FWAFB 8336
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE
SYDNEY, 8 DECEMBER 2011
Appeal against decision in transcript and order [PR514233] of Senior Deputy President Kaufman at Melbourne on 5 September 2011 in matter number U2011/8600.
 This decision arises from an application to appeal lodged by Ms Jenny Webb against the Decision 1 and Order2 of Senior Deputy President Kaufman issued on 5 September 2011. Senior Deputy President Kaufman dismissed Ms Webb’s application pursuant to section 394 of the Fair Work Act 2009 (the Act).
 The appeal was heard in Melbourne on 16 November 2011. Mr Addison, solicitor of Maddison & Associates, appeared for Ms Webb. Mr Follett of Counsel appeared for RMIT University (RMIT).
 The Grounds of Appeal are set out below:
“(a) The Senior Deputy President erred in that he found that there was a valid reason for the dismissal of the applicant, the valid reason referred to in the decision must be that which is set out in the letter of termination dated 2 June 2011. Being that the applicant was unable to fulfil an inherent requirement of her substantive position.
The inherent requirement relied upon is that the applicant failed to report to the respondent the competencies which she possessed in a manner and through a mechanism of the respondents choosing. It is not possible for a failure to report (or more correctly a failure to report in the specified manner) to constitute an inherent requirement of the teacher’s position.
The requirement in any event was not on the applicant but rather a requirement between the respondent and the relevant regulatory bodies.
There is no dispute between the parties to the application below that the applicant could carry out the teaching work proficiently and properly.
(b) The Senior Deputy President erred in finding that the applicant declined to undertake RPL, rather insisting that RCC was adequate.
Such a finding is not reasonably open on the evidence that was before FWA.
(c) The Senior Deputy President erred in finding that the applicant failed to follow a lawful and reasonable direction. On the evidence before FWA it is clear that the applicant substantially complied with the direction of the respondent particularly in relation to the e-mail of 28 January 2010 and the follow up letter of 28 March 2011. The finding that the applicant had not followed a lawful and reasonable direction was not reasonably open to the Senior Deputy President on the evidence.
(d) The Senior Deputy President erred in finding that there was a valid reason for the termination on the two bases put by the respondent when the applicant was terminated for the single reason of failure to meet an inherent requirement of the teaching position.
(e) That the Senior Deputy President erred in not addressing all of the items set out in section 387 of the Fair Work Act and in not making findings in relation to those matters set out therein. The Senior Deputy President was required to make findings in relation to these matters. The Senior Deputy President failed to make such findings rather, relying solely and absolutely on the submissions of the respondent.
(f) Such other grounds that may be advanced at hearing.”
 The public interest Grounds of Appeal relied upon are set out below:
“(a) It is in the public interest that the question of what constitutes an inherent requirement of a position be correctly interpreted by the Tribunal.
(b) The public interest is served by ensuring that members of FWA adhere to the requirements in the Act and make deliberate findings of fact or law in relation to questions before them arising under the Act particularly the criteria set out in section 387 of the Act.
(c) The public interest is served by the tribunal consistently applying existing authority in relation to what constitutes an inherent requirement of the person’s position.”
 The nature of an appeal from a decision issued pursuant to s.394 of the Fair Work Act 2009 (the Act) is a matter frequently considered by Full Benches of this Tribunal and was recently comprehensively discussed by the Full Bench in Parmalat Food Products Pty Ltd v Wililo 3 (Parmalat). For convenience we have set out the relevant discussion below:
“Nature of the 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 considered 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 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.”
 The decision in this matter is properly viewed as a discretionary decision. The appeal is therefore to be considered in accordance with the principles of House v R. 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 in other matters under the Act.”
 There is no substance to the Grounds of Appeal related to valid reason. Senior Deputy President Kaufman dealt with the reason for termination of employment provided to MsWebb, that is, that she was unable to fulfil an inherent requirement of her substantive position. That requirement was identified by RMIT as a direction that Ms Webb complete a Recognition of Prior Learning (RPL) program. RPL was the RMIT designated method of demonstrating equivalent competence for teachers such as Miss Webb who did not hold the qualification that they were teaching. Senior Deputy President Kaufman found that MsWebb did not complete the RPL even though she was directed to do so.
 The decision as to what method was required for an employee to comply with RMIT’s obligations to the Australian Quality Training Framework was not a matter for Miss Webb. RMIT decided that RPL would be undertaken. That was the direction given to Miss Webb. She did not agree with it. The Senior Deputy President found completion of an RPL program was an inherent requirement of Miss Webb's position. That finding was open to him as was his finding that Ms Webb failed to complete RPL.
 Senior Deputy President Kaufman was not restricted in his examination of the facts or his findings to the valid reason referred to in the letter of termination. As a result of his findings regarding the inherent requirements of Miss Webb's position Senior Deputy President Kaufman concluded that Ms Webb did not comply with a lawful direction from RMIT to complete the RPL. The Senior Deputy President accepted the evidence of RMIT witnesses in this regard. That finding was open to him.
 In relation to Ground of Appeal (e) we are satisfied that, although the Senior Deputy President's reasons were brief, he provided reasons that adequately supported his decision and order.
 We are not persuaded that the Senior Deputy President erred by failing to separately refer to and make findings concerning each of the subsections of section 387 of the Act. We are satisfied that Senior Deputy President Kaufman had regard to all those relevant matters which he was required to take into account pursuant to ss. 387(a) to (f).
 Further, whilst it is true that Senior Deputy President Kaufman referred to Mr Follett’s submissions and, in relation to his conclusion said, "........I generally do so for the reasons submitted by the respondent in its written outline”, we do not consider that that amounts to his ".... relying solely and absolutely on the submissions of the respondent.” It is clear from the reasons for decision provided by Senior Deputy President Kaufman that he gave a proper consideration to the submissions of the appellant.
 We are satisfied that Senior Deputy President Kaufman took all appropriate matters into account. We are satisfied that there was no significant or other error of fact in the decision of Senior Deputy President Kaufman. There is no issue which attracts the public interest. We refuse permission to appeal.
SENIOR DEPUTY PRESIDENT
M Addison for Ms Webb.
M Follett of counsel for RMIT University.
1 Transcript PN648 - PN654 inclusive
2 [PR514233] - 5 September 2011
3  FWAFB 1166.
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