Fair Work Act 2009

s.604 - Appeal of decision

Woolworths Limited Pty Ltd T/A Woolworths Limited

Appeal against decision [ [2017] FWC 2947] of Commissioner Lee at Melbourne on 2 June 2017 in matter number AB2016/684.

[1] On 2 June 2017, Commissioner Lee issued a Decision,[1] which dismissed the application lodged by Ms Lin ("the Appellant") under section 789FC of the Fair Work Act 2009 (Cth) ("the Act") for an order to stop bullying. The Commissioner also issued an Order[2] giving effect to this Decision on 2 June 2017.

[2] On 16 June 2017, the Appellant lodged a Notice of Appeal, appealing the Decision and Order of Commissioner Lee. On 26 June 2017, the Respondent sent correspondence to the Commission requesting that the appeal hearing be adjourned in order to have a concurrent unfair dismissal application made by the Appellant heard. Correspondence was sent from the Commission in reply also on 26 June 2017, noting that the appeal would go ahead as scheduled.

[3] On 4 July 2017, the Commission sent correspondence to the Appellant enquiring whether she intended to file and serve submissions, to which no reply was received. Noting the Appellant had not filed submissions, the appeal book filed was only two pages in length and did not contain required material, correspondence was sent to the Appellant on 18 July 2017 enquiring whether she intended to pursue her appeal. In two separate emails on 20 July 2017, the Appellant requested that the appeal hearing be rescheduled. In reply to each of these emails, correspondence was sent from the Commission on 20 July 2017 and 21 July 2017 respectively, informing the Appellant that the appeal hearing would not be rescheduled (noting that the previous request for an adjournment by the Respondent was refused on 26 June 2017) and requesting that the Appellant inform the Commission whether she intended to pursue her appeal. The Appellant did not reply to the correspondence sent from the Commission dated 21 July 2017 and subsequently failed to attend the hearing.

[4] We heard the appeal on 24 July 2017 and reserved our Decision. At the hearing, Ms K. Bowell, Employment Relations Case Specialist, appeared for the Woolworths Limited ("the Respondent") and there was no appearance made by the Appellant. As Ms Bowell was an employee of the Respondent, there was no requirement to grant permission for legal representation pursuant to section 596 of the Act.

[5] The Commissioner held that the grounds advanced by the Appellant did not have any bearing upon whether there was power for the Commission to make an order to stop bullying. The Commissioner noted that the Appellant was no longer employed by the Respondent. Thus, the Commissioner held that there did not appear to be any foreseeable basis which might lead to the Appellant being in the workplace and, as such, there could not be a risk that the Appellant would continue to be bullied at work by the individual or group named in the application.

[6] The Commissioner noted that the relevant authorities outlined in his Decision made clear that, in the context of finding there is no foreseeable future risk that an employee will continue to be bullied at work within the meaning of section 789FF of the Act, a discretion arises to dismiss an application on the basis that it has no reasonable prospects of success.

[7] For these reasons, the Commissioner was satisfied there was no basis to make an order to stop bullying and that the application had no reasonable prospects of success. Thus, the Commissioner exercised his discretion pursuant to section 587(1)(c) of the Act to dismiss the application on this basis.

[8] At the heart of the appeal is whether the Commissioner correctly applied and construed sections 789FC and 789FF of the Act in dismissing the application for an order to stop bullying.

[9] The Appellant did not lodge any formal written submissions. Nevertheless, we summarise her grounds of appeal outlined in her Notice of Appeal as follows.

[10] The Appellant contended that her mental illness is sourced from the 30 December 2015 "Prahram incident". Further, that the Appellant's mental illness was "worsened" in the Glen Huntly store and that this mental illness was caused by her employment with the Respondent only. The Appellant asserted that her resignation document and a Release Agreement tendered in the hearing before the Commissioner, was signed when she was suffering from a mental illness and on medical leave, and, therefore, neither her signature nor her resignation is effective.

[11] In relation to the Appellant's grounds of appeal that would enliven the public interest, the Appellant submitted that she is "a nice, healthy and hard-working girl ... but now, she is intentionally persecuted". The Appellant contended her "future is ruined" and, therefore, deserves a fair and just decision from the Commission.

[12] The Appellant annexed six additional handwritten pages to her Notice of Appeal. Those six pages detail a chronology of events, alleging bullying by the Respondent and other issues in relation to her mental illness. We have read and considered this material; however, we will not recite it for the purposes of this Decision.

[13] The Appellant also lodged an appeal book that was handwritten and two pages in length. In this material, the Appellant again submitted that her mental illness is sourced from the 30 December 2015 "Prahram incident"; that the Appellant's mental illness "worsened" in the Glen Huntly store; and that this mental illness was caused by her employment with the Respondent only. As outlined in her Notice of Appeal, the Appellant submitted she was forced to resign when she was suffering from a mental illness and, therefore, contended that the Respondent was not allowed to terminate her employment by law. The Appellant also sought to be reinstated by the Respondent in lodging her appeal. In this regard, we note that the Appellant has concurrently commenced unfair dismissal proceedings.

[14] The Respondent noted that, in reading the Appellant's Notice of Appeal, it does seem to appear that an appeal ground is based on the resignation by the Appellant on 13 December 2016 (evidenced by the Release Agreement). In this regard, the Respondent contended that the Commissioner considered the Release Agreement, accepted it into evidence and stated that it clearly evidenced that the Appellant no longer worked with the Respondent. The Respondent submitted that the Commissioner correctly pointed out at [14] that it was not a matter for him to consider the merits of how or why the employment ended under a section 789FC application, and that it had no bearing on the application before him. The Respondent submitted that other matters concerning events leading up to the ending of the Appellant's employment and referred to in the Notice of Appeal are irrelevant and of no bearing to her application at first instance or in this appeal.

[15] The Respondent submitted that the Commissioner's Decision followed established principles in dealing with an application under section 789FC, where the employee is no longer employed by the employer.

[16] The Commission will grant permission to appeal if it is in the public interest to do so or the circumstances otherwise warrant permission being granted.[3] The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.[4] In GlaxoSmithKline Australia Pty Ltd v Colin Makin,[5] the Full Bench summarised the test for determining the public interest as follows:

"[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 by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O'Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]

[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."

[17] A further ground for granting permission to appeal is that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.[6]

[18] In determining whether permission to appeal should be granted we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.

[19] We now turn to consider whether permission to appeal should be granted.

[20] We note that an order to stop bullying may only be issued if there is a future risk that an employee will continue to be bullied at the workplace pursuant to section 789FF(b)(ii) of the Act. In Atkinson v Killarney Properties[7] (hereafter "Atkinson"), the Full Bench held at [32]-[33] that:

"We are not persuaded the decisions in Shaw and Obatoki are plainly wrong.

Both Shaw and Obatoki concerned the FWC dismissing a s.789FC application under s.587(1)(c) of the FW Act. In each case, the FWC formed the view that the s.789FC application had no reasonable prospects of success as the applicant was no longer 'at work' and, therefore, a pre-requisite for the making of a s.789FF order did not exist."

[21] Nevertheless, it was also noted in Atkinson that it will not always be appropriate to exercise the discretion afforded by section 587(1)(c) to dismiss an application in these circumstances.

[22] In the matter before us, it is clear that the Appellant's employment ceased on 13 December 2016 (as evidenced by the Release Agreement) and, thus, there can be no ongoing risk of bullying to the Appellant from the Respondent or its employees as outlined in Atkinson. The Commissioner had regard to the evidence before him and applied the relevant principles. Moreover, in exercising his discretion pursuant to section 587(1)(c) of the Act, the Commissioner adopted an orthodox approach and we are not satisfied that he erred in this regard. Therefore, we are not satisfied that the Commissioner erred in dismissing the application for an order to stop bullying.

[23] We are also not satisfied that there is an arguable case of error in relation to any other ground of appeal asserted by the Appellant. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

• (a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

• (b) The appeal raises issues of importance and/or general application;

• (c) The Decision at first instance manifests an injustice, or the result is counter intuitive; or

• (d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[24] Accordingly, for the above reasons, we are not satisfied that it would be in the public interest to grant permission to appeal, nor is permission to appeal warranted on any other basis.

[25] Permission to appeal is refused.

[1] [2017] FWC 2947.

[2] PR593425.

[3] Fair Work Act 2009 (Cth) s 604(2).

[4] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [6].

[5] [2010] FWAFB 5343, [27].

[6] Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [7].

[7] [2015] FWCFB 6503.

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