[2021] FWCFB 280
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Alison Thurston
v
Bunbury Medical Imaging
(C2020/7370)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER LEE

SYDNEY, 29 JANUARY 2021

Appeal against decision [2020] FWC 4840 of Deputy President Beaumont at Perth on 25 September 2020, in matter number U2020/1942 – No arguable case of appealable error as argued by the Appellant – Other error in calculation of compensation identified – Public interest enlivened – Permission to appeal granted – compensation awarded.

[1] Ms Alison Thurston (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision issued by Deputy President Beaumont on 25 September 2020 (the Decision), 1 for which permission to appeal is required.

[2] The Decision concerned an application by the Appellant under s.394 of the Act for an unfair dismissal remedy in respect of her employment with Bunbury Medical Imaging Pty Ltd (the Respondent).

[3] The Deputy President had previously, in a decision related to whether the Appellant had been unfairly dismissed, found that the Appellant’s dismissal was harsh, unjust and unreasonable, and so unfair within the meaning of the Act. 2 The Decision related solely to whether an unfair dismissal remedy should be awarded to the Appellant.

[4] In her Form F7 Notice of Appeal (the Form F7), the Appellant contends that the Decision of the Deputy President was in error in a number of respects. The Notice of Appeal did not, however, set out any matters that the Appellant believed would make it in the public interest for the Fair Work Commission (the Commission) to grant permission for the appeal.

[5] There is no right to appeal a decision of the Commission, and for an appeal to proceed, s.604(1) of the Act requires the Commission to grant permission. Appeals against an unfair dismissal decision are also subject to s.400(1) of the Act which provides that permission to appeal is only available where the Commission considers that it is in the public interest to grant permission; and further where an error of fact is alleged it must be a significant error, pursuant to s.400(2) of the Act.

[6] On 12 October 2020, Vice President Hatcher issued Directions (the Directions). The Directions instructed the Appellant to:

1. File in the Commission and serve on the Respondent her outline of submissions concerning permission to appeal and the merits of appeal, by no later than 5.00pm on Monday 26 October 2020.

2. In the case of an appeal from an unfair dismissal decision, the outline of submissions must specifically address the requirements of s.400 of the Fair Work Act (the Act) by identifying:

a. why it is in the public interest to grant permission to appeal; and

b. if the appeal is on a question of fact, what is the significant error of fact involved in the decision.

[7] The Directions also outlined the following:

3. The Respondent shall file in the Commission and serve on the Appellant an outline of submissions in response to the Appellant's outline of submissions by 5.00pm on Monday 9 November 2020.

4. The Appellant shall file in the Commission and serve on the Respondent any submissions in reply by 5.00pm on Monday 16 November 2020.

[8] The Appellant failed to comply with the first Direction. Notwithstanding that failure, on 10 November 2020, the Respondent filed an Outline of Submissions (the Respondent’s Submission).

[9] On 24 November 2020, Vice President Catanzariti’s Chambers informed all parties that the Commission had still not received any submissions from the Appellant, and advised that the Appellant had until 1 December 2020 to file her outline of submissions. On 1 December 2020, the Appellant filed a document titled "Outline of Submissions" (the Appellant’s Submission).

[10] On the basis of our view that the appeal may be adequately determined on the basis of written submissions, and with the consent of the parties, the appeal has been conducted without holding a formal hearing pursuant to s.607(1) of the Act.

[11] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. Rather, the task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[12] The Full Bench has heard the parties on permission to appeal and the substantive appeal.

Background and Decision

[13] The Appellant was previously employed by the Respondent in an administrative role at their medical imaging business. The matter involved evidence of friction between the Appellant and the Owner and Director of the Respondent, Dr Boima, and allegations of poor performance. On 10 February 2020, the Appellant was terminated by correspondence.

[14] The Deputy President rejected the Respondent’s submission that the dismissal was compliant with the Small Business Fair Dismissal Code, and rejected the assertion that there was a valid reason for the Appellant’s termination based on poor performance. Other factors upon which the Deputy President gave weight in finding the dismissal harsh, unjust and unreasonable were the absence of notification of the alleged valid reason or an opportunity to respond, and the absence of any warning that the Appellant’s performance was unsatisfactory.

[15] In the Decision, the Deputy President turned to the question of remedy. The Appellant did not press for reinstatement, submitting that it was not an option due to a significant loss of trust and confidence. The Deputy President formally rejected reinstatement as an appropriate remedy and turned to compensation. Factors upon which the Deputy President placed weight in the application of s.392 of the Act were:

(a) Remuneration for a further six weeks of employment the Appellant would have received, or have been likely to receive, were she not dismissed;

(b) That the Appellant had just under five years of service;

(c) That the Appellant had obtained employment within three weeks of the cessation of employment;

(d) The amount the Appellant earned between the dismissal and the order for compensation, being $34,560.00 plus $3,283.20 superannuation;

(e) The income likely to be earned between making the compensation order and the actual compensation being provided, being $2,560.00 plus $243.20 superannuation; and

(f) As an “other relevant matter,” that the Appellant would have been entitled to three weeks notice of termination of employment.

[16] The Deputy President reduced her calculations as to the compensation remedy to the following table that was included in the Decision:

[17] As is readily apparent in the above table, the Deputy President’s assessment of an anticipated period of further employment of only a further six weeks employment was crucial in the calculation of the final figure of $0.00 compensation, after the deduction regarding monies earned since termination.

Appeal Grounds

[18] The Appellant’s appeal grounds are stated under Part 2.1 “What are the grounds for your appeal?” of the Form F7 in the following manner:

1. “ANTICIPATED PERIOD OF EMPLOYMENT, 6 WEEKS. I believe this to be an error of judgement. Having worked for my employer for nearly 5 years with an un-blemished working record. Six weeks is not an accurate anticipated period.

2. ISSUES OF MS THURSTONS PERFORMANCE AND ABSENTEESIM -This was only hearsay with the respondent not providing any actual evidence to support the claims. The respondent only brought up the issues as the case proceeded along and not as a cause of dismissal.

3. BREAKDOWN OF THE RELATIONSHIP BETWEEN EMPLOYER AND EMPLOYEE - I believe that Deputy President Beaumont had a good judgement of our relationship breakdown but only as proceedings went on during the hearings. Our relationship was not bitter during my employment. I do not think this was taken into consideration.

4. FAIR WORK AUSTRALIA - FAIR GO. I am very upset that I have gone through a lengthy (7months) process to fight for what I believe is right and to stop another employee being treated unfairly by the respondent. I thought that the Fair Work Commission entitles everyone to a fair go but I feel in this case, I have not had a fair go at all. I have gone through hell last year with the loss of three people close to me and then was unfairly dismissed from my employment. I now have an $8000 lawyer bill.

5. I wanted to fight this case and believed it was the right thing to do. I am grateful that the commission decided in my favor, but I feel not having an order for compensation has made me worse off. I have lost faith in the justice system.”

[19] Section 3.1 of the Form F7 requires the Appellant to set out the matters that enliven the public interest for the Commission to grant permission for the appeal. As noted above, the Appellant did not set out any matters that the Appellant believed would make it in the public interest for the Fair Work Commission (the Commission) to grant permission for the appeal.

Respondent’s submissions

[20] The Respondent addressed each of the grounds of appeal outlined in the Form F7, and noted that the Appellant had failed to identify any public interest considerations relevant to each ground of appeal.

[21] The Respondent identified the relevant parts of the Decision that supported the conclusions of the Deputy President that the Appellant sought to impugn, and submitted that Deputy President Beaumont took into account the relevant principles as set out under s.392 of the Act.

Appellant’s Submissions

[22] The Appellant’s Submission, which we note was filed after the Respondent’s Submission, was brief, and did not address the issue of the public interest in the grant of permission to appeal. But for pleasantries, the totality of the Appellant’s Submission was as follows:

“I would like to firstly apologise for the delayed response for these submissions. I have recently gone through some ill health and have had some devastating news on the future of my health. The stress caused from my unfair dismissal and this whole legal battle has had great effect on me. I now have the added financial stress from the legal bill from seeking justice in my unfair dismissal.

As a result, I am seeking for the full bench to review my case and the decision made on the remedy only. I am not in a position to submit a lengthy official submission paper due to ill health and for that I do apologise.

Deputy President Beaumont made a personal judgement that my anticipated period of employment would have only been six weeks. Having worked for the respondent for almost five years, with an unblemished record and no evidence of poor performance by way of performance reviews, meetings, or warnings, I believe this judgement to be highly inaccurate.

The respondent has a history of treating his employees unfairly and has previously dismissed two other employees in the same fashion. I felt that I needed to stand up to my employer once he had done the same to me. I believe in the justice system of Australia and I believe that everyone deserves a fair go. However, in my case, I have fought for justice and for any future employees of the respondent and the outcome of the decision was correct and accurate with the evidence submitted, but I did not expect that I would be financially worse off.”

Appeal considerations

[23] 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. 3 As stated above, there is no right to appeal and an appeal may only be made with the permission of the Commission.

[24] This appeal, being one challenging an unfair dismissal decision, is subject to the tests set out at s.400 of the Act which have been described by the Federal Court as ‘stringent’. These tests are set out at ss.400(1) and (2) of the Act as follows:

“(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.”

[25] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 The Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 5

[26] As an appeal cannot succeed in the absence of appealable error, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 6 The fact that the Commission Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[27] Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits.

Consideration

(a) Public Interest

[28] We have considered the submissions advanced by the Appellant and have been unable to identify any sustainable public interest grounds. The Appellant has not satisfied us that the Decision raises any issues of importance or of general application, nor has the Appellant identified any decisions of a similar nature to allege a disharmony with other decided cases.

[29] To the extent that the Appellant’s Submission raise any contention of appealable error we do not consider them to be seriously arguable having regard to the fact that no specific reference is made to any of the Deputy President’s findings.

[30] We have, however, identified other material error in the exercise of the Commission’s discretion to award compensation than that identified by the Appellant. That error involved the Deputy President acting upon a wrong principle in the calculation of compensation of the kind discussed in House v King, 7 We consider it in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.

(b) The Error of Principle

[31] In assessing compensation, it is necessary to take into account all the circumstances of the case, including the specific matters identified in s.392(2)(a) to (g), and to consider the other relevant requirements of s.392.

[32] The well-established approach to the assessment of compensation under s.392 is to apply the ‘Sprigg Formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. 8 This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages9 (Bowden). Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed (the Anticipated Period of Employment). In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[33] Once the first step of determining the Anticipated Period of Employment has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.

[34] As is apparent in the compensation calculation table extracted from the Decision above, the Deputy President misapplied the Sprigg Formula by deducting all of the amount of monies earned since termination from the amount she had determined as the Anticipated Period of Employment, being six weeks. The Appellant had obtained employment within three weeks of the cessation of employment.

[35] Only monies earned by the Appellant since the dismissal until the end of the Anticipated Period of Employment should have been deducted. The Deputy President deducted all remuneration earned in 27 weeks since termination, 10 rather than such remuneration received in the six weeks of the Anticipated Period of Employment. In doing so the Deputy President erred in misapplying the Sprigg Formula.

[36] The Appellant’s remuneration in her post termination employment was less than that received when employed by the Respondent because she received a lower hourly rate of pay and had only secured 32 hours of work per week. Her weekly remuneration with the Respondent was $1,872.45 including superannuation. In her post termination employment, the Appellant’s weekly remuneration was $1,401.60 including superannuation, being $470.85 per week less. The compensation that should have been awarded to the Appellant pursuant to the Sprigg Formula is:

Conclusion

[37] We are satisfied that appealable error has been established. The Decision of the Deputy President proceeded on a wrong principle in the calculation of compensation. Permission to appeal is granted, and the appeal should be upheld, albeit on different grounds than those advanced by the Appellant.

[38] We are satisfied that an order for payment of compensation to the Appellant by the Respondent of $7,029.90 inclusive of superannuation, less taxation, is appropriate in all the circumstances of the case.

[39] The compensation payment, less any required deduction in taxation, is to be made within 14 days of this decision. An order to that effect is set out below.

Order

[40] We order as follows:

1. Permission to appeal is granted;

2. So much of the appeal as contended error in the calculation of the compensation amount is upheld;

3. The appeal is otherwise dismissed;

4. As compensation, Bunbury Medical Imaging Pty Ltd must pay $7,029.90 inclusive of superannuation, less taxation, within 14 days of the date of this decision.

al of the Fair Work Commission with member's signature,

VICE PRESIDENT

Appearances:

Ms A Thurston, the Appellant on her own behalf.
Mr S Mare of Mare Lawyers Workwise, for the Respondent.

Hearing details:

Matter determined on the papers.

Final written submissions:

Appellant’s written submissions dated 1 December 2020.
Respondent’s written submissions dated 10 November 2020.

Printed by authority of the Commonwealth Government Printer

<PR726304>

 1   [2020] FWC 4840.

 2   [2020] FWC 3962.

 3   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 4   O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46].

 5   [2010] FWAFB 5343 at [24].

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

 7   (1936) CLR 499.

 8   (1998) 88 IR 21.

 9   (2013) 229 IR 6.

 10   Decision at [29].