The attached document replaces the document previously issued with the above code on 8 May 2017.

Minor edit on page 4 under subheading, 'Appearances' - changed the word 'Appellant' to 'Respondent'

[2017] FWCFB 2491

Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2017] FWC 1106 of Senior Deputy President Hamberger at Sydney on 8 March 2017 in matter number U2016/4407.

[1] On 8 March 2017 Senior Deputy President Hamberger handed down a decision[1] dismissing an application by Mr Mohammed Ayub for an unfair dismissal remedy.

[2] On 24 March 2017 Mr.Ayub filed an appeal against this decision. Mr.Ayub alleged that the Commission erred in finding that there was a valid reason for termination of employment, that the disciplinary process was procedurally fair, and other reasons.

[3] In the decision under appeal the Commission found that there was a valid reason for termination of employment which included findings that Mr.Ayub made baseless allegations as a response to complaints against him:

"[57] The applicant was dismissed because of the various unsubstantiated allegations the applicant made against a number of his colleagues in his letters of 22 May, 25 June and 23 July 2015. These allegations included that Mr Austin could not be trusted because he had underworld associations, that Mr Austin had gained his position because of the corruption of other managers, that Mr Singh was corrupt, that the WCIU was corrupt, that the DRP was also corrupt and that Mr Austin and the WCIU had bullied, victimised and harassed the applicant.

[58] There is no doubt that these are extremely serious allegations. Despite this, at no time either before the Commission proceedings, or during them, did Mr Ayub proffer the least shred of evidence to back them up. There is absolutely no evidence before me that any of the accused persons are corrupt in any way, nor is there any evidence that any of them bullied, harassed or victimised the applicant.

[59] Mr Ayub submitted that he was only replying to the allegations made against him during the disciplinary process. His attitude seemed to be that if someone made an allegation against him he was entitled to respond with his own allegations - however baseless:

'If you are going to make a complaint against me, I will make a complaint against you.'

[60] That is nonsense. It is reasonable to infer that Mr Ayub made the allegations vexatiously, not because he had some rational basis for believing them to be true, but in order to divert attention away from his own misconduct.

[61] No employer should be expected to tolerate this sort of behaviour. It was potentially extremely damaging to the well-being and morale of a number of Mr Ayub's colleagues. It also meant that the respondent had to waste significant resources on a wild goose chase trying to investigate a number of baseless allegations.

[62] I am satisfied that the respondent had a valid reason to dismiss the applicant." (references omitted)

[4] The Commission also made findings with respect to each of the other matters set out in s.387, including procedural fairness. It concluded that the termination of employment was not harsh, unjust or unreasonable, and dismissed the application.

[5] 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.

[6] In the Federal 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".[2]

[7] This matter was listed to consider the issue of permission to appeal only. In relation to permission to appeal, a Full Bench of the Commission said in GlaxoSmithKline Australia Pty Ltd v Makin[3]:

[26] 'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

[27] Although 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, it seems to us that none of those elements is present in this case.' [citations omitted]

[8] 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.[4] 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.[5]

[9] The appellant put submissions challenging the valid reason and procedural and other findings made by the Commission at first instance. There is nothing in these submissions which raise 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.

[10] The submissions were in the nature of an attempt to persuade us that the Commission at first instance should have reached a different conclusion on the facts, an attempt to in effect run a case at first instance on appeal. This is not our function under the Act. Our function is to consider whether to grant permission to appeal having regard to matters already discussed.

[11] 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.

[1] [2017] FWC 1106.

[2] [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

[3] [2010] FWAFB 5343.

[4] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[5] 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] FCAFC 54; (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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