Sunanda Soni v Berwick Waters Early Learning Centre Pty Ltd
[2020] FWCFB 5370
•8 OCTOBER 2020
| [2020] FWCFB 5370 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sunanda Soni
v
Berwick Waters Early Learning Centre Pty Ltd
(C2020/6556)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 8 OCTOBER 2020 |
Appeal against decision ([2020] FWC 4149) of Deputy President Hamilton at Melbourne on 7 August 2020 in matter number U2020/2174 – application for unfair dismissal remedy –whether resignation was forced – permission to appeal refused.
[1] Ms Sunanda Soni has applied for permission to appeal and has appealed against a decision of Deputy President Hamilton made on 7 August 2020 1 (Decision), in which the Deputy President concluded that Ms Soni had not been forced to resign from her employment with Berwick Waters Early Learning Centre Pty Ltd (company), and therefore dismissed her application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms Soni’s appeal was listed for hearing in respect of permission to appeal only.
[2] Before the Deputy President, Ms Soni contended that she had been forced to resign from her employment because of the conduct of her employer and had therefore been dismissed (see s 386(1)(b) of the Act). In her resignation letter dated 2 February 2020, Ms Soni had stated that, following ‘mental harassment’ from the organisation including ‘performance issues allegations (without evidence)’, and being bullied by the centre director, she had decided to resign from her employment, effective on 28 February 2020. Ms Soni contended that her complaints of bullying, including rough behaviour and yelling, had not been investigated, and that she had had no choice but to resign.
[3] The company denied that any bullying had occurred and submitted that Ms Soni simply objected to the company raising concerns about her poor performance. In particular, it said that the bullying allegations were made only after Mr Soni was given a written warning and placed on a performance improvement plan (PIP). It said that Ms Soni had freely chosen to resign.
[4] The Deputy President heard evidence from Ms Soni, the company’s centre director, Ms James, and its human resources manager, Mr O’Duill, each of whom had submitted witness statements. Briefly stated, the evidence was that on 29 October 2019, Ms James raised with Ms Soni a number of concerns about her performance as a ‘room leader’. These included that Ms Soni was not displaying the room plan; not showing leadership; being late for work; not wearing the appropriate uniform; and not observing various safety practices. Ms Soni provided responses to the concerns, in various respects denying that they had substance. In a letter dated 1 November 2019, Ms James gave Ms Soni a warning in relation to the concerns raised at the meeting on 29 October 2019. In a separate letter dated 1 November 2019, Ms James placed Ms Soni on a PIP. Ms Soni objected to the warning and the PIP and requested a review. On 21 November 2019, a meeting was conducted to allow Ms Soni a further opportunity to respond to the concerns. Ms James and Mr O’Duill attended the meeting, as did Ms Soni’s husband, Mr Sachdeva. After the meeting, the company remained of the view that its concerns were justified. In a letter to Ms Soni dated 25 November 2019, Ms James confirmed that the warning and PIP would remain in place, and that further poor performance could lead to dismissal. Following the meeting of 21 November 2019, Ms Soni commenced a period of unpaid sick leave and did not return to work.
[5] In her application, Ms Soni contended that the meetings on 29 October 2019 and 21 November 2019 were unfair, including because she was not provided notice of the first meeting and was not able to bring a support person, and that during the second meeting her husband was prevented from speaking on her behalf. She said that the company did not fairly consider her evidence or arguments, and that many of the allegations about her performance were unsubstantiated.
[6] In the Decision, the Deputy President noted, at [15] and [18], that Ms Soni had not provided any detail of the alleged rough behaviour and yelling, or of the alleged bullying more generally, despite Mr O’Duill having requested her to do so. The Deputy President stated that overall he preferred the evidence of Ms James and Mr O’Duill to that of Ms Soni, because it was convincing and corroborated by handwritten notes, and that even on Ms Soni’s own version of events, the company’s concerns about her performance had some substance (at [26] and [29]). The Deputy President found that during the meeting on 29 October 2019, the company had raised a range of matters with Ms Soni, that she was given an opportunity to respond, and that from the meeting there was no evidence of coercion or similar conducting which might lead to a conclusion of constructive dismissal. He found, at [33], that the relevant meetings were properly conducted. The Deputy President concluded that he was not satisfied that Ms Soni had been forced to resign from her employment because of the conduct of her employer, for the purpose of s 386(1)(b), and therefore dismissed Ms Soni’s application.
The appeal
[7] An appeal under s 604 of the Act is by way of rehearing, however the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 2 An appeal may only be made with the permission of the Commission. This appeal is one to which s 400 of the Act 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.”
[8] In Coal & Allied Mining Services Pty Ltd v Lawler and others, 3 the Full Court of the Federal Court characterised the test under s 400 as ‘stringent’.
[9] The fact that the member at first instance has made an error is not necessarily a sufficient basis for the grant of permission to appeal in the public interest. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[10] 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. 7 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[11] Ms Soni’s notice of appeal objects to the manner in which her application was heard. She contends, in effect, that she did not receive a fair hearing.
[12] First, Ms Soni submitted that the application was initially listed for ‘arbitration conference’ for 15 and 16 July 2020, but that the matter was then listed at short notice for ‘mention and/or directions’ on 13 July 2020, at which the Deputy President proceeded to conduct the arbitration conference. Ms Soni contended that she was taken by surprise and had been expecting the substance of her matter to be dealt with two days later. At the commencement of the mention, the Deputy President told the parties that he proposed to conduct a determinative conference, unless there were any other suggestions. 8 None were made. The Deputy President then said that he would proceed on this basis. He did not explicitly state that he was now dealing with the substance of the application, and that he had in effect brought forward the arbitration by two days, but the transcript reveals that this soon became very clear. Ms Soni willingly participated in the proceeding, ably represented by her husband. She gave evidence and answered questions from the Deputy President. She did not object to the Deputy President conducting the arbitration conference on that day or express a preference that the proceeding take place on 15 and 16 July 2020. Written submissions and witness statements had already been filed in accordance with Deputy President’s directions. At the conclusion of the proceedings, the Deputy President told the parties that he proposed to prepare his decision on the basis of the evidence and submissions and asked if that would be acceptable to both sides.9 Mr Sachdeva agreed.
[13] Secondly, Ms Soni submitted that the Deputy President was not interested in the case and remarked at one point that ‘we will be going through this nonsense all day’. Ms Soni said that she was shaken by this. In fact, after examining a series of incidents referred to in the materials and asking Ms Soni and Ms James to comment on them, the Deputy President said that ‘we can keep going for another hour of this nonsense’. 10 Read in context, the Deputy President appears to us to have been expressing frustration with the slow pace of the process of questioning that he himself had decided to adopt. It does not appear to us to convey a lack of interest in Ms Soni’s case or any criticism of either party.
[14] Thirdly, Ms Soni contended that the Deputy President went through the employer’s documents for over an hour and asked her if various matters were true or false, but that he did not talk about the documents or evidence submitted by her. However, the transcript shows that the Deputy President did engage with Ms Soni’s evidence and submissions. Further, the evident purpose of the Deputy President asking Ms Soni questions about the employer’s materials was to hear her position on those matters and better understand her case.
[15] Fourthly, Ms Soni contended that, later in the day, the company sent further information to the Commission, namely screen shots of calendar entries and handwritten meeting notes, and that the former should not be trusted because electronic calendar entries can be altered. Ms Soni also said that she did not have an opportunity to discuss her case or give further evidence. However, Ms Soni did not object to the company submitting the calendar screen shots when, during the proceeding, the Deputy President invited the company to do so, 11 nor did she ask to make submissions on them. And it is not correct to say that she had no opportunity to present her case. Submissions and evidence had been filed in advance of the proceeding in accordance with the Deputy President’s directions. Oral evidence and argument was also presented. At the conclusion of the proceeding the Deputy President asked the parties if there was anything else that they wanted to say.12 Mr Sachdeva said that he wanted to raise some additional issues that had not been discussed.13 The Deputy President asked Mr Sachdeva to explain the additional issues, which Mr Sachdeva then did (at some length) before confirming that he had nothing further to add.14
[16] In her written submissions, Ms Soni contended that the Deputy President mistook the facts in so far as he believed that she had acknowledged that her bullying allegations were made only after the company had raised with her its concerns about her performance, and that her feelings of having been bullied were a direct result of being placed on a PIP. However, before the Deputy President, Ms Soni agreed with the Deputy President’s summary of the facts, which included that the bullying allegations arose only after the issuing of the PIP, and that Ms Soni continued to contact Ms James (whom she had alleged was bullying her), when she could have contacted someone else. 15 Further, Mr O’Duill’s evidence was that Ms Soni told him that her feelings of being bullied were a direct result of being placed on a PIP,16 and the Deputy President preferred Mr O’Duill’s evidence to that of Ms Soni. We do not perceive any error of fact on the part of the Deputy President. In any event, we are not persuaded that the alleged mistake about Ms Soni’s acknowledgements could be described as a ‘significant’ error of fact for the purpose of s 400(2).
[17] More generally, Ms Soni contended that the Deputy President should have made different factual findings and reached different conclusions. However, these contentions do not speak to error in the Decision. They simply argue for a different result.
[18] We do not consider that Ms Soni has established an arguable case of a denial of procedural fairness, or of any other appealable error in the Deputy President’s decision, for the purpose of permission to appeal. The Decision does not manifest an injustice. It appears to us that the case put before the Deputy President by Ms Soni was a weak one. The factors that allegedly compelled her to resign had occurred several months earlier and were connected with concerns that the company had about her performance. Moreover, we do not consider that the appeal raises questions of general application, nor does it identify a diversity of decisions at first instance.
[19] We do not consider that it is in the public interest to grant permission to appeal. Section 400 of the Act therefore requires us not to do so.
Conclusion
[20] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
R. Sachdeva for Ms Soni.
E. O’Duill for Berwick Waters Early Learning Centre Pty Ltd.
Hearing details:
2020.
Melbourne:
October 6.
Printed by authority of the Commonwealth Government Printer
<PR723385>
1 [2020] FWC 4149.
2 See Coal & Allied v AIRC (2000) 203 CLR 194 at [17].
3 [2011] FCAFC 54 at [43], per Buchanan J, Marshall and Cowdroy JJ concurring.
4 Lawrence v Coal & Allied Mining Services Pty Ltd, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54.
5 O’Sullivan v Farrer [1989] HCA 61, per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, at [69]; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, at [44]-[46].
6 197 IR 266, at [24]-[27].
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
8 Transcript of proceedings, 13 July 2020, PN13.
9 PN973
10 PN719
11 PN610
12 PN896-906 & PN984
13 PN907
14 PN908-PN984
15 PN847-850
16 PN808
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