Fair Work Act 2009
s 604—Appeal of decision

Appeal against decision and order of Commissioner Platt [2016] FWC 3472 and PR580948 at Adelaide on 31 May 2016 in matter number U2015/16189 – no arguable case of appealable error – public interest not enlivened – permission to appeal refused – appeal dismissed.

BACKGROUND

[1] This decision will determine an application for permission to appeal and appeal, filed by Ms Robin Hansen (the ‘appellant’) on 8 June 2016, against a Decision and Order of Commissioner Platt at Adelaide on 31 May 2016 in Matter U2015/16189 (Hansen v Calvary Health Care Adelaide Limited [2016] FWC 3472 and PR580948). The effect of the Commissioner’s Decision was to dismiss the appellant’s unfair dismissal application, filed against Calvary Health Care Adelaide Limited (the ‘respondent’), pursuant to s 399A of the Fair Work Act 2009 (the ‘Act’). Shortly stated, the appellant had been employed as a Registered Nurse at Calvary Hospital, Walkerville, North Adelaide. She was dismissed on 3 November 2015, as a result of allegations of verbal and electronic bullying and harassment towards her work colleagues. The appellant strongly denies the allegations and claims her dismissal was unfair, within the meaning of s 387 of the Act.

[2] The appeal was listed for both application for permission to appeal and appeal before the Full Bench on 13 July 2016. Ms Hansen represented herself and the respondent was represented by Mr B Duggan, Solicitor, with permission having been granted by the Full Bench for the respondent to be represented by a lawyer, pursuant to s 596 of the Act.

[3] The Decision under appeal concerns the powers of the Commission to dismiss an unfair dismissal application under s 399A of the Act. We set out the terms of this section as follows:

Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a)  failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b)  failed to comply with a direction or order of the FWC relating to the application; or

(c)  failed to discontinue the application after a settlement agreement has been concluded.

Note 1:       For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2:       The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2)  The FWC may exercise its power under subsection (1) on application by the employer.

(3)  This section does not limit when the FWC may dismiss an application.

[4] This section was inserted into the Act by amendment, effective 1 January 2013. In the Explanatory Memorandum to the Fair Work Amendment Bill 2012 it was said:

‘[161] Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

● failed to attend an FWC conference or hearing relating to the application

● failed to comply with an FWC direction or order relating to the application, or

● failed to discontinue the application after a settlement agreement has been concluded.

[162] The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.’

[5] Section 399A is a discrete provision dealing with the dismissal of unfair dismissal applications upon application by an employer, in circumstances where an applicant has unreasonably failed to comply with his/her obligations in respect to the preparation, conduct or settlement of their application. Given that a successful s 399A application extinguishes the right of an aggrieved person from otherwise pursuing their unfair dismissal rights under the Act, we consider it is a power which should be cautiously exercised.

THE COMMISSIONER’S DECISION

The Commissioner dismissed the appellant’s unfair dismissal application having been satisfied that she failed to comply with a Consent Order made by him on 28 January 2016 in respect to the appellant’s substantive proceedings listed for hearing on 4 and 5 April 2016. The Consent Order was in the following terms:

‘The Fair Work Commission orders by consent, that:

A. Until further order, pursuant to section 589 of the Fair Work Act 2009 the Applicant is restrained from in any way:

1. communicating, whether orally or in writing, directly or indirectly, with Samantha Lee Barber and/or DL; and/or

2. contacting or attempting to contact whether orally or in writing, directly or indirectly, Samantha Lee Barber and/or DL; and/or

3. attending at, or stopping in public areas in the immediate vicinity of, the personal residences of Samantha Lee Barber and/or DL.

B. Order A above shall not prevent the Applicant’s legal representative(s) from communicating with Samantha Lee Barber and/or DL in connection with the proper conduct of the Proceedings on behalf of the Applicant.

C. This order will operate on and from 28 January 2016.’

[6] The Commissioner’s Decision summarised the appellant’s claim that her dismissal was unfair. She claimed to have been bullied and harassed at work (particularly by Ms Barber) after being involved in an internal staff dispute over a medication error. Allegations against her of bullying had not been adequately or properly investigated by the respondent, which had breached its own Bullying and Harassment Policy. The respondent denied the appellant had been unfairly dismissed. It claimed her dismissal was a consequence of her verbal and electronic bullying of work colleagues, her inappropriate and inflammatory conduct during the respondent’s investigation and her direct contact with persons she believed had made false allegations against her.

[7] In the respondent’s s 399A application to dismiss the appellant’s unfair dismissal application, the respondent contended that the appellant had repeatedly breached the consent order in that she:

‘•drove her vehicle past the residence of Ms Barber on 18 occasions between 17 February 2016 and 27 March 2016, shouting loudly, in some cases using expletives which could be heard by Ms Barber;

•on the 27 and 28 March 2016, was filmed driving past Ms Barber’s residence and appeared to be yelling; and

•on 29 March and 6 April 2016, drove past Ms Barber’s residence shouting out loudly and in some cases using expletives which could be heard by Ms Barber.’

[8] In his Decision the Commissioner primarily relied on the evidence of a licensed inquiry agent, Mr Paul Hocking, who had been engaged by the respondent to conduct surveillance of Ms Barber’s residence after the making of the Consent Order. Mr Hocking’s report and the video footage he took, was tendered in the proceeding. The Commissioner concluded:

‘[17] Having observed the video recording of 28 March 2016, it is evident that Ms Hansen was yelling towards Ms Barber’s residence. It appears that the word yelled began with the letter “F.” Mr Hocking contended that Ms Hansen’s car window was open while she was yelling. I accept Mr Hocking’s evidence.’

[9] The Commissioner also accepted the evidence of Ms Barber, who gave evidence in support of the respondent’s s 399A application and who was to appear as a witness for the respondent in the substantive proceedings. Ms Barber had installed video monitoring equipment to capture vision of the road outside her house. She gave evidence that she heard the appellant yelling outside her house from a car on 26 occasions between 17 February and 1 April 2016. Ms Barber alleged that the appellant had said words including, ‘fucking bitch,’ ‘fucking liar,’ ‘you piece of shit’ ‘up yours bitch’ and ‘die you piece of shit.’ Ms Barber had said that a few days after the appellant was served with the s 399A application on 7 April 2016, she heard the appellant yelling at her from her car. On 12 April 2016, Ms Barber said she heard the appellant drive past her house eight times playing a song she now knows to be by Tom Petty and the Heartbreakers – ‘I won’t back down’.

[10] It was the appellant’s evidence that she had driven past Ms Barber’s house on many occasions. However, she claimed that:

● she had regularly driven down Ms Barber’s street to attend her horse, go to dog training or visit a shop;

● she often played loud music in her car;

● she would often talk to herself in her car with her window down; and

● she denied solely playing ‘I won’t back down’ on 12 April 2016.

[11] The appellant admitted to returning a letter sent to her by the respondent’s lawyers after writing on the outside of the envelope as follows ‘UP YOURS CUNT – NO SURRENDER’ and ‘SUE ME 4 DEFAM Id love to get you suits in a court of any kind, I dare you.’ The appellant also admitted to placing a sign near the street where Ms Barber lives, and at other locations across Adelaide, which read ‘CALVARY NURSE BULLIED/FIRED 4 REPORTING DRUG ERRORS. I PASSED LIE DETECT TEST. LIARS STILL WORK THERE.’ The Commissioner recorded that the appellant conceded that at times she felt ‘very, very, very, very angry’ about what she perceived Calvary was doing to her, and may have ‘vented’ from time to time [40].

[12] It is clear the Commissioner accepted the respondent’s evidence in preference to that of the appellant. He made numerous findings on the evidence, which grounded his conclusion that the appellant’s repeated conduct was in breach of the Consent Order. He concluded as follows:

‘[62] I am satisfied that as a result of the repeated conduct toward Ms Barber, and consistent with my own observations of Ms Hansen, that the breaches were intended and not inadvertent. I find that this conduct was intended to impact on Ms Barber giving evidence in the unfair dismissal matter.

[63] The fact that the conduct continued after Ms Hansen was provided with a copy of the s.399A Application (and thus was on notice that her conduct was alleged to be a breach), highlights Ms Hansen’s blatant disregard for the Order.

[64] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) noted that:

“the power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment was intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.”

[65] Ms Hansen conduct is not consistent with the robust pursuit of her claim. Based on my findings of fact and my own observations, I am satisfied that Ms Hansen has breached the Order made by me on 28 January 2016 and that Ms Hansen pursued her unfair dismissal application in an improper and unreasonable manner.

[66] Ms Hansen’s conduct is not trivial or justified by a heightened emotional state. As stated by Lord Denning “there can be no greater contempt than to intimidate a witness before he gives his evidence…”

Conclusion

[67] I am satisfied that Ms Hansen’s conduct is so abhorrent that it is appropriate to dismiss her unfair dismissal application. An Order to that effect will be issued in conjunction with this decision.’ [references omitted]

SUBMISSIONS ON PERMISSION TO APPEAL AND APPEAL

[13] The appellant provided a detailed written submission with 20 annexures (most of the annexures were in the Appeal Book which had been prepared by the Commission on Ms Hansen’s behalf). In large part, her submissions set out her views as to the fairness of her dismissal, rather than addressing the issue of whether there was a public interest in granting permission to appeal and the appeal of the Commissioner’s Decision. While accepting the appellant was unrepresented and given her noticeable highly emotional state during the appeal proceedings, we are able to distil from her submissions the basis of her arguments as follows.

[14] The appellant submitted that it was ‘self evident’ that the public interest would be served by hearing the case, as the truth will be revealed as the public had the right to know of:

● errors made by the Calvary Hospital;

● her being bullied for reporting the errors and being unfairly dismissed;

● her being forced out of her 28 year nursing career; and

● the psychological damage, disorders and loss of reputation she had endured.

She insisted she had suffered a grave injustice which had to be rectified.

[15] The appellant put that the Commissioner erred in accepting the false evidence of Ms Barber. Ms Barber had admitted to having been mistaken as to two occasions when she was not in the vicinity of Ms Barber’s house. Calvary had no evidence, other than Ms Barber’s false assertions, to prove she had breached the Consent Order. Ms Barber was not the victim. The appellant had suffered a year of feeling her life had been deliberately destroyed, while she had evidence Ms Barber deliberately lied as retaliation for the appellant reporting Ms Barber’s friend and complaining about harassment. Ms Barber was not a credible witness. The Commission had been deceived by the respondent’s lies. By contrast, the appellant had four credible professionals who believed her version of events. This evidence included notes from a psychiatrist, Dr Ng, which were not available to the Commissioner at the time of the hearing; two letters about rostering of staff; the results of a polygraph test she had voluntarily undertaken and which proved she was telling the truth; an email from a SafeWork SA investigator in which he said he believed her because her story ‘didn’t change’, implying the respondent’s did change, so they must be lying.

[16] The appellant claimed Ms Barber made a false complaint to the Police and Calvary management that the appellant was ‘stalking her’, because the appellant had asked a mutual acquaintance to print off entries from Ms Barber’s Facebook. The truth was she and Ms Barber had been friends for years and had friendly interactions outside of work. This proved that Ms Barber’s claim that she was ‘terrified’ of the appellant was a lie. The appellant claimed Ms Barber made a false complaint of the appellant stopping outside her house and driving past to intimidate her, when Ms Barber knew that the appellant had regularly driven past her house over the last 11 years. The appellant said that other staff, including witnesses in support of her, were directed not to speak to her. They felt intimidated by management and feared for their jobs. The appellant added that when Police visited her at her home, the Police declined to charge her. She heard no more from them.

[17] The appellant believed that the respondent did not want the case heard because it would be required to explain the contradictions in the allegations, its failure to follow policy or interview witnesses and Ms Barber’s lies to management (which she can prove).

[18] In challenging Ms Barber’s reasons for taking personal leave, the appellant claimed it was not because Ms Barber was stressed or fearful of her. She believed Ms Barber was granted leave so that Ms Barber could monitor the cameras in her home in order to falsely allege she had been abused by the appellant. Ms Barber had provided no medical evidence. From the appellant’s research she had found out that migraines are caused by lack of vitamins and minerals, not stress. She knew Ms Barber rarely ate fruit or vegetables.

[19] The appellant suggested that Ms Barber backed away from her allegations of driving past her house, when it had been proven she was somewhere else on two occasions. In any event, she did not believe Ms Barber could hear her say anything from her car. Nevertheless, the appellant admitted she did slow down a few times when she saw Ms Barber outside and had asked her ‘how her conscience was, gave her the bird or waved.’

[20] The appellant claimed it was a ‘blatant lie’ that she had refused to attend operational meetings with management. She denied threatening Ms Barber in emails to her. The emails were just her own opinion of Ms Barber’s character. Even the Police had said this was not a threat. The appellant rejected the respondent’s claim that her dismissal was unrelated to the drug error. This was incorrect because the issue over the error resulted in her being falsely accused, bullied and unfairly dismissed.

[21] The appellant did not deny placing signs all over Adelaide protesting her dismissal. She had not mentioned Ms Barber and had ‘been told’ by Police she had a right to protest. She had wanted to inform the public of what had happened to her. She admitted to writing on the lawyer’s envelope ‘UP YOURS CUNT – NO SURRENDER’ and ‘SUE ME 4 DEFAM Id love to get you suits in a court of any kind, I dare you’, but believed anyone would understand that she might react in this way, given the provocation, distress and anger she had experienced. She believed the Commissioner had no understanding of the depths of her despair and the efforts she needed to go to clear her name and reputation. She believed the Commissioner found against her because of her emotional lack of control and with her being in unfamiliar surroundings.

[22] In oral submissions, the appellant submitted that all of the documents she annexed to her submission were relevant because they relate to Ms Barber’s lack of credibility. The Commissioner did not accept all of these documents, as he considered they related to the unfair dismissal case, not the s 399A application.

[23] The appellant rejected the respondent’s submission that she had only driven past Ms Barber’s house to intimidate her. She had passed Ms Barber’s house 7,200 times in the last ten years and 176 times between 17 February and 27 March this year. The appellant repeated her written submission that the respondent did not want this matter going to court. She desperately wanted to prove Ms Barber was a liar. She had been bullied, defamed and unfairly dismissed when the management accepted Ms Barber’s false claims. The appellant explained each of the documents she had provided, which she said established the Commissioner was mistaken in accepting the evidence of others, rather than her own. However, she accepted Dr Ng, the psychiatrist, had not been cross examined in the proceeding below. The appellant said the Commissioner was wrong when he found that some of her explanations for her conduct were implausible. She said that because she had no alternative, she arranged for and paid to take a lie detector test in October 2015. As this disclosed she was telling the truth, this went to prove her own credibility.

[24] The appellant claimed that she had been pressured by the Union to agree to the Consent Order. The Union had told her that it would not help her if she didn’t – ‘which they didn’t do anyway’. In any event, the appellant did not accept she had breached the Order because driving past was ‘not attending at’ Ms Barber’s residence. The appellant denied leaning towards the passenger side of the car and yelling in the direction of Ms Barber’s home. She had no memory of yelling from her car. There was no sound recorded and therefore no proof she had done so.

[25] The appellant submitted that she was a whistle blower. While she had taken her issues to the Government, the Health Commission, the Nurses’ Board and everyone she could think of, no one was interested because ‘big business was involved and big business always wins’. She had also contacted Senator N Xenophon’s office and he had contacted the Commissioner’s office and told him that he would be raising the appellant’s issues, if she did not get justice or a fair hearing. After that the Commissioner was extremely rude to her. She believed he was biased against her because he had not liked Senator Xenophon ‘interfering in his court room’.

For the respondent

[26] Mr Duggan submitted that:

‘3. Commissioner Platt’s decision largely involved the exercise of discretion such that the Full Bench may only intervene on the limited ground that some error has been made in the exercise of the discretion (House v The King (1936) 5 CLR 499 at 505).

4. No appealable error in Commissioner Platt’s decision has been identified by the Appellant in her Notice of Appeal or Outline of Submissions.

5. In the Respondent’s submission permission to appeal should be refused as no appealable error has been identified by the Appellant.

6. The Appellant has also failed to raise any issues of broader or general application that would warrant permission to appeal being granted for reasons of public interest.’

[27] In oral submissions, Mr Duggan submitted that the appellant was simply seeking a different result on appeal because she disagreed with the Commissioner’s decision. Despite the appellant’s frequent assertion of a relationship between the alleged medication error and her dismissal, this was not the case. The situation was not analogous to another separate case at Royal Adelaide Hospital which was still being investigated. It was irrelevant.

[28] Mr Duggan understood that the appellant sought to challenge Ms Barber’s credibility in five ways:

‘first, the request to tender further evidence; secondly, the reference to other persons such as Police Officer Neill and, as the appellant has done in her submissions again today, a SafeWork SA inspector who it is asserted either challenged Ms Barber's credibility or support her own credibility.  Thirdly, the appellant seeks to challenge the impact of her conduct on Ms Barber, in particular suggesting her migraines were caused by her diet rather than any conduct by her.  Fourthly, the two occasions that Ms Barber conceded the appellant was not the driver of the vehicle that drove past her residence, and finally, an apparent assertion that the respondent produced only two photographs in support of its application to dismiss.’

[29] Mr Duggan referred to the decision in Louth v Diprose [1992] HCA 61 in which the court observed that an appeal court would be reluctant to interfere with the findings of a trial judge, if either the findings or inferences of facts, turn largely on conclusions about the credibility of witnesses. The Full Bench should not do so in this case. Specifically, the Full Bench should not accept new evidence (Dr Ng’s report) nor should it accept the untested comments of others (the SafeWork SA Inspector or the Police). As to Ms Barber’s claim of suffering migraines, this was never put to her in cross examination. The fact that Ms Barber made concessions about the two occasions she had not seen the appellant drive past her house, enhances her credit, rather than undermines it. Moreover, the appellant’s claim there were only two photographs of her driving past Ms Barber’s house, ignore entirely the full video evidence relied on by the respondent. This was not Ms Barber’s evidence, but corroboration of her evidence.

[30] Mr Duggan submitted that the appellant’s claim that the Commissioner did not have regard to her emotional state was wrong, as he said he had made allowance for it. Mr Duggan put that in the s 399A application the respondent referred to the appellant’s conduct as aggressive, defiant and belligerent. This was the same behaviour she exhibited during the proceeding before the Commissioner. This was a matter the Commissioner was entitled to take account of in the assessment of her as a witness.

[31] Finally, Mr Duggan said that the appellant in her written and oral submissions had been unable to establish an error in the Decision. The appeal should be dismissed.

In reply

[32] The appellant said that Ms Barber had produced no medical evidence of her stress being caused by her or anything she had done. The appellant believed the respondent had provoked her into breaching the Order so they could argue her unfair dismissal case should not proceed. She had been punished unfairly and severely for doing the right thing. She did not lie. They (the respondent) had ‘lied from start to finish’.

CONSIDERATION

[33] Section 604 provides:

Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

[34] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (FWC) powers on appeal are only exercisable if there is error on the part of the primary decision maker (this is so because on appeal FWC has power to receive further evidence, pursuant to s 607(2); See Coal and Allied v AIRC [2000] HCA 47 at [17] per Gleeson CJ, Gaudron and Hayne JJ). There is no right to appeal and an appeal may only be made with the permission of the FWC.

[35] The decision the subject of this appeal was made under Part 3-2 – Unfair Dismissal of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as ‘a stringent one’. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[36] Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment; See: O’Sullivan v Farrer [1989] HCA 61; Coal & Allied v Lawler [2011] FCAFC 54 at [44]-[46]. The public interest is not satisfied simply by the identification of error, or a preference for a different result; See: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663. In GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWFB 5343 a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

‘[27] ... the public interest might be attracted where a matter raises issue 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...’

[37] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused; See CFMEU v AIRC [1998] FCA 1404 and Wan v AIRC [2001] FCA 1803. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error (Wan v AIRC [2001] FCA 1803 at [30]).

[38] The exercise of the Commission’s powers under s 399A of the Act to dismiss an unfair dismissal application for the identified unreasonable conduct set out in ss (a)-(c), involves the exercise of a broad discretion. In fact, a decision to dismiss an unfair dismissal application under s 399A of the Act involves two discretionary decisions. The first is a decision that the applicant has unreasonably failed to attend a conference or hearing, comply with a direction or order, or discontinue the application after a settlement agreement has been concluded. Because the decision-maker has some latitude in making a value judgment as to whether the relevant failure on the part of the applicant was unreasonable, it is properly characterised as a discretionary decision; See Coal and Allied v AIRC (2000) 203 CLR 194 at [19]. And if the decision-maker is satisfied that the applicant has unreasonably failed to comply with one or more of their obligations under paragraphs (a) to (c) of s 399A, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed. Therefore it will be necessary, in an application for permission to appeal against a decision made under s 399A to demonstrate that there is an arguable case that there was appealable error in the exercise of at least one of the discretions. This will require the identification of error of the type described in House v The King (1936) 55 CLR 499 (‘House v King’) – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.

[39] We stress that the role of an Appeal Bench is not to substitute the decision of the member whose decision is under appeal, merely because the Full Bench may have come to a different view, particularly, as is here, where the Commissioner had the benefit of observing the witnesses giving their evidence under cross examination. It is for the appellant to satisfy the Full Bench that an arguable case of error has been made out or it is otherwise in the public interest for permission to appeal to be granted.

[40] We have carefully considered all of the written and oral submissions of the parties, and in particular, the arguments advanced by the appellant as to the reasons why permission to appeal should be granted. For the following reasons, we have decided to refuse permission to appeal and dismiss the appeal.

[41] The Commissioner carefully set out the background to the making of the Consent Order, the evidence in relation to the s.399A application and his findings on that evidence. He found Ms Barber to be a witness of truth and that her evidence was corroborated by the video footage. He accepted that she had felt harassed and threatened by the appellant and the resultant stress so impacted on her that she had to take leave from work. He found the appellant to be an extremely poor witness whose explanations were implausible. Specifically, the Commissioner found, inter alia, that:

(i) Ms Hansen drove past Ms Barber's residence on over 30 separate occasions since the Order was granted and deliberately yelled obscenities and/or made threats towards Ms Barber.

(ii) after receiving a copy of the application, Ms Hansen repeatedly drove past Ms Barber’s residence loudly playing the song, “I won’t back down.”

(iii) Ms Hansen embarked on a course of conduct designed to undermine and/or intimidate Ms Barber prior to her giving evidence.

[42] The appellant insisted throughout her submissions that her case turns on Ms Barber’s failed credibility as a reliable witness. Her untruthful evidence was to be contrasted with her own evidence as she did not lie, and this was corroborated by others. It is obvious that the focus of the Decision concerned findings of witness credit as between the appellant, Ms Barber and Mr Hocking.

[43] In these circumstances, the task of the Appeal Bench is to apply the principles established by the Courts and this Commission as to the high hurdle faced by an appellant in challenging credit findings. In City Motor Transport Pty Ltd v Devcic [2014] FWCFB 6074 a Full Bench of the Commission said:

‘[29] The Company has sought to challenge the credit findings of the Commissioner in relation to Ms Shaw’s evidence and the acceptance of the respondent’s evidence. The limitations on an appellate bench interfering in findings of fact based on an assessment of the credibility of witnesses at first instance have been considered in several High Court decisions. A key statement of principle is provided in Devries v Australia National Railways Commission where Brennan, Gaudron and McHugh JJ said:

“More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.” (references omitted)

[30] The circumstances in which a finding of fact will be overturned on appeal in the Commission are well established and have been summarised as follows:

“If a finding made by a member at first instance depends to any substantial degree on the credibility of a witness, that finding must stand, unless it can be shown that the member at first instance:

- acted on evidence inconsistent with facts incontrovertibly established by the evidence;

- acted on “glaringly improbable” evidence or

- failed to use or palpably misused the advantage the member had at first instance enjoyed in hearing the witness given evidence.”’ [references omitted]

See also Fox v Percy [2003] HCA 22.

[44] We have not been persuaded that the appellant has established an arguable case of error by the Commissioner in respect to his findings above or any other aspect of the Decision. We consider the Commissioner’s findings were open to him on the facts incontrovertibly established by the evidence. We agree with his findings and conclusions. That said, we would wish to make some observations on a number of the appellant’s submissions in support of her case for permission to appeal and her appeal being granted.

(a) The appellant submitted that the Commissioner did not take account of the medical evidence which demonstrated the serious psychological and highly emotional state she was experiencing (and continues to experience). This submission has no substance. It is plainly apparent that the Commissioner had taken account of the appellant’s ‘elevated emotional state’. He described her conduct at the bar table ranging from ‘aggressive, defiant, belligerent to crying and expressing suicidal thoughts’ [42]. We have reviewed the transcript of proceedings before the Commissioner. It is apparent the Commissioner provided the appellant with considerable latitude in her conduct of the case. He was very much ‘live’ to her heightened emotional state and her self representation. There was no arguable case of error in this aspect of the Commissioner’s Decision.

(b) The appellant relied on a report of psychiatrist Dr Ng, dated 2 May 2016, as demonstrating the state of her emotional and psychological condition. This report was not in evidence in the proceeding below. There can be no error as to the Commission’s failure to consider this medical evidence, when that evidence was never put to him.

(c) The appellant argued that a SafeWork SA official had agreed with her that her version of events was believable because it did not change. The appellant herself extended this opinion to mean that it implied because Ms Barber’s and others’ stories had changed, they had lied. There is no logical nexus between that which the SafeWork SA official may have said and that which the appellant interpreted as flowing from his comments.

(d) The appellant submitted that it had been proven by a polygraph test, which she had undertaken at her own volition and expense, that she was not lying as to her version of events. A few points can be made about that proposition. Firstly, the polygraph test was taken on 6 October 2015 – over three months before the conduct the Commissioner found demonstrated that she had breached the Consent Order of 28 January 2016. The polygraph test was irrelevant to the conduct of the appellant at the relevant time which the Commissioner was required to take into account. Secondly, a polygraph test may prove that the person firmly believes they are telling the truth, not that the person is actually telling the truth. Given the appellant’s strong belief that she does not lie and has never lied, it is unsurprising that a series of questions she had herself proposed would record her telling the truth, as she believed it to be. We note that the questions asked of the appellant were all whether parts of four other named persons’ statements were untrue; not whether statements she had made were true. Thirdly, Mr Willson, the person analysing the polygraph test, only had the information which the appellant had given him. With respect, he was in no position to balance or assess the appellant’s polygraph test with the contrary evidence of the respondent. He was operating wholly within the prism of what the appellant had told him. Fourthly, Mr Willson was not made available for cross examination.

(e) The appellant maintained that Ms Barber’s evidence proved she was a liar because she had conceded she was wrong about two dates she believed the appellant had driven past her house. As the Commissioner acknowledged [47], rather than undermining Ms Barber’s credibility, her concessions against interest, enhanced her credibility. We discern no arguable error by the Commissioner in his assessment of Ms Barber’s evidence. Moreover, the appellant’s focus on just two occasions ignores entirely the other 28 occasions she drove past Ms Barber’s house after the making of the Consent Order and what she was doing when she did so. Further, the appellant acknowledged she had been mistaken about some of the trips and times she had driven past Ms Barber’s home, but does not appear to apply the same standard to Ms Barber’s admitted mistakes.

(f) The appellant estimated she had driven past Ms Barber’s home some 7,200 times in the last ten years, without incident. The issue was not that the appellant had driven past her house thousands of times during a period in which they had been friends. The focus of the Commissioner’s examination of her conduct was after the Consent Order had been made (between 17 February and 27 March 2016), when the appellant’s relationship with Ms Barber was anything but friendly. Rather the appellant’s conduct was, as the Commissioner found, intimidating, abusive and threatening.

(g) The appellant described how she and Ms Barber had been friendly for years. She provided evidence about their various mutual interests outside of work, including a three hour phone call. She said that this history demonstrated Ms Barber was lying when she told Calvary management she was ‘terrified’ of her. Again this material focused on a period when they had been friends; not when the relationship had so deteriorated that the appellant was abusive, threatening, belittling and toxic towards Ms Barber. Even from the appellant’s own admissions and her disdain towards Ms Barber when she cross examined her, it is little wonder that Ms Barber was terrified of her. There was no error in this aspect of the Commissioner’s assessment of Ms Barber’s evidence.

(h) The appellant said that Ms Barber could not be a credible witness, because she had taken personal leave on false pretences; not because she was stressed and anxious over her conduct, but because she was wanting to monitor the video surveillance of her from her house. The Commissioner accepted the deleterious effect the appellant’s on-going intimidation and harassment was having on Ms Barber’s health. There was no error in this aspect of the Commissioner’s decision. Even on the appellant’s own evidence and in the public animosity she displayed towards Ms Barber during her cross examination, her conduct was undoubtedly intended to cause Ms Barber distress and upset. The appellant fails to understand that the very purpose of the Consent Order was to respond to Ms Barber’s concerns for her safety and well-being. In a bizarre submission, the appellant opined that Ms Barber’s migraines were not caused by her conduct, but because migraines are caused by a lack of vitamins and iron and she knew that Ms Barber’s diet was lacking in these necessary supplements.

(i) The appellant submitted that there was no evidence to support Ms Barber’s complaints to Calvary management about her conduct and there were only two photographs of her driving past Ms Barber’s house, which were inconclusive. This submission is plainly incorrect. It is contrary to, and ignores the independent evidence which the respondent relied on to corroborate Ms Barber’s complaints. We have viewed the video evidence for ourselves. There was no error with the Commissioner’s reliance on the video evidence which corroborated Ms Barber’s version of events and which dispelled the appellant’s explanations for her conduct as mostly ‘implausible’.

(j) The appellant put that she had never agreed to the Consent Order. The Union had pressured her into agreeing to it. If she did not do so, they would not represent her – ‘which they didn’t anyway’. The appellant set out her evidence in this respect and said ‘So I agreed reluctantly’ (PN195). However, the appellant clearly understood that she was required to comply with the Consent Order. The appellant says she believed that if she did not stop outside Ms Barber’s home, she would be compliant with the Order. Apart from this explanation being a convenient, but implausible interpretation of the express terms of the Order, we discern no error in the Commissioner’s characterisation of the Order as being made by consent and that the appellant’s breaches of the Order were ‘intended and not inadvertent’ [62].

[45] We are not persuaded that there is an arguable case of error – let alone a significant error of fact – in the Decision in respect to the above matters or any other aspect of the Commissioner’s decision which the appellant has challenged.

[46] Throughout this appeal, the appellant has consistently maintained her view that Ms Barber is lying to protect herself. Her ongoing hostility and animosity towards Ms Barber and the respondent during this appeal, was palpable. It is obvious the appellant strongly disagrees with the Commissioner’s decision. She has an acute sense of persecution and grievance and an obsessive belief that there is a conspiracy between Ms Barber, the Hospital’s management and its lawyers to prevent the truth (as she perceives it) from being exposed in order to ruin her life, destroy her career and seriously harm her psychological and emotional health.

[47] In the notice of appeal and in her submissions the appellant has raised numerous grounds that are said to demonstrate appealable error by the Commissioner. It is unnecessary for us to recite all of those grounds, as they constitute no more than the appellant’s disagreement with the Commissioner’s findings. It is sufficient, for present purposes, to observe that in support of her appeal, the appellant essentially sought to re-run the case she advanced before the Commissioner, which in any event, was a case largely unrelated to the s 399A application, in the hope of achieving a different result. We are not persuaded that there is an arguable case that the Commissioner erred or failed to take into account relevant matters, namely, her own evidence, in the manner posited by the appellant or otherwise. In our view, the Commissioner, carefully weighed up all the evidence before him, made appropriate allowance for the appellant’s heighted emotional state and the fact she was unrepresented, and in the exercise of his discretion, under s 399A of the Act, arrived at a conclusion which was reasonably open to him.

[48] In any event, we are not satisfied that the appellant has established it is in the public interest to grant permission to appeal. We are not persuaded that she has established an arguable case of error in relation to the Decision under appeal. Furthermore, we are not persuaded that the appeal raises any issues of importance or general application, beyond the direct interests of the parties, nor does it identify any relevant diversity of decisions at first instance. There is no arguable case that the decision of the Commissioner manifests an injustice or that the result is counterintuitive. Accordingly, permission to appeal is refused and the appeal is dismissed.

[49] We make the following orders:

1. Permission to appeal is refused.

2. Appeal matter C2016/4060 is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms R Hansen, the applicant.

Mr B Duggan, solicitor for the respondent.

Hearing details:

2016;

Sydney,

13 July.

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