DECISION

Fair Work Act 2009
s.604—Appeal of decision

Linda Hanrick
v
Meridian Lawyers
(C2018/3401)

Permission to appeal sought against decision [2018] FWC 3256 of Deputy President Sams at Sydney on 5 June 2018 in matter number U2017/12362.

[1] Ms Hanrick (Appellant) was employed as a Legal Secretary with Meridian Lawyers (Respondent), and was dismissed on 9 November 2017 1 for “serious misconduct” in relation to her “unacceptable behaviour” and conduct concerning the making of a false bullying claim against other employees.

[2] On 19 November 2017, the Appellant filed her unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission).The Appellant did not seek reinstatement as a remedy but instead sought compensation. 2

[3] On 5 June 2018, Deputy President Sams issued his Decision 3 in which he declined to grant the Appellant’s unfair dismissal application under s.394 of the Act. That Decision is now the subject of this appeal.

[4] On 8 August 2018, we heard the parties in respect of permission to appeal. The Appellant appeared on her own behalf and Ms Sharlene Wellard, in-house solicitor, appeared for the Respondent.

Appellant’s submissions

[5] The Appellant’s notice of appeal raised several grounds of appeal, procedural and substantive in nature, primarily concerning the Deputy President’s treatment of evidence.

[6] The Appellant submitted that the Deputy President erred in his conclusion that the Respondent had discharged its evidentiary onus, 4 and that the affidavits of Sharlene Wellard dated 30 January 2018, Anli Roelofse dated 30 January 2018, and Paul Baker dated 30 January 2018 were “widely discrepant”. Moreover, it was stated that the Deputy President failed to consider the Appellant’s material and the evidence of Ms Cerisola involving Ms Shiel and Ms McCarthy. It was not open to the Deputy President to “stand in the shoes of the employer” in making his finding on the evidence.5

[7] The Appellant further submitted the Deputy President should have considered Ms Wellard’s response in cross-examination that she “did not take anything into account in making her decision” to dismiss the Appellant, and again made reference in broad terms to other “fallacies” in the Respondent’s evidence.

[8] A further ground of appeal was that the Deputy President failed to “admit his conflict of interest (real or apparent) with the Respondent’s representative, [Ms] Wellard”. The Appellant submitted that the Deputy President “head-lined an industry event alongside [Ms] Wellard close to the hearing date, and presided on the matter in the knowledge that the [Appellant] objected to any potential conflict of interest…” The Appellant made reference to s 13 of the Public Service Act 1999 (Cth) in this regard.

[9] In relation to the characterisation of the Appellant’s bullying claims, the Appellant contended that the Deputy President erred in characterising the claims as false:

“…the element to prove the complaint as being false, is how those complaints were not true, but made to seem true in order to deceive people. Instead, the [Deputy President’s] findings show, on the balance of probabilities, that the complaints are unsubstantiated, as described in the preamble of the [Deputy President’s] decision…. Subsequently, the ‘allegation of a particular gravity’ cannot be examined at a level of abstraction (Granada Tavern v Smith (2008) FCA 646 at [93-96])”.

[10] In relation to the public interest, the Appellant submitted that the Deputy President’s decision is counter intuitive and that it demonstrates an ‘injustice’, because the Commission should demonstrate greater sensitivity to complainants of workplace bullying, that the bar of protection for workplace rights should not be lowered, and that the evidence of employers ought to be interrogated.

Permission to Appeal

[11] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is an error on the part of the primary decision maker. 6 There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act states:

“Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”

[12] Section 400 of the Act provides as follows:

“(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.”

[13] 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 of the Act as “a stringent one”. 7 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.8 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.” 9

Consideration

[14] At first instance, the Deputy President considered it appropriate to make a determination on the “competing and conflicting evidence” between the Appellant and the Respondent’s various witnesses. 10 The Deputy President stated at [128] of his Decision that such an exercise requires a holistic consideration of the evidence, rather than an individual finding on each conflict of evidence. Accordingly, the Deputy President rejected the evidence of the Appellant and preferred that of the Respondent, for the following reasons:

•  the Appellant’s view that “if there were no witnesses to the complaints/incidents she was accused of, then the Respondent could not prove they were substantiated”. This was untenable and demonstrated a misapprehension of the nature of evidentiary proceedings in civil cases; 11

the Appellant’s cross-examination of the Respondent’s witnesses was unpersuasive and “made no impact”, 12 particularly in contrast to Ms Wellard’s examination and cross-examination of witnesses; and

•  The Appellant’s evidence was not only implausible but “disclosed a gaping disconnect between reality and fiction”, whereas the Respondent’s witnesses presented as honest and credible, without evidence of collusion or malice towards the Appellant. 13

[15] The Deputy President then proceeded to consider the reason for the dismissal, as being the “making of false allegations against both Ms Ceriosla and Mr Saxton”, 14 to constitute a valid reason for dismissal pursuant to s.387(a) of the Act. The Deputy President considered that the making of a false bullying claim by an employee against another employee will ordinarily constitute a valid reason for a dismissal, which was supported by the evidence in this case. In particular, the Deputy President found the Appellant to have alleged bullying and inappropriate behaviour by “drawing nonsensical conclusions from totally unrelated events, or that she simply made up allegations which were utterly implausible or preposterous”,15 and listed five “glaring examples” of such occurrences.16 The Deputy President then stated as follows:

“[137] In my assessment, all of these allegations and more, were intended to create an image of bullying, antagonism and inappropriate behaviour across the firm, of which she was the sole victim. I am bound to say nothing could be further from the truth. In some cases, the persons she complained about, had little or no contact with her, and did not even know who she was. We have here a classic example of a disgruntled and disaffected employee whose own behaviour was in question, deflecting attention from their behaviour, by making false allegations against others. Ms Wellard’s responses were entirely appropriate and necessary in the circumstances. She was obliged to investigate all of the examples of alleged bullying or inappropriate behaviour; indeed she repeatedly invited the [Appellant] to provide any other examples of inappropriate behaviour.” (emphasis added).

[16] The Deputy President also proceeded to deal with each of the matters required to be taken into account by s 387 of the Act. In doing so, the Deputy President found that, for the purpose of s.387(b), the Appellant was “notified of the reasons for her dismissal at the meeting on 9 November 2017”. 17 Further to this point, the Deputy President observed:18

“(1) At all relevant times, the [Appellant] was fully aware of the precise nature of the allegations against her from meetings on 30 October and 7 November 2017 and in emails to her. There could have been no confusion or uncertainty in her mind as to what was alleged against her” (emphasis added).

[17] In relation to s.387(c), the Deputy President gave consideration to the Respondent providing the Appellant an opportunity to respond to the allegations against her and to provide further information of any other complaints in meetings on 30 October, 6 November and 9 November 2017. Having dealt with the remaining matters in s.387(d)-(g), 19 the Deputy President took into account any other matters the Commission considered to be relevant under s.387(h) and concluded that:

“[152] Given the variety and multiplicity of the [Appellant’s] false allegations against numerous persons, it is beyond belief that she did not back down from any one of them. She denied them all, even in the face of reflection on the contrary evidence in this case, and the objective implausibility of most of her complaints. Her defiance and hubris in the 9 November 2017 meeting and her raising further new allegations for the first time, (because she had nothing to lose), was for me a most disturbing and unfathomable feature of this case” (emphasis added).

[18] Accordingly, the Deputy President determined that the Appellant’s dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Act. 20

[19] In this appeal, it appears that the Appellant seeks to persuade us that the Deputy President should have considered and dealt with the evidence that was before him in a different way, and that he should have reached a different conclusion on the facts. It is noteworthy to mention that an appeal is not the place to re-agitate the matters have been considered at first instance. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 21 The fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.22

[20] Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Deputy President applied the correct legal principles, considered and dealt with the evidence that were before him, and made findings of fact based on the evidence he considered to be credible.

[21] In relation to the Appellant’s claim that the Deputy President failed to disclose that he had “head-lined an industry event alongside [Ms] Wellard close to the hearing date”, we note that this particular issue of an alleged “conflict of interest” was not raised before the Deputy President at first instance. The Appellant claims that the Deputy President was aware of her “potential conflict of interest” objection because he was aware of her earlier recusal application for the Deputy President to recuse himself on the basis of a ‘real conflict of interest with [Ms] Wellard”.

[22] For a decision maker to decline to proceed to hear a matter, the decision maker must conclude that there exists a reasonable apprehension of bias. While in this case, the point was not taken by the Appellant in the first instance, we do not consider that it is arguable that the Deputy President should have “admit(ted) his conflict of interest association (real or apparent) with the respondent’s representative, [Ms] Wellard”.

[23] The circumstances as described by the Appellant fail to demonstrate an arguable case of error. In our view it is not arguable that a fair minded lay observer would hold a reasonable apprehension of bias. The High Court set out the test out the objective test of the “fair-minded lay observer” in Johnson v Johnson²³:

“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

[24] The attendance by the Deputy President at an industry event is a routine occurrence for members of the Commission and the attendance of others at such events who may then subsequently appear before the Commission could not reasonably be seen as a matter warranting disclosure.

[25] We reject the Appellant’s assertion that the Deputy President was in error in not raising his attendance at the industry event which Ms Wellard also attended or that there was any lack of transparency during the proceedings as a result.

[26] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

•  There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

•  The appeal raises issues of importance and/or general application;

•  The decision at first instance manifests an injustice, or the result is counter intuitive; or

•  The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[27] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.

[28] Permission to appeal is refused.

VICE PRESIDENT

Appearances:

Ms L. Hanrick, on her own behalf

Ms S. Wellard, in-house counsel for the Respondent

Hearing details:

2018.

Sydney via video link to Brisbane:

August 8.

Printed by authority of the Commonwealth Government Printer

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 1   Decision at [1].

 2   Decision at [2].

 3   [2018] FWC 3256; an Order was also issued to give effect to that Decision (PR407810).

 4   Briginshaw v Briginshaw [1938] HCA 38; (1938) 60 CLR 336.

 5   Walton v Mermaid Dry Cleaners (1996) 142 ALR 681, 685.

 6   Coal and Allied Operations Pty Limited Australian Industrial Relations Commission and others (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 7   (2011) 192 FCR 78; (2011) 207 IR 177 at [43].

 8   O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46].

 9   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27].

 10   Decision at [127].

 11   Decision at [129].

 12   Decision at [130].

 13   Decision at [132].

 14   Decision at [134].

 15   Decision at [136].

 16   Ibid.

 17   Decision at [146].

 18   Decision at [146].

 19   Decision at [149]-[151].

 20   Decision at [155].

 21   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].

 22   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28].

23 (2000) 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [11].