Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against Order [PR589781] dated 8 February 2017 and Decision [2017] FWC 478 of Commissioner Hampton at Adelaide on 8 February 2017 in matter number U2016/11131.

Introduction

[1] Della Lehmann has applied for permission to appeal an order issued by Commissioner Hampton on 8 February 2017 1 (Order). The effect of the Order was to dismiss Ms Lehmann’s application for an unfair dismissal remedy application made under s.394 of the Fair Work Act 2009 (FW Act). The Commissioner published reasons for the decision embodied in the Order on 8 February 20172 (Decision).

[2] At the hearing of the appeal before us Ms Lehmann was represented by Mr Simon Blewett, Senior Legal Officer with United Voice. The respondent sought permission, under s.596 of the Act, to be represented by Mr Gerard Boyce of counsel. We were satisfied that the matter was invested with sufficient complexity such that we would be assisted in the efficient conduct of the matter if we allowed the respondent to be represented by Mr Boyce and we granted the respondent permission to be so represented pursuant to s.596(2)(a) of the FW Act.

Background

[3] The Commissioner summarised the factual background in the Decision as follows,

“[2] Ms Lehmann commenced her employment at MMAC as a Patient Care Attendant (PCA) in July 2014, on a casual basis. The employment was based at a regional residential care facility operated by MMAC. In April 2015, Ms Lehmann began working part-time in the same facility.

[3] In October 2015, Ms Lehmann received a first and final warning in relation to the alleged verbal abuse of a resident and failure to follow a reasonable instruction. That warning was disputed at the time and remains in conjecture.

[4] On 5 August 2016, Ms Lehmann was rostered to work in the “low care” unit. It is common ground that Ms Lehmann and a fellow PCA were attending to a resident who suffered from dementia and incontinence. It is also agreed that whilst Ms Lehmann was attending to the cleaning up of the resident, that resident became upset and denied that she needed cleaning.

[5] It is alleged by MMAC that Ms Lehmann’s actions and manner in cleaning up the resident were rough and inappropriate, that she failed to stop the activity in circumstances where that should have been done in order to de-escalate the situation. It is further alleged that Ms Lehmann “shoved” an open bag of faeces and toilet paper in the face of the resident.

[6] Ms Lehmann contends, in effect, that she attended to the resident, who was resisting being cleaned up due to her dementia, in an appropriate and usual manner and denies that a bag of faeces was placed anywhere near the resident’s face. Rather, Ms Lehmann contends that a sealed bag was shown to the resident to demonstrate that she had required cleaning up and that this was done by lifting the bag to about waste height and making reference to it.

[7] Ms Stacy Waterman, the PCA who also attended to the resident with Ms Lehmann reported the events of 5 August 2016 to the Nurse on duty. The matter was then escalated through to senior management and Human Resources.

[8] On 24 August 2016, after an investigation, MMAC advised Ms Lehmann that her employment was terminated on the basis that she had engaged in serious and wilful misconduct.”

Decision under appeal

[4] In the Decision, the Commissioner:

a) Made a number of factual findings as follows; 3

• Ms Lehmann appeared agitated when she and Ms Waterman were directed by a Nurse to attend to a resident who had suffered faecal incontinence;

• The resident was accompanied by Ms Lehmann and Ms Waterman to the resident’s bedroom and initially did not raise any concerns about doing so;

• The resident suffers from dementia and was apparently unaware that she needed to be cleaned up;

• When in the bedroom, the resident resisted going into the bathroom and Ms Lehmann commenced to clean up the resident with Ms Waterman standing next to the resident who was being supported by a walking frame;

• During the course of Ms Lehmann wiping the resident with toilet paper, the resident became upset and indicated that she did not want to be cleaned up. The resident stated several times that she “do not poo”;

• The resident also cried out and stated “you’re hurting me, please stop” and became highly distressed;

• Ms Lehmann continued to wipe the resident with some force in order to clean her up and the resident attempted to move away from Ms Lehmann;

• After Ms Lehmann had finished cleaning but before redressing her, the resident continued attempting to move away and Ms Lehmann requested Ms Waterman to hold the resident. Ms Waterman did so by holding onto the resident’s walking frame and supporting her. The resident continued to deny that she needed to be cleaned and at this point Ms Lehmann picked up the open bag of faeces and cleaning materials and raised it near to the resident’s face. The resident stated that “it’s not mine” and Ms Lehmann responded to the effect of “well it isn’t mine”;

• The resident became further agitated by this and attempted to reach out for Ms Lehmann and became unstable. After Ms Lehmann and Ms Waterman stabilised the resident, Ms Waterman assisted to pull up the resident’s underwear, hip protector and clothes, which were at the time around her ankles or lower legs;

• When the resident was dressed, Ms Lehmann abruptly left the room;

• The resident remained very distressed and appeared to be having a panic attack. Ms Waterman stayed with her for a period until she calmed down when the resident was taken out to lunch; and

• Ms Waterman immediately reported the event to the Enrolled Nurse on duty.

b) Made findings in respect of each of the necessary elements of s.387 of the FW Act. Specifically, the Commissioner was satisfied that,

i. there was a valid reason for dismissal (s.387(a)), 4

ii. Ms Lehmann was notified of the reasons for dismissal (s.387(b)), 5

iii. Ms Lehmann was given an opportunity to respond (s.387(c)), 6

iv. Ms Lehmann was accompanied by a support person (s.387(d)), 7

v. s.387(e) was not relevant, 8 and

vi. MMACSA is a large employer and has dedicated human resources expertise (ss.387(f) and (g)). 9

[5] In respect of s.387(h) (other matters considered relevant) the Commissioner;

a) held that he “placed little weight upon the first and final warning”, 10

b) said that he,

“accept[ed] that the circumstances under which the events of 5 August 2016 took place, including the fact that the work being undertaken by Ms Lehmann was demanding, and the incident occurred at a time where the staff were and had been very busy, are relevant. However, these circumstances do not represent significant mitigating factors given the misconduct” 11

c) took into account;

i. the financial and other consequences of the dismissal on Ms Lehmann,

ii. took into account that Ms Lehmann was paid two weeks in lieu of notice. 12

[6] Having considered all that he was required to consider under the FW Act, the Commissioner concluded that,

“On balance, [he was] not satisfied that Ms Lehmann’s dismissal was harsh, unjust or unreasonable. As a result, the dismissal is not unfair within the meaning of the FW Act and this application must be dismissed.” 13

[7] Also in the Decision, the Commissioner made a number of findings about the credit of various witnesses. The Commissioner held that;

a) elements of Ms Lehmann’s evidence were not convincing, 14

b) Ms Waterman (the PCA who attended to the resident with Ms Lehmann) “to be a careful, honest and credible witness”, 15

c) Ms Evans (who gave evidence about the proper approach to dealing with residents) to be “an excellent witness”, 16 and

d) the evidence of Mr Wabnitz (the respondent’s former Human Resources Adviser) “was given openly and honestly.” 17

[8] Before us Mr Blewett confirmed that the appellant did not seek to challenge any of the findings of credit made by the Commissioner.

The nature of appeals

[9] This appeal is one to which s.400 of the FW Act applies.

Section 400:

(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.

 [10]  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(1) as “a stringent one”. 18 

[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 19. 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. 20

[12] 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. 21 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.22

Grounds of appeal

[13] Ms Lehmann’s Notice of Appeal identified 2 grounds of appeal, that the Commissioner:

1. Erred in finding that the appellant was not unfairly dismissed.

2. Erred in law in finding that the proper course of action was for the appellant to stop the activity and leave the resident alone with the appellant’s co-worker in order to seek additional assistance (“the proper course of conduct”), in the circumstances where;

2.1 there was no evidence that this was the proper course of conduct to be taken, and

2.2 the appellant understood that this course of conduct was not open to her and therefore persisted that leaving the resident would have constituted an element of misconduct, and

2.3 the Commissioner made a significant error of fact in determining the proper course of conduct.

[14] There was no appeal ground about the finding made by the Commissioner that,

Ms Lehmann picked up the open bag of faeces and cleaning materials and raised it to the resident’s face. The resident stated that “it’s not mine” and Ms Lehmann responded to the effect of “well it isn’t mine. 23

[15] In advance of the hearing before us the Appellant’s Outline of Submissions had been filed. In those submissions the appellant’s grounds of appeal were recast as follows;

• that there was insufficient evidence to support the Commissioner’s finding that the proper course of action was for the appellant to have sought further assistance and to leave another carer with the residents; and

• that there is no evidence available, that the appellant is aware this was a course of action available to her, let alone the “proper course of action”.

[16] In essence the grounds of appeal focus on paragraph [32] of the Decision and allege significant errors of fact on behalf of the Commissioner.

[17] It is not immediately apparent how the grounds of appeal could otherwise give rise to a House v King 24 error. It is not clear how it could be argued the Commissioner:

a) acted upon a wrong principle,

b) allowed extraneous or irrelevant matters to guide or affect him,

c) did not take into account some material consideration, or

d) exercised his discretion in a way that was unreasonable or plainly unjust.

[18] However, at this point we are only concerned with whether we should grant permission to appeal. In her Notice of Appeal Ms Lehmann submitted that it is in the public interest for the Commission to grant her permission for the appeal because,

1. Ground 2 of the Grounds of Appeal asserts that the Commissioner erred in law in making a finding, critical to the decision as to whether or not a valid reason for dismissal existed, which was unsupported by any evidence. It is in the public interest that errors of this nature be corrected.

2. The significant errors of fact asserted in the Grounds of Appeal give rise to a result which is manifestly unjust to the applicant, and it is in the public interest to remedy such justice.

[19] In the submission filed in advance of the hearing before us the public interest considerations were refined as follows;

• it is in the public interest that errors of this nature be corrected. The significant errors of fact and law give rise to a result which is manifestly unjust to the appellant. It is a matter of general important (sic) that such injustice be remedied.

[20] We reject submissions in relation to the enlivening of the public interest. Ms Lehmann’s matter does not give rise to issues of importance and or general application. It is simply a case were the Commissioner exercised the discretion that was open to him to exercise in a manner that Ms Lehmann does not like. Further, having considered all that has been put before us, we are not satisfied that this matter:

a) is in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;

b) is one 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.

Conclusion

[21] We are not persuaded that Ms Lehmann has established that it is in the public interest to grant permission to appeal. The Commissioner addressed the relevant statutory criteria and we are not persuaded that there is an arguable case that the Decision or Order were attended by any error of principle or any significant error of fact.

[22] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.

VICE PRESIDENT

Appearances:

Mr S Blewett from United Voice, for the Applicant.

Mr G Boyce of counsel for Mary Mackillop Aged Care SA.

Hearing details:

2017.

Sydney:

April, 4.

 1   PR589781.

 2   [2017 FWC 478.

 3   [2017] FWC 478, [28].

 4   [2017] FWC 478, [51].

 5   [2017] FWC 478, [54].

 6   [2017] FWC 478, [57].

 7   [2017] FWC 478, [58].

 8   [2017] FWC 478, [59].

 9   [2017] FWC 478, [60].

 10   [2017] FWC 478, [64].

 11   Ibid.

 12   [2017] FWC 478, [65].

 13   [2017] FWC 478, [68].

 14   [2017] FWC 478, [17].

 15   [2017] FWC 478, [18].

 16   [2017] FWC 478, [19].

 17   [2017] FWC 478, [20].

 18   (2011) 192 FCR 78 at [43].

 19   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].

 20   [2010] FWAFB 5343 at [27], 197 IR 266.

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

 22   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].

 23   [2017] FWC 478, [28].

 24   [1936] HCA 40; (1936) 55 CLR 499, (17 August 1936).

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