Susan Retter v WA Council on Addiction Inc T/A Cyrenian House
[2024] FWCFB 361
•2 SEPTEMBER 2024
| [2024] FWCFB 361 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Susan Retter
v
WA Council on Addiction Inc T/A Cyrenian House
(C2024/5234)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 2 SEPTEMBER 2024 |
Appeal against decision [2024] FWC 1803 of Deputy President Beaumont at Perth on 11 July 2024 in matter number U2024/4520 – permission to appeal refused.
Ms Susan Retter has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Deputy President Beaumont issued on 11 July 2024. In the decision, the Deputy President dismissed Ms Retter’s application for an unfair dismissal remedy against WA Council on Addiction Inc T/A Cyrenian House.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
The decision records that Ms Retter held two roles with the respondent; a part-time support worker position, and a casual role as a night weekend supervisor. Ms Retter’s employment was covered by the Western Australian Council on Addictions Incorporated Enterprise Agreement 2012 (Agreement). Following an internal review, it was recommended that one full time senior support worker position be established, and two part time support worker roles be made redundant. The review outcome was discussed with Ms Retter on 5 February 2024, and she was invited to provide feedback in relation to it.
Ms Retter was subsequently advised that her part time role would be made redundant, and she was invited to apply for the new full time senior support worker role. Ms Retter was also informed of an available full time night weekend supervisor position. Ms Retter interviewed for each of these roles, without success. Ms Retter was subsequently advised that her part-time role as a support worker would end by reason of redundancy on 5 April 2024.
On 3 April 2024, the respondent met with Ms Retter to discuss concerns it held that Ms Retter had breached her obligation to ensure client confidentiality by sending an email from her work email account to her personal email address. Ms Retter admitted to doing so (although denied intending to disclose any client personal information). The respondent’s position was that Ms Retter’s actions amounted to misconduct, and it would have issued Ms Retter with a warning had her employment not been concluding on redundancy grounds on 5 April 2024. On 4 April 2024, Ms Retter did not work due to a “job search” day, and the respondent advised that Ms Retter was not required to attend on 5 April 2024 (although Ms Retter was paid for the day).
The Deputy President found that the respondent no longer required Ms Retter’s part time support worker position to be performed by anyone because of changes in the operational requirements of its enterprise (s 389(1)(a) of the Act). The Deputy President also found that the respondent had complied with its consultation obligations under the Agreement (s 389(1)(b) of the Act).
The Deputy President determined that it was not reasonable for Ms Retter to be redeployed within the company or any of its associated entities (s 389(2) of the Act). The Deputy President determined that Ms Retter engaged in misconduct in the final days of her employment by sending to her personal email account an email containing confidential information about a client of the respondent. The Deputy President was satisfied that Ms Retter failed to comply with the lawful and reasonable direction of her employer to not disclose private and sensitive information regarding the health information of its clients and had therefore engaged in misconduct. It was also discovered, after Ms Retter’s employment had ceased, that 46 emails had been sent by Ms Retter to her personal email account.
The Deputy President was further satisfied that had Ms Retter’s casual position as a night weekend supervisor not also ceased, it was open to the respondent to have dismissed Ms Retter from this role for engaging in serious misconduct. Having considered each of the matters in s 387 of the Act, the Deputy President found that Ms Retter’s dismissal from her casual role was not harsh, unjust or unreasonable, there being a valid reason for her dismissal of which Ms Retter was informed and given the opportunity to respond to. Ms Retter was not denied a support person and the factors in s 387(f) and (g) were neutral considerations. With respect to other matters as described in s 387(h) of the Act, the Deputy President determined that the termination of Ms Retter’s employment was not disproportionate in light of her misconduct.
In summary, the Deputy President dismissed Ms Retter’s application for an unfair dismissal remedy as she was satisfied that Ms Retter’s dismissal:
(a)from her part-time support worker position was a case of genuine redundancy; and
(b)from her casual position as a night weekend supervisor was not harsh, unjust or unreasonable, and as such was not an unfair dismissal.
Grounds of appeal
Ms Retter’s Form F7 Notice of Appeal contains an outline of Ms Retter’s concerns, which may be summarised into three grounds of appeal. By appeal ground one, Ms Retter disputes that her conduct amounted to serious misconduct. Ms Retter contends that sending the emails to her personal email account was a mistake because:
(a)the email contents were not shared by Ms Retter; and
(b)her conduct had no effect on the safety and welfare of other employees or clients.
By appeal ground two, Ms Retter contends that she has been treated unfairly compared with other employees of the respondent and the evidence given by Ms Retter’s manager, Ms Mahoney, was false and misleading. Ms Retter contends that if her manager’s evidence is true, then she failed as a manager by not providing Ms Retter with an opportunity to improve.
By appeal ground three, Ms Retter contends that the decision incorrectly records at [10], [11] and [33] the dates that Ms Retter (a) commenced in her part time and casual roles, and (b) interviewed for the senior support worker position. The decision is also said to contain factual errors at [36], [42], [44]-[46], [48] and [50].
Ms Retter’s written submissions in support of her application for permission to appeal also raise the following additional matters. First, the Deputy President did not consider that the respondent did not have anyone performing role of Human Resources Manager leading to Ms Retter being isolated, ignored, rebuffed and lied to. Second, Ms Retter was contrite and apologetic for sending the email containing confidential information, it was not wilful and there is no proof that any other emails contained client details or that Ms Retter was intending to share the information. Third, the respondent is seeking to avoid addressing the grievance that Ms Retter filed with the respondent on her final day of employment and its witnesses misled the Commission about Ms Retter’s desire to work on a full-time basis.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[3]
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 or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
In substance, what appears to be sought in the Notice of Appeal is a rehearing of Ms Retter’s application for an unfair dismissal remedy. However, that is not the function of the Full Bench in an application for permission to appeal, where the focus is upon the demonstration of an arguable appealable error of a recognised kind.
We do not consider that the grounds of appeal demonstrate an arguable case of appealable error. As to ground one, the contention that Ms Retter had no intention of sharing any client information with a third party is an argument advanced in the proceedings at first instance and the Deputy President addressed it at [113] of the decision. While Ms Retter does not agree with the conclusion reached, there is an evidentiary foundation for the Deputy President’s misconduct finding, and Ms Retter does not contend that there has been an error in the exercise of the Deputy President’s discretion in the manner described in House v The King.[8] The fact that Ms Retter does not consider her conduct to be sufficiently serious such as to amount to serious misconduct, or because she otherwise expressed contrition about it, does not of itself give rise to an arguable case of error in the decision.
As to appeal ground two, the contention that Ms Retter has been treated unfairly is focussed upon the conduct of the respondent and Ms Retter’s manager. Ms Retter does not point to any such concerns with respect to the Deputy President, nor does she raise any allegations of unfairness in the way the Deputy President conducted the proceedings. It follows that this ground cannot be sustained as it does not identify any arguable appealable error by the Deputy President.
In relation to appeal ground three, the alleged factual errors identified by Ms Retter broadly consist of typographical errors, or issues which did not otherwise inform the Deputy President’s deliberative decision making. These cannot be said to have been capable of affecting the outcome and do not rise to the level of significance required by s 400(2) of the Act. The balance of Ms Retter’s contentions of factual error, as well as the additional matters raised in Ms Retter’s outline of submissions, raise concerns about the respondent’s internal affairs, its conduct, or its approach to defending Ms Retter’s application for an unfair dismissal remedy, but do not point to any arguable contention of error. For completeness, we note that the decision records the Deputy President’s view that the consideration in s 387(g) of the Act, being the degree to which the absence of a dedicated human resource specialist within the respondent would be likely to impact upon the dismissal procedures, is a matter that the Deputy President considered at [116] of the decision, and determined that it weighed neutrally.
For the reasons given, we do not consider that an arguable case has been advanced that the decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400(1) of the Act, that the appeal attracts the public interest. The appeal does not raise any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2024] FWC 1803
[2] PR776889
[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[4] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 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]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[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]
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[8] (1936) 55 CLR 499 at [504]-[505]
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