Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2016] FWC 2596] and order PR579431 of Deputy President Gooley at Melbourne on 28 April 2016 in matter number U2015/16913.

Introduction

[1] This decision concerns an appeal against the Decision 1 and consequent Order2 of Deputy President Gooley dated 28 April 2016. The Decision arose from an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) lodged by Ms Rosalinda Cozaris on 18 December 2015.

[2] The background to this application was extensively summarised by Deputy President Gooley. We do not intend to repeat that summary. The Deputy President’s findings are set out below:

“[38] In this matter Emirates had terminated Ms Cozaris’ employment, and without more, that termination was at Emirates’ initiative. However, with the agreement of Ms Cozaris, that termination was revoked to enable Ms Cozaris to resign her employment. While I accept that the word revocation was not uttered, what in effect happened was Ms Cozaris asked Emirates to, with her agreement, revoke the termination to enable her to resign and Emirates agreed.

[39] I accept that Ms Cozaris did so under the misunderstanding that if her employment was terminated she would lose her SRC benefits. She gave evidence that that information was conveyed to her by Ms Sawis. Unfortunately she did not read the email sent to her that day by Emirates before she tendered her resignation which advised her that she would still be entitled to her SRC benefits. However I do not consider that this is sufficient to alter the fact that Ms Cozaris was not forced to resign and so much is clear from her own evidence.

[40] Further, it is clear from her resignation letter that she elected to resign rather than have Emirates terminate her employment. There was no conduct by Emirates that caused that to occur. No one from Emirates advised her to resign her employment. At most, Ms Sawis told her about the consequences of resigning rather than dismissal. However the decision to resign was taken by Ms Cozaris after she took counsel from her representative. I do not consider the fact that the dismissal had taken effect prior to her making the decision to resign is material to my consideration.

[41] I am therefore satisfied that Ms Cozaris was not forced to resign by any conduct or course of conduct by Emirates. Her application for an unfair dismissal remedy must therefore be dismissed.”

[3] The permission to appeal hearing was listed at 9:30 am on 16 June 2016. Ms Cozaris was represented by Mr Peter Hull of Peter Hull and Associates, solicitors. The respondent was represented by Mr N Harrington of counsel instructed by N Ruskin of K and L Gates, solicitors.

Grounds of Appeal

[4] Ms Cozaris filed an Appellant’s Outline of Submissions. 3 She submitted that the decision of Deputy President Gooley adequately and correctly set out the relevant facts on which the Deputy President was required to determine the crux of her decision i.e. whether or not Ms Cozaris’ employment was terminated as a result of her resigning from her employment rather than having been terminated at the initiative of the respondent.

[5] Ms Cozaris submitted that the Deputy President mischaracterised the events surrounding the cessation of Ms Cozaris’ employment as being a revocation of the termination of her employment by the respondent, which revocation was requested by the appellant to enable her to resign. Ms Cozaris did not submit that she was forced to resign because of the conduct of the respondent. She submitted that her employment had been brought to an end at the initiative of the respondent. She raised the prospect of resignation, after the termination of her employment, to reduce the adverse consequences arising from that termination of employment. Ms Cozaris in effect submitted that the agreement between her and the respondent was for the respondent to treat her termination of employment as a resignation in its consequences. It was not intended to set aside the termination of employment at the respondent’s initiative. In summary Ms Cozaris submitted:

“12. There was absolutely no suggestion in the matter before the Deputy President that, absent the termination effected by the respondent, the appellant would have chosen to leave her employment. To the contrary, she was hopeful that she would soon be well enough to return to the position she had held for nearly 15 years. The appellant was not facing any detrimental finding about her conduct or performance in her employment. In the alternative, therefore, it is submitted that the initial termination by the respondent, even if it was displaced by the subsequent agreement under which the appellant submitted her resignation, cannot rationally or logically be separated from that resignation, but can only properly be seen as being the initiating and operative factor that led to the cessation of the appellant’s employment.” 4

The Respondent’s Submissions

[6] The respondent provided Submissions in Opposition to Permission to Appeal. It submitted that there were two primary reasons why permission would not be granted:

“a) there was a factual finding by the Deputy President at [38] that ‘with the agreement of Ms Cozaris, that termination was revoked to enable Ms Cozaris to resign her employment.’ (the Revocation Finding); and

b) the Applicants submission at [6] of the Submissions was not advanced before the Deputy President: there was an agreement to treat the termination as a resignation (the new Submission).” 5

Permission to Appeal

[7] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[8] This appeal is one to which s.400 of the Act applies. Section 400 provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC 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.”

[9] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 7 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.8 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... 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.” 9

[10] 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. 10 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.11

Conclusion

[11] The facts on which the Deputy President relied for her conclusion are not in dispute. The appellant disputes the conclusion drawn by the Deputy President from those facts. The finding pressed upon this Full Bench, that the agreement between the parties at cessation of employment was that the termination of employment was only to be treated as a resignation, was not one that the Deputy President found persuasive. The Deputy President’s conclusion was available to her on the evidence. There was ample opportunity for Ms Cozaris to give evidence and make submissions regarding an alternative conclusion. Consideration of the transcript demonstrates that the proposition contended for by Ms Cozaris was considered by the Deputy President and put squarely to her representative on the record.

“THE DEPUTY PRESIDENT:  Well, no, most of them the employer saying "I am going to terminate your employment" and then there's a negotiation of resignation.  But I'm not sure how that changes the question about whether somebody is being forced to.  They've got effectively the same choice, "I'm going to terminate your employment" and then they negotiated a resignation as an alternative as opposed to, "I have terminated your employment" and I negotiate an alternative.  I don't see them as being significantly different.  In both cases the employee was going to be terminated.  That was the choice that the employees faced.  Their employment was going to be terminated and they negotiated as an alternative to that a resignation with the benefits that come with that.  I'm not saying I don't understand why people do it.  Of course I understand why people do it.

MR O'LOUGHLIN:  Yes.  No, I - - -

THE DEPUTY PRESIDENT:  But that doesn't make it forced, and your member was very clear in the witness box.  She gave that evidence on oath twice.  She said, "I was not forced to resign".

MR O'LOUGHLIN:  Well, all I can do is put - - -

THE DEPUTY PRESIDENT:  And why shouldn't I accept that?

MR O'LOUGHLIN:  I guess in terms of what she was conveying was that her option of going down the path of seeking a resignation was not forced upon her.------ 12 

[12] We are not satisfied that there is any public interest in granting permission to appeal. There are no matters of importance or general application raised by the appeal. There is no diversity of decisions at first instance requiring appellant guidance. The outcome of Ms Cozaris’ application was not counterintuitive. The legal principles applied by the Deputy President followed recent Full Bench decisions and are harmonious with those decisions.

[13] We refuse permission to appeal and dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr P Hull of Peter Hull and Associates for the appellant.

Mr N Harrington of counsel instructed by N Ruskin of K and L Gates for the respondent.

Hearing details:

2016

June 16

Melbourne

 1   PR578326

 2   PR579431

 3   Exhibit Appellant 1

 4   Exhibit Appellant 1 para 12

 5   Exhibit Respondent 1 para 7

 6   Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 7   (2011) 192 FCR 78 AT [43]

 8   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46]

 9   [2010] FWAFB 5343 at [27], 197 IR 266

 10   Wan v AIRC (2001) 116 FCR 481 at [30]

 11   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26] – [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

 12   Transcript PN1102 – PN1107

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