DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ms Grace Mazi
v
Ozcare
(C2016/3752)

Appeal against decision [2016] FWC 1201 of Commissioner Simpson at Brisbane on 20 April 2016 in matter number U2015/12332.

[1] This decision concerns an appeal against the Decision 1 of Commissioner Simpson dated 20 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 Mazi on 20 April 2016.

[2] Commissioner Simpson found that the respondent had a valid reason for the termination of Ms Mazi’s employment. That valid reason was a failure to adequately perform her duties as a registered nurse and her failure to engage with the respondent’s efforts to conduct an investigation. He found that her termination of employment was not harsh, unjust or unreasonable and he dismissed her application.

[3] Ms Mazi represented herself. The respondent was represented, with permission, by Mr Herbert of counsel, instructed by Clarke Kann, Solicitors.

[4] The background to this application was extensively summarised by Commissioner Simpson. We do not consider it necessary to repeat that summary in this decision.

Grounds of Appeal

[5] The permission to appeal hearing was listed at 1:00 pm on 14 June 2016. At commencement of the hearing Ms Mazi made submissions in support of her application for an extension of time to lodge her appeal. 2 Having taken into account Ms Mazi’s explanation for delay, particularly her difficulty in obtaining transcript, we have decided to allow Ms Mazi’s application for an extension of time for lodgement of her Notice of Appeal.

[6] Ms Mazi filed a Notice of Appeal and an Outline of Submissions for Permission to Appeal. 3 At the permission to appeal hearing Ms Mazi spoke to her Outline of Submissions for Permission to Appeal. She submitted that the decision of Commissioner Simpson was in error in that:

● It contained significant errors of law and fact, including matters that attract the public interest.
● The subject matter in this appeal deals with potential breach of guidelines of a controlled notifiable condition regulated under the Public Health Act 2005 (Qld).
● Breach of guidelines of a controlled notifiable condition in a vulnerable aged care community is a matter of public interest. Breaches are a reportable incident to the Health Department and may become the subject of a public health investigation.
● The respondent is a large company employing 2900 employees throughout Queensland. It is in the public interest that the Commission gets it right.
● The decision contained factual errors as described in House v The King which undermine the decision making process and warrant correction on appeal. Commissioner Simpson made decisions that were contrary to the overwhelming weight of evidence. These included the following findings:
- that no meeting took place between Amy Van Ree and the appellant when in fact it did, and a support person was denied;
- that misconduct took place without establishing that the conduct actually occurred, and
- that Ms Mazi slept on shift.

[7] Ms Mazi submitted that the Commissioner erred in that:

● He failed to take into account considerations for the words “emergency” and “handover”, including meanings to actions rendered.
● He allowed extraneous matters to guide his deliberation of issue.
● He failed to recognise that the big issue was procedural fairness.

[8] Ms Mazi said that the Commissioner did not take into account or give sufficient weight to the following facts:

● The respondent departed from the agreed 14 day notice period after the issue of the show cause letter on 16 September.
● The evidence concerning the allegations was only gathered from the complainants.
● Interviews pertaining to the investigation were only done with the complainants. All of the file notes relating to Ms Mazi did not satisfy the respondent’s policy requirements in regards to the final policy number HR005.
● There are no conclusions recorded on the investigatory file notes to managers with a conflict of interest appointed themselves investigators in the process.
● There was an acute delay in the conduct of investigations.
● Bullying and harassment occurred in the process of the investigation and was rubber stamped by the HR Manager and the CEO.
● During the investigation the appellant’s workplace right to seek advice and see relevant records was denied.
● The respondent did not communicate or mention the processes they were undertaking.
● The respondent misinterpreted policies.
● After deficiencies were found in the investigation process conducted by the HR Manager, there was no reversion to a basic performance management process.
● The respondent was confused about the process they were implementing.
● The respondent claims that they were implementing stage one or stage two of the performance management process when they never made mention of it.

[9] Ms Mazi also submitted that

● If the investigation is a sham the Commission must consider the approach in Leyshan v Wyndham City Council.
● Carter v Qantas must be considered.
● When considering harshness, the Commissioner failed to take into account the respondent’s own breach of policy and the differential treatment of several other employees by the respondent.
● The Commissioner failed to take into account or have sufficient regard to the respondent’s performance management process.
● Exercising a sick leave entitlement should not result in adverse action.
● All requirements were satisfied regarding the applicant’s attendance at meetings so therefore misconduct did not occur.
● The provision of PPE was taken out of context.
● The circumstances and Decision raise important issues of public interest and identify significant errors. The issues warrant correction on appeal.

Respondent’s Submissions

[10] The respondent submitted that the way in which this application proceeded appears to have entirely escaped the analysis of the appellant.

[11] It submitted that Commissioner Simpson considered and made findings which caused him to conclude that the respondent had a valid reason to terminate. Ms Mazi’s appeal is based upon complaints in relation to incidental factual issues. The Commissioner found that the amount of medication in a resident’s room was not in accordance with the doctor’s instructions. There is nothing raised by Ms Mazi which could generate anything that might be described as an injustice. Ms Mazi is upset about the effect of the decision on her professional reputation.

Permission to Appeal

[12] 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[13] This appeal is one to which s.400 of the FW 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.

[14] 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”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.6 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.” 7

[15] 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. 8 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.9

Conclusion

[16] We have considered the transcript of proceedings before Commissioner Simpson and the evidence before him. We have considered all of those factual errors asserted by Ms Mazi. We can identify no error of fact in the Commissioner’s decision. To the extent that any error might be identified, and we are not persuaded that there is any such error, it could only be an insignificant error, not determinative of the issues before the Commissioner.

[17] Ms Mazi is unhappy with the outcome of her application. Before Commissioner Simpson she joined issue on the factual contests and disputed the basis on which her termination of employment took place. She still does so. Although the dismissal of her application is an understandably unpalatable outcome for Ms Mazi, her dissatisfaction with the factual findings and the outcome is not of itself a proper basis of appeal where those findings of fact are supported by the evidence. Commissioner Simpson conducted a detailed forensic examination of the evidence before him. The task for the Commissioner was to determine relevant issues on the evidence. He did so and we are satisfied that his conclusions were available to him.

[18] 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 Mazi’s application was not counterintuitive. The legal principles applied by the Commissioner followed recent Full Bench decisions and are harmonious with those decisions.

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

SENIOR DEPUTY PRESIDENT

Appearances:

Ms Mazi on her own behalf

Mr Herbert of counsel instructed by ClarkKann Lawyers

Hearing details:

2016

Melbourne and Brisbane (via videolink)

June 16

 1   [2016] FWC 1201

 2   Transcript PN43 – 54, PN56

 3   Exhibit Appellant 2

 4   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.

 5   (2011) 192 FCR 78 AT [43]

 6   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]

 7   [2010] FWAFB 5343 at [27], 197 IR 266

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

 9   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].

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