Xiaoqin Hua v Braemar Presbyterian Care
[2015] FWCFB 396
•23 JANUARY 2015
| [2015] FWCFB 396 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Braemar Presbyterian Care
(C2014/8119)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 23 JANUARY 2015 |
Appeal against decision [2014] FWC 8633 of Deputy President McCarthy at Perth on 2 December 2014 in matter number U2014/12080 - public interest not enlivened - permission to appeal refused.
[1] Xiaoqin Hua (the appellant) was dismissed from her employment as a casual carer with Braemar Presbyterian Care (the respondent), a residential aged care provider, on 15 August 2014. She subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act).
[2] On 2 December 2014 Deputy President McCarthy issued a decision in relation to the appellant’s application. 1 In that decision, the Deputy President found that the appellant’s dismissal was not harsh, unjust or unreasonable, and dismissed her application. The appellant has appealed the Deputy President’s decision and that is the matter before us.
[3] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). 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”. 2 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 3. 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.” 4
[5] 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. 5 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.6
[6] In the decision under appeal, the Deputy President found (at paragraph [25]) that there was a valid reason for the appellant’s dismissal on the basis of the following finding:
“[24] I find that the Applicant removed from the premises of the respondent documents that she was prohibited from removing and that she was aware she was not permitted to remove them. I also find that the Applicant was requested to provide documents she had removed and did eventually provide documents that had been removed but only after repeated requests and dishonest denials that she had possession of documents.” 7
[7] The appellant had contended before the Deputy President that this did not constitute a valid reason because similar breaches of confidentiality were engaged in by other employees and the respondent itself, but the Deputy President rejected this, finding:
“[16] The Applicant also tried to justify her taking the documents by arguing that other people take copies of documents. However she then stated the purpose for those copies other people make is to provide that information to carers or other persons who may be involved in the care of the resident.
[17] The Applicant also tried to justify her taking the shower lists by arguing that other documents were public and gave the example of care worker rosters. I do not consider that rosters for care workers is in any way comparable to shower lists.
[18] Another reason the Applicant gave to justify her taking the documents was that the respondent provided documents to third parties. The example she gave was the respondent provided documents to the FWC for the purpose of these proceedings. The comparison of documents for proceedings of this nature being provided to establish a case in the FWC and the taking of documents by the Applicant is bizarre.” 8
[8] The appellant conceded before the Deputy President that she had taken the shower lists of persons in the care of the respondent home without authority (noting that the respondent had contended that she had taken other documents as well). The Deputy President found in relation to this:
“[23] The Applicant admitted that she had never seen any other employees take the shower lists. I consider that the Applicant knew and fully understood that she was prohibited from taking the shower lists home.”
[9] The rationale for the respondent’s requirements concerning the non-authorised removal of documents was described in the decision as follows:
“[19] The reasons for the rule, or policy, of a prohibition on removal of documents detailing private patient information and care given are obvious. Mr Woodage explained that the information included “where they (the residents) live, what room they (the residents) live in. It also has provided what care they (the residents) had provided to them and it also upon it a resident who had deceased and information regarding that”.”
[10] Supporting all of the above findings was a credit finding which the Deputy President made in favour of the respondent’s witnesses and against the appellant as follows:
“[21] The Applicant admitted that she was asked for the documents in the meeting... TheApplicant’s evidence about her response to requests for documents was unconvincing.
[22] In contrastall of the evidence of Ms Reid and Mr Woodage was clear concise and consistent.”
[11] The Deputy President was of course required under s.387(a) of the Act to take into account, in determining whether the dismissal was harsh, unjust or unreasonable, whether there was a valid reason for the dismissal based on capacity or conduct. His findings to which we have referred above discharged this requirement. The Deputy President went on to consider the other matters required to be taken into account under s.387. In summary, he found that the process by which the appellant was dismissed was a fair one. Finally, in relation to his consideration of other relevant matters pursuant to s.387(h), the Deputy President said:
“[29] I have also taken into account the intentions of the Applicant and the acceptance that the Applicant had the best interests of the respondent at heart. However, the way the Applicant went about pursuing those interests were serious breaches of protocol and policy.”
[12] The Deputy President then, as earlier stated, found that the dismissal was not harsh, unjust or unreasonable, and dismissed the appellant’s application.
[13] The appellant’s grounds of appeal are discursively stated and run to eight closely-typed pages in length. As best we can, we summarise them as follows:
(1) The Deputy President erred in making findings based on the evidence of the respondent’s witnesses who, the appellant contended, lied in court, had no knowledge of relevant matters, or contradicted other ascertainable facts.
(2) The Deputy President failed to take into account that the appellant’s purpose in taking a copy of the shower lists was for the purpose of a meeting with the employer’s HR Department in which “the appellant knew that the resident left shivering in the cold, waiting to be given a warm shower was certainly to be discussed”.
(3) The Deputy President failed to take into account that “unlawful things had been going on ... for years” (which the appellant describes in some detail). The appellant’s intention was to obtain evidence of these things to show to the respondent.
(4) The Deputy President failed to take into consideration the fact that no employee of the respondent except the appellant had been dismissed because of the removal of documents.
(5) The Deputy President failed to take into account that the respondent had itself breached the confidentiality of its documents and erred by distinguishing this on the basis that the respondent had produced documents to the Commission for the purpose for the proceedings.
(6) The Deputy President failed to take into account that confidentiality had never been an issue with the respondent on many occasions.
(7) The Deputy President failed to take into account that “all the confusion, altercations among the employees and problems at work arose from the respondent’s poor or no management”.
(8) The Deputy President erred in failing to take into account that another employee, Kamaue, had engaged in misconduct more serious than that of the appellant but had not been dismissed.
(9) The appellant felt rushed during the hearing and believed the Deputy President had already made up his mind.
[14] The appellant’s notice of appeal also set out four public interest grounds which, she contended, justified the grant of permission to appeal. The first three grounds concerned allegations of neglect of aged care residents by the respondent and the need to stop the respondent “silencing the voices of the carers by dismissing them without justification”. The fourth stated: “If the respondent is not made to pay and pay till it hurts, unfair dismissal will happen again”.
[15] We do not consider that the appellant has demonstrated any arguable case of appealable error on the part of the Deputy President. In relation to appeal ground (1) identified above, we do not consider, paying due regard to the Deputy President’s advantage in having seen and heard the witnesses give their evidence before him, that any basis has been established for reversing the credit findings made by him. In relation to the appeal grounds (2) and (3) above, the Deputy President did take into account the appellant’s intentions and purpose in taking the documents (in paragraph [29] of the decision quoted above), but regarded that as outweighed by the serious nature of the appellant’s conduct in breach of the respondent’s policy. We consider that it was reasonably open to the Deputy President to assign weight to these competing considerations in the way that he did. In relation to appeal grounds (4), (5) and (6), the Deputy President did consider the appellant’s case that the confidentiality of documents had been disregarded by other employees and the respondent itself, and rejected it in paragraphs [16]-[18] and [23] of the decision (earlier quoted). His findings about this were open to him, and we agree with them. Appeal ground (7) above does not identify any matter relevant to the appellant’s misconduct which it was necessary for the Deputy President to take into account. In relation to appeal ground (8), the fact that in her evidence at the hearing the appellant made a range of irrelevant accusations about the conduct of another employee did not give rise to an obligation on the part of the Deputy President to deal with that matter. As to appeal ground (9), we were not directed to anything which provided objective support for the appellant’s subjective perceptions about the hearing. We consider that the appellant was afforded a proper opportunity to put her case.
[16] The fact that the appellant has made a range of serious allegations concerning the standard of the care afforded to the respondent’s residents does not attract the public interest for relevant purposes because the allegations are not rationally connected to the subject matter of the proceedings, namely the appellant’s dismissal. We were not taken to any evidence which would support the proposition that the appellant’s dismissal was for the purposing of “silencing” the appellant concerning these allegations, and we can identify no such evidence ourselves. If the appellant wishes to pursue these allegations, then the appropriate place to take them is the regulator of residential aged care, which we understand to be the Australian Aged Care Quality Agency. We do not consider that there is anything otherwise raised by the appellant’s appeal which attracts the public interest.
[17] We are not satisfied that the grant of permission to appeal would be in the public interest. We therefore refuse permission to appeal in accordance with s.400(1) of the FW Act.
PRESIDENT
Appearances:
The Appellant: Ms X. Hua on her own behalf
The Respondent: Mr S. Farrell and Mr R. Reid
Hearing details:
Sydney
21 January2015
1 [2014] FWC 8633
2 (2011) 192 FCR 78 at [43]
3 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46].
4 (2010) 197 IR 266 at [27]
5 Wan v AIRC [2001] FCA 1803 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
7 [2014] FWC 8633
8 [2014] FWC 8633
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