Tania Tresize v Max Solutions Pty Ltd
[2015] FWCFB 8201
•10 DECEMBER 2015
| [2015] FWCFB 8201 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
MAX Solutions Pty Ltd
(C2015/7111)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2015] FWC 6824 and Order PR572749 of Commissioner Bissett at Melbourne on 9 October 2015 in matter number U2015/7083, s.604 - Appeal of decisions - Permission to appeal - Whether grounds of appeal attract the public interest - Whether significant error of fact - No appealable error - Permission to appeal declined - Fair Work Act 2009 - ss.394, 400, and 604.
Introduction
[1] On 29 October 2015 Ms Tania Tresize filed a notice of appeal in which she sought permission to appeal a decision issued on 9 October 2015 1 by Commissioner Bissett (Decision). The Decision arose out of an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) which Ms Tresize had lodged in respect of her dismissal from employment with MAX Solutions Pty Ltd (MAX Solutions).
[2] The permission to appeal hearing proceeded before the Commission in Sydney with a video link to Melbourne. Ms Tresize appeared on her own behalf and Ms Masters, a solicitor, sought leave to appear for MAX Solutions. Ms Masters’ representation on behalf of MAX Solutions was opposed by Ms Tresize. The employer’s objection to the unfair dismissal claim was pursued by way of a jurisdictional objection and it was noted that Ms Masters appeared at first instance with permission to appear granted by the Commissioner. On the basis that the matter would be dealt with more efficiently taking into account the complexity of the matter as per s.596(2)(a) of the FW Act, permission for Ms Masters to represent MAX Solutions was granted.
Background
[3] In a 14 page letter dated 20 April 2015 Ms Tresize advised MAX Solutions of her resignation. The correspondence referred to alleged bullying, non-payment of bonuses and a breach of her employment contract. Ms Tresize argued that her resignation was forced upon her by the conduct of her employer.
[4] The Commissioner did not accept the submission made by Ms Tresize that the conduct of MAX Solutions left her with no choice other than to resign, meaning she had been dismissed as per s.386(1)(b) of the FW Act. The Commissioner concluded that while Ms Tresize had some grievances with her employer they did not demonstrate that MAX Solutions had engaged in a course of conduct that forced Ms Tresize to resign.
[5] The grounds of appeal are extensive and Ms Tresize relied on her written submissions in arguing that her appeal should be upheld. In summary the grounds of appeal state that the Commissioner did not attribute sufficient weight to the matters raised, in particular those matters that led her to file a workers compensation claim.
Consideration
[6] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and 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”. Permission to appeal may otherwise be granted on discretionary grounds.
[7] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act and states:
(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.
[8] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission.
[9] As the decision was made under Part 3-2, permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.
[10] Ms Tresize submitted that errors of fact made by the Commissioner and that the employer had allegedly breached industrial laws led to an injustice which satisfied the public interest requirements of the FW Act.
[11] In the Federal Court Full Court decision of 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(1) as “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 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 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.” 5
[12] 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. 6 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.7
[13] Accordingly it will not be sufficient for an appellant to invite a Full Bench to substitute its own determination for that of the single member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified in House v The King. 8
[14] In addition to the public interest requirements of s.400(1), an appeal relating to an unfair dismissal must also only be on the ground that the decision involved a significant error of fact as per s.400(2). That is any errors of fact must be significant. Having considered Ms Tresize’s submissions, we have not been able to identify any significant errors of fact or indeed any errors of fact made by the Commissioner. The Commissioner considered all of the issues raised by Ms Tresize and her conclusions were reasonably open to be made.
[15] We agree with the submissions of the respondent that the appeal grounds demonstrate that Ms Tresize is unhappy with the decision, but has failed to demonstrate any appealable error or public interest grounds.
[16] We are not satisfied that Ms Tresize has demonstrated any basis upon which permission to appeal could be granted in the public interest for the following reasons:
(1) We do not consider that the appeal raises any issue of importance and general application;
(2) No disharmony in the legal principles applied in the decision as compared to other decisions is apparent; and
(3) Ms Tresize’s submissions otherwise seek to re-agitate the merits of her claim rather than identify appealable error. We consider the conclusion that was reached by the Commissioner was not attended by any factual error.
[17] As no public interest grounds have been made out which would justify the grant of permission to appeal or significant errors of fact identified, permission to appeal must be refused in accordance with ss.400(1) and (2) of the FW Act.
[18] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
T. Tresize on her own behalf.
S. Masters solicitor for MAX Solutions Pty Ltd.
Hearing details:
2015.
Sydney:
27 November.
1 [2015] FWC 6824
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 (2011) 192 FCR 78 at [43]
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 & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
5 (2010) 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 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 288, 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]
8 (1936) 55 CLR 499 at 505
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