[2011] FWAFB 8336

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Fair Work Act 2009
s.604 - Appeal of decisions

Ms Jenny Webb
RMIT University



Appeal against decision in transcript and order [PR514233] of Senior Deputy President Kaufman at Melbourne on 5 September 2011 in matter number U2011/8600.

[1] 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).

[2] 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).

[3] The Grounds of Appeal are set out below:

[4] The public interest Grounds of Appeal relied upon are set out below:

[5] 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:

[6] 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.

[7] 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.

[8] 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.

[9] 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.

[10] 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).

[11] 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.

[12] 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.



M Addison for Ms Webb.

M Follett of counsel for RMIT University.

Hearing details:

September 5.

 1   Transcript PN648 - PN654 inclusive

 2   [PR514233] - 5 September 2011

 3   [2011] FWAFB 1166.

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