Thi Hai Duong (Amy) Luong v Carers of Africa Inc
[2020] FWCFB 373
•29 JANUARY 2020
| [2020] FWCFB 373 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604—Appeal of decision
Thi Hai Duong (Amy) Luong v Carers of Africa Inc.
(C2019/7134)
DEPUTY PRESIDENT SAMS | SYDNEY, 29 JANUARY 2020 |
Appeal against decision [[2019] FWC 7749] of Commissioner Gregory at Melbourne on 13 November 2019 in matter number AB2019/444 – permission to appeal – stop bullying application dismissed – no jurisdiction – no errors in the Decision – appeal does not otherwise enliven the public interest – permission to appeal refused.
[1] This decision will deal with an appeal, for which permission to appeal is required, made by Ms Thi Hai Duong (Amy) Luong (the ‘appellant’) under s 604 of the Fair Work Act 2009 (the ‘Act’) against a decision of Commissioner Gregory (now retired) made in connection with the appellant’s stop bullying application; see: Thi Hai Luong [2019] FWC 7749 (the ‘Decision’). The stop bullying application was made under s 789FC of the Act. The appellant claims that she was bullied at work by another employee when she was employed by Carers of Africa Inc (the ‘respondent’), a government-funded or government-related organisation involved in assisting refugees from Africa who are now living in Victoria. The stop bullying application was filed on 20 November 2019, although the appellant had not worked for the respondent since early July 2019, having only completed around six months of employment up to that point.
[2] The appeal was listed before the Full Bench in Sydney, concerning only the question of permission to appeal, on 17 January 2020. The appellant appeared for herself, via videolink, from Melbourne. There was no appearance by, or on behalf of, the respondent. The appellant failed to file written submissions in accordance with the Commission’s directions of 27 November 2019, although the appellant had frequent communications with the Presiding Member’s Chambers in the lead up to, and after, the hearing.
[3] A few days before the permission to appeal hearing, the appellant sent to the Presiding Member’s Chambers, among various other materials and correspondence, a purported Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure. The appellant sought to agitate this application in the permission to appeal proceedings. The purported application sought an unspecified award of compensation concerning matters addressed in the Form F10 and ‘dispute settlement’ and ‘damages’ in relation to the alleged bullying of her when working for the respondent. Putting aside the obvious jurisdictional hurdles to such an application and the procedural irregularities associated with it, the Full Bench is dealing only with the appellant’s permission to appeal application in respect to the Decision. The purported F10 application is not properly before us, and it has not been properly lodged with the Commission. This was made clear to the appellant during the appeal proceedings. We decline to waive, pursuant to s 586(b) of the Act, the irregularity in the form and manner the application was made to the Commission. We do not propose to deal any further with that particular matter.
[4] Similarly, shortly after the hearing, the appellant also sent to the Presiding Member’s Chambers a purported Form F8B – Notification of agreement for consent arbitration of a general protections dispute – seeking consent arbitration of a General Protections application involving a dismissal, in respect to her claims for compensation and damages. Relevantly, no General Protections application has even been filed by the appellant. Obviously, without such an application having been dealt with by the Commission in a conference under s 368 of the Act, there can be no application for consent arbitration following unsuccessful conciliation. This purported notification of agreement for consent arbitration of a general protections dispute is not before us in this permission to appeal proceeding and, again, has not been properly lodged with the Commission. Accordingly, it is plainly incompetent. We return to the application for permission to appeal.
The Commissioner’s decision
[5] Essentially, the Commissioner determined a jurisdictional issue going to s 789FF of the Act, which required a finding that there is a risk that the applicant would be bullied at work by an individual or a group. This is a threshold question which must be satisfied before any stop bullying orders, under s 789FF(1)(b)(ii), can be made by the Commission. The Commissioner was satisfied that there was no feasible risk that the appellant would ever be bullied at work again by the individual named in the application. It followed that the Commissioner had no power to make stop bullying orders, even if he was to find that under s 789FF(1)(b)(i) of the Act, that the applicant had been bullied at work. At [29] of the Decision, the Commissioner emphasised that he had made no findings about whether bullying at work, as claimed by the appellant, had occurred.
[6] The Commissioner set out the threshold of this issue to be determined, the submissions and evidence of the parties and the principles drawn from the authorities on the subject matter. The Commissioner then exercised his discretion to dismiss the stop bullying application pursuant to s 587(1)(c) of the Act, as having no reasonable prospects of success, by reliance on the following agreed facts and circumstances:
‘[25] There is no issue between the parties that Ms Luong is no longer employed by Carers of Africa, and has not worked with the organisation since early July 2019. Its Director, Mr Chingaya, also stated that there is no prospect of her ever being employed again, and Ms Luong also confirmed that she has no desire to return to work with Carers of Africa, given what she alleges occurred during the time she was employed. She worked for the organisation for a period of around six months and last worked in early July 2019.’
Grounds of appeal
[7] Upon lodging her initial Form F7 – Notice of Appeal on 14 January 2020, the appellant lodged an additional Form F7 further detailing her grounds of appeal. To the extent this purports to be an amended notice of appeal which requires leave of the Commission, we grant leave to the appellant to do so. In order that we do not mistake the appellant’s grounds of appeal, we partly set them out as they appear in the additional Form F7 as follows:
‘Unfair still I need compensation from the company who have staff harmed me traumatic my cost to get my health fix impacted on my well being health being
General damaging and workforce future income opportunity for economy I focus on and set up
Pretending me to daily opportunity and gov meeting events ,couciling and Dr I have to do to
Damage my financial and car damaged movement my daily routine and future .
All evidences will he provide opportunity to show in person
Q& A will be ask by me to [named individual] who intentional to kill me implementing in her head tried to kill me.
She need to be in the court conference as I don’t want on phone anymore already had that but can’t resolve 2 times on conferences why would I do it on conference again
To resolve this matter have to be in person .Mr Chinganya is representing for her
…’ (sic)
[8] Similarly, the appellant’s public interest grounds were as follows:
‘I don’t do anything wrong I cant analyse reason why that person :[named individual] harm me bullying me and assured me .Unfair tsing matter unsolve still make me feel vunale still..
It’s also public safety future people come to work and who give her a rights to bullying me even that if other people come to work maybe feel the same way as she over the power to bullying people in community which mean it’s unsafe place to work not health and it’s public safety interest .its not a simple matter irgnore is not good and matter still not resolve’ (sic)
CONSIDERATION
[9] An appeal under s 604 of 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; see: Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. 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.
[10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment; see: 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]. The public interest is not satisfied simply by the identification of error, or a preference for a different result; see: GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, 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]. In GlaxoSmithKline, a Full Bench of the Commission identified some of the considerations that may attract the public interest at [27]:
‘… 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…’
[11] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. See also: CFMEU v AIRC (1998) 89 FCR 200 and Wan v AIRC (2001) 116 FCR 481.
[12] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error; see: Wan v AIRC (2001) 116 FCR 481 at [30]. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[13] It is important to note that an application for permission to appeal is not a de facto or preliminary hearing of the appeal. 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; see: Trustee for The MGTI Trust v Johnston [2016] FCAFC 140at [82]. However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[14] In our view, the determination of the Commissioner to dismiss the appellant’s stop bullying application was entirely unremarkable, given the acknowledgement of the appellant and the respondent that there was no possibility of her returning to work; and, therefore, there was no foreseeable risk of her being bullied at work. Given the evidence, it is difficult to see any other conclusion the Commissioner could have come to. To ensure we understood the appellant correctly as to her not ever wanting to work for the respondent again, the following exchange took place during the Full Bench hearing, at PN11-16:
‘DEPUTY PRESIDENT SAMS: Now can I confirm at the outset, because it is a significant issue in the appeal, you do not seek to go back to Carers of Africa, do you?
MS LUONG: Of course not. Is for my safety, Commissioner.
DEPUTY PRESIDENT SAMS: Yes. All right, you don't have to tell me the reason. That was the same reason that you gave to the Commissioner, wasn't it, yes?
MS LUONG: That's right, and be here today. [(sic)]
DEPUTY PRESIDENT SAMS: Yes. You told the Commissioner that you had no intention of going back to Carers of Africa because you felt you had been unfairly treated, and bullied, and Carers of Africa had no intention of asking you to come back. Now, that raised the jurisdictional question before the Commissioner that there was no prospects of you being bullied into the future, because you wouldn't be at work and you have no intention to go back to work. Are you following me?
MS LUONG: Yes, Commissioner’
[15] Further, her determination in not ever returning to work for the respondent, was further demonstrated when she indicated she was currently ‘employed’ as a Project Manager for three companies, which were identified by name in the appeal proceedings. She confirmed this in a question at PN56-59 of the transcript:
‘DEPUTY PRESIDENT SAMS: … Are you employed at the moment?
MS LUONG: I'm doing (indistinct) employ now, Commissioner.
DEPUTY PRESIDENT SAMS: I note in your communications you refer to being a project manager for, what looks like three organisations. Are they your companies, are they?
MS LUONG: Yes, Commissioner. I'm just launching now, Commissioner.’
[16] The appellant did not identify what, if any, were the appealable errors in the Decision. Rather, the appellant’s apparent grievance with the Decision was that the Commissioner did not conclude that she had been bullied at work and did not make orders in her favour, including for compensation and damages. This was confirmed by the appellant when she indicated to the Full Bench that she was appealing the Decision on the basis of her alleged grievances, rather than identifying appealable error. At PN41 of the transcript the appellant said:
‘It's not about [the] ruling. It's about damaging a person, damaging my car, [it] is a [one] hundred thousand [dollar] car.’
[17] It is plainly apparent that the Commissioner had considered and properly found that the condition precedent had not been met for a determination of the appellant’s stop bullying application. Further, he could not make orders of a financial nature, as there was no jurisdictional basis for him to do so. We discern no arguable case of appealable error in this respect. Moreover, we would not have come to a contrary conclusion.
[18] In our view, the appellant has not identified any issue that raises matters of importance or general application that would be sufficient to enliven the public interest. We are not persuaded that the decision is attended by any doubt, as to warrant reconsideration by an appellant Bench. Nor are we persuaded that a substantial injustice may result, if permission to appeal is refused.
[19] For these reasons, we do not consider that it would be in the public interest to grant permission to appeal. Permission to appeal is refused. We order accordingly.
DEPUTY PRESIDENT
Appearances:
The appellant appeared for herself.
No appearance for the respondent.
Hearing details:
2020.
Sydney (with videolink to Melbourne):
17 January.
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