Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2020] FWC 5364 of Deputy President Cross at Sydney on 16 November 2020 in matter number U2020/6149 - no appealable error - no issue of principle - permission to appeal not granted

[1] Shamrock Consultancy Pty Ltd (Shamrock or the Appellant) has lodged an appeal, for which permission to appeal is required, against a Decision[1] and Order[2] made by Deputy President Cross.

[2] The Respondent to the appeal is Ms Norma Ah San, a former employee.

[3] By order of the Commission on 14 December 2020[3] the Deputy President's Order was stayed (subject to conditions) pending the hearing and determination of this appeal.

[4] By agreement between the Appellant and Respondent, the appeal and application for permission to appeal were determined on the papers save that oral submissions in reply by the Appellant were made on 15 January 2021.

[5] Permission was granted for the Appellant to be represented.

[6] The matter before the Deputy President concerned whether Ms Ah San had abandoned her employment, warranting the termination of her employment as a Business Development Manager. Although Shamrock also submitted at first instance that Ms Ah San had been derelict in adequately maintaining her motor vehicle and renewing her driver's license (both of which she required to perform her duties), and this would have constituted a valid reason for dismissal, Shamrock's primary contention was that Ms Ah San had abandoned her employment and thus not been dismissed.

[7] The Deputy President found that Ms Ah San had not abandoned her employment. He found that she was dismissed on 15 April 2020. He concluded that her dismissal was harsh, unjust or unreasonable within the meaning of section 387 of the FW Act. The Deputy President concluded that there was no valid reason given his finding that there was no abandonment of employment. He also found there was a failure on Shamrock's part to notify the reason for dismissal and provide an opportunity to respond.

[8] The Deputy President concluded that reinstatement was inappropriate. He made an order for compensation.

[9] The Deputy President ordered that Shamrock Consultancy Pty Ltd pay Ms Norma Ah San an amount of $30,000 gross subject to taxation, plus superannuation within twenty-one days of 19 November 2020.

[10] There are eight grounds of appeal advanced by Shamrock in its Notice of Appeal[4]. The grounds assert error on the part of the Deputy President and in particular:

• jurisdictional error in finding that there was a dismissal (appeal ground 2);

• procedural errors in the form of apprehended bias (ground 1) and an alleged denial of procedural fairness in reaching a conclusion that was not the subject of evidence or submission (appeal ground 3);

• significant errors of fact (appeal ground 5); and

• errors of reasoning (appeal grounds 4, 6, 7 and 8).

[11] In summary, the appeal is a broadly based challenge to a jurisdictional finding, a merit finding and the quantum of compensation ordered by way of remedy.

[12] An appeal under section 604 of the FW Act is an appeal by way of rehearing. The Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] There is no right to appeal and an appeal may only be made with permission of the Commission.

[13] 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.[6] 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.[7]

[14] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[8] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[15] It is convenient to deal with the grounds of appeal in the following manner:

[16] Determining whether there was a dismissal or an abandonment of employment required determination of a jurisdictional fact.

[17] The legal principles associated with abandonment of employment are well established[9]. The test is an objective one: whether the employee's conduct is such to convey to a reasonable person in the position of the employer, and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment.

[18] The Deputy President correctly identified this principle[10]. The Deputy President went on to conclude:

"[55] I cannot conclude that a reasonable person would have formed the view that the Applicant had abandoned her employment. Between 26 March and 8 April 2020, the Applicant had contacted the Respondent at least a dozen times, provided either one or two medical certificates, and taken significant steps to attempt to satisfy the Respondent's testing requirements. In that circumstance, a reasonable person would consider the lack of communication from 7:22 pm on Wednesday 8 April 2020 and 9:30 am on Wednesday 15 April 2020, as a sign that there may be basis for concern about the Applicant's welfare, not that she had abandoned her employment.

[56] While on Thursday, 9 April 2020, at 1.30pm Mr Finch had asked "Have you been to Newcastle?", and on Easter Sunday, 12 April 2020, Mr Finch had asked "Hi Norma have you been tested?", and on Tuesday, 14 April 2020, Mr Finch had asked "Hi Norma do you have any news for me at all?", those enquiries simply sought updates, and did not seek an explanation of what the Respondent perceived to be abandonment."

[19] We find no error of fact or reasoning in this conclusion. Whilst Ms Ah San had not replied to each communication from her employer or always replied in a timely manner, she had not been entirely unresponsive. Her absences were initially on account of sick leave and then, at least in part, attempts to comply with the employer's requirement that she not return to work without having had a COVID-19 test and able to produce proof of a negative test result.

[20] This was not a matter where Ms Ah San simply failed to attend work as and when required and then failed to communicate her circumstances to the employer. In this matter, as the Deputy President found, Shamrock required of its employees production of a negative COVID-19 test result before returning to the workplace. At least initially, Ms Ah San found it difficult to meet the then criteria for getting tested. Although Shamrock made constructive suggestions to Ms Ah San as to how she could go about meeting this obligation, Ms Ah San was not indifferent to the obligation.

[21] Nor did Shamrock clearly inform Ms Ah San in advance of declaring her employment terminated for reason of abandonment, that a failure to respond within a set time frame may be considered abandonment of employment and bring her employment to an end. It was open for the Deputy President to find, as he did[11], that the employer's communication to Ms Ah San was in the nature of seeking information about her welfare and then seeking updates as to her circumstances, rather than seeking an explanation for perceived abandonment.

[22] In these circumstances, it cannot be said that the Deputy President was in error in concluding that a reasonable person would not have formed the view that Ms Ah San had abandoned her employment.

[23] That being so, it follows that the Deputy President was not in error in concluding that Shamrock's letter to Ms Ah San of 15 April 2020 was a dismissal within the meaning of section 386(1)(a) of the FW Act.

[24] Ground 2 of the appeal is not made out.

[25] These grounds of appeal contend that the Deputy President made errors of fact in concluding that Ms Ah San was ready, willing and able to work.

[26] The Deputy President found that Ms Ah San was "ready, willing and able to work"[12].

[27] We do not consider that the finding was in error. The findings of the Deputy President as to the certificates of sickness that explain Ms Ah San's initial period of absence and his findings as to the employer's requirement to produce a negative COVID-19 test before returning to the workplace were a sufficient basis to have reached such a conclusion.

[28] However, we agree with the Appellant that an observation made by the Deputy President related to this finding involved error. The Deputy President observed, at Decision [62], that "I consider it at least arguable that the Respondent was obliged to pay the Applicant between 3 and 15 April 2020". This observation was made, as noted by the Deputy President, notwithstanding it not being "a question agitated by the parties". It was a procedural error for the Deputy President to incorporate into his reasons an observation in respect of which parties had not had the opportunity to make submissions. Further, it is not readily apparent how the existence or absence of an employer's obligation to pay an employee in the period prior to an alleged abandonment of employment could be relevant to whether there is a valid reason for dismissal.

[29] We are not however satisfied that this error, in the context of the relevant findings and the decision as a whole, was an error that enlivens a grant of permission to appeal or the appeal itself. As noted, the evidence, aside from this observation, was sufficient to ground the Deputy President's finding that Ms Ah San was ready, willing and able to work. The error was not fundamental to the Decision. Further, the observation was said by the Deputy President to be an "observation" and the view expressed by the Deputy President was said to be "at least arguable". It was not a definitive finding.

[30] Grounds 3, 5 and 6 of the appeal are not made out.

[31] Ground 4 asserts that the Deputy President erred in failing[13] to resolve an issue of credit where the evidence of Ms Ah San (that she sent her second medical certificate to the employer) was inconsistent with the evidence of the employer (that the second medical certificate was not received).

[32] We do not consider the approach of the Deputy President to have been in error. The Deputy President elsewhere in the Decision made specific findings as to Ms Ah San's creditworthiness[14]. It could not, on that basis, be considered open to conclude that the Deputy President, had he made a finding on this disputed matter, would have found Ms Ah San's evidence to be uncreditworthy. That being so, any finding on the matter could not have assisted the Appellant in identifying error in the Decision.

[33] Ground 4 of the appeal is rejected.

[34] Ground 1 asserts that the Deputy President's reasons exhibit an apprehension of bias. The basis of this assertion is twofold: the Deputy President's procedural error in making an observation on a matter which had not been argued before him, and the Deputy President's conclusion that Ms Ah San was creditworthy.

[35] It was open to the Deputy President to conclude, as he did, that Ms Ah San was creditworthy. It cannot be said that this conclusion exhibited an apprehension of bias.

[36] The Deputy President's error of procedural fairness was simply that, an error in making an observation on which the Deputy President had not received specific submissions. Not all such errors enliven permission to appeal or an appeal, much less are grounds for a finding of apprehended bias. There is no basis on which to conclude that the procedural error identified in this decision constituted a basis upon which it could be said that the Deputy President's decision or conduct of the hearing was infected by a reasonable apprehension of bias.

[37] Ground 1 of the appeal is rejected.

[38] The Appellant contends that the Deputy President erred in concluding that there was no valid reason for dismissal.

[39] At first instance, Shamrock relied heavily on its claim of abandonment of employment to explain the termination of Ms Ah San's employment. We have concluded that the Deputy President was not in error in concluding that Ms Ah San had not abandoned her employment. Thus, that contention could not form the basis for a valid reason for dismissal. We note that Shamrock's letter of termination, as referred to by the Deputy President at [29], referred only to that issue as the reason for termination stated by the employer.

[40] The Appellant also submits that the Deputy President erred in not finding a valid reason for dismissal on the ground that Ms Ah San had been derelict in adequately maintaining her motor vehicle and renewing her driver's license, both of which she required to perform her duties.

[41] The Deputy President addressed this issue and concluded that Ms Ah San took some weeks to attend to these issues due to financial stress. Whilst the Deputy President, wrongly in our view, apportioned some responsibility on the part of Shamrock for this financial stress, the finding of financial stress was open on the evidence, whatever its cause.

[42] Given the paucity of evidence at first instance as to the circumstances in which Ms Ah San's motor vehicle was being maintained and her driver's licence imminently to expire, it was open to the Deputy President to conclude that there was no valid reason for dismissal on this ground, to the extent it was relied upon.

[43] Ground 7 of the appeal is not made out.

[44] The Deputy President arrived at a compensation sum equivalent to four month's pay by concluding that Ms Ah San would have been likely to have worked for a further year. The Deputy President then discounted the value of a year's pay by a considerable amount of eight months on account of Ms Ah San's length of service and projected future earnings.

[45] The Appellant contends that these conclusions involved significant errors or fact and misapplication of principle.

[46] We do not agree.

[47] Whilst the length of the estimated period of future service assessed by the Deputy President was significant, so were the deductions made. It is well established that these assessments involve discretionary considerations. Further, an assessment of future earnings is a projection, not a finding of fact. It cannot constitute an error of fact.

[48] Nor do we consider the overall approach to the sum of compensation ordered to have been an error of principle or an error in the application of relevant principles. The Deputy President invoked the relevant considerations, and in an orthodox manner made the requisite evaluative assessments.

[49] Ground 8 of the appeal is rejected.

[50] Neither the Decision of the Deputy President nor the proceedings conducted disclose appealable error or raise principles of general application. That being so, permission to appeal is refused.

[51] The order of the Commission is:

• Permission to appeal is refused.

[1] [2020] FWC 5364 (the Decision)

[2] PR724721

[3] PR725407

[5] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne J

[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

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

[9] For example, Re Manufacturing and Associated Industries and Occupations Award 2010 [2018] FWCFB 139 at [21], [24]

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