Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2024] FWC 2754 of Deputy President Slevin at Sydney on 3 October 2024 in matter number C2024/1509 - whether to admit evidence on appeal previously rejected - admission of new evidence denied - permission to appeal is refused - the appeal is dismissed.

[1] Ms Kerry Cecilia Soorley (Ms Soorley) commenced employment with The Trustee For The Gunnebah Operating Trust (Gunnebah) on 14 October 2022 as a Night Supervisor and Weekend Guest Support Worker. Ms Soorley was dismissed from her employment on 17 November 2023.

[2] Ms Soorley's role required her to work between 5:00pm and 8:00am, remaining on site during those times and contacting a supervisor in an emergency. Ms Soorley was required to partake in a handover at the beginning and end of shifts, check in with guests at 6:00pm and 8:00pm, visually see all guests and record their check-ins, assist guests with various requests throughout the night, managing incidents as they occur and completing incident reports if necessary. It was also a requirement to distribute medication on some occasions, following a doctor's instruction and contacting Gunnebah's doctor for advice where necessary. Ms Soorley was also provided with a staff phone during shifts so that guests could contact her for assistance. A further requirement was to feed and supervise Gunnebah's dogs. There were several policies and procedures in place which applied to the performance of these tasks.

[3] Gunnebah operates from Nobby's Creek in north-eastern New South Wales. It provides a live in facility with drug and alcohol rehabilitation services, veterans rehabilitation services, and respite services under the National Disability Insurance Scheme. It refers to its clients as guests, the majority of whom are receiving treatment for drug or alcohol addiction. Gunnebah employs clinical psychologists and therapists to support guests. Ms Soorley was not employed to provide psychological or therapeutic support to guests.

[4] The stated reasons for dismissal included that Ms Soorley openly discussed with clients her use of "magic mushrooms" and promoted to clients the use of psychedelic therapy, and that in other instances she failed to follow reasonable directions.

[5] Ms Soorley made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act), alleging that Gunnebah contravened the general protection provisions of the Act. Conciliation was not successful and the parties agreed to the Commission arbitrating the dispute under s.369.

[6] Deputy President Slevin dismissed Ms Soorley's application on 3 October 2024 and published his reasons for doing so in Soorley v The Trustee For The Gunnebah Operating Trust [2024] FWC 2754 (the Decision).

[7] Ms Soorley appealed the Decision.

[8] Mr Carl Edwards is Ms Soorley's husband and a solicitor. Mr Edwards represented Ms Soorley in the proceedings before the Deputy President at first instance and also before the Full Bench in the appeal proceedings. Mr Ben Cooper is a paid agent. Mr Cooper appeared for Gunnebah in the initial proceedings and on appeal.

[9] Ms Soorley requires permission to appeal (per s.604(1)). For reasons that follow we have decided to refuse permission to appeal.

[10] The process by which Ms Soorley came to be dismissed took several weeks. Gunnebah wrote to Ms Soorley on 10 October 2023 raising concerns about the way she was interacting with guests and other employees. There were several email exchanges between Mr Edwards and Gunnebah. The Deputy President described this correspondence, and correspondence after the dismissal had taken effect, as "terse and unprofessional on the part of both correspondents". In the course of this correspondence Mr Edwards raised complaints about alleged underpayments and other matters. Gunnebah and the Deputy President accepted that some of the matters raised in correspondence were instances of Ms Soorley exercising a workplace right within the meaning of s.341 of the Act.

[11] A disciplinary meeting was held on 7 November 2023. Ms Soorley did not attend this meeting. Instead, Mr Edwards represented Ms Soorley at the meeting and denied the allegations on her behalf.

[12] Between 10 October 2023 and 18 November 2023 Gunnebah's concerns evolved. The complaint that Ms Soorley had advocated the use of psychedelic drugs to Gunnebah's guests did not emerge until after 10 October 2023.

[13] Ms Soorley's employment was terminated by letter on 17 November 2023.

[14] In the Decision, the Deputy President considered whether the terminaton of Ms Soorley's employment by Gunnebah was in breach of Part 3-1 of the Act. Gunnebah accepted that Ms Soorley exercised workplace rights and that the dismissal was adverse action, but contended the reason for dismissal was unrelated to Ms Soorley's workplace rights.

[15] The Deputy President:

• (a) described the events that led to Ms Soorley's dismissal (at [5]-[22]);

• (b) described the events after Ms Soorley's dismissal (at [23]);

• (c) set out the relevant law and legal principles relevant to the dismissal (at [24]-[31]);

• (d) applied the law and relevant principles to the evidence before him (at [32]-[39]);

• (e) found that Gunnebah dismissed Ms Soorley for her conduct, particularly her advocacy of psychedelics to patients in their facility, successfully rebutted the presumption in s.361 and that Gunnebah did not breach the Act (at [40]-[42]); and

• (f) dismissed Ms Soorley's application (at [43]).

[16] The Deputy President set out the requirements to find a contravention under s.340, emphasising that the exercise of the workplace right must be a 'substantial and operative factor' for the adverse action, noting that there is a rebuttable presumption that the action took place in contravention under s.361(1).[1]

[17] The Deputy President found that Gunnebah relied primarily on its finding that Ms Soorley had on multiple occasions recommended psychedelics to guests as the reason for summarily dismissing Ms Soorley.[2] The Deputy President found that Gunnebah's evidence rebutted the legislative presumption, and he was not satisfied that the termination of Ms Soorley's employment was in contravention of Part 3-1 of the Act.[3] Following this finding, the Deputy President dismissed the application.[4]

[18] The materials provided by Ms Soorley to the Full Bench were not satisfactory. The appellant filed an appeal book however the appeal book did not comply with the requirements of the Fair Work Commission Rules 2024.

[19] The hearing below took place over two or three days however only the transcript of the first day was provided. The Deputy President provided a Digital Court Book to the parties for use at the hearing. The Digital Court Book contained almost all of the evidence and material that was before the Deputy President. Somehow the Digital Court Book was not included in the Appeal Book. Ms Soorley's written submissions below were included in the appeal book but not Gunnebah's written submissions.

[20] The appeal book contained documents, in no particular order, that may or may not have been part of the evidence in the proceedings below. Other additional material was included in the appeal book that postdated the hearing below and, quite obviously, was not material placed before the Deputy President.

[21] On the last working day before the appeal hearing Ms Soorley made an application to tender additional evidence in the appeal proceedings. Almost all the additional material postdated the hearing below. Two documents were included within the additional material filed shortly before the appeal hearing that predated the hearing below, neither of which had any connection to the other documents, neither of which were referred to in Ms Soorley's submissions supporting the admission of the additional material, and both of which were said to be relevant because they cast Gunnebah's Managing Director, Mr Parer, in a bad light. One of these two documents was a letter that the Deputy President declined to admit into evidence.

[22] Much time was wasted at the appeal hearing trying to identify which documents in the appeal book were in evidence before the Deputy President, which documents were available to be tendered by a party but were not placed into the evidence before the Deputy President, and which documents were additional documents that required the leave of the Full Bench to be admitted in the appeal proceedings.

[23] Mr Cooper helpfully assisted the Full Bench by identifying the documents that were in evidence before the Deputy President. Only those documents were taken to be properly before the Full Bench.

[24] The additional evidence Ms Soorley sought to admit on appeal was said to be relevant to the reasons for dismissal in November 2023. The additional documents relate to a complaint made by Mr Parer to the Health Care Complaints Commission (HCCC) in March 2024. Ms Soorley is or was a registered nurse and there is no controversy about the fact that Mr Parer referred a complaint to the HCCC about Ms Soorley's conduct in advocating to patients the use of psychedelic drugs. Ms Soorley did not seek to tender the terms of Mr Parer's original complaint to the HCCC, and the complaint was not otherwise before the Full Bench or the Deputy President.

[25] The additional documents are essentially correspondence between Mr Edwards, on behalf of Ms Soorley, and either the HCCC, or the Nursing & Midwifery Council of NSW. This correspondence was said to demonstrate Mr Parer's "continued efforts to impact the appellant's nursing registration."

[26] Section 607(2) of the FW Act permits the Commission to admit further evidence and take into account any other information or evidence in an appeal brought pursuant to s.604(1).

[27] The power to admit further evidence on appeal is available to serve the demands of justice. Ordinarily an appellant will not be allowed to lead further evidence unless they can show in the interests of justice that the further evidence would have produced a different result if it had been available at the trial. As the High Court said in CDJ v VAJ [1998] HCA 76 at [111], 197 CLR 172 at [202]:

"... it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial."

[28] Previous decisions of the Commission[5] have referred to the principles governing the discretion to admit new evidence or to consider further material which are set down in Akins v National Australia Bank (Akins).[6] In Akins, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are firstly that it must be shown that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance, secondly it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance and thirdly the evidence must be credible.[7]

[29] As the Full Bench in Humphries v Australian Capital Territory (As Represented By The Chief Minister, Treasury And Economic Development Directorate) [2024] FWCFB 402 at [51] and [53] observed:

"Section 607(2) of the FW Act permits the Commission to admit further evidence and take into account any other information or evidence in an appeal brought pursuant to s.604(1). However, the fact that the Commission has discretion to receive new evidence in an appeal is not an open invitation for an appellant, armed with the benefit of hindsight, to advance a different case on appeal, to cure deficiencies in the case at first instance.

It has been recognised by the Commission that, in considering whether to exercise the discretion in s.607(2), the principles in Akins need not be strictly applied, and in an appropriate case it is permissible to depart from those principles. That said, it is rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met."

[30] At the appeal hearing we decided not to admit any of this additional material into evidence because we were not satisfied that it was in the interests of justice to do so.

[31] We accept that almost none of the new evidence Ms Soorley sought to rely upon could have been obtained with reasonable diligence before the trial because it postdates the hearing. That said, at the hearing on 18 June 2024 Mr Parer was cross-examined about his motivation for making the complaint. Mr Edwards put to Mr Parer that the complaint was "an attempt by you to either intimidate or out of spite cause problems or try to cause problems for [Ms Soorley]".

[32] Mr Edwards attempted to rely on one document in the appeal that the Deputy President refused to admit into evidence at the hearing. Mr Edwards did not separately identify this document to the Full Bench but instead included it, without reference, in a bundle of unrelated documents (referred to in paragraph [22] above). When questioned by the Full Bench, Mr Edwards could not explain why the document was included in the bundle, resented any implication that he had acted unprofessionally, but nonetheless pressed for the document to be admitted into evidence in the appeal because it spoke to Mr Parer's allegedly poor character. Mr Edwards did not submit that the Deputy President erred in refusing to admit the document into evidence.

[33] We are satisfied that there is no likelihood of a different verdict if the material was admitted on appeal. In reviewing the documents it is plain that none of the documents reveal conduct by Mr Parer beyond the making of the original complaint. The correspondence reveals that Ms Soorley, through Mr Edwards, has refused to respond to the complaint, refused to submit to a medical examination including a psychiatric assessment and refused to undertake a hair, drug and alcohol test. None of these events have any relevant connection to Mr Parer or the reasons for Ms Soorley's dismissal in November 2023.

[34] Appeals under s.604 of the FW Act can only proceed with the Commission's permission. Where an appellant is able to demonstrate an arguable case of appealable error, the Commission has a broad discretion in determining whether or not to grant permission to appeal. Section 375A(1) applies to appeals from decisions made under s.369:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) unless the FWC considers that it is in the public interest to do so."

[35] A Full Bench of the Commission in Cole v The Commissioner for Public Employment, Office Commission Public Employment [2023] FWCFB 35 recently restated the principles relating to the public interest test for permission to appeal at [19]:

"The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 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."

[36] Ms Soorley's case as presented did not align with the Full Bench's functions on appeal.

[37] Ms Soorley did not identify any apparent error in the decision-making process. The basis for the appeal seems only to be that the Deputy President made the wrong decision at the end of the decision-making process. In this regard, Ms Soorley did not identify any House v King[8] error.

[38] Ms Soorley raised six grounds of appeal:

• (1) The Deputy President erred in not appropriately applying the s.361 presumption that adverse action was taken for the prohibited reason.

• (2) The Deputy President erred by failing to correctly consider that the adverse action was taken in retaliation to Ms Soorley's exercise of workplace rights.

• (3) The Deputy President erred in accepting Gunnebah's reasons for termination despite inconsistencies in the allegations against Ms Soorley.

• (4) The Deputy President erred in making a finding accepting Gunnebah's allegations of misconduct despite failure to provide sufficient evidence to substantiate them.

• (5) The Deputy President erred in not giving due weight to Gunnebah's failure to provide Ms Soorley procedural fairness in the disciplinary proceedings by failing to provide sufficient particulars of the allegations.

• (6) The Deputy President erred in not giving due weight to Gunnebah failing to give Ms Soorley access to the evidence it allegedly relied on in determining to dismiss Ms Soorley, and further that she was denied the opportunity to cross examine any individuals whose evidence Gunnebah relied on in determining to dismiss Ms Soorley.

[39] Section 375A(2) applies in relation to findings of fact:

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 369(2) 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."

[40] Section 375A is in comparable terms to s.400 and the test is "a stringent one".[9]

[41] Ms Soorley's argument was essentially that the Deputy President wrongly found that Gunnebah had met the rebuttable presumption regarding the reasons for dismissal. Ms Soorley said that there was no proper evidentiary foundation for the findings made by the Deputy President. We do not accept Ms Soorley's contentions.

[42] Mr Parer is Gunnebah's Managing Director and he made the decision to dismiss Ms Soorley on behalf of Gunnebah. Mr Parer gave evidence at the hearing and stated in clear terms his reasons for dismissing Ms Soorley. The Deputy President described Mr Parer's evidence as follows:

"[37] The question is whether Gunnebah has rebutted the presumption that the reason for the dismissal was other than that Ms Soorley exercised any of her workplace rights. I am satisfied that it has. The reason given by Mr Parer in the termination letter of 17 November 2023 was Ms Soorley's conduct. The evidence confirms that Mr Parer held the view that the conduct occurred and it justified dismissal.

[38] On 10 October 2023, Gunnebah first raised concerns about Ms Soorley's boundaries with guests and other employees. There was an exchange of correspondence following the initial email and in correspondence dated 19 October details were given of the allegations. There was further correspondence leading up to the disciplinary meeting on 7 November 2023. Mr Parer continued to assert his belief that the misconduct occurred. The meeting on 7 November dealt with the allegations in detail. On 16 November 2023, after considering further complaints from guests going to the most serious allegation about Ms Soorley discussing magic mushrooms and considering the blanket denials made by Ms Soorley, Mr Parer decided to terminate Ms Soorley's employment. He cited trust issues and duty of care concerns. Mr Parer was cross-examined on his reasons, and he did not waiver. I accept his evidence."

[43] Ms Soorley had the opportunity to cross-examine Mr Parer about the reasons for dismissal, and did so to a limited degree.

[44] In this context the Deputy President was able to assess the plausibility and rationality of Mr Parer's evidence. In our view it was open to the Deputy President on the evidence to be satisfied that Gunnebah had met the rebuttable presumption.

[45] Ms Soorley argued that Mr Parer provided reasons for the dismissal and that "the evolving justification for the termination demonstrate that Gunnebah lacked a genuine and consistent reason for the dismissal." The high point of Ms Soorley's submissions at the appeal hearing was the reference in paragraph [39] of the Decision where the Deputy President notes Mr Parer's evidence that he was willing to give Ms Soorley a second chance if she admitted to discussing magic mushrooms with guests and promised not to do it again and the Deputy President's observation that "this indicates that Mr Parer considered the conduct itself to not necessarily justify dismissal and that taking disciplinary step of dismissal was disproportionate."

[46] The observations in paragraph [39] of the Decision need to be reviewed in the context of paragraphs [38]-[41]. The Deputy President was satisfied that Mr Parer formed the view that the alleged misconduct occurred. The Deputy President was also satisfied that Ms Soorley was dismissed because Mr Parer formed the view that the alleged misconduct occurred. The Deputy President's observations about proportionality and procedural fairness are not inconsistent with his finding regarding the reason for dismissal.

[47] As is clear from the authorities, the relevant inquiry starts and ends with whether, in fact, the stated reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair.[10]

[48] The public interest issues raised by Ms Soorley were:

• (1) The appeal raises important issues that employees have a right to feel safe at work to assert their workplace rights and by failing to apply the proper protections undermine the intent of the Act.

• (2) The case highlights broader concerns about procedural fairness in that employers must not be allowed to provide vague or inconsistent reasons for termination without proper evidence.

[49] We do not accept either of these matters to be of public interest in this case. Procedural fairness in the dismissal process is not relevant in a general protections claim. It is well established that a general protections claim is only concerned with the reason for the dismissal, rather than the fairness of the dismissal.

[50] For completeness we will deal briefly with each ground of appeal.

The Deputy President erred in not appropriately applying the s.361 presumption that adverse action was taken for the prohibited reason.

[51] The Deputy President's finding that Gunnebah had displaced the presumptive assumption in s.361 by providing positive evidence of the reasons for dismissal was reasonably open to him on the evidence. The Deputy President found that the real and operative reasons for dismissal were that Ms Soorley had on multiple occasions recommended psychedelics to guests and other reasons unrelated to her exercising her workplace rights.[11] We find no appealable error in the findings of the Deputy President when he found that Gunnebah's evidence rebutted the presumption, and that he was not satisfied that the termination of Ms Soorley's employment was in contravention of Part 3-1 of the Act.[12]

[52] Grounds 2,3 and 4 (see [38] above) are indistinguishable from the first ground of appeal. We do not accept that the Deputy President made any significant errors of fact in his findings about the reasons for dismissal.

[53] In respect of Grounds 5 and 6 (see [38] above), Ms Soorley contends that she should have been provided with the names of clients involved, an opportunity to cross-examine them and with all of the evidence Gunnebah allegedly relied on to dismiss her. In truth these appeal grounds go to the procedural fairness of the dismissal, which is not relevant to matters the Deputy President was required to determine.

[54] We are not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the Decision of the Deputy President was attended by appealable error.

[55] We have considered whether this appeal attracts the public interest, and we are not satisfied that the appeal raises any legal or factual issue of significance or general application. The matter before the Deputy President turned on its own facts, and the appeal does not raise any genuine question of law or any issue of importance or general application.

[56] Accordingly, permission to appeal must be refused in accordance with s.375A(1). We order that permission to appeal is refused and the application is dismissed.

[5] See for example Max Vincent v Roof Safe Pty Limited [2023] FWCFB 182, [27]; Levin v Douglas and Mann Pty Ltd (T/A Histopath Diagnostic Specialists) [2022] FWCFB 39, [17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [21]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [11]

[6] (1994) 34 NSWLR 155

[7] (1994) 34 NSWLR 155 at 160

[8] House v King (1936) 55 CLR 499.

[9] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [43], (2011) 192 FCR 78 at 90.

[10] See Wong v National Australia Bank Ltd [2021] FCA 671 at [81]; see also Wong v National Australia Bank Ltd [2022] FCAFC 155 at [93] as cited by the Deputy President in the Decision at [29]

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