Sarah Tutolo v Noongar Mia Mia Pty Ltd
[2023] FWCFB 111
•29 JUNE 2023
| [2023] FWCFB 111 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sarah Tutolo
v
Noongar Mia Mia Pty Ltd
(C2023/2204)
| VICE PRESIDENT ASBURY | MELBOURNE, 29 JUNE 2023 |
Appeal against decision [2023] FWC 793 of Commissioner Schneider at Perth on 31 March 2023 in matter number U2022/1995 – permission to appeal refused – appeal dismissed.
Introduction
Sarah Tutolo (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a decision of Commissioner Schneider issued on 31 March 2023 in matter number U2022/1995[1] (the Decision). The Decision dealt with an application made by the Appellant for an unfair dismissal remedy pursuant to s 394 of the Act.
The matter was listed for permission to appeal only. Directions were issued on 24 April 2023 for the filing of submissions and material and the matter was listed for hearing on 6 June 2023. Both parties filed material in advance of the hearing pursuant to the Directions. At the hearing on 6 June 2023, the Appellant appeared on her own behalf while Noongar Mia Mia Pty Ltd (NMM) were granted permission to be legally represented by Sarah Christie of Employsure Law pursuant to s 596 of the Act.
Background
The Appellant commenced employment with NMM on 1 June 2018 and at the time of her dismissal on 27 January 2022, was employed on a full-time basis in the role of Tenancy and Property Management Coordinator (the Role). The Appellant was covered by the Social, Community, Home Care and Disability Services Industry Award 2010[2] (the SCHADS Award).
NMM is an Aboriginal owned and operated community housing provider within which there are two arms, the primary one being NMM which assists Aboriginal people in the Perth metropolitan area secure quality, long term housing. This is done by NMM leasing properties to Aboriginal clients at mostly lower than market rates. NMM also provides outreach homelessness services to Aboriginal people living on the street through a dedicated program managed by NMM called Moorditj Mia. Staff of NMM providing accommodation support services were separate from staff delivering Moorditj Mia services within a shared office facility. Through ownership of a number of properties and as head lessor and manager on behalf of social and community housing properties owned by the Western Australian Government, NMM manages over 87 properties in the Perth metropolitan area.
On 25 November 2021, in response to the ongoing effects of the COVID-19 pandemic (the Pandemic), pursuant to the Public Health Act 2016 (WA), the Community Care Services Worker (Restrictions on Access) Directions (No. 2) (the Directions) came into operation. The key effect of the Directions was that ‘community care workers’ (as defined) delivering ‘community care services’ (as defined) who were not partially and then fully vaccinated by the specified dates were not permitted to enter or remain at ‘community care services facilities’ (as defined) or ‘community care services accommodation’ (as defined). The relevant dates for compliance with the partial and full vaccination requirements were respectively 1 December 2021 and 1 January 2022.
NMM determined that all its employees (including the Appellant), both those working in the housing support area and Moorditj Mia areas of its operations, were covered by the Directions. The Appellant was not vaccinated by the specified dates and NMM determined that the Appellant could not perform her role remotely from her normal workplace and that there were no suitable alternate roles available. The Appellant’s employment was subsequently terminated on 27 January 2022 for the stated reasons that she had refused to comply with a reasonable and lawful direction to be vaccinated against COVID-19 and was unable to lawfully perform the inherent requirements of the Role.
The Decision
After setting out the background to the unfair dismissal application and then dealing with the preliminary jurisdictional matters under s 396 of the Act, on which he was satisfied, the Commissioner turned to consider each of the criteria under s 387 of the Act.
In dealing with s 387(a), whether there was a valid reason for the Appellant’s dismissal, the Commissioner set out what he regarded as the relevant evidence including that of the Appellant. Relevantly, the Appellant gave evidence that in her Role she was not covered by the Directions, her duties were more consistent with the Residential Tenancies Act 1987 (WA) (Residential Tenancies Act), that she should have been permitted to perform her duties at home and also referred to periods of lockdowns where she had worked from home.
The Appellant’s evidence on the nature of her Role was challenged by NMM in that it claimed all its employees were covered by the Directions as they provided services within the definition of ‘community care services’ found in the Directions. NMM further claimed that the Role required the Appellant’s attendance at NMM’s office and at homes of tenants/clients of NMM and as she had not provided evidence of vaccination by the specified dates the Appellant was not permitted to enter either NMM’s office or houses in which NMM tenants/clients resided. This, according to NMM, meant the Appellant was unable to perform the inherent requirements of the Role.
After summarising the evidence, the Commissioner made several findings including that:
·NMM had provided a clear and reasonable explanation in relation to the Appellant’s duties and requirements of the Role and how those duties were covered by the Directions[3];
·the Role included the requirement for the Appellant to provide tenancy support and housing to Aboriginal people who were homeless or at risk of homelessness[4];
·in undertaking her duties, the Appellant had to physically visit properties managed by NMM to conduct inspections, provide tenancy support to Aboriginal people, and attend stakeholder meetings with various members of the public[5];
·the Appellant’s employment was covered by the SCHADS Award[6];
·that the offices of NMM and the Role of the Appellant fell within the scope of the Directions[7];
·the Appellant failed to comply with the vaccination requirements in the Directions[8];
·pursuant to the Directions, NMM could not allow the Appellant to perform her Role at NMM’s business premises after 1 December 2021[9]; and
·NMM made a considered decision that the Appellant could no longer perform the inherent requirements of the Role[10].
The Commissioner then concluded that there was a valid reason for the Appellant’s dismissal related to her capacity, that being she was unable to perform her duties due to her exclusion from the workplace because of the effect of the Directions[11].
Turning to whether the Appellant was notified of a valid reason for her dismissal (s 387(b)) the Commissioner summarised what he regarded as the relevant evidence of the parties. In doing so he noted that the Appellant had not provided submissions on how NMM had failed to notify her of the valid reason for her dismissal[12]. The Commissioner referred to evidence of the Appellant being notified in writing of the reason for dismissal that was being considered on 17 December 2021 and 6 January 2022 as well as in a meeting on 17 January 2022 and in the letter of termination on 27 January 2022[13]. He then made findings based on his acceptance of the evidence of the communication with the Appellant and concluded that she had been notified in clear and explicit terms of a valid reason for her dismissal prior to the decision being made[14].
In relation to whether the Appellant was given an opportunity to respond to the reasons for her dismissal (s 387(c)), the Commissioner set out the correspondence sent to the Appellant and evidence of the meetings held with her during which she was given an opportunity to respond. This included a ‘show cause’ meeting on 17 January 2023. The Commissioner identified that one of the issues discussed in that process was whether there were any alternate roles available for the Appellant as an alternative to dismissal but that only one role involving one day per week was identified[15]. The Commissioner then found that the Appellant’s claim that she was not afforded procedural fairness was not consistent with the evidence and also identified the Appellant’s dissatisfaction with her inability to persuade NMM during the ‘show cause’ process that her role was not covered by the Directions[16]. The Commissioner relevantly made the following findings:
“[90] The Applicant should have been aware, from 17 December 2021, that her employment with the Respondent was at risk of termination.
[91] The Applicant was provided one month from the first email, sent on 17 December, until the meeting held, on 17 January 2022, to prepare and provide a response.
[92] The Respondent did not seek to terminate the Applicant’s employment immediately, following the show cause meeting.
[93] Rather, the Respondent correctly gave proper consideration to other potential opportunities within their business which the Applicant could undertake from home.
[94] The Respondent carefully considered the Applicant’s responses and explored alternatives.
[95] The alternative proposed was not embraced by the Applicant.
[96] Eventually, the Respondent determined that termination was appropriate.
[97] I understand that the Applicant is not satisfied that the Respondent did not accept her reasons raised in the show cause meeting.
[98] However, this does not mean that the Applicant was not provided with a procedurally fair process or the opportunity to respond.”
[99] In all the circumstances, I find that the Applicant was given an opportunity to respond, and indeed did respond, to the reason for her dismissal prior to the decision to dismiss being made.”
The Commissioner then found that there was no evidence that supported the Appellant’s assertion that NMM refused or denied her the ability to have a support person present during disciplinary meetings and concluded she was not unreasonably refused such support (s 387(d)). The Commissioner further concluded that the dismissal was not related to unsatisfactory performance (s 387(e)) and that NMM’s size and the absence of internal human resource management did not impact adversely on the procedures it followed in dismissing the Applicant as it accessed external resources to provide support (ss 387(f) & (g)).
Turning to consider any other matters considered relevant (s 387(h)), the Commissioner set out several additional matters raised by the Appellant[17]:
the alleged failure of NMM to either consult with the Appellant over the Directions or consider her views in relation to the Directions not covering her;
the submission that NMMs’ Board of Directors were “reckless” and “constantly put the organization at risk”;
an alleged conflict of interest on the part of NMM’s Chair of the Board of Directors;
an email exchange between the Appellant and the WA Department of Health which was said by the Appellant to support her view that she was not covered by the Directions; and
the Appellant’s personal circumstances and the financial impact on her and her family which rendered the dismissal harsh and disproportionate.
After detailing NMM’s submissions on the matters raised by the Appellant, the Commissioner then observed that compliance by NMM with the Directions allowed limited scope for consultation with employees and that it was required to adhere to the Directions[18], stated that the obligation to consult with employees was different in circumstances where the employer was relying on a policy as opposed to government-imposed vaccination requirements[19] and found that the Appellant had not cooperated with the roll-out of the Directions within NMM. In dealing with the Appellant’s various submissions the Commissioner then made the following relevant findings:
“[128] I find there was no evidence that the Respondent had a bias against the Applicant, rather, the Respondent was required to ensure they were compliant with the Mandate in place at the time of the Applicant’s termination of employment.
[129] There is no evidence that the Respondent unfairly targeted the Applicant compared to other employees nor that the Chair’s ambassador role contributed to her dismissal or caused any bias in the termination process.
[130] In relation to the Applicant’s submissions regarding the email communication from the WA Department of Health, I have considered this material and do not believe it carries any considerable weight or changes the validity of the reason for her dismissal.
[131] I accept the Respondent’s submission on this matter and agree that the correspondence does not imply that the Applicant is not subject to the Mandate. Rather, the correspondence clearly steers away from providing any specific answer and notes that an answer is entirely dependant on the specific circumstances.
[132] The decision to terminate the Applicant was not made without proper consideration from the Respondent about the Applicant’s circumstances. I note that the Respondent decided to pay the Applicant an ex-gratia payment of $10,000 following her termination of employment.”
After having considered each of the s 387 criteria, the Commissioner then summarised his earlier findings and in doing so acknowledged that the Appellant was a ‘high performing and well-respected member’ of NMM’s business, but that NMM was left with no alternative but to terminate her employment because of the legal requirements of the Directions. In weighing all the relevant matters, the Commissioner concluded that the dismissal was not harsh, unjust or unreasonable and thereby was not unfair.
Grounds of appeal
We discern from the Appellant’s Form F7 and her outline of submissions that the following grounds of appeal are pressed, those being that the Commissioner erred:
1. by failing to consider a significant volume of the Appellant’s evidence;
2. by failing to consider the Appellant’s communication with the WA Department of Health (Department of Health) regarding the effect of the Directions in respect of the Appellant’s employment with NMM;
3. by failing to consider NMM’s refusal to seek clarity from the WA Department of Health regarding the effects of the Directions in respect of the Appellant’s employment with NMM;
4. by failing to consider the Appellant’s submissions regarding the effect of paragraph 7 of the Directions in relation to whether the Directions applied to her;
5. by failing to refer to the weight of the evidence advanced by the Appellant regarding her duties and job;
6. by failing to consider or give proper weight to the Appellant’s evidence in circumstances where she was a self-represented litigant; and
7. by failing to explain the length of time that elapsed between the hearing and the issuing of the Decision.
The nature of unfair dismissal appeals
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.[20] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Under s 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal matters unless it considers it is in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
The test under s 400 has been characterised as ‘a stringent one.’[21] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[22] In GlaxoSmithKline Australia Pty Ltd v Makin,[23] a Full Bench of the Commission 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.”
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is because an appeal cannot succeed in the absence of appealable error.[24] 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.[25]
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.[26] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
Grounds 1,4 & 5 – incorrect findings of fact
It is convenient for us to deal with these grounds of appeal together as they go to the gravamen of the Appellant’s case, that being the Commissioner wrongly concluded that the Appellant was engaged in the provision of ‘community care services’ and was covered by the Directions in her employment with NMM. The Appellant variously contends that the Commissioner ignored the Appellant’s evidence in relation to the effect of clause 7 of the Directions, proceeded on an assumption that Award coverage determined the scope of operation of the Directions and in doing so ignored the Applicant’s evidence regarding her position description and role.
Before turning to the specific contentions of the Appellant in relation to grounds 1, 4 & 5 of her appeal, it is necessary to consider the Directions. As earlier stated, the Directions came into operation on 25 November 2021 and set out the dates from which certain unvaccinated persons (as defined) were not permitted to enter or remain at defined premises unless vaccinated against COVID-19. Relevantly, the Directions stated:
“Access Restrictions Applying to Community Care Services Worker
5. Subject to paragraph 7 & 8:
(a) on and from 12.01am on 1 December 2021, a person who is a community care services worker must not enter, or remain at a community care services facility or a community care services accommodation, if the person has not been partially vaccinated against COVID-19; and
(b) on and from 12.01am on 1 January 2022, a person who is a community care services worker must not enter, or remain at a community care services facility or community care services accommodation, if the person has not been fully vaccinated against COVID-19.”[27]
It is apparent that, putting aside the effect of paragraphs 7 & 8 of the Directions, to which we will return, an employee would have been covered by the Directions if they were a ‘community care services worker’ who was required to enter or remain at a ‘community care services facility’ or at ‘community care services accommodation’. The Directions define each of the relevant terms found at paragraph 5 as follows.
‘Community care services worker’ means a person of the kind set out in Column 1 of the table in Schedule 1 of the Directions other than an exempt person. There was no suggestion before us, or before the Commissioner at first instance, that the Appellant was an ‘exempt person’. Column 1 of the table in Schedule 1 of the Directions relevantly defines ‘Community care services worker’ as;
“A person who provides community care services to a recipient at a community care services facility or community care services accommodation…..”
and further;
“A person providing goods or services at a community care services facility and is employed….by the owner or operator or by the service provider or community care services facility, including:
a. an administrative staff member including but not limited to a person working in administration, management or reception services;
………………”[28]
‘Community care services’ is relevantly defined at clause 17 of the Directions to include ‘services for Aboriginal and Torres Strait Islander people’, ‘services relating to public housing support’ and ‘services relating to homelessness including but not limited to services provided to people who are homeless or at risk of being homeless’.[29]
‘Community care services facility’ relevantly includes ‘a service provider office or site’[30] while ‘Community care services accommodation’ means ‘the accommodation of the recipient of community care services at a time at which community care services are being provided’[31]. Subject to NMM being found to be delivering ‘community care services’ at its office, those premises would fall within the definition of ‘Community care services facility’. Similarly, ‘Community care services accommodation’ would include the rental properties of tenants when ‘community care services’ were being delivered to tenants at those rental properties.
Notwithstanding the apparently broad effect of clause 5 of the Directions, clause 7 goes on to potentially narrow the operation of the Directions stating:
“Where only part of the premises are being used as a community care services facility, nothing in these directions prevents a community care services worker or a community care critical services worker who is not vaccinated against COVID-19 from entering or remaining upon that part of the premises which is not being used as a community care services facility.”[32]
We discern from the Appellant’s material and submissions that she contends that by reason of her role and position description, she was engaged in property management in community housing support. As such, she claims that she was not engaged in providing ‘community care services’ (as defined) to Aboriginal and Torres Strait Islander people. Further, by reason of the bifurcation of NMM’s operations and the physical separation between NMM’s tenancy support services and Moorditj Mia within the NMM office, it was permissible under clause 7 of the Directions for her to remain unvaccinated while still attending the NMM office.
Having regard to the definitions set out above, it is our view that the Appellant would have been covered by the Directions in her employment with NMM if her role required her to deliver ‘services to Aboriginal and Torres Strait Islander people’ in NMM’s office or at the rental accommodation of recipients of services of NMM. The Appellant’s submissions on these issues were not accepted by the Commissioner, a conclusion with which we agree for the following reasons.
The Appellant was unable to articulate on appeal why the services she provided when employed by NMM did not fall within the broad definition of ‘services for Aboriginal and Torres Strait Islander people’ or ‘services relating to homelessness including but not limited to services provided to people who are homeless or at risk of being homeless’. She simply maintained her view, without pointing to any supporting material, that she was engaged in the provision of community housing services. That distinction in our view has no merit in circumstances where the organisation she was employed by exists for the specific purpose of providing rental accommodation and other support services to Aboriginal and Torres Strait Islander people within the Perth metropolitan region. We note that the term ‘community housing support’ referred to by the Appellant in the appeal proceedings was neither defined in, nor excluded by, the definitions within the Directions. In those circumstances, the meaning of the term ‘services for Aboriginal and Torres Strait Islander people’ must be given a broad meaning and would in our view capture the property management and tenancy support services provided by NMM staff, including the Appellant.
Further, the Appellant conceded in the proceedings before the Commissioner and on appeal, that the Role required her to meet with Aboriginal and Torres Strait Islander people both in NMM’s office and at their rental properties, that she was required to: conduct inspections of those rental properties at times when the tenants were present; attend Local and District court proceedings for the purpose of debt recovery proceedings; and meet with people from external stakeholders including government agencies, social and community organisations[33]. The Appellant also agreed on appeal that she supervised staff within the Tenancy Support Program that provided culturally safe tenancy support and that those services did constitute community care services[34].
We turn next to the Appellant’s contention that clause 7 operated to permit her to remain unvaccinated because of the physical separation within NMM’s office between the Appellant’s tenancy support services and the Moorditj Mia services. This contention relies on acceptance of the Appellant’s claim that her role did not involve the delivery of ‘community care services’ either in that part of NMM’s office where she was located or that her attendance at rental properties where Aboriginal and Torres Strait Islander people were at times present, did not involve the delivery of ‘community care services’. That submission must be rejected. For the reasons set out above, the property management and tenancy support services fell within the broad definition of ‘community care services’ within the Directions. As such the delivery of those services within NMM’s offices or at the rental properties of NMM’s tenants clearly brought the Appellant within the scope of the Directions.
We again note that the Appellant accepted on appeal that the culturally safe tenancy support services delivered by members of her team fell within the definition of ‘community care services’. Even if we are wrong in our view that the Appellant’s role involved the provision of ‘community care services’ (as defined), or that if such services were provided she was not required to do so, the facts are that members of her team did provide such services, defeating the Appellant’s argument that NMM’s offices could be artificially separated between tenancy support services and ‘community care services’ delivered by Moorditj Mia.
Returning to the Appellant’s contentions of error on the part of the Commissioner, we are not persuaded that the Commissioner wrongly concluded at [45] of the Decision that the Appellant was covered by the Directions in her role with NMM or that he made errors of fact in reaching that conclusion. The conclusion was open to the Commissioner based on a proper reading of the Directions.
Contrary to the Appellant’s claim, the Commissioner was alive to her claim that her duties were not consistent with the roles covered by the Direction and were more consistent with the Residential Tenancies Act[35]. As can be seen at [43]-[44] of the Decision, the Commissioner found that the Appellant’s role required her to provide tenancy support and housing to Aboriginal people who were homeless or at risk of homelessness and that she was required to visit properties managed by the Respondent to conduct inspections, provide tenancy support to Aboriginal people, and attend stakeholder meetings with various members of the public. Those findings were entirely consistent with concessions made by the Appellant during cross-examination.
As to the Appellant’s claim that the Commissioner made and relied on an incorrect finding of fact regarding Award coverage of her Role, that argument must also be rejected. We do not consider that the Commissioner found as a matter of fact that the Appellant’s employment conditions were not covered by the Real Estate Industry Award 2020[36] (the Real Estate Award). At paragraph [9] of the Decision, the Commissioner records that at the time of her dismissal her employment was covered by the SCHADS Award, as the Appellant had submitted in her original Application. Read fairly, at paragraph [48] of the Decision the Commissioner was referring to the Appellant’s submissions that her work was in the nature of property asset management, including obligations under the Residential Tenancies Act as distinct from the provision of community services. In our view NMM’s operations fall within the definition at clause 4.1(a) & (b) of the SCHADS Award which refers to the ‘……supported housing sector’ and ‘social and community services sector’. The Commissioner also went on to relevantly observe as follows at [126]-[127] of the Decision:
“[126] It is clear that workers in many industries must, dependant on their role, conduct their duties in accordance with potentially several pieces of legislation. Adhering to legislation in the administration of one’s duties does not negate the application of an industrial instrument that may apply to that individual.
[127] In this matter, it is clear the Applicant was employed under the conditions of her employment contract and the SCHADS Award. Her need to comply with other legislation in the administration of her duties does not lead to a finding that her role was not covered by the Mandate or the SCHADS Award.”
In any case, the application of the Directions is not conditioned by the coverage of an award, and it is not apparent that the Commissioner’s finding as to award coverage was determinative in his conclusion regarding the Appellant being covered by the Directions. No error is disclosed in relation to these findings.
Finally, we turn to the Appellant’s claim that her submissions regarding the effect of clause 7 of the Direction were neither referenced nor considered by the Commissioner. We agree that the Decision does not disclose that the Commissioner considered that submission. It is not however the case that every submission or every piece of evidence advanced in support of an applicant’s case must be referred to. This was made clear by the Full Bench in Soliman v University of Technology, Sydney[37] (Soliman), which stated:
“[27] It is not the case that a failure to refer to every submission advanced in support of a party’s case constitutes a failure to exercise jurisdiction. In the Full Court of the Federal Court decision in Linfox Australia Pty Ltd v Fair Work Commission, the Court (Dowsett, Flick and Griffiths JJ) said:
“[47] First, it is not necessary for those making a decision to refer to ‘every piece of evidence and every contention’ made by a party: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ; Reece v Webber [2011] FCAFC 33 at [67], [2011] FCAFC 33; 192 FCR 254 at 277 per Jacobson, Flick and Reeves JJ. Although reasons for decision are not to be scrutinised with an eye to discerning error where none truly exists (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), more may be expected of experienced and legally qualified members of Fair Work Australia who have had the benefit of written submissions filed by experienced legal practitioners: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], [2012] FCAFC 146; 207 FCR 277 at 295-296 per Marshall, North and Flick JJ. But there remains no unqualified and universally applicable legal requirement to refer to every submission advanced. Much depends upon the importance of the submission to the claims being made. A failure to address a submission which is ‘significant’ and which touches upon the ‘core duty’ being discharged (Fox v Australian Industrial Relations Commission [2007] FCAFC 150 at [39] per Marshall, Tracey and Buchanan JJ) or which is ‘centrally relevant’ to the decision being made (WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ; Soliman v University of Technology, Sydney [2012] FCAFC 146 at [55] to [56][2012] FCAFC 146; , 207 FCR 277 at 295) may in some circumstances found a conclusion that it has not been taken into account and may thereby expose jurisdictional error.”
Having regard to Soliman and the authorities referred to in that decision, it seems to us that the submission advanced by the Appellant in relation to the effect of clause 7 of the Directions was a ‘significant’ or ‘centrally relevant’ one in the context of her case before the Commissioner. We accept that the Commissioner may have fallen into jurisdictional error by failing to consider the Appellant’s submission that clause 7 operated to exclude her from the requirement to be vaccinated against COVID-19 under the Directions. However, the Appellant has argued this matter on appeal and we consider, for the reasons set out above, that her argument is untenable given our earlier conclusion that the Appellant was covered by the Directions and that in the context of her role, clause 7 did not operate to exclude her from coverage of the Directions. On this basis, there is no public interest in granting permission to appeal on this ground.
If the failure to consider this submission was an error of fact, then given our findings that it was untenable, that error was not significant, and we would decline to grant permission to appeal on this basis. In reaching this conclusion, we should not be taken to endorse the failure to consider the Appellant’s submission on this point. It was central to her case, and regardless of the fact it was wrong and could not have changed the outcome of the case, the submission should have been considered.
Having regard to the matters set out above we are not persuaded that appealable error is disclosed in relation to grounds 1, 4 & 5 that would enliven the public interests such as to warrant the grant of permission to appeal.
Grounds 2 &3 – Department of Health advice
Related to grounds of appeal 1, 4 & 5 considered above, the Appellant also submits that the Commissioner failed to consider her evidence of email communication with the Department of Health in which she says the Department stated that the Appellant was not covered by the Directions. Further, the Appellant contends that the Commissioner erred by failing to consider NMM’s refusal to seek clarifying advice from the Department of Health regarding the effect of the Directions on the Appellant’s role.
The email communication between the Appellant and the Department of Health occurred between 21 December 2021 and 12 January 2022. It involved the Appellant seeking to clarify whether her role, which she described in her email of 21 December 2023 as being the ‘Operations Property Manager’ in an ‘NFP NGO Community Housing Provider’, was covered by the Directions. The Appellant received a response from the Department of Health on 12 January 2022 which stated as follows;
“……….
The answer to your question depends on the full scope of your business and role. In your initial email dated 21 December 2021, you mentioned that your primary duties are property management and administration. You also mentioned that you may need to attend a property to carry out your duties. If the property you attend is not one that is already captured by a Directions, then the Directions do not apply to you. I am under the assumption that most of your day to day duties can be carried out online or via Zoom as you also noted in your email.
………….”[38]
Contrary to the Appellant’s submission, the advice she received from the Department of Health was far from unequivocal. The Department of Health response was clearly premised on certain assumptions based on information provided by the Appellant and made clear that the effect of the Directions on the Appellant depended on the full scope of the business and her role. We consequently do not accept the submission that the Department of Health email of 12 January 2022 stated that the Appellant was not covered by the Directions. In any case, and contrary to the Appellant’s contention, the Commissioner did consider the evidence at [117]-[118] of the Decision and then concluded:
“[130] In relation to the Applicant’s submissions regarding the email communication from the WA Department of Health, I have considered this material and do not believe it carries any considerable weight or changes the validity of the reason for her dismissal.”
Given the equivocal nature of the Department of Health advice, the Commissioner was entitled to give that email exchange limited weight. That he did so was within the bounds of his discretion and no error is disclosed in his reasoning or conclusion on the weight to be given to that evidence.
We now turn to the Appellant’s claim that the Commissioner failed to consider that NMM did not seek clarifying advice from the Department of Health prior to her dismissal, in circumstances where the Appellant was at that stage seeking to convince NMM that her role was not covered by the Directions. We note that Ms Pickett in giving evidence for NMM in proceedings before the Commissioner, agreed that NMM had not contacted the Department of Health[39]. This was on the basis that NMM was of the view that the Directions applied given that it provided services to Aboriginal and Torres Strait Islander people and homeless people, both categories being captured by the Directions. Ms Pickett did however state that she had contacted the Department of Communities which was the stakeholder for the properties managed by NMM[40].
In circumstances where we have already concluded that the Directions covered the Appellant in her employment, we do not regard NMM’s decision to decline to contact the Department of Health as a material matter. NMM on Ms Picket’s evidence discussed the matter with NMM’s government stakeholder, the Department of Communities and had also reasonably concluded that NMM was engaged in the provision of housing and other support services to Aboriginal and Torres Strait Islander people and homeless people, which brought their employees within the scope of the Directions. That NMM reached that conclusion was in our view entirely correct and the fact that the Commissioner may not appear to have taken into account the decision not to seek clarifying advice from the Department of Health was not in our view relevant to his conclusion that the Appellant was covered by the Directions. No appealable error is disclosed.
Ground 6 – failure to have regard to Appellant’s status as a self-represented litigant
The Appellant argues that the Commissioner accepted evidence put forward by NMM who had specialist HR support at the proceedings before the Commissioner rather than accept her evidence in circumstances where she was a self-represented litigant. This ground of appeal appears based on the Appellant’s view that she did not receive a fair hearing. This ground of appeal was not elaborated upon at the appeal hearing before us.
Our review of the conduct of the matter including the proceedings before the Commissioner on 11 October 2022 does not disclose that the Appellant was prevented from presenting her case. She was cross-examined in relation to the evidence and was afforded an opportunity to ask questions of NMM’s witnesses and make closing submissions. The Appellant has not pointed to any aspect of the conduct of the proceedings where she was denied an opportunity to present her case or that she was disadvantaged by being self-represented. The fact that the Commissioner did not accept much of her evidence and formed a view that the Directions covered her in her employment with NMM does not disclose error, let alone appealable error.
Ground 7 – delay in decision
The Appellant contends that the Commissioner failed to provide any explanation for the lengthy delay (six months) in the issuing of the Decision following conclusion of the hearing. She also questioned in her submissions whether that delay was affected by political considerations that were not explained. The suggestion of political considerations affecting the decision making of the Commissioner is simply speculation on the part of the Appellant, was unsupported by any evidence, seeks to impugn the statutory independence of the Commission’s role, is completely baseless and as such is rejected. As to the delay in the issuing of the Decision, we note that the period of six months falls well outside the Commission’s published timeliness benchmarks for decision making and we can understand the Appellant’s frustration with such a delay. That delay however does not disclose appealable error and nor has the Appellant identified how such delay exposes error in the Decision.
Public Interest
Having considered the Appellant’s submissions and all the materials filed on appeal, for the reasons set out above we are not satisfied that there is appealable error that would warrant the grant of permission to appeal. The basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence before him.
Further, we have considered whether this appeal attracts the public interest, and 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 Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Commission were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s 400(1) of the Act.
Permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
S Tutolo, Appellant.
S Christie for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
June 6.
[1] [2023] FWC 793
[2] MA000100
[3] Decision at [42]
[4] Ibid at [43]
[5] Ibid at [44]
[6] Ibid at [48]
[7] Ibid at [45]
[8] Ibid at [49]
[9] Ibid at [51]
[10] Ibid at [52]
[11] Ibid at [53]-[54]
[12] Ibid at [58]
[13] Ibid at [59]-[63]
[14] Ibid at [65]-[70]
[15] Ibid at [82]-[84]
[16] Ibid at [86]-[89], [97]
[17] Ibid at [117]
[18] Ibid at [119]-[120]
[19] Ibid at [122]
[20] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[21] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [43] (Buchanan, Marshall and Cowdroy JJ).
[22] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [44]-[46].
[23] [2010] FWAFB 5343, 197 IR 266 [27].
[24] Wan v AIRC [2001] FCA 1803, 116 FCR 481 [30].
[25] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[26] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[27] Appeal Book at p.53, Clause 5 of Directions
[28] Appeal Book at pp. 62 & 63, Schedule 1 of Directions
[29] Appeal Book at p. 57, Clause 17 of Directions
[30] Appeal Book at p. 58, Clause 19(f) of Directions
[31] Appeal Book at p. 57, Clause 18 of Directions
[32] Appeal Book at p. 54, Clause 7 of Directions
[33] Appeal Book at pp. 108 & 109, Transcript of proceedings dated 11 October 2022, PN28-PN41
[34] Transcript of Appeal proceedings, dated 6 June 2023, at PN85-PN92
[35] Decision at [24]
[36] MA000106
[37] [2014] FWCFB 6394
[38] Appeal Book at p. 86
[39] Appeal Book at p. 124, PN191
[40] Appeal Book at PN193
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