Stephanie Ha v UnitingCare Wesley Adelaide Inc t/a Uniting Communities
[2015] FWCFB 8265
•10 DECEMBER 2015
| [2015] FWCFB 8265 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
UnitingCare Wesley Adelaide Inc t/a Uniting Communities
(C2015/6998)
VICE PRESIDENT HATCHER | SYDNEY, 10 DECEMBER 2015 |
Permission to appeal against decision on Transcript of Deputy President Bartel at Adelaide on 8 October 2015 in matter number U2015/7463.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Deputy President Bartel given in transcript on 8 October 2015.
[2] The decision of the Deputy President concerned an unfair dismissal application filed by Ms Stephanie Ha on 8 May 2015 under s.394 of the Fair Work Act 2009 (FW Act) in relation to the termination of her employment by UnitingCare Wesley Adelaide Inc t/a Uniting Communities (Uniting Care).
[3] At the permission to appeal hearing on 26 November 2015, Ms Ha represented herself with the assistance of an interpreter and Ms Clark of counsel was granted permission to appear for Uniting Care pursuant to s.596(2)(a) of the FW Act. The parties appeared by video link from Adelaide to Sydney.
Background
[4] Ms Ha was employed by Uniting Care in August 2007. Her employment was terminated on 1 May 2015 on grounds of serious and wilful misconduct, which included having made false and vexatious allegations about a work colleague and failing to report in a timely way abusive behaviour towards a resident. Despite the alleged serious misconduct; Uniting Care provided Ms Ha with 5 weeks’ pay in lieu of notice.
[5] The Deputy President heard the matter by determinative conference on 28 and 29 September 2015 and concluded in her transcript decision of 8 October 2015 that, after having considered each of the factors contained in s.387 of the FW Act, the dismissal of Ms Ha was not harsh, unjust or unreasonable.
Grounds of Appeal
[6] The only ground of appeal identified in Ms Ha’s notice of appeal states:
“I am [sic] not agree with the decision of Mrs Bartel”.
[7] The four reasons which follow this statement in essence are a partial restatement of Ms Ha’s denial of the allegations which led to her dismissal. The reasons do not point to any specific error in the decision under appeal.
Permission to Appeal
[8] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.604 and 400 of the FW Act. Section 604 of the FW Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by s.400 of the FW Act which provides:
400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[9] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one” 1. The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[10] The test for determining the public interest has been described as follows 2:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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 seems to us that none of those elements is present in this case.”
[11] Ms Ha states that the public interest is invoked as her dismissal relates to discriminatory action, a lack of ethics and compassion and concerns the reporting of an assault.
[12] The decision under appeal is of a discretionary nature. Discretionary decisions can usually only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open for an appeal bench to substitute its view on the matters that fell for determination before the Deputy President in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King4:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[13] As the above cases make clear, it will usually be necessary to establish that it is in the public interest to grant permission to appeal based on an arguable case of error. It appears to us that permission to appeal is essentially sought by Ms Ha in order to provide an opportunity for her case to be reheard.
[14] In the notice of appeal which she filed and the submissions she advanced, Ms Ha did not allege anything in the nature of an appealable error to have been made by the Deputy President in her decision. She simply sought to reargue her case for unfair dismissal. We are not satisfied that an arguable case of appealable error has been established. Absent such a case we are unable to conclude that it is in the public interest to grant permission to appeal. There are no other grounds to find that it is in the public interest to grant permission to appeal.
Conclusion
[15] For the above reasons we decline permission to appeal. The application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
S. Ha on her own behalf.
K. Clark of counsel with E. Perry solicitor for the Respondent.
Hearing details:
2015.
Sydney:
26 November.
1 (2011) 192 FCR 78 at [43]
2 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ
4 Ibid
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