Thompson Healthcare Pty Ltd v Mrs Angelika Adamopoulos
[2017] FWCFB 5170
•10 OCTOBER 2017
| [2017] FWCFB 5170 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mrs Angelika Adamopoulos
(C2017/4530)
DEPUTY PRESIDENT GOSTENCNIK |
|
Appeal against decision [2017] FWC 3505 and Order PR594566 of Deputy President Sams at Sydney on 28 July 2017 in matter number U2017/1706; arguable case of appellable error established; satisfied that public interest is enlivened; permission to appeal is granted
Introduction
[1] Thompson Healthcare Pty Ltd (Appellant) seeks, by its Notice of Appeal lodged on 16 August 2017, permission to appeal against a decision 1 (Decision) and order2 of Deputy President Sams, in which the Deputy President dealt with an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (Act). The Deputy President determined that the dismissal of Mrs Angelika Adamopoulos (Respondent) by the Appellant was ‘harsh, unjust and unreasonable’. The Deputy President determined that an order for reinstatement was not appropriate and in lieu of reinstatement he ordered the Appellant to pay to the Respondent compensation in the amount of $69,450, less appropriate taxation, plus 9.5% superannuation.
[2] The Respondent had, until 10 February 2017, been employed by the Appellant as a Director of Nursing (DON) at its Abbey House Nursing Home. The Respondent had commenced employment with the Respondent in August 2014. She was dismissed for reasons said to relate to her performance and conduct.
Appeal grounds and public interest
[3] There are five grounds of appeal stated in the Appellant’s Notice of Appeal which variously allege errors of law and significant errors of fact. For the purposes of deciding whether to grant permission to appeal, we need only refer to grounds three and five of the Notice of Appeal which are as follows:
“Appeal Ground Three – Error in law - Witness credibility
5. His Honour the learned Deputy President erred in law in:
(a) rejecting the evidence of Ms Mackenzie, Ms Gladwin and Ms Hill in key respects;
(b) making various findings adverse to these witnesses and their evidence (including inference based findings);
(c) finding that these witnesses intentionally corroborated their evidence, including for ulterior purposes to cause harm to the Applicant, to set her up, and/or to have her employment terminated; and
(d) making findings (including inferences) about the manner in which Ms Mackenzie had been treated in previous disciplinary proceedings and the conduct of Ms Jennings at or around the time of the Applicant’s termination.
6. In making these findings his Honour the learned Deputy President was in error in
that his Honour had:
(a) too fragile a base to support such findings (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 73 ALJR 306 (at [63]);
(b) was wrongly influenced in the manner discussed by Gleeson CJ, and Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 (at [23]-[31]) and Brennan, Dawson, Toohey and Gaudron JJ in Smith v NSW Bar Association (1992) 176 CLR 256 (at [37], [39]-[40]);
(c) palpably misused the advantage that a trier of fact at first instance has in seeing and hearing the witnesses give their evidence (compare Abalos v Australian Postal Corporation (1990) 171 CLR 167 (at 179)); and
(d) acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.
7. In making these findings, his Honour the Deputy President caused the proceedings to (for want of a better term) miscarry in that his Honour thereafter considered such findings “a prism of bias and prejudice against the Applicant” upon which all of the evidence of these witnesses was to be viewed (see decision [2017] FWC 3505at [182]).
Particulars
Refer to or see decision [2017] FWC 3505at [177]-[198], [205], [216], [235], [238],
[240]-[244], [253], [256] and [263].
The Appellant foreshadows that it will be seeking leave to rely upon fresh evidence at
the appeal hearing as to communications made by the Applicant (post the decision) to
employees of the Respondent and their family members (ie based upon his Honour the
Deputy President’s credibility findings in the proceedings as to the Respondent’s
witnesses).
. . .
Appeal Ground Five – Conclusion and Remedy
10. His Honour the learned Deputy President erred in fact and/or law in finding that:
(a) the Applicant’s dismissal by the Respondent was harsh, unjust and unreasonable; and
(b) the Applicant would have continued her employment as a Director of Nursing with the Respondent for a further 12 months.
11. His Honour the learned Deputy President should have dismissed the Applicant’s claim that her dismissal was harsh, unjust and/or unreasonable given the valid reason for her termination and/or that procedural fairness (as to time to attend the disciplinary interview) was a neutral factor in her dismissal.
12. In the alternative, his Honour the learned Deputy President should have found that given the valid reason for her termination, the Applicant’s misconduct (contributing to her termination) and/or the Applicant’s on-going refusal to alter the manner in which she dealt with or would deal with Dr Bob, the Applicant’s employment with the Respondent would have lasted no more than four to eight weeks (including in respect of any payment as to notice of termination (if any)). ”
[4] The Appellant contends that the grant of permission to appeal would be in the public interest because the issues in the appeal concern significant and fundamental appellable error.
[5] The Appellant says issues of this kind have previously been suggested as meeting the public interest. To this end, the Appellant contends that a substantial injustice would result if permission to appeal is refused, especially given the impact of the Decision on the Appellant’s workplace and the reputation of its witnesses who are ongoing employees of the Respondent, against whom unjustified adverse credibility findings have been made.
[6] The Appellant also contends permission ought be granted on the separate basis that the Decision is unsafe and attended with sufficient doubt by the presence of appellable error of law (in terms of misdirection in law) to warrant its reconsideration on appeal.
Consideration
[7] 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. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[8] 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.
[9] In the Federal Court Full Court decision in 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 as “a stringent one”. 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 of the Commission 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] It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error. 7 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.8
[11] 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. 9
[12] We are persuaded that it is in the public interest to grant permission to appeal in the instant case. As will be evident from the discussion which follows, we are persuaded that an arguable case of appellable error has been established in respect of ground three of the Notice of Appeal. The nature of the appellable error identified is such that if made good on appeal, it would raise serious doubt as to the conclusion reached by the Deputy President that the dismissal was harsh, unjust and unreasonable. This is because the conclusion was based on evidence given by the Respondent that was preferred to the evidence given by three of the Appellant’s witnesses, such preference having been founded primarily on adverse credibility findings which were arguably erroneous. There is therefore also an arguable case of appellable error established in respect of that part of ground 5 which seeks to challenge the Deputy President’s conclusion that the Respondent’s dismissal was harsh, unjust and unreasonable. It follows that it is arguable that injustice in the result has occurred, as well as injustice in the adverse credibility findings made against three of the Appellant’s witnesses. This provides a sufficient basis to enliven the public interest.
[13] Our reasons for concluding that the Appellant has made out an arguable case of appellable error in respect of these grounds may be shortly stated.
[14] The Deputy President concluded “that despite their denials, there was collusion between Ms Mackenzie, Ms Gladwin and Ms Hill to make their complaints consistent with each other and to give the impression they were independently provided to Ms Jennings”. 10 at [182].
According to the Deputy President “collusion often becomes unstuck when language used or the structure of documents is so similar that it could not be mere coincidence”. 11 The Deputy President then reasoned that “[S]o it was in this case - no better demonstrated by the concluding paragraphs to their list of complaints sent on 2 February 2017 within a few minutes of each other”.12
[15] As to the finding that Ms Hill had colluded with Ms McKenzie and Ms Gladwin, the Deputy President reasoned “close friendship and collaboration with Ms Mackenzie (a person in much higher authority) was such that they both ‘fed off’ each other’s grievances against the applicant. This resulted in them colluding to prepare the list of complaints sent to Ms Jennings.” 13
[16] We are persuaded that there is an arguable case that there was no probative evidence to support a conclusion (and one which itself involves a serious allegation) that Ms Hill colluded with Ms McKenzie and Ms Gladwin, nor a sufficient evidentiary basis upon which the inference of collusion could be drawn. We also consider that there is an arguable case that there was an absence of probative evidence to support a collusion finding as against Ms McKenzie and Ms Gladwin.
[17] It was accepted before us by the Respondent’s solicitor that no direct allegation was put to Ms Hill that she had colluded with Ms McKenzie and Ms Gladwin. 14 In the absence of the allegation of collusion having been put to Ms Hill, there is also an arguable case of injustice towards her given the serious nature of the collusion finding. This involves a finding that Ms Hill was involved in serious inappropriate conduct in the workplace, but also raises an inference that Ms Hill was less than truthful in her evidence before the Deputy President. Moreover, on our review of the transcript of the hearing before the Deputy President, it does not appear to us that the allegation was put to Ms McKenzie and Ms Gladwin that either of them had colluded with Ms Hill in preparing the list of complaints sent to Ms Jennings. It was put to them only that they had colluded with each other.
[18] In this regard, each of Ms McKenzie and Ms Gladwin denied colluding with each other in the preparation of the complaints made to Ms Jennings. On our review of the content of the emails containing the complaints, it appears to us arguable that the complaints are not so strikingly similar as to support an inference much less a conclusion of collusion in their preparation. The findings of collusion in the context in which those findings were made amount to findings of serious inappropriate conduct in the workplace. Arguably, the conduct found is sufficiently serious to warrant summary dismissal. Such serious findings must have a probative evidentiary foundation and we consider that it is arguable that evidence relied upon by the Deputy President could not properly support the serious findings that he made.
[19] In these circumstances, there has been an arguable case established that the Decision is affected by a serious error of fact or facts as to the collusion findings as against each of Ms Hill, Ms McKenzie and Ms Gladwin.
[20] On the face of the Decision, the collusion findings appear to us to be inextricably linked to the motives attributed to each of Ms Hill, Ms McKenzie and Ms Gladwin by the Deputy President, namely, to injure the Respondent’s employment with the Appellant, so as to raise an arguable case of appealable error as to the credibility findings made by the Deputy President. The credibility findings underpin the Deputy President’s preference of the evidence given by the Respondent whenever it conflicted with the evidence of Ms Hill, Ms McKenzie or Ms Gladwin. The evidence preferred by the Deputy President underpins his conclusions that the Respondent did not engage in the conduct alleged by the Appellant and that the dismissal of the Respondent was harsh, unjust and unreasonable.
[21] In these circumstances, we are satisfied that an arguable case of appellable error in the nature of that which is described in House v The King 15has been established.
Conclusion
[22] For the reasons stated, permission to appeal is granted.
Directions
[23] In furtherance of the hearing and determination of the appeal we direct:
1. This matter is listed for hearing before the Full Bench in Melbourne at 10.00am on Monday, 11 December 2017.
2. The Appellant shall file in the Commission and serve on the Respondent an outline of submissions prepared in accordance with the Appeal Proceedings Practice Note by 5.00pm on Tuesday, 24 October 2017.
3. The Respondent shall file in the Commission and serve on the Appellant an outline of submissions in response prepared in accordance with the Appeal Proceedings Practice Note by 5.00pm on Tuesday, 7 November 2017.
4. The Appellant is to file in the Commission and serve on the Respondent any submissions in reply by 5.00pm on Tuesday, 14 November 2017.
5. Any party that wishes to apply for permission to be represented at the hearing of the appeal by a lawyer or paid agent shall file in the Commission and serve on the other party a document, not exceeding one A4 page in length, which identifies the lawyer or paid agent the subject of the application and the reasons why such permission should be granted having regard to the grounds in s.596(2) of the Fair Work Act 2009, by 5.00pm on Tuesday, 14 November 2017.
6. Any party which is served with a document pursuant to direction 5 above shall file in the Commission and serve on the other party a document, not exceeding one A4 page in length, which indicates whether the other party’s application for permission to be represented at the hearing of the appeal by a lawyer or paid agent is opposed and, if so, the reasons for that opposition, by 5.00pm on Tuesday, 14 November 2017.
7. The parties are to provide the Full Bench with three copies of any relevant authorities from which they intend to read on the day of the hearing.
8. The parties are granted liberty to apply to the Presiding Member of the Full Bench to vary the above directions.
DEPUTY PRESIDENT
Appearances:
Mr G Boyce, Counsel for the Appellant.
Mr K Kutasi, Solicitor for the Respondent.
Hearing details:
2017.
Melbourne Video Link to Sydney.
3 October.
1 [2017] FWC 3505.
2 PR594966.
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 (2011) 192 FCR 78 at [43].
5 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].
6 [2010] FWAFB 5343, 197 IR 266 at [27].
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 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 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].
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
10 [2017] FWC 3505
11 Ibid.
12 Ibid.
13 Ibid at [191].
14 Transcript (3 October 2017) PN132-PN150; PN209-PN220; and PN298-PN307.
15 (1936) 55 CLR 499 at 505
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