FWAFB 2303
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT WATSON
Appeal against decision  FWA 88 of Commissioner Williams at Perth on 7 January 2011 in matter number U2010/5459 - appeal in relation to unfair dismissal application - discretionary decision - permission to appeal under s.400 - public interest test - significant error of fact - work restrictions and non-work related injury - termination and non-work related injury where alternative duties not available.
 This decision concerns an application for permission to appeal by Wayne Shortland against the decision of Commissioner Williams on 7 January 2011 dismissing Mr Shortland’s unfair dismissal application. The Commissioner’s decision followed an earlier decision of Commissioner Cloghan 1 regarding the jurisdiction of the tribunal to deal with the application. An appeal against that decision was successful and the matter was subsequently allocated to Commissioner Williams for hearing of the merits of the application2.
 At the hearing of this matter in Perth on 5 April 2011 Mr Shortland appeared on his own behalf and Mr Van De Hoef appeared on behalf of The Smith’s Snack Food Co Ltd (Smith’s).
 Mr Shortland was employed as a casual packer at Smith’s Canning Vale snackfood operations from July 2006 until January 2010. His job involved a range of manual tasks and additional tasks as required such as forklift driving. In June 2009 Mr Shortland provided a medical certificate to Smith’s which described a medical condition involving repetitive strain injury to both thumbs. Arising from that certificate he was placed on restrictive duties which included a lifting restriction. Smith’s Occupational Health and Safety Manager met with Mr Shorthand on 22 June 2009 and developed a return to work program. Mr Shortland’s general practitioner approved the program on 24 June 2009.
 Mr Shortland was required to attend an independent medical review in July 2009 to assist in determining liability for a workers’ compensation claim he had made in relation to his injury. The doctor who conducted that review, Dr Silbert, diagnosed biochemical bilateral thumb pain which was not consistent with work related repetitive strain injury. As a result of that advice Mr Shortland’s workers compensation claim was declined in September 2009.
 Smith’s subsequently determined that the nature of Mr Shortland’s medical restrictions were such that he was unable to be rostered as a casual packer due to the risk that his injuries could be exacerbated as it was not possible to provide him with suitable alternative duties. Mr Shortland was provided with a letter informing him of this decision at a meeting on 22 September 2009 and was advised that should his medical practitioner declare him fully fit for work, he would be rostered for work. The company explained that his employment was not being terminated and that if his doctor declared him fully fit he would be rostered for work. Mr Shortland was asked to keep in regular contact with the company and provide timely updates in relation to any medical advice on the prospect of him returning to normal duties.
 Mr Shortland provided medical advice to Smith’s on 30 September 2009 that indicated that he would be subject to work restrictions in the future. Mr Shortland did not provide the company with any further medical advice after that date.
 In October 2009 Mr Shortland lodged an unfair dismissal application with Fair Work Australia which was subsequently withdrawn as no termination had occurred at that time. Mr Shortland was represented in discussions relating to the unsuccessful application by the National Union of Workers (NUW). The NUW met with Smith’s in late 2009 and sought a return to work on alternative duties. No agreement was reached because the company relied on Mr Shortland’s ongoing medical restrictions and its duty of care not to place his health at risk.
 On 11 January 2010 Smith’s wrote to Mr Shortland informing him that his employment was being terminated as he had been unable to perform his role for more than three months and as there was no prospect of his return in the foreseeable future.
 Commissioner Williams found that Mr Shortland’s ongoing incapacity to perform his full duties due to a non-work related injury was a valid reason for termination and that he had been informed of the reasons for the termination. The Commissioner also concluded that Mr Shortland was not consulted as to the proposed termination immediately before being advised of the termination, but that in the circumstances of earlier discussions including discussions involving his union in December 2009, this was a deficiency of form rather than substance.
 In all of the circumstances the Commissioner determined that the termination was not harsh, unjust or unreasonable.
Grounds of Appeal
 Mr Shortland’s grounds of appeal, written outline of submissions and oral submissions contested many of the findings of the Commissioner and the evidence of the Company in the proceedings before the Commissioner. He contests the accuracy of the summary of evidence, several findings of fact, aspects of the procedure regarding discovery of documents and the ultimate conclusions reached by the Commissioner.
 Smith’s submits that Mr Shortland has failed to establish grounds for a finding of either public interest or error. Smith’s contends that there was a valid reason for termination, that reason being Mr Shortland’s incapacity to perform the role for which he was employed without restriction due to a non-work related injury, and that the Commissioner did not make an error in relation to the essential facts of the case, nor did he fail to take into account matters of material evidence relevant to the exercise of his discretion.
Permission to Appeal
 An appeal under s604 of the Act in a matter of this nature is determined by reference to the provisions of s400 of the Act. Section 400 provides:
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA 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.”
 A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 3considered the impact of s400 on the approach to granting permission to appeal. It said:
“ Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
 Although 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, it seems to us that none of those elements is present in this case.”
 In a recent decision of a Full Court of the Federal Court the requirements of s400 were described as importing a more stringent test than the previous legislation 4. Buchanan J described the public interest test as a discretionary task involving a broad value judgement5.
 The decision subject to appeal in this matter is also properly viewed as a discretionary decision 6. The appeal is therefore to be considered in accordance with the principles of House v R7. Those principles are expressed in that decision as follows [at 504-505]:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
 Section 400(2) modifies the House v R principles by limiting any review based on a mistake of fact to a significant error of fact. Section 400 clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters under the Act.
 We have considered the grounds of appeal and the alleged errors made by the Commissioner. In our view Mr Shortland had an adequate opportunity to present his case and he availed himself of that opportunity. The fairness of the termination depended on the adequacy of the reason for termination and the procedure adopted by the company to come to its conclusions. The Commissioner found that the incapacity of Mr Shortland to perform the full range of his duties was a valid reason for termination. We do not consider that there is any error in this conclusion.
 The Commissioner found that a fairer procedure would have been to provide Mr Shortland with an opportunity to provide input into the decision to dismiss before that decision was made in January 2010. We agree with that conclusion. When an employee is absent because of an incapacity to perform duties, a question of timing arises. The Act precludes a termination for a temporary absence of up to 3 months. If an absence extends beyond that period, it becomes a question of whether there is likely to be a return to duties in the short or medium term. Usually updated medical advice will be important to that consideration. Indeed that medical information could have a bearing on the adequacy of the reason for termination.
 The Commissioner also found that that the involvement of the NUW was relevant as was the opportunity to provide updated medical information.
 We are unable to discern any error on the Commissioner’s part. The key considerations were examined. Ultimately he balanced the existence of a valid reason with the procedural flaw in the context of the overall circumstances. He clearly applied the decision-making process required by the Act. In our view Mr Shortland has not established any grounds for finding that it is in the public interest that permission to appeal be granted or that the decision is affected by error.
 For these reasons we decline to grant permission to appeal. The application for permission to appeal is dismissed.
VICE PRESIDENT WATSON
W. Shortland on his own behalf.
D. Van de Hoef and R. McGhee for The Smiths Snackfood Company Ltd.
1  FWA 2826.
2  FWAFB 5709.
3  FWAFB 5343.
4 Coal and Allied Mining Services Pty Ltd v Lawler  FCAFC 54 per Buchanan J at .
5 Coal and Allied Mining Services Pty Ltd v Lawler  FCAFC 54 per Buchanan J at . See also Hogan v Hinch (2011) 85 ALJR 398 and O’Sullivan v Farrer (1989) 168 CLR 210.
6 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
7 (1936) 55 CLR 499.
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