Stanislaws Rathnam v Kingston City Council
[2022] FWCFB 230
•9 DECEMBER 2022
| [2022] FWCFB 230 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Stanislaws Rathnam
v
Kingston City Council
(C2022/6380)
| VICE PRESIDENT CATANZARITI | SYDNEY, 9 DECEMBER 2022 |
Appeal against decision [2022] FWC 2224 of Deputy President Bell at Melbourne on 30 August 2022 in matter number U2022/1535 – permission to appeal refused.
Mr Stanislaws Rathnam has lodged an appeal pursuant to s.604 the Fair Work Act 2009 (the Act) for which permission to appeal is required against a decision of Deputy President Bell issued on 30 August 2022[1] (the Decision). In the Decision, the Deputy President found that Mr Rathnam’s dismissal by Kingston City Council on 20 January 2022 was not unfair. By separate Order,[2] the Deputy President dismissed Mr Rathnam’s application for an unfair dismissal remedy.
This matter was listed for permission to appeal only. On 7 October 2022, directions were issued for the filing of material by Mr Rathnam and the matter was listed for hearing on 17 November 2022. Mr Rathnam indicated that he consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow, permission to appeal is refused and the appeal is dismissed.
Principles on 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.[3] An appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error[5], or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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]
This appeal is one to which s.400 of the Act also 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, the test under s.400 was characterised as “a stringent one”.[8] The task of assessing whether the public interest test is met is a discretionary exercise involving a broad value judgment[9]. In GlaxoSmithKline Australia Pty Ltd v Makin 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.”[10]
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.[11] 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.[12]
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.[13] It is, however, necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of Appeal and Consideration
We discern four grounds of appeal from the F7 – Notice of Appeal, each asserting significant errors of fact.
Ground 1
Ground 1 asserts errors in paragraph [73] of the Decision on the basis that the Deputy President ignored the illegal conduct of Kingston City Council in failing to have regard to his reasonable excuse for not complying with the Public Health and Wellbeing Act 2008 (Vic) (Public Health Act), being his employment contract with the Council and his doctor/patient contract in relation to the administration of medical procedures. Mr Rathnam submits that this illegal conduct was in disregard of s.203(2) of the Public Health Act and was ignored by the Deputy President in reaching his Decision.
Considering this ground of appeal, we note paragraph [73] of the Decision states as follows:
“The Applicant raised a number of other matters in his witness statement. They included alleged breaches of the Kingston City Council Enterprise Agreement No.9 (Agreement). Two of the alleged breaches concerned an alleged failure to consult, including for “major change” and to “reduce risks”. The Applicant alleges here that the Respondent failed to provide him with the information he sought, such as that set out above in the various “notices” – an example was information about vaccine safety. I do not consider that the Respondent was required to provide such information and nor do I expect it could have provided such information even if it wished to. The Respondent was required to comply with the Victorian government’s various pandemic orders – it was not required to undertake any safety assessment or otherwise in complying with those obligations.”
This ground is misconceived for three reasons. Firstly, obligations under legislation cannot simply be avoided by contract. Secondly, the fiduciary relationship between patient and doctor operates subject to law. Thirdly, the mandatory vaccination order that applied at the time of Mr Rathnam’s dismissal was issued by the Minister for Health under s.165AI of the Public Health Act. Section 203(2) of the Public Health Act is not relevant to orders issued under s.165AI. It is relevant to compliance with the directions of authorised officers exercising public health risk powers and emergency powers under s.199 of the Public Health Act, including the Acting Chief Health Officer’s (CHO) Directions under s.200 of the Public Health Act. It is apparent from the reasoning of the Deputy President, in particular at paragraphs [29], [32] and [33] of the Decision, that to the extent that Mr Rathnam explained his failure to comply with directions of the Acting CHO, his explanations were not considered by the Deputy President to be a “reasonable excuse” for non-compliance. No arguable case of appealable error arises in relation to ground 1.
Ground 2
Ground 2 of the Notice of Appeal also relies on paragraph [73] of the Decision. Mr Rathnam submits that the Deputy President conflated two different factual matters: one being the notices he sent to the Council and the other being the Council’s failure to meet its obligations to consult about major change under clause 23.2 of the Kingston City Council Enterprise Agreement No. 9 (Enterprise Agreement) in relation to the introduction of a COVID-19 vaccination mandate. Mr Rathnam submits that the Deputy President failed to consider the wording in the Agreement and the obligations on the Council to consult about major change.
Paragraph [73] forms part of the Deputy President’s consideration of other relevant matters under s.387(h) of the Act for the purpose of determining whether Mr Rathnam’s dismissal was unfair. There is nothing erroneous or improper about dealing with more than one factual matter together in summary form for this purpose. The Deputy President’s observation that Mr Rathnam was required to comply with State pandemic orders appears to us to have been plainly correct. No challenge is made to the Deputy President’s finding that Mr Rathnam was unlikely to ever be capable of complying with those orders by becoming vaccinated. In these circumstances, whether the Council met its separate consultation obligations under the Enterprise Agreement is of little moment.
Further, we doubt whether clause 23.2 of the Enterprise Agreement applied in relation to the mandatory vaccination orders. When the Council asked Mr Rathnam to demonstrate his compliance with the requirement to provide evidence of vaccination and prevented him from returning to the workplace until he did so, it was not putting any proposal to introduce a major change in relation to its enterprise. It was simply seeking to comply with orders made under the Public Health Act. No arguable case of appealable error arises in relation to ground 2.
Ground 3
Ground 3 of the Notice of Appeal asserts that in addition to his employment contract, the Enterprise Agreement was a contract in law, and that despite privity of contract, the Council allowed the Victorian government to enter in and change his contractual conditions leading to his termination and causing him harm. This ground is also misconceived. An enterprise agreement is a creature of statute, not contract. Secondly, there was no change to Mr Rathnam’s contract of employment by virtue of the mandatory vaccination directions or orders. What changed was rather his inability to perform what the Deputy President found was an inherent requirement of Mr Rathnam’s position. No challenge is made to this finding of fact on appeal. We find no arguable case of appealable error in relation to ground 3.
Ground 4
By Ground 4 of the appeal, Mr Rathnam contends that the Deputy President failed to point out breaches of the Council:
1.under the Enterprise Agreement,
2.under the Act in relation to coercion, undue influence and unfair dismissal, and
3.under s. 35 and s.36 of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act), by failing to consult in relation to workplace change and did not do so.
We have dealt above with the alleged breaches of the Enterprise Agreement and whether the requirement for employees to comply with mandatory vaccination orders was a proposal for change put forward by the Council (which would dispose of the argument in relation to s.35 of the OHS Act). The decision to mandate vaccination as a condition of attendance at work was initially a decision of Victoria’s Acting Chief Health Officer, and later of the Minister for Health. That is, it was not a decision of the Council. Section 36 of the OHS Act was repealed in 2018. If the point in relation to coercion and undue influence is that it is demonstrated by the Council’s requirement for Mr Rathnam to comply with mandatory vaccination directions and orders as a condition of attendance at work, we would reject the contention. A lawful requirement to comply with one’s statutory obligations is not evidence of coercion or undue influence. In relation to unfair dismissal, the Deputy President considered and determined that Mr Rathnam was not unfairly dismissed. No arguable case of error is made out in relation to ground 4.
No public interest in the grant of permission
Mr Rathnam submits that the appeal is in the public interest because the the Commission should uphold the validity of contractual obligations between employers and employees. He submits that the Decision undermines trust in the rule of law, particularly industrial relations law; that the integrity of contracts and their lawful enforcement is an essential component of an advanced society and that the Commission plays an essential role for those contracts between employers and employees.
We are not persuaded that there is public interest in granting permission to appeal. We have dealt above with the misconceptions that underlie this appeal in relation to primacy of contracts over statutory obligations. Further, s.400(2) of the Act limits appeals in relation to unfair dismissal decisions to those made on the ground that the decision in question involves a significant error of fact. We have found no such arguable case of error in relation to the Decision.
More generally, we are not satisfied that the matter raises issues of importance and general application, or that the Decision manifests an injustice or leads to a counter intuitive result. The legal principles applied in the Decision are not inconsistent with relevant precedent.
Conclusion
As we are not satisfied that it is in the public interest to grant permission to appeal, permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Determined on the papers.
[1] [2022] FWC 2224
[2] PR745309
[3] 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) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[8] (2011) 192 FCR 78 at [43]
[9] 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]
[10] [2010] FWAFB 5343, 197 IR 266 at [27]
[11] Wan v AIRC (2001) 116 FCR 481 at [30]
[12] 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 388, 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]
[13] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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