DECISION

Fair Work Act 2009
s.604—Appeal of decision

Kathryn Marguerite Roy-Chowdhury
v
Ivanhoe Girls’ Grammar School
(C2022/2722)

Appeal against decision [2022] FWC 849 of Deputy President Young at Melbourne on 12 April 2022 in matter number U2021/10483 – permission to appeal refused.

Introduction

[1] Kathryn Marguerite Roy-Chowdhury (the Appellant) has applied for permission to appeal, and has appealed, against a decision 1 made by Deputy President Young on 12 April 2022 (the Decision) in which the Deputy President found the Appellant’s dismissal on 15 November 2021 was not harsh, unjust or unreasonable and dismissed her application for an unfair dismissal remedy.

[2] The Appellant had been employed by the Respondent as Risk and Compliance Manager and was notified of her dismissal by letter dated 15 November 2021, in which it was stated that as she was unvaccinated for COVID-19 and did not have a valid exemption under Public Health Directions, the Appellant could not come to work. It was further outlined in the letter that the Appellant’s position as Risk and Compliance Manager required her to attend the Respondent’s premises, with her duties unable to be performed remotely following the return to on-site learning. The letter concluded with the advice that the Appellant’s employment would cease with immediate effect by reason of non-compliance with the Public Health Directions and that her conduct demonstrated that she was not ready and willing to be vaccinated with an approved COVID-19 vaccine and was therefore unable to perform her duties.

[3] Having regard to the material and evidence at first instance, the Deputy President was satisfied there was a valid reason for the Appellant’s dismissal related to her capacity, that the Appellant was notified of that reason and given an opportunity to respond to it. The Deputy President was also satisfied there was no refusal by the Respondent to allow the Appellant to have a support person present at discussions related to the dismissal and that the dismissal was not related to unsatisfactory performance. Further, the Deputy President noted the size of the Respondent and considered it had no bearing on the procedures followed in effecting the dismissal and also noted there was no absence of dedicated human resource specialists or expertise. Finally, the Deputy President considered a range of matters that the parties submitted were relevant under s 387(h) of the Fair Work Act 2009 (the FW Act).

[4] Having considered each of the matters specified in s 387 of the FW Act, the Deputy President concluded the dismissal of the Appellant was not harsh, unjust or unreasonable and was, therefore, not unfair.

Appeal grounds

[5] The Form F7 disclosed the following grounds of appeal:

•  The Deputy President failed to address questions of law regarding ss 343, 344, 345 and 351 of the FW Act, s 203(2) of the Public Health and Well Being Act 2008 (Vic) (PHWBA), s 35 of the Occupational Health and Safety Act 2004 (Vic), s 165 of the Evidence Act 1995 (Cth), s 16B of the Privacy Act (Cth), the Criminal Code Act 1995 (Cth), ss 109 and 51 (xxiiia) of the Australian Constitution and s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic);

•  The Deputy President erred in finding that the Appellant’s submissions had misconstrued s 203(2) of the PHWBA;

•  The Deputy President failed to consider the lack of a risk assessment demonstrating and justifying the Respondent’s determination that the Appellant could not work from home, especially because this “interfered with doctor-patient relationship”;

•  The Deputy President’s finding that there was consultation prior to termination was not open on the evidence; and

•  The Deputy President failed to consider whether there was reasonable justification for placing the Appellant on unpaid leave.

[6] The Form F7 further outlined that the failure of the Deputy President to adjudicate on the violations of ss 343, 344, 345 and 351 of the FW Act and “Clause 29 of the Award” (presumably a reference to the Educational Services (Schools) General Staff Award 2020, which the Deputy President found applied to the Appellant’s former employment) made it in the public interest for the Commission to grant permission for the appeal.

Directions and response

[7] Directions made on 6 May 2022 required the Appellant to lodge submissions with the Commission addressing the requirement for permission to appeal and the merits of the appeal by 5:00 pm on 18 May 2022. In particular, the Directions required the Appellant to address why she says it is in the public interest to grant permission to appeal, and if the appeal was on a question of fact, what is/are the significant error(s) of fact involved in the Decision.

[8] The Appellant did not comply with the Directions and, instead, responded by sending to the Commission by email three documents entitled “Notice of Demand” dated 9 May 2022, 17 May 2022 and 24 May 2022. These documents were in identical terms and their focus was the Appellant’s insistence that the Commission satisfy her that it has had and continues to have jurisdiction to deal with her application for an unfair dismissal remedy, both at first instance and on appeal. On 27 May 2022, correspondence on behalf of the Full Bench was sent to the Appellant from the Chambers of Deputy President Clancy seeking confirmation from the Appellant as to whether she had, by virtue of her “Notice of Demand” dated 24 May 2022, filed her outline of submissions concerning permission to appeal and the merits of her appeal or whether she no longer required the Commission to hear and determine her appeal. In the event neither of these scenarios reflected her position, the correspondence further advised the Appellant she would be afforded a further period in which to file her submissions on appeal. The Appellant responded by email on 3 June 2022 by sending a fourth “Notice of Demand” dated 2 June 2022 in the same terms as those previously submitted. None of the “Notice of Demand” documents contained submissions outlining error in the Decision, nor did they outline why it is in the public interest that the Commission grant permission to appeal.

[9] The appeal was listed for a hearing on 7 June 2022. The hearing was of short duration because, although the Appellant was invited on a number of occasions to make submissions concerning permission to appeal and the merits of her appeal, she declined. Nor did the Appellant outline why it is in the public interest that the Commission grant permission to appeal. Instead, she continued to demand that we demonstrate to her that the Commission had jurisdiction to deal with her matter.

Applicable appeal principles

[10] In considering the merits of the appeal, it is relevant to observe that an appeal under s 604 of the Fair Work Act 2009 (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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[11] 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.

[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.³ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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

[13] 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

[14] 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. 7 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

Consideration

[15] In the absence of written or oral submissions from the Appellant, we will deal with the grounds of appeal in the Form F7, undeveloped as they are.

[16] Firstly, having regard to the assertion of the Appellant that the Deputy President failed to address or adjudicate on alleged violations of ss 343, 344, 345 and 351 of the FW Act, we observe that the Deputy President referred to the submissions made by the Appellant in relation to ss 343, 344 and 345, which sit within the general protections provisions in Part 3-1 of the FW Act. 8 Having done so, the Deputy President made findings with which we agree.9 More broadly, we reject the suggestion that the Appellant was dismissed because of any of the matters in Part 3-1 of the FW Act. The Appellant was dismissed because she was unable to lawfully perform her duties. As regards the other legislative provisions outlined by the Appellant in the Form F7, we consider the Deputy President dealt with the lawfulness of the Directions in an appropriate manner.10 The Directions have not been declared invalid by a court and the Commission, as an administrative tribunal, must carry out its functions according to law.

[17] Secondly, we find no error in the Deputy President’s finding at paragraph [73] of the Decision that the Appellant’s submissions in relation to s 203(2) of the PHWBA misconstrued that provision. The Deputy President was entirely correct in this regard.

[18] Further, there is no basis to assert, as the Appellant has, that the Deputy President failed to consider the lack of a risk assessment by the Respondent. This issue was dealt with at paragraph [103] of the Decision and it was open to the Deputy President to find that risk assessments were not relevant, in circumstances in which the Respondent was seeking to comply with the Public Health Directions and the vaccines had been approved by the Therapeutic Goods Administration.

[19] Next, we consider there was an evidentiary basis for the Deputy President’s finding that there was consultation prior to the Appellant’s termination 11 and finally, we observe the Deputy President acknowledged the submission made by the Respondent that the Appellant had been on unpaid leave in circumstances where she was not ready, willing and able to perform the inherent requirements of her role12 and had noted the Respondent had invited its employees to access any accrued annual leave in lieu of unpaid leave.13

[20] Aside from the Form F7 appeal grounds, we have noted the Appellant outlined in the “Notice of Demand” documents that she felt coerced and under duress in proceeding with the hearing before the Deputy President because the Respondent had been granted permission to be represented by counsel. However, the Appellant has not identified any practical, procedural or substantive unfairness or prejudice as having arisen from this.

[21] We do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds is reasonably arguable. No injustice or counter-intuitive result is manifest. The Deputy President’s findings and conclusion were open to her.

Conclusion

[22] An appeal exists for the correction of error. While the Appellant is aggrieved by the Decision, she has failed to advance submissions disclosing error in the Decision despite having had a number of opportunities to do so. Nor has the Appellant outlined a basis for a finding that it is in the public interest for the Commission to grant permission. As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the FW Act.

VICE PRESIDENT

Appearances:

K Roy-Chowdhury, the appellant, in person.
M Garozzo of counsel for the respondent.

Hearing details:

2022.

Sydney and Melbourne (via Microsoft Teams video link):
7 June.

Printed by authority of the Commonwealth Government Printer

<PR742609>

 1   [2022] FWC 849

 2   This is so because on appeal FWC has the 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

3 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]

 4   [2010] FWAFB 5343, 197 IR 266 at [24]-[27]

5 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

6 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 7   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 8   [2022] FWC 849 at [65]

 9   Ibid at [71]

 10   Ibid at [22]-[23], [63] and [70]

 11   Ibid at [102]

 12   Ibid at [99]

 13   Ibid at [30] and [33]