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Tenterfield Care Centre Limited v Wait

Tenterfield Care Centre Limited v Wait

Case [2018] FWCFB 3844 31 July 2018

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[2018] FWCFB 3844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Tenterfield Care Centre Limited
v
Mrs Madeline Wait
(C2018/2925)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON

SYDNEY, 31 JULY 2018

Permission to appeal against a decision [[2018] FWC 2472] of Commissioner Cambridge at Sydney on 10 May 2018 – reinstatement – public interest not enlivened – not contended that the decision involved a significant error of fact – permission to appeal refused.

[1] On 10 May 2018 Commissioner Cambridge issued a decision 1 (the Decision) in which he determined that Ms Madeline Wait had been unfairly dismissed from her employment with the Tenterfield Care Centre Limited (‘Tenterfield’). The Commissioner issued an Order2 that Ms Wait be reinstated to the position she was employed immediately before her dismissal; that her continuity of employment be maintained; and a sum of compensation lost because of the dismissal. Tenterfield seeks permission to appeal the Decision.

[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (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 There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[3] The background to the proceedings is described in the Decision and may be shortly stated. Ms Wait is 61 years of age and worked for the Appellant for about 5 and a half years, initially as a kitchen hand and then as a Maintenance/Gardening Officer. Ms Wait was dismissed on 5 October 2017 arising from two allegations of misconduct: 4

(i) An allegation of unauthorised use of the appellant’s equipment by reason of Ms Wait borrowing a chainsaw and hedge trimmer for personal use on 19 August 2017.

(ii) An allegation that Ms Wait had refused to follow a lawful and reasonable request in a timely manner and being insubordinate by not clearing up some leaves and debris on 1 September 2017.

[4] The Commissioner sets out the factual background at [7] to [31] before setting out the submissions advanced on behalf of the applicant (at [32] to [42]) and the employer (at [43] to [51]). The Commissioner deals with the first allegation of misconduct ((i) above at [3]) at [57] to [68] finding that:

• the evidence presented ‘overwhelmingly’ supported the proposition that the applicant had been given verbal approval by her previous manager, Ms Johnston, to ‘borrow the hedge trimmer’ (see [57] to [60]).

• during the hearing the employer raised a distinction between authorisation for the private use of the hedge trimmer as opposed to any authorisation for the private use of the chainsaw. The Commissioner found that no such distinction arose during the employer’s investigation into the allegation and that ‘it was clear that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tenterfield Care Centre Limited v Wait

Details

AGLC: Tenterfield Care Centre Limited v Wait [2018] FWCFB 3844
Case: [2018] FWCFB 3844
Decision Date: 31 JULY 2018

CaseChat Overview and Summary

Tenterfield Care Centre Limited brought an appeal against a decision made by Commissioner Cambridge at Sydney on 10 May 2018, which involved a claim for reinstatement. The applicant sought permission to appeal the decision made by the Commissioner, which was initially brought before the Fair Work Commission. The primary issue before the court was whether the applicant had demonstrated that the public interest required the appeal to proceed, given that the decision did not involve a significant error of fact.

The applicant argued that the public interest was enlivened due to the significance of the matter and the potential implications for similar cases. However, the court noted that the applicant had not contended that the decision involved a significant error of fact, which is a critical factor in determining whether the public interest is sufficiently engaged to warrant an appeal. The court emphasised that the absence of a significant factual error was a strong indication that the public interest did not require the appeal to proceed.

In reaching its decision, the court considered the established criteria for granting permission to appeal, including the presence of a significant error of fact or law and the broader public interest implications. The court found that the applicant had not satisfied the necessary criteria for permission to appeal, as there was no contention that the decision involved a significant factual error. Consequently, the court refused the application for permission to appeal the Commissioner's decision.

The final orders of the court were that the application for permission to appeal be refused, and no further appeal could be taken on the grounds presented. The decision of the Commissioner remained in place, and the applicant was not granted permission to challenge that decision further.

Orders