[2012] FWAFB 1404

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Fair Work Act 2009
s.604 - Appeal of decisions

Mr Charanjit Singh Birdi
Rail Corporation New South Wales T/A RailCorp NSW



Appeal against decision [[2011] 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.


[1] 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.

[2] 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).


[3] The Commissioner set out the background to the matter at paragraphs [4] to [19] 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:

[4] 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.

[5] Commissioner Harrison concluded that in all of the circumstances, Mr Birdi had not been unfairly dismissed.

Grounds for Appeal

[6] In Mr Birdi’s written and oral submissions, he submits the following:

Mr Birdi contended that the Commissioner did not adequately address these matters.

Respondent Submissions

[7] 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

[8] 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:

[9] 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:

This case has frequently been quoted by the Full Bench as an indication as to how s.400 should be applied. 3

[10] 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.

[11] 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]:

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.


[18] 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.

Hearing details:

21 February

 1   (1936) 55 CLR 499

 2   [2010] FWAFB 5343.

 3   For instance, Shortland v The Smiths Snackfood Co [2011] FWAFB 2303, Gramotnev v Queensland University of Technology [2011] FWAFB 2306, Paramalat Food Product Pty Ltd v Wililo [2011] FWAFB 1166.

 4   Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 per Buchanan J at [34].

 5   Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 per Buchanan J at [44]. 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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