Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2024] FWC 1871 and order PR777090 of Commissioner Hunt at Brisbane on 17 July 2024 in matter number C2024/508 - permission to appeal refused.

[1] Ms Te-Arn Chalmers has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Hunt issued on 17 July 2024, for which permission to appeal is required.

[2] The decision records that Ms Chalmers was employed by the respondent, CloudHolter Pty Ltd, as a casual Cardiac Technician (which was known as Cardiac Rhythm Diagnostics Pty Ltd until 3 February 2024). Following a conciliation conference before the Commissioner on 16 January 2024 in respect of applications that Ms Chalmers had filed against the respondent under s 66M and s 372 of the Act, Ms Chalmers sent an email to the respondent in which she relevantly stated:

"I refer to our discussions during the Fair Work Commission conference today with respect to no continued hours for me to work for Cardiac Rhythm Diagnostics Pty Ltd. I have been left with no other option other than to resign from Cardiac Rhythm Diagnostics Pty Ltd under the terms of constructive dismissal/forced resignation. Constructive dismissal/forced resignation is still considered as unfair dismissal..."

[3] Ms Chalmers subsequently made an application to the Commission pursuant to s 365 of the Act seeking that the Commission deal with a general protections dispute involving dismissal. The threshold question for resolution before the Commissioner was whether Ms Chalmers was dismissed within the meaning of s 386 of the Act.

[4] The Commissioner relevantly concluded as follows, before dismissing the application:

"[117] Having regard to all of the evidence and submissions before the Commission and having convened the telephone conference between the parties on 16 January 2024, being a central observer of the dispute between the parties, I am not satisfied that the Respondent engaged in conduct or a course of conduct to force Ms Chalmers' resignation. I consider that I was best placed to understand the parties' contentions between them on 16 January 2024...

[125] As highlighted in ABB Engineering, a consideration of the employer's conduct is necessary to determine if it was the principal contributing factor in the resultant termination. I am not satisfied that anything said by the Respondent at the conference before me on 16 January 2024 was of such a nature that resignation was the probable result, or that Ms Chalmers had no effective or real choice but to resign. I am not satisfied that the Respondent took action with the intent or probable result to bring the employment relationship between Ms Chalmers and the Respondent to an end, including not rostering Ms Chalmers for further shifts given she was unwell and had been since 13 December 2024.

[126] I am satisfied that Ms Chalmers' resignation was voluntary, and not due to conduct or a course of conduct (including omission) engaged in by the Respondent, either prior to 16 January 2024 or during the conference on 16 January 2024. Having reviewed the statistics relevant to Ms Chalmers' performance, the Respondent was acting reasonably by requiring her to participate in training with Professor Weerasooriya, despite her objections that any performance management of her was baseless. Ms Chalmers was not rostered for further shifts and under the circumstances, this was not surprising."

[5] Ms Chalmers appealed the Commissioner's decision. The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

[6] By her Form F7 Notice of Appeal, Ms Chalmers advances four grounds of appeal, which we summarise as follows:

• (1) There are inconsistencies between federal and state definitions of what constitutes a dismissal. The decision is "heavily weighted" on Queensland state legislation and Ms Chalmers' ability to have a workers compensation claim approved. The Commission lacks jurisdiction to consider the Workers' Compensation and Rehabilitation Act 2003 unless in its entirety.

• (2) The decision does not highlight the respondent's "course of conduct" but is "heavily weighted" on Ms Chalmers' alleged poor performance, which is irrelevant to Ms Chalmers' argument that she was forced to resign. Further, the respondent produced highly prejudicial evidence at the "last minute" without Ms Chalmers being given an opportunity to respond to it.

• (3) Ms Chalmers was requested by the Commissioner to consider withdrawing her earlier s 372 general protections application not involving dismissal, when this was not required.

• (4) The Commissioner unduly influenced Ms Chalmers' actions during the 16 January 2024 conference.

[7] While Ms Chalmers' written submissions largely contest the actions and submissions of the respondent in the proceeding, Ms Chalmers further submits as follows:

• (a) the decision contains a significant error of fact at paragraph [15] concerning an offer said to have been made by Ms Chalmers to negotiate an exit from her employment;

• (b) the decision erroneously refers, at paragraph [125], to Ms Chalmers being too unwell to resume work (and therefore she was not rostered). However, this does not represent the respondent's position, and the respondent does not rely upon Ms Chalmers' health for her lack of hours.

[8] As to the public interest, Ms Chalmers invites clarity as to the "fine line" between the harm that an employee should endure to demonstrate an egregious course of conduct by their employer that would result in a finding that they had no choice but to resign. This and other related questions identified by Ms Chalmers are said to support granting permission to appeal in the public interest, such that these issues can be resolved.

[9] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.

[10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[5]

[11] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[12] We are not satisfied that the grant of permission to appeal would be in the public interest for the following reasons. First, the matters raised by appeal grounds (1) and (3) do not appear to have any connection to the Commissioner's decision or the issues to be determined in this matter. Nor were these grounds of appeal developed during the hearing before us. These grounds cannot, therefore, give rise to any contention of appealable error.

[13] Second, we do not consider that Ms Chalmers has identified any reasonably arguable basis for the proposition advanced by appeal ground (2) that the Commissioner was in error in concluding that Ms Chalmers was not dismissed. The Commissioner correctly approached the question of whether there has been a dismissal pursuant to s 386 of the Act, including by reference to Full Bench authorities to which the Commissioner refers at [99] to [101] of the decision, including what was conveyed objectively by the conduct of respondent. The contention that the Commissioner gave too much weight to Ms Chalmers' alleged performance issues is not a matter that gives rise to any arguable basis for appellate intervention.

[14] Third, the broad contention advanced by appeal grounds (2) and (4) that Ms Chalmers was not afforded procedural fairness does not appear to be borne out. Ms Chalmers says that she was not given an opportunity to respond to "highly prejudicial" evidence produced by the respondent at last minute. However, even if this contention were to be sustained, Ms Chalmers has not identified any material, evidence or submissions that might have been advanced had she been given the opportunity. Nor has Ms Chalmers identified that she even sought a further opportunity to respond. We are not persuaded that Ms Chalmers was denied the opportunity for a different outcome at first instance.

[15] Nor does the material before the Commission support the contention that the Commissioner "unduly influenced" Ms Chalmers' actions in sending the resignation email to the respondent. The evidence demonstrates that Ms Chalmers first sent the respondent an email declaring that she had been terminated at its initiative and in the absence of a material response from the respondent, subsequently sent the resignation email on the evening of 16 January 2024. Ms Chalmers' decision to take this action does not speak to any arguable error on the part of the Commissioner.

[16] Fourth, the additional material advanced by Ms Chalmers in the appeal, including more broadly in her written submissions, does not disclose any arguable appealable errors in the decision. The allegation that the Commissioner made a significant error at paragraph [15] of the decision is not an issue of significance in the determination of the respondent's jurisdictional objection. As to the contention concerning paragraph [125] of the decision, we understand that Ms Chalmers seeks to rely upon fresh evidence in the appeal to support her contention that that while paragraph [125] is erroneous, the stressful working conditions and unreasonable conduct of the respondent aggravated Ms Chalmers' neurological condition such that she was deemed unfit for work.[7] The fresh evidence sought to be relied upon by Ms Chalmers comprises of the following:

• (a) an independent medical report dated 1 May 2024;

• (b) an independent medical report dated 7 May 2024;

• (c) a correction to the 7 May 2024 report dated 10 May 2024;

• (d) a single paragraph affidavit of Ms Chalmers, affirmed on 5 July 2024;

• (e) an email chain between Ms Chalmers and a health services provider dated 2 July 2024;

• (f) an undated information sheet;

• (g) a referral letter dated 20 May 2024;

• (h) a further undated information sheet; and

• (i) an independent medical report dated 26 September 2024.

[17] Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, it is by no means a matter of course that it will do so.

[18] It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).[8] Three conditions need to be met before fresh evidence can be admitted. It must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; 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 the evidence must be credible.[9] While it is permissible in an appropriate case to depart from the principles set out in Akins,[10] it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

[19] With the exception of the undated information sheets, we accept that the fresh evidence sought to be relied upon by Ms Chalmers is credible and was not available to Ms Chalmers at the time of the first instance hearing. However, having carefully considered the content of this material and Ms Chalmers' submissions in relation to it,[11] we are not persuaded that the evidence sought to be admitted 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 in circumstances where, as paragraph [6] of the decision identifies, the decision dealt only with the question of whether or not Ms Chalmers was dismissed from her employment. As is demonstrated by the preceding analysis of the matters raised by Ms Chalmers in the appeal, the fresh evidence sought to be adduced has no apparent connection to Commissioner's dispositive reasons. Accordingly, we decline to admit the documents identified at [16](a)-(i) above as fresh evidence in the appeal. Nor are we persuaded that any arguable error arises with respect to [125] of the decision.

[20] For completeness, we note that further supplementary materials are attached to Ms Chalmers' 23 October 2024 written submissions which were not before the Commissioner at first instance but which were not produced by Ms Chalmers as part of her fresh evidence application. To the extent that Ms Chalmers seeks the admission of these additional documents, we decline to do so as we are not satisfied that the requirements of Akins are met in respect of them.

[21] We have considered whether this appeal attracts the public interest, and we are not satisfied that there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind, or that the appeal raises issues of importance and/or general application, or that the decision manifests an injustice or is counter intuitive; or that the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters. It follows that we have decided to refuse permission to appeal

[22] For the reasons given, permission to appeal is refused.

[1] [2024] FWC 2419

[2] PR779003

[3] O'Sullivan v Farrer [1989] HCA 61; (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 at [44]-[46]

[4] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; 197 IR 266 at [24]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]

[5] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

[6] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[7] See, in particular, Attachment 1 - Form of submissions, Appellant's outline of submissions in support of the appeal at [2.24]; Appellant's supplementary outline of oral submissions

[8] Akins v National Australia Bank [1994] 34 NSWLR 155

[9] See Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936

[10] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [18]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; P_erry v Rio Tinto Shipping Pty Ltd_ [2016] FWCFB 6963 at [11]

[11] Appellant's response to 'Respondent's submission - admission of new evidence with respect to permission to appeal hearing (C2024/5371)' dated 23 October 2024

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