Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2022] FWC 277 of Deputy President Andersonat Adelaide on 4 March 2022 in matter number U2021/9412 - permission to appeal refused.

[1] Ms Tiffany Stodart (the Appellant) has applied for permission to appeal, and has appealed, against a decision[1] made by Deputy President Anderson on 4 March 2022 (the Decision) in which the Deputy President found the Appellant's dismissal on 30 September 2021 was not harsh, unjust or unreasonable and dismissed her application for an unfair dismissal remedy.

[2] The circumstances which led to the Appellant's dismissal may be summarised as follows. The Appellant was a part-time employee with the Respondent who commenced in October 2017 and performed duties as both customer service supervisor at the front end and retail employee in the variety department. In mid-2021, the Appellant raised with management the discomfort she felt in working with a co-worker whom she had discovered had a prior conviction for an historic sex offence with an underage person. Management considered this state of affairs and obtained legal advice, which was to the effect that there being no specific allegations made by the Appellant or any other worker at that time, there were no grounds for action to be taken simply because the co-worker had a past conviction. The Appellant was advised not to discuss the matter with the co-worker concerned or any other employees. The Respondent also confirmed its internal avenues for the raising of concerns.

[3] The Appellant considered the response of the Respondent to be inadequate and feeling let down, sought arrangements that did not require her to work with the co-worker concerned. Subsequent meetings with management to discuss her rostering arrangements did not go well. The Appellant was unhappy with arrangements the Respondent proposed and the Respondent did not consider the reactions of the Appellant were appropriate. While the Appellant subsequently apologised for some of her behaviour during this discourse, a disciplinary meeting followed and the Appellant was issued with a first and final written warning dated 30 August 2021. The Appellant was informed that any further, similar behaviour would result in the termination of her employment. On 27 September 2021, another incident occurred in the workplace. It gave rise to a further disciplinary meeting. After considering the Appellant's response to allegations that she had behaved in a disrespectful manner towards several colleagues and her manager, the Respondent decided to terminate the Appellant's employment in writing on 30 September 2021, with immediate effect and payment in lieu of notice.

[4] Amended Directions made on 21 April 2022 required the Appellant to lodge submissions with the Commission addressing the requirement for permission to appeal. In particular, the Directions required the Appellant to address why she says it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the Decision.

[5] The appeal was listed for a hearing on 10 May 2022 concerning the issue of permission to appeal. The Appellant and the Respondent sought permission to be legally represented. The Full Bench granted the parties' applications for permission to be represented in the hearing pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act).

[6] In the Decision, the Deputy President made a number of observations regarding the evidence presented and outlined his conclusions regarding issues it raised,[2] before setting out in detail his factual findings[3] and summarising, in broad terms, the submissions of the parties.[4] Having satisfied himself in relation to the issues of jurisdiction, the Deputy President then dealt with each of the matters he was required to consider under s.387 of the Act.

[7] In relation to s.387(a) the Deputy President dealt with various allegations of misconduct levelled against the Appellant, which comprised:

• Describing a co-worker as a paedophile who was grooming female staff members;[5]

• Not accepting the Respondent's decision concerning the co-worker;[6]

• Telling a senior manager that she was "not very good at her job";[7]

• Telling her supervisor that she was a "shit front-end manager who does nothing";[8]

• Describing work in the on-line department as able to be performed by "monkeys" and describing persons she worked with as "monkeys";[9]

• Describing the human resources manager as a "fucking bitch";[10]

• Engaging in a disruptive outburst towards her line manager in the presence of customers on 27 September 2021;[11]

• Being rude or uncooperative in exchanges with other named employees;[12] and

• Breaching duties under the Respondent's Discrimination, Harassment, Bullying or Intimidation Policy.[13]

[8] The Deputy President found that the Appellant was entitled to disagree with the manner in which the Respondent handled the issues raised and did not find that the Appellant had described the human resources manager as a "fucking bitch". However, the Deputy President also considered the Appellant's contractual obligations included the duty to act professionally, courteously and respectfully and was satisfied there were separate instances of misconduct over a two-month period whereby the Appellant acted in breach of those duties. Further, the Deputy President was satisfied that when the separate instances of misconduct were considered collectively there was a valid reason for the dismissal and that they established a pattern of behaviour in which the Appellant failed to show respect and courtesy to fellow employees and her managers. The Deputy President concluded that objectively considered, there was a sound, defensible and well-founded reason for the Appellant's dismissal.

[9] In relation to ss.387(b) and (c), the Deputy President was satisfied the Appellant was in broad terms notified of the valid reason for dismissal and given an opportunity to respond. The Deputy President's findings in relation to ss.387 (d), (f) and (g) were that they were neutral considerations and in dealing with s.387(e), he was satisfied the Appellant was given a warning and concluded this weighed against a finding of unfair dismissal.

[10] In relation to s.387(h), the Deputy President acknowledged the Appellant had submitted that even if there was a valid reason, the dismissal was harsh, based on the following grounds:

• The Appellant was acting in good faith and felt isolated and physically and mentally unwell by the Respondent's response;

• The Appellant had apologised for some of the misconduct;

• The dismissal was a disproportionate response, especially in regard to the conduct that triggered dismissal, in that the conduct of the 27 September 2021 was trivial, her conduct overall did not warrant dismissal and the misconduct was not serious misconduct.

[11] As to the first of these grounds, the Deputy President considered that having legitimately raised concerns it was incumbent on the Appellant to maintain her professional obligations in the workplace even in the face of disagreement with the Respondent's response. The Deputy President found that because continuing stress when at work in the face of disagreement with that response ought to have been reasonably foreseeable to her, the dismissal was not harsh.

[12] In relation to the second ground, the Deputy President considered that an apology made after an act of misconduct but then followed by a subsequent act of misconduct of a similar type was indicative of a pattern of behaviour whereby the Appellant allowed her frustrations to override her obligation to act in a professional, courteous and respectful manner and this diminished the weight to be attached to her apologies. The Deputy President concluded having regard to the pattern of disrespectful conduct, that the fact apologies were made did not materially mitigate the breaches of duty so as to render the dismissal harsh.

[13] As to the third ground, the response of the Deputy President was:

1. The conduct on 27 September 2021 was misconduct and not trivial and as such, a valid reason for dismissal existed by reference to a pattern of misconduct, not just that sole incident;

2. The Appellant's conduct comprised acts of disrespect and insubordination at both the serious and moderate ends of the spectrum. Further, it had become unsettling, intimidating and destructive of trust and confidence and warranted dismissal; and

3. The Commission's task is not to find whether there was serious misconduct but whether there was a valid reason for dismissal and he observed that the Appellant had been dismissed with notice and it had not been asserted in the termination letter that the dismissal was serious misconduct.

[14] The Deputy President's conclusion was that neither the characterisation of the dismissal by the employer nor its terms rendered the dismissal harsh.

[15] The Deputy President then summarised his conclusions,[14] confirming his findings that there was a valid reason for dismissal based upon a pattern of behaviour that included rudeness and insubordination at both the serious and moderate ends of the spectrum, that the dismissal was not procedurally unfair and that the mitigating factors raised by the Appellant did not render the dismissal harsh.

[16] We turn then to the grounds of appeal in the Form F7. Noting that they were not particularly helpfully outlined, the Form F7 appeared to disclose, in essence, three grounds of appeal:

1. The Decision involved a significant errors of fact;

2. The Deputy President failed to take material considerations into account; and

3. The Decision involved an error of law.

[17] As to the asserted significant errors of fact, the Appellant's contention is that the Deputy President erred in finding there was a valid reason for the dismissal. In particular, the Appellant contends:

1. It was not open to the Deputy President to find that the tone of the Appellant's behaviour on 27 September 2021 was aggressive when the "height of the Respondents evidence was that she waved her hands aggressively and spoke loudly". Similarly, it was asserted the finding that the tone of the Appellant was threatening was not open on the evidence;

2. The finding that the conduct of the Appellant on 27 September 2021 was at the moderate end of the scale was not open to the Deputy President when one considers the only evidence was from Ms Campbell, who said that the Appellant was unhappy and disgruntled, did not send the Appellant home and allowed the Appellant to work out the shift and gave evidence that she would work with the Appellant again; and

3. The Deputy President found the termination was not a summary termination despite the Respondent accepting that it was and the "overwhelming" evidence confirming this.

[18] Dealing next with the complaint that the Deputy President failed to take a material consideration into account, we discern from the notice of appeal that this is advanced on the basis that in contravention of the relevant Modern Award, the Appellant was "often" unable to take a lunch break or any break and yet the Deputy President did not take this into account when considering mitigating factors associated with the incident on 27 September 2021.

[19] Finally, the Appellant asserts the Deputy President erred because, having found there was no valid reason for dismissal based on the incident on 27 September 2021, it was not open to him to have regard to previous conduct of the Appellant to determine whether the dismissal was warranted. The Appellant submits that a valid reason must arise (in this case in relation to the behaviour on 27 September 2021) in order for the Commission to consider whether past conduct can be taken into account.

[20] The public interest grounds for the grant of permission to appeal asserted by the Appellant were set out in a document it described as "Attachment 1 - Form of submissions". The public interest grounds were not well articulated, but appear to be:

1. It is in the public interest for the Commission to not only acknowledge a breach of a Modern Award but also consider whether it is a mitigating factor when determining whether a dismissal was unfair;

2. There was a failure by the Deputy President to apply the correct test "associated with the Commissions role in Unfair Dismissal matters."

[21] The balance of what was recorded by the Appellant as constituting public interest grounds was in the nature of further assertions of errors of fact.

[22] In considering the merits of the appeal, it is relevant to observe that an appeal under s.604 of the Fair Work Act 2009 (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.[15] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[23] This appeal is one to which s.400 of the 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.

[24] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[16] A Full Bench of the Commission, 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."[17]

[25] 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.[18] 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.[19]

[26] 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.[20] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[27] For reasons that follow, we are not satisfied that it is in the public interest to grant permission to appeal in this case.

[28] Firstly, the Decision dealt with the Appellant's unfair dismissal application in a methodical and appropriate manner. The Deputy President outlined that background facts in detail and then considered each of the criteria in s.387 of the Act. In particular, the Deputy President considered the various matters the parties raised in respect of s.387(a) and s.387(h) in clear and discreet terms before reaching his conclusions.

[29] Secondly, the Deputy President applied orthodox legal principle in determining the unfair dismissal application. We reject the submission of the Appellant that her past conduct could have only been taken into account if there had been a finding that the conduct on 27 September 2021 of itself amounted to a valid reason for her dismissal. In fulfilling the requirement under s.387(a), the Deputy President was not limited to the conduct on 27 September 2021. It was open to the Deputy President to consider the Appellant's conduct more broadly and his finding that the dismissal was rationally based on a pattern of misconduct was not erroneous. The evidence before the Deputy President supported this conclusion.

[30] In addition, we reject the submission which was to the effect an alleged failure to adhere to the criteria in s.387 of itself enlivens the public interest.

[31] We also consider the Appellant's submission on appeal that it is in the public interest that the Commission acknowledge a breach of a Modern Award and then consider it as a mitigating factor when determining whether the dismissal was unfair is, in this case, a submission lacking merit, having regard to the following matters:

1. The submission that the alleged failure to previously grant the Appellant breaks mitigated her behaviour on 27 September 2021 was nuanced at best;

2. In any event, the Appellant made no such submission before the Deputy President; and

3. There was no evidence from the Appellant that she was frustrated on 27 September 2021 due to not having previously had breaks.

[32] Finally, whilst the Form F7 and submissions assert numerous errors of fact, we are not persuaded the Appellant has established significant errors of fact as required by s.400(2) of the Act. The Appellant might disagree with particular findings of the Deputy President, but this does not establish those findings were erroneous. For example, while the Appellant submits it was not open to the Deputy President to find that the tone of the Appellant's behaviour on 27 September 2021 was aggressive and threatening, we consider it was open to the Deputy President to do so, having regard to the totality of the evidence outlined at paragraph [170] of the Decision. Similarly, a close reading of paragraph [170] reveals the evidence of Ms Campbell went well beyond simply stating the Appellant was "unhappy and disgruntled", as was asserted by the Appellant. Further, we find no error in the Deputy President's findings that the Appellant was neither summarily dismissed nor dismissed for serious misconduct and in any event, it was for the Deputy President himself to consider whether there was a valid reason for the dismissal related to the Appellant's conduct, not simply consider the reason the Respondent had given.

[33] Ultimately, this is not a matter that raises any issues of general importance or application. It turns on its own facts and circumstances. There is no relevant diversity of decisions at first instance such that appellate guidance would either be necessary or appropriate. No injustice or counter intuitive result is manifest. The Deputy President's findings and conclusion were open to him.

[34] An appeal exists for the correction of error. While the Appellant is aggrieved by the Decision, she seeks to both prosecute an argument that was not raised at first instance and re-argue through this appeal matters which were appropriately considered and weighed by the Deputy President in search of a different result. As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s.400(1) of the Act.

[1] [2022] FWC 277.

[15] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[16] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[17] [2010] FWAFB 5343, 197 IR 266 at [24]- [27]

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

[19] 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]

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

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