused.
Background
Rocky Bay Limited (Rocky Bay / the Appellant) has lodged an appeal under s. 604 of the Fair Work Act 2009 (the Act), for which permission is required, against a decision[1] of Deputy President O’Keeffe issued on 18 October 2023 (the Decision). The Decision concerned an application brought by Ms Sandra Conrad (Ms Conrad / the Respondent) for a remedy under s.394 of the Act, alleging that she had been unfairly dismissed from employment with Rocky Bay.
In the Decision, the Deputy President found that Ms Conrad was unfairly dismissed. The Deputy President, having found it to be inappropriate to reinstate Ms Conrad to the role from which she had been dismissed, made an order that Rocky Bay pay her $29,068.24 gross by way of compensation.
The Decision
The factual background of the matter is set out in the Decision. It can be briefly stated as follows. Rocky Bay provides disability and health care services in Western Australia. Ms Conrad commenced her employment with Rocky Bay in May 2015, and at the time of her dismissal, was employed as a Disability Support Worker. Ms Conrad suffered a heart attack in 2019 and a further heart attack in December 2022. Following Ms Conrad’s return to work in January 2023, Rocky Bay proposed to change her working arrangements. On 7 March 2023, Ms Conrad lodged a grievance with Rocky Bay about how it was treating her, including the issue of her working hours, and on 10 March 2023, Ms Conrad’s doctor contacted Rocky Bay to notify it that Ms Conrad had lodged a workers’ compensation claim. From this point onwards, Ms Conrad was absent from work due to certified unfitness. On 1 May 2023, Ms Conrad resigned from her employment, effective immediately.
At first instance Rocky Bay raised a jurisdictional objection that Ms Conrad had not been dismissed within the meaning of s. 386 of the Act. The Deputy President considered that the two issues that needed to be determined were:
1.Whether Ms Conrad was dismissed at the initiative of Rocky Bay; and, if so;
2.Was that dismissal harsh, unjust, or unreasonable?[2]
Ms Conrad contended that Rocky Bay terminated her employment on its own initiative by unilaterally varying her contract of employment by reducing her working hours from 76 hours per fortnight to 60 hours per fortnight. Ms Conrad, relying on City of Sydney RSL and Community Club Limited v Balgowan,[3] submitted that such a variation constituted a repudiation of the employment contract by Rocky Bay, but that the repudiatory conduct did not bring the contract of employment to an end. At no point had the reduction to Ms Conrad’s hours been agreed between herself and Rocky Bay, and her efforts to clarify and later challenge this change had proven fruitless. Accordingly, on 1 May 2023, Ms Conrad accepted Rocky Bay’s repudiation and resigned from her employment.
Ms Conrad submitted that the conduct by Rocky Bay was a dismissal as contemplated in s.386(1)(b) and considered by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[4] (Bupa) and Sydney Water Corporation v Yelda.[5] The conduct relied on in this respect was that Rocky Bay had, in addition to reducing her working hours:
(a) Removed Ms Conrad from her preferred night shift roster;
(b) Rostered Ms Conrad at a work site other than her usual work site, contrary to Ms Conrad’s requests;
(c) Breached the provisions of the Social, Community, Home Care and Disability Services Award 2010 (the Award);
(d) Failed to properly address Ms Conrad’s formal grievance concerning the issues arising following her return to work in January 2023; and,
(e) Failed to comply with Rocky Bay’s policies by not providing Ms Conrad with an opportunity to nominate a support person for discussions about Ms Conrad’s hours of work.
Rocky Bay contended that Ms Conrad was not terminated at its initiative but that she had resigned from her employment freely. Rocky Bay addressed the changes to Ms Conrad’s working arrangements by contending that it was consulting with Ms Conrad for the purpose of devising a roster which would address what it described as Ms Conrad’s safety concerns, domestic responsibilities, and health issues (including her most recent heart attack). Rocky Bay submitted that Ms Conrad had indicated a willingness to consider alternative rostering options, but failed to respond and instead lodged a grievance. Rocky Bay accepted that it did not respond to the grievance but explained that its failure to do so was because she had lodged a workers’ compensation claim and it received advice from its workers’ compensation insurer not to. Rocky Bay submitted that, between January 2023 and Ms Conrad’s resignation in May 2023, Rocky Bay had not done anything to give rise to Ms Conrad’s view that she had no option but to resign.
The Deputy President made the following factual findings:
(a)Ms Conrad’s availability to work had not changed on her return to work, and there was no reason for Rocky Bay to conclude that it had.
(b)Rocky Bay’s canvassing of options that would change her hours was not malicious or intended to provoke a negative reaction.
(c)It was reasonable for Ms Conrad to conclude that Rocky Bay sought to unilaterally reduce Ms Conrad’s hours of work.
Having considered the evidence, the Deputy President observed that the question to be determined was whether Rocky Bay’s conduct fell within the ambit of s.386(1)(b) of the Act as considered by the Full Bench in Bupa.
The Deputy President then considered Ms Conrad’s further contention that the conduct of Rocky Bay was unreasonable and contributed to Ms Conrad’s resignation. The Deputy President found that Rocky Bay was initially concerned for Ms Conrad’s wellbeing. The Deputy President found that the proposal to reduce Ms Conrad’s hours was not communicated as being part of a process of consultation and that it was reasonable for her to proceed on the basis that Rocky Bay was intending to unilaterally reduce her contract hours and to rely on this in support of her argument that she had been dismissed. The Deputy President also found that when Rocky Bay proposed to move Ms Conrad from her preferred night shift, she experienced distress and Ms Conrad was entitled to regard this as behaviour by Rocky Bay which contributed to the decision to resign. On the matter of moving Ms Conrad’s place of work, the Deputy President accepted that Ms Conrad had made it clear to Rocky Bay that she did not want to be moved and the change had contributed to the angst that she had been experiencing with respect to changes to her work arrangements, and as such, contributed to her decision to resign. In relation to the failure of Rocky Bay to deal with Ms Conrad’s grievance, the Deputy President held that, while there was no malicious intention in Rocky Bay’s conduct towards Ms Conrad, this conduct had contributed to the concerns that led her to resign. The Deputy President also considered the issue of Rocky Bay having sought to have Ms Conrad’s capacity for work assessed, and found that the capacity assessment proposal was unwise as it contributed to the concerns Ms Conrad had that led her to resign.
At [63] and [64] of the Decision, the Deputy President made findings going to the forced resignation. Those findings referred to the repudiation issue raised by Ms Conrad but were also relevant to a finding under s. 386. The Deputy President found that the cumulation of these matters caused Ms Conrad distress and forced her resignation. The Deputy President found that, despite a lack of any ill intent on the part of Rocky Bay, the changes to hours of work on its own would likely sustain a finding of forced resignation, but when taken with Rocky Bay’s treatment of Ms Conrad over her grievance, her workers’ compensation claim and her working arrangements, these factors forced Ms Conrad to resign.
Having found that there had been a forced resignation, the Deputy President proceeded to consider whether Ms Conrad’s dismissal was unfair for the purposes of s.387 of the Act. The Deputy President found that there was no valid reason for the dismissal for the purposes of s. 387(a), and that following consideration of the factors in s.387(b)-(h), Ms Conrad’s dismissal was unjust because, through no fault of her own, she had no option other than to resign.[6]
The Deputy President found that reinstatement was neither sought nor appropriate and determined that an order for compensation was appropriate. He then considered the factors stipulated in s. 392(2) of the Act, including Ms Conrad’s efforts to mitigate her loss, and determined that Ms Conrad would have continued employment for at least one year. He then went on to apply the Sprigg formula[7] and made an order that Rocky Bay pay the amount of $29,068.24 to Ms Conrad within seven days of the date of the Decision.[8]
Grounds of Appeal
Rocky Bay advances ten grounds of appeal. The grounds are discursive and repetitive.
First, that the Deputy President erred in concluding that Ms Conrad had been terminated at Rocky Bay’s initiative (as contemplated in s.386(1)(a)). The Appellant contends that, if the Deputy President found that Ms Conrad’s employment had been terminated at Rocky Bay’s initiative pursuant to s.386(1)(a), he did not provide reasons supporting that finding.
Second, the Appellant complains about a number of factual findings. It contends that the Deputy President erred in finding that Rocky Bay engaged in conduct that forced Ms Conrad to resign. In particular, Rocky Bay contends that: Ms Conrad’s working hours were not reduced; she was not required to work shifts that were not night shifts; she had not been required to work at a different location; and she had not been required to attend a fitness-for-work assessment. The Appellant also submits that insufficient weight was given to its explanation that it did not deal with Ms Conrad’s grievance due to advice from its insurer not to. Rocky Bay contends that its acts and omissions did not permit a conclusion that Ms Conrad was left with no effective or real choice but to resign.
Rocky Bay’s third ground of appeal goes to remedy. Rocky Bay submits that the Deputy President’s finding that Ms Conrad’s employment would have continued for a further twelve months was inconsistent with other findings that Rocky Bay’s conduct had caused Ms Conrad’s mental health injury. The Appellant contends that if the Deputy President’s findings as to the appropriateness of reinstatement are to be accepted, they should result in a lower estimation of the continued employment period.
Rocky Bay’s fourth ground of appeal is that the Deputy President erred in finding that reinstatement was inappropriate. The Appellant contends that this finding was wrong in circumstances where evidence and submissions had been accepted that Ms Conrad loved her job and wanted to return to work following her heart attacks.
Rocky Bay’s fifth ground of appeal is that the Deputy President erred by finding that a reduction of 50% of the compensation ordered to be paid to Ms Conrad properly reflected Ms Conrad’s failure to mitigate her loss since her dismissal. Rocky Bay contends that the Deputy President should have found, given the evidence before him as to the availability of disability support worker positions and the fact that the Respondent had not made any applications until approximately four months after her resignation, that Ms Conrad had failed to attempt to mitigate her loss. The Appellant submits that the Deputy President, having made this finding, ought to have reduced the compensation payable to Ms Conrad to a nominal amount of between three to four weeks’ pay.
In its sixth ground of appeal, Rocky Bay submits that the Deputy President misapplied the principles set out in Bupa and in doing so made an error of law. The Appellant submits that the Deputy President considered whether Rocky Bay had reduced Ms Conrad’s hours of work and found that Ms Conrad was entitled to rely on conduct to support her claim that she had been forced to resign from her position, despite this conduct only amounting to a “proposal”. Rocky Bay maintains that it did not unilaterally reduce Ms Conrad’s hours— it had merely proposed to. The Appellant contends that the Deputy President should have considered their actual conduct to establish whether the Respondent had no real or effective choice but to resign. Rocky Bay ultimately submits that the Deputy President should not have concluded that Ms Conrad had no effective choice but to resign on the evidence before the Commission.
In its seventh ground of appeal, Rocky Bay submits that the Deputy President misapplied sections 390 and 391 of the Act and the test for reinstatement, and in doing so made errors of law. The Appellant relied on its submissions with respect to its fourth ground in support of these contentions.
In its eighth ground of appeal, Rocky Bay submits that the Deputy President made a significant error of fact by rejecting Ms Wood’s evidence that Rocky Bay would have permitted Ms Conrad to retain her existing employment conditions had Ms Conrad asked to do so.
The Appellant’s ninth complaint is that no adverse findings were made in respect of its witness’s credibility, and that in circumstances where the evidence was uncontradicted, the Deputy President had no reason to doubt it and should have accepted the evidence.
Rocky Bay’s final ground of appeal is that the Deputy President made a significant error of fact by rejecting its evidence that Ms Conrad was not compelled to accept the reduction in her hours of work.
Public Interest
Section 604(1) of the Act provides that an appeal of a decision of the Commission may only proceed with permission. Section 400(1) provides that where the decision involves an application for an unfair dismissal remedy, permission must not be given unless it is in the public interest to do so. Section 400(2) provides that to the extent that an appeal in an unfair dismissal matter is an appeal on a question of fact, it may only be made on the basis that there is a significant error of fact.
Rocky Bay submits that in this appeal the public interest arises because the Decision produces a counterintuitive result and unjust outcome and that there are three important issues of general application. Those matters are said to be first, whether an employee’s perceptions of an employer’s conduct and not the actual conduct can amount to a forced resignation. Second, the manner in which the Commission is to assess conduct that gives rise to a resignation. Third, the proper application of s. 391.
The Respondent contends that the Deputy President exercised his discretion appropriately, applied the correct principles, made necessary findings and applied the legislation in an orthodox manner. Ms Conrad contends that there is no arguable case of error, and the appeal has little prospects of success. Accordingly, Ms Conrad submits that, in the absence of an arguable case, permission to appeal ought to be refused.
Consideration
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 only exercisable if there is error on the part of the primary decision maker.[9] There is no right to appeal. An appeal may only be made with the permission of the Commission. The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal of the Act. An appeal of a decision made under Part 3-2 of the Act must first satisfy the test in s.400 of the Act.
The assessment of whether an appeal meets the public interest test at s.400(1) of the Act is discretionary and involves a broad value judgment.[10] The public interest might be attracted where:
· The issues are of importance and general application;
· The decisions at first instance are diverse, justifying the guidance of an appellate court;
· the decision at first instance manifests an injustice;
· the result is counter intuitive; or
· the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[11]
The test set out in s. 400 has been described as “a stringent one”.[12] Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally. To be characterised as significant, a factual error must vitiate the ultimate exercise of discretion.[13]
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.[14] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
The first of Rocky Bay’s grounds contends that the Deputy President first identified the relevant consideration of the question of the dismissal as being pursuant to s.386(1)(b),[15] then appeared to conclude that Ms Conrad had been terminated ‘at the employer’s initiative’, being a finding that a dismissal within the meaning of s 386(1)(a) had occurred, without providing adequate reasons for that conclusion.
Whilst the Deputy President originally noted that he would consider whether Ms Conrad was dismissed within the meaning of both limbs of s.386(1) of the Act,[16] his consideration at [46] indicated that he would determine the question by reference to s.386(1)(b) and the considerations in Bupa.
As can be seen from our summary above, the Deputy President considered that a number of instances of conduct by Rocky Bay forced Ms Conrad to resign. The Deputy President made findings in relation to each of these instances. In each instance, the Deputy President identified the evidence upon which his conclusions relied in finding that Rocky Bay’s acts or omissions had caused Ms Conrad:
(a)Concerns that there were to be impending unilateral changes to her employment (in terms of changes to hours, shift time or location), or
(b)To become further aggrieved as to her treatment by Rocky Bay (in respect of the failure to address her grievance and the capacity assessment).
The Deputy President found that while the conduct of Rocky Bay was not intentionally malicious or done to upset Ms Conrad or cause her to resign, it was relevant to the circumstances of Ms Conrad’s resignation.
At [63] of the Decision, the Deputy President found that “In considering all of the issues set out above, I find that the actions of the Respondent were such that they forced the resignation of the Applicant and the termination was at the initiative of the Respondent.” This language, on its face, reflects the language in both limbs of s.386(1).
The Deputy President found that the conduct of Rocky Bay fell into two categories. The first category of conduct was described at [51] of the Decision as Rocky Bay “intending to unilaterally reduce her contractual hours”. Reference was then made to that conduct amounting to a repudiation of Ms Conrad’s extant employment contract.[17] Importantly, the Deputy President held that while it was not likely that the individual instances of conduct within the second category would support a finding that the Applicant had been forced to resign, they could support that finding collectively. The Deputy President found that the cumulative effect of the first and second categories of conduct established that Ms Conrad’s resignation had been forced by Rocky Bay.
While it is true that the Decision does not carefully delineate between the language of sections 386(1)(a) and 386(1)(b), on a fair reading, the question of whether Ms Conrad had been dismissed was considered and answered with respect to s.386(1)(b) and the considerations in Bupa. It is clear from the Deputy President’s comments at [63] and [64] and his ultimate finding at [77] that the Deputy President considered and determined that the conduct of Rocky Bay had forced Ms Conrad to resign. Notwithstanding the at-times imprecise use of language in the Decision, we consider that the Deputy President considered and ultimately made findings consistent with Ms Conrad having been dismissed within the meaning of s.386(1)(b).
We do not believe it is arguable, as contended by Rocky Bay under its first ground, that the Deputy President made conclusions without giving adequate reasons. On the face of the Decision, the Deputy President properly considered section 386(1)(b) of the Act. To the extent that the Deputy President made findings that incorporated the language of s.386(1)(a) of the Act, no error arises.
As we find no arguable case for error under ground one, we refuse permission to appeal on that ground.
The second ground challenges a number of findings of fact. The findings challenged relate to whether Ms Conrad’s hours had been reduced, that she was required to work shifts other than night shifts, that she had performed shifts at a different workplace against her wishes, and that she had been made to attend a work capacity assessment. Rocky Bay contends that these matters did not actually occur. We do not consider that the Deputy President found that these matters occurred, rather the findings were that they were proposed by Rocky Bay and that Rocky Bay’s conduct in proposing the changes contributed to Ms Conrad’s belief that those things would happen, and her decision to resign.
In relation to the finding that Rocky Bay’s conduct with respect to Ms Conrad’s grievance contributed to the state of mind of Ms Conrad, the Decision at [59] to [60] sets out the relevant evidence. The Deputy President considered the evidence and submissions and rejected Rocky Bay’s explanation for its treatment of the grievance. He also found that it contributed to the state of mind of Ms Conrad. We can see no error in this approach.
We consider that this ground discloses no arguable case for error and so no basis for permission to appeal.
Rocky Bay’s third ground of appeal contended that the Deputy President erred in finding that Ms Conrad’s employment, but for her dismissal, would have continued for a further 12 months. Rocky Bay contended that, in circumstances where the Deputy President also made findings that reinstatement was not appropriate, the finding should have been that any period of continued employment would have been for a much shorter duration.
We consider that the Deputy President properly exercised his discretion in making his finding as to the likely duration of Ms Conrad’s employment had she not been dismissed and identified the evidentiary and legal bases for his finding. There is no basis to grant permission to appeal on this ground.
In its fourth ground of appeal, Rocky Bay submitted that the Deputy President made an error in finding that reinstatement of Ms Conrad was not appropriate. Rocky Bay submitted that the Deputy President’s finding was in error because Ms Conrad had not filed material or made submissions about why reinstatement was not appropriate, and the Deputy President accepted that Rocky Bay would have welcomed Ms Conrad back to her employment.
The Commission has a broad discretion to order various remedies in relation to an unfair dismissal, pursuant to s.390 of the Act. The Deputy President found at [83] of the Decision that reinstatement of Ms Conrad was inappropriate, taking into account the submissions of both parties, as well as the fact that Ms Conrad was not seeking reinstatement. In light of the authority in Taylor v C Tech Laser Pty Ltd[18] referred to by the Deputy President in the Decision, we consider that the Deputy President did not err in determining that reinstatement was inappropriate. Accordingly, there is no basis for granting permission to appeal on this ground.
In its fifth ground of appeal, Rocky Bay challenges the finding that a 50% reduction in compensation payable to Ms Conrad was sufficient to recognise Ms Conrad’s failure to mitigate her loss. The evidence in this matter from Rocky Bay consisted of a one-line assertion made by the Human Resources Manager about 800 positions being available for Disability Support Workers. The veracity of the assertion was never tested. It was not even established that the 800 online jobs were in Ms Conrad’s location. The jobs that it is said Ms Conrad could have applied for were not put to her in cross-examination. Notwithstanding the paucity of evidence of alternate jobs, Ms Conrad’s representative made a concession that she “should have perhaps done better”.
We consider that, having regard to the evidence that was before him and the submissions made, the Deputy President had due regard to the evidence and submissions of the parties when determining the question of the reasonableness of Ms Conrad’s attempts to mitigate her loss. The Deputy President exercised his discretion to reduce the compensation payable to Ms Conrad by 50%. Rocky Bay fails to identify any basis on which the Deputy President made error in reaching this finding.
We conclude that this matter was appropriately considered and weighed by the Deputy President, and that Rocky Bay would simply prefer a different result.
Rocky Bay’s sixth ground asserts that the Deputy President failed to apply the principles in Bupa to an examination of the actual conduct in determining whether Ms Conrad “had no real or effective choice but to resign”. This ground is related to grounds 1 and 2. Further, Rocky Bay pointed to Ms Conrad’s evidence that it was Rocky Bay’s failure to engage with her grievance that triggered her resignation. Rocky Bay submits that on the basis of this evidence, the Deputy President made an error by concluding that Ms Conrad had no effective choice but to resign.
We repeat our conclusions and consideration with respect to the first two grounds of appeal. We consider that the Deputy President considered the evidence filed, examined the actual conduct of Rocky Bay and concluded that Rocky Bay had proposed to unilaterally reduce Ms Conrad’s working hours. We see no error in this approach. We think it plain from the Decision at [51] and the Deputy President’s finding that Ms Conrad was entitled to rely on these matters to contend that she was forced to resign, that the Deputy President considered that Ms Conrad’s resignation was an objectively valid response to Rocky Bay’s conduct.
At [63] the Deputy President considers one of the elements of Bupa and finds that there was no intent to bring the relationship to an end. He then turns, in [63]–[64] to further consider the conduct of the employer before finding that the proposed reduction of the Ms Conrad’s hours was so significant that it would have sustained a claim of forced resignation on its own. In doing so, we consider that he was considering whether Ms Conrad had no real choice but to resign, applying the principles in Bupa. Whilst the Deputy President does not refer to this reduction as a proposed reduction, it is abundantly clear from the Decision at [50]–[51] that the Deputy President was referring to the proposed reduction in hours in the circumstances described in the previous paragraph. The Deputy President then went on to consider the further instances of conduct which he had already dealt with at [53]–[61] before forming the conclusion that when added to the reduction in hours, they provided a compelling argument that the resignation was forced by the actions of Rocky Bay. We do not consider that he should have been confined to only considering whether Rocky Bay’s response to the grievance could sustain a claim that Ms Conrad was forced to resign. We can identify no error in this reasoning, nor the factual findings grounding the reasoning.
This ground also discloses no error. There is no basis to grant permission to appeal on this ground.
Rocky Bay’s seventh ground asserts that the Deputy President made an error of law in his application of sections 390 and 391 of the Act. In its submissions, Rocky Bay indicates that it relies on its submissions in respect of appeal ground four.
We repeat our conclusions with respect to appeal grounds three and four. Accordingly, we find no arguable ground of error and permission to appeal on this ground is refused.
Rocky Bay’s eighth ground submits that the Deputy President made an error of law by failing to apply the correct test to determine whether reinstatement of Ms Conrad was appropriate. Rocky Bay indicates that it again relies on its submissions in respect of ground 4. Rocky Bay has not identified what test it considers the Deputy President should have applied in the alternative to the test that was applied.
We repeat our conclusions with respect to appeal grounds three and four. This ground discloses no error of law. Accordingly, permission to appeal is also refused on this ground.
The ninth ground is that the Deputy President made a significant error of fact by rejecting evidence from Rocky Bay’s witness that Rocky Bay would have permitted Ms Conrad to retain her existing employment conditions had Ms Conrad asked to do so. Rocky Bay submits that the Deputy President should have accepted its evidence on this point because the Deputy President had not made any adverse findings on credibility.
The tenth ground is similar and argues that the Deputy President made a significant error of fact when he rejected uncontradicted evidence that Ms Conrad had not been compelled to accept the reduction in her working hours. The two grounds can be dealt with together.
We repeat our findings on appeal grounds one and two. We consider that the Deputy President did not reject Rocky Bay’s evidence that Ms Conrad could have asked to remain on her current roster and other working arrangements, or that she was not under any compulsion to accept a reduction. The Deputy President was not persuaded by the evidence. The Deputy President’s findings were made by reference to the express terms of contemporaneous communications which formed part of the evidence and was balanced against the oral evidence including regarding the nature of the process of the consultation. As is plain from the Decision, the Deputy President, when considering the evidence, did not consider that the oral evidence was consistent with the contemporaneous written communications. He made findings that the written communication to Ms Conrad on the issue did not make such an option clear to her. The Deputy President considered the evidence of the parties on this issue and identified the bases on which he drew this conclusion. We can identify no error of fact and consider that the impugned findings were correct.
Having considered the submissions of the parties, we consider that the ninth and tenth grounds disclose no significant error of fact. Accordingly, this ground is rejected.
Matter raised by Full Bench
In considering appeal grounds three and five, the Full Bench identified a concern with the approach taken by the Deputy President to the calculation of compensation and wrote to the parties seeking further submissions. Rocky Bay submitted that the Deputy President had correctly construed and applied s.392 of the Act and correctly calculated the quantum of compensation, based on his findings. Rocky Bay submitted that the method and approach taken by the Deputy President was orthodox and consistent with s 392. The Respondent submitted that the 50% reduction due to the failure to mitigate may have been excessive in the circumstances, that the Deputy President’s calculations were incorrect and a higher annual rate than the Deputy President used should have been applied.
We do not propose to deal with the submissions made relating to quantum of compensation. The request made of the parties went to matters raised in Rocky Bay’s appeal. No appeal was filed by Ms Conrad in relation to quantum. We have found no arguable case for error in the Deputy President’s approach to remedy, and it is not open for us to consider the complaint now made by Ms Conrad about the way the calculations on compensation were made.
Conclusion
Having considered the matters above, we are satisfied that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of Ms Conrad’s unfair dismissal application. The correct legal principles have been applied and no arguable case of appealable error is evident. Absent an arguable case for appealable error, permission to appeal is denied.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
The appeal raises issues of importance and/or general application;
The decision at first instance manifests an injustice, or the result is counter intuitive; or
The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
For these reasons we are also not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.
Permission to appeal is refused.
VICE PRESIDENT
[1] [2023] FWC 2727 (‘Decision’).
[2] Decision at [19].
[3] [2018] FWCFB 5, [18].
[4] [2017] FWCFB 3941, [47].
[5] [2022] FWCFB 67, [50]-[51].
[6] Decision [66]-[78].
[7] Derived from the decision of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.
[8] Decision [118].
[9] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[10] O’Sullivan v Farrer (1989) 168 CLR 210 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 at [44]-[46].
[11] GlaxoSmithKline at [24] – [27].
[12] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[13] Gelagotis v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [43].
[14] Wan v AIRC (2001) 116 FCR 481 at [30].
[15] Appellant’s submissions dated 24 November 2023 (‘AS’), [4.1]-[4.2].
[16] See Decision at [22].
[17] Decision at [51].
[18] Ibid.
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