FWAFB 1404
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT WATSON
Appeal against decision [ FWA 7728] and order PR516676 of Commissioner Harrison at Sydney on 10 November 2011 in matter number U2011/7953 - appeal in relation to unfair dismissal application - discretionary decision - permission to appeal under s.400 - public interest test - significant error of fact.
 This decision concerns an application for permission to appeal by Charanjit Singh Birdi against a decision of Commissioner Harrison on 10 November 2011, dismissing Mr Bridi’s unfair dismissal application.
 At the hearing of this matter in Sydney on 21 February 2012, Mr Birdi appeared on his own behalf and Mr Lloyd appeared on behalf of Rail Corporation NSW T/A RailCorp NSW (RailCorp).
 The Commissioner set out the background to the matter at paragraphs  to  of his decision. We do not set out that background in full. In essence the dismissal arose from a recommendation by RailCorp’s Chief Health Officer, Dr Casolin, that Mr Birdi be terminated on medical grounds. RailCorp gave Mr Birdi an opportunity to comment on this recommendation. After considering his response RailCorp issued a termination letter which included the following passages:
“Alternative to medical termination - work within RailCorp
I have considered the positions you have identified as alternatives within RailCorp including HR, Recruitment, Technical Engineering labs, Administration, and training. In stating bands of employment avenues you have not nominated any particular job or what skills/qualifications you may have to carry out the duties of roles within the above disciplines.
I note that in previous fitness to continue assessments it is noted that you held Civil Engineering qualifications and employment prior to arriving in Australia, however, RailCorp does not have any evidence that your overseas qualifications have been recognised in Australia.
I am satisfied that on the advice of Dr Casolin and the (medical) reports above that it is not a viable alternative option for you to work within RailCorp regardless of the position. This is on the basis that you remain unfit for work as a guard or any other safety critical position for the foreseeable future, and given that you have failed to attend the two psychiatric appointments arranged for you in February 2011 which we anticipated would have updated medical opinions as to your capacity to perform your substantive duties (and other substantive roles) for RailCorp.
You have also not provided consent for RailCorp to discuss your medical condition with your treating psychologist; therefore we do not have any evidence that you are fit for a non safety critical role.
RailCorp is satisfied that on the basis of the available medical reports and the advice of Dr Casolin that there is no option for you to return to your substantive position in Service Delivery, for the position to be modified, or for you to redeployed in another part of the organisation for the reasons set out above.
For the reasons given above RailCorp has no option to proceed with the termination of your employment on medical grounds. Accordingly our exit date will be effective as of 3 May 2011. In accordance with the Policy four weeks payment will be made in lieu of notice....”
 Commissioner Harrison found that there was a valid reason for dismissing Mr Birdi in that his medical condition precluded him from performing the inherent requirements of his job. The Commissioner noted that he had been notified of this reason and given adequate opportunity to respond.
 Commissioner Harrison concluded that in all of the circumstances, Mr Birdi had not been unfairly dismissed.
Grounds for Appeal
 In Mr Birdi’s written and oral submissions, he submits the following:
● That contradictory findings were made by Centrelink and RailCorp regarding his capacity to work.
● That RailCorp has not paid wages owing to him for a period of sick leave during 2005 and 2006.
● That RailCorp has not satisfactorily responded to his concerns regarding his work environment, particularly in Burwood.
● That RailCorp has failed to acknowledge the qualifications he had obtained overseas.
Mr Birdi contended that the Commissioner did not adequately address these matters.
 RailCorp submits that the Commissioner’s decision does not give rise to an appealable error in accordance with the principles of House v R 1, as modified by s.400(2) of the Fair Work Act 2009. RailCorp contends that Mr Birdi’s submissions do not amount to proper grounds for appeal.
Permission to Appeal
 An appeal under s.604 of the Act in a matter of this nature is determined by reference to the provisions of s.400 of the Act. Section 400 provides:
“400 Appeal rights
(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 2 considered the impact of s.400 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.”
This case has frequently been quoted by the Full Bench as an indication as to how s.400 should be applied. 3
 In a recent decision of a Full Court of the Federal Court the requirements of s.400 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.
 The first ground of appeal concerns the allegedly inconsistent outcome of upholding a dismissal on medical grounds and rejection of Mr Birdi’s application for a pension under the Social Security Act. There are different tests involved in these matters as noted by the Social Security Appeals Tribunal. In our view the evidence of Dr Casolin establishes a valid reason for the termination of Mr Birdi’s employment.
 Issues of wages paid while employed are not relevant to the question of whether Mr Birdi was unfairly dismissed. These matters can have no relevance to an appeal against the Commissioner’s decision.
 Mr Birdi is critical of the absence of consideration of matters raised by him in the proceedings before the Commissioner regarding his work duties and working environment. Given the reason for termination we agree that these matters have little relevance to the unfair dismissal application.
 As to submissions on Mr Birdi’s qualifications we are of the view that the evidence before the Commissioner established that RailCorp gave Mr Birdi an opportunity to raise such matters. Its response to the information provided by him is set out above. In our view it was a reasonable response to the information provided at the time.
 We have considered all of the submissions made by the parties. In our view the appellant has failed to establish that it is in the public interest to grant permission to appeal. The Commissioner considered all of the circumstances of the matter and made findings which in our view were clearly open to him. We are not satisfied that the decision involves issues of general importance or that the decision manifests an injustice. The appellant has not established any other reason why it is in the public interest that permission to appeal be granted.
 For these reasons, we decline to grant permission to appeal. The application for permission to appeal is dismissed.
C. Birdi on his own behalf.
D. Lloyd and R. Rayner for Rail Corporation NSW T/A RailCorp NSW.
1 (1936) 55 CLR 499
2  FWAFB 5343.
3 For instance, Shortland v The Smiths Snackfood Co  FWAFB 2303, Gramotnev v Queensland University of Technology  FWAFB 2306, Paramalat Food Product Pty Ltd v Wililo  FWAFB 1166.
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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