[2011] FWAFB 1422

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Fair Work Act 2009
s.604 - Appeal of decisions
s.400 - Appeal rights

Dianna Smith T/A Escape Hair Design
Sally-Anne Fitzgerald



Appeal against decision [[2010] FWA 7358] of Commissioner Bissett at Melbourne on 24 September 2010 in matter number U2010/6688 - adequate reasons.

[1] This is an appeal, for which permission is required, against a decision by Commissioner Bissett 1 that termination of Sally-Anne Fitzgerald’s employment by Dianna Smith t/as Escape Hair Design (Escape) on 10 February 2010 was harsh, unjust and unreasonable and that compensation of $2,340.48, less tax, be paid by way of remedy. That is, in what was a discretionary decision, the appeal challenges both legs of the decision-making process, the unfair dismissal finding and the remedy determination.

[2] The Full Bench in GlaxoSmithKline Australia Pty Ltd v. Colin Makin 2 considered the granting of permission to appeal from a decision made under Part 3-2 of the Fair Work Act 2009 (the Act) and observed as follows:

[3] Section 400 provides:

[4] At the hearing on 16 December 2010, eleven grounds of appeal were advanced, ten of which were said to be significant errors of fact and the other a “substantial error of fact. 3

[5] Most of the grounds of appeal go to the primary finding of unfair dismissal and we deal with those first.

[6] Ground two which was filed as a “substantial error fact” can be quickly dealt with. The appellant complains that the Commissioner overlooked submissions on the Fair Business Code and in doing so made a very significant error. While it might be true that at paragraph [81] the Commissioner mistakenly said that “the Respondent made no submissions on this matter and does not argue in defence of the claim that the dismissal was consistent with the Code”, she nevertheless considered compliance with the Small Business Code and made relevant findings open to her on the evidence, as a result of which she concluded at paragraph [83] that she was “not satisfied that the dismissal was consistent with the Code.” There is no substance in this ground of appeal.

[7] Similarly, there is no substance in ground nine, that the Commissioner admitted into evidence several witness statements notwithstanding that the deponents were not present to give evidence and over the objection of Escape. The Commissioner’s ruling at PN90 of the transcript of the hearing on 7 September 2010 makes plain that the statements in question would not be relied on as evidence of anything other than of letters Ms Fitzgerald received. They are of no significance in the case.

[8] A number of other grounds, said to be significant errors of fact, relate to findings on evidence that were open to the Commissioner. In our view, this applies to grounds three to six and ground eleven.

[9] Grounds three and four relate to the Commissioner’s findings at paragraphs [65] and [66] on Ms Fitzgerald’s comments on her Facebook page about her employer. These findings are based on the Commissioner’s consideration at paragraphs [49] to [57], where she found that “Ms Fitzgerald did not name the salon where she worked and there is no suggestion that this information was readily available on her page.” 4 She also found that there was no evidence that the five to 10 of Ms Fitzgerald’s clients who were also Facebook “friends” had read the comments.

[10] On our understanding of the evidence, the Commissioner was correct on both counts. In that context, the findings at paragraphs [65] and [66] are unremarkable, and were open to her. The finding that the posting “was also inaccurate” in the circumstances sufficiently dealt with the evidence and contentions about payments made to her.

[11] Ground five relates to the issue of Ms Fitzgerald rescheduling clients without permission, which the Commissioner deals with at paragraph [58] and again at paragraphs [67] to [69]. Given the summation of the evidence on this issue in paragraph [58], which was open to her, we see no error in the reasoning at paragraphs [67] to [69], though we observe that the Commissioner’s comments perhaps range more broadly than required. Nor could the alleged failure, relied on as ground eight, to recognise a link between a warning on 24 December 2009 and rearranging appointments in the circumstances be considered “a significant error of fact.”

[12] Ground six challenges the Commissioner’s conclusion that the removal of stock was not a valid reason for termination of employment. It is dealt with in paragraphs [42] to [47] and again at paragraphs [62] to [64] of the Commissioner’s decision. It was a contested area of evidence which the Commissioner was required to resolve. She did so, accepting 5 or preferring6 Ms Fitzgerald’s evidence and noting that Ms Smith was aware in early January 2010 of the removal of the hair colour and peroxide in question but took no action about it nor raised it with Ms Fitzgerald. In the circumstances, we are unable to see error here requiring correction on appeal.

[13] Ground 11 challenges the Commissioner’s finding that the termination was harsh, unjust and unreasonable on the basis that the Commissioner’s discussion goes to the termination being harsh. We do not accept this proposition. On our reading of the decision, it is apparent that the Commissioner made her overall finding having taken into account the relevant matters in s.387 of the Act and made that finding in terms that were open on her consideration of the evidence. While views may differ on the breadth of the finding, we are in no doubt it was a finding available.

[14] A similar conclusion applies in respect of ground seven and the alleged failure to consider an accumulation of matters which together provided a valid reason for the termination of employment. The Commissioner was clearly unpersuaded that any or all of the reasons argued in this case were valid reasons for dismissal related to Ms Fitzgerald’s conduct. She found “there was no valid reason for the termination ...”. 7

[15] Nor do we see, as suggested in ground 10, that the application of Full Bench authority in this case required different findings to those made by the Commissioner. In particular, the alleged misapplication of Crozier v Palazzo Corporation Pty Limited 8 in relation to “procedural fairness” is to be rejected in light of the Commissioner’s findings at paragraphs [72] and [73] of her decision.

[16] In short, we are not satisfied that Escape in this case can establish error warranting review on appeal in the decision-making process on unfair dismissal.

[17] However, we are satisfied of error in the Commissioner’s decision on remedy, which forms ground one of the bases of appeal.

[18] A Full Bench in Barach v University of New South Wales 9 summarised the established principles on the duty to give adequate reasons for a decision:

[19] The provisions governing remedies for unfair dismissal are set out in Division 4 of Part 3-2 of the Act, in ss.390 to 393. Although the Commissioner’s comments on remedy suggest some regard to elements of ss.391 and 392, the decision provides no hint of the reasoning process by which she settled on compensation in the apparently precise amount of $2340.48, less tax. She rightly took into account Ms Fitzgerald’s own evidence that she had not been capable of working since the termination of her employment, but the amount of $2340.48 bears no discernible relationship to any particular period of pay or any other variable canvassed in the decision. In the absence of any basis for the amount awarded, the figure has a random appearance.

[20] Being satisfied that, in failing to give adequate reasons for the decision on remedy, the Commissioner was in error, we consider that it is in the public interest to grant permission to appeal. We do so, allow the appeal and quash the decision on remedy.

[21] In light of the background, we agree with counsel for Ms Fitzgerald that the appropriate course is to remit the matter back to Commissioner Bissett to deal with remedy in accordance with the requirements of Division 4 of Part 3-2 of the Act.

[22] An order to this effect is attached.



A McDonald, solicitor, for Dianna Smith t/as Escape Hair Design.

J McDougall, of counsel, for Ms Fitzgerald.

Hearing details:

December 16.


 1   [2010] FWA 7358, 24 September 2010.

 2   [2010] FWAFB 5343.

 3   Notice of Appeal, Ground two.

 4   [2010] FWA 7358 at paragraph 54.

 5   [2010] FWA 7358 at paragraph 42.

 6   [2010] FWA 7358 at paragraph 45.

 7   [2010] FWA 7358 at paragraph 70.

 8   (2000) 98 IR 137.

 9   [2010] FWAFB 3307.

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