| [2012] FWAFB 3540 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 —Appeal of decisions
VICE PRESIDENT WATSON |
SYDNEY, 27 APRIL 2012 |
Appeal against decision [[2011] FWA 7340] of Commissioner Cribb at Melbourne on 7 December 2011 in matter number U2010/12331- permission to appeal - significant error of fact - public interest test - Fair Work Act ss.387,394, 400, 604.
Introduction
[1] This decision concerns an application for permission to appeal by Ms Mariam Dafallah against a decision 1 of Commissioner Cribb on 7 December 2011, relating to her application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The Commissioner found that Ms Dafallah’s dismissal by Melbourne Health was not harsh, unjust or unreasonable and the application was dismissed.
[2] At the hearing of this matter on 3 April 2012, Mr M Willoughby-Thomas, solicitor, appeared on behalf of Ms Dafallah and Mr R Millar of counsel appeared on behalf of Melbourne Health.
Background
[3] Ms Dafallah was employed as a full time clinical assistant by Melbourne Health from 15 May 2000. In 2005 she was transferred to the Royal Melbourne Hospital and was rostered to work across five wards from Tuesday to Sunday.
[4] As a clinical assistant, Ms Dafallah was required to assist nursing staff and ward clerks with tasks of a non clinical nature. Her tasks included transporting patients, assisting with patient hygiene, making beds, restocking supplies, and delivering and collecting bloods and specimens. Ms Dafallah was on call for all nursing staff and ward clerks on her rostered wards and was required to be available to assist when called. Requested tasks were either communicated to her in person or via a pager.
[5] Ms Dafallah was dismissed by Melbourne Health for alleged poor performance on 1 September 2010. The dismissal was based on several performance issues spanning from 2005 to 2010. In particular in 2009 and 2010 Melbourne Health considered that Ms Dafallah was not performing to a satisfactory level and issued formal warnings to her. After being issued with a third warning Melbourne Health considered that Ms Dafallah was still failing to perform her duties satisfactorily and dismissed her on the grounds of ongoing unsatisfactory performance.
[6] Ms Dafallah and Melbourne Health both submitted lengthy explanations in regards to the circumstances giving rise to and surrounding the performance issues and we do not intend to go through these submissions in detail. In summary the performance issues relate to allegations in the form of complaints, reported to Melbourne Health by nursing staff, that Ms Dafallah failed to communicate her whereabouts to nursing staff, failed to respond to pages promptly, feel asleep while on duty, failed to undertake urgent tasks promptly and would arrive late for work.
[7] Ms Dafallah disputed these performance allegations and for the purposes of her unfair dismissal application, submitted a detailed statement to justify her performance. In her original statement, 2 dated 4 November 2010, she justified her conduct by relying on the demanding nature of her role as a clinical assistant and faults with her pager, which she contends resulted in miscommunication between her and nursing staff.
[8] In particular Ms Dafallah outlined that unlike other staff, she was rostered to work short shifts on the weekends. Nursing staff would not realise these shorter hours and would therefore assume she was arriving late or would page her after she had handed over the pager to the incoming clinical assistant at the end of her shift. This resulted in nurses making complaints to Melbourne Health about her attendance and non response to pager requests.
[9] Further, Ms Dafallah submitted that the performance issues that gave rise to her termination were a result of the difficulties that a clinical assistant faces from being on call from any nurse or ward clerk requiring assistance with no central point of coordination provided by Melbourne Health to manage the whereabouts of the clinical assistants. As a result, there is no one nurse or ward clerk who knows what a clinical assistant may be doing at a particular time which may result in the assistant being called by more than one person simultaneously. Ms Dafallah submitted that nursing staff would not realise this predicament and would make complaints that she was not answering pages or not responding promptly. Upon being terminated, Ms Dafallah submitted that, taking into account her circumstances as a clinical assistant in Melbourne Health’s workplace, the dismissal was unfair in all the circumstances.
[10] Melbourne Health submitted that Ms Dafallah’s dismissal was not harsh, unjust or unreasonable within the meaning of s.387 of the Act. Melbourne Health submitted affirmative answers to the factors in s.387 of the Act that Fair Work Australia must take into account to determine if a dismissal is harsh, unjust or unreasonable. In particular, Melbourne Health submitted that Ms Dafallah’s poor performance over a lengthy period of time was a valid reason for the termination of her employment.
[11] Melbourne Health further submitted that there had been numerous issues with Ms Dafallah’s performance since she transferred to the Royal Melbourne Hospital in 2005. Melbourne Health submits that Ms Dafallah was given warnings about her performance prior to 2009 for the issues of not answering pages and not communicating with nursing staff. However, it was after July 2009 that a formal performance management process was entered into. Melbourne Health stated that the problems with Ms Dafallah’s performance did not cease despite written warnings being issued and ample opportunity given to improve. As such, Melbourne Health made the decision to terminate her employment.
The Decision under Appeal
[12] The application before the Commissioner was heard on 7 and 8 December 2010, 8 February 2011 and 4 March 2011. Further written submissions were filed on 16 and 21 March 2011. The Commissioner’s decision was handed down on 7 December 2011. The decision is lengthy and detailed.
[13] The Commissioner’s conclusion and findings are expressed by reference to the factors in s.387 of the Act that Fair Work Australia must take into account to determine if a dismissal is harsh, unjust or unreasonable.
[14] The Commissioner found that there was a valid reason for the dismissal related to unsatisfactory work performance. Her conclusions are summarised in the following passage of her decision:
“[174] On the basis of the findings set out paragraphs 144 to 173 above, I find that there was a valid reason for Ms Dafallah’s dismissal related to unsatisfactory work performance. This included being asleep during her shift; and, on a number of occasions, not responding to pages; being unaccountably absent from the ward and not informing the nurse in charge of her whereabouts.
[175] The work performed by clinical assistants is critical to the smooth running of a ward. Given the importance of the role, it is not acceptable for a clinical assistant not to answer pages, to be unaccountably absent from the ward and to not communicate with the nurse in charge. It is of paramount importance that the clinical assistant’s whereabouts are known to the nurse in charge at all times and that they respond to pages. Between July 2009 and July 2010, Ms Dafallah was formally warned three times about not responding to pages and not communicating with the nurse in charge. Despite being on a final warning Ms Dafallah’s work performance appears not to have changed with the result that there were further allegations. These were with respect to not answering pages and not informing the nurse in charge of her whereabouts and what she was doing on 10 July 2010. Accordingly, I find that there was a valid reason for Ms Dafallah’s dismissal.”
[15] The Commissioner found at paragraph [176] that Ms Dafallah had been notified of the reasons for her dismissal by virtue of a notice on 25 August 2010 and a final letter of termination dated 1 September 2010 which set out the reasons for dismissal.
[16] Ms Dafallah contended that she was not given a meaningful opportunity to respond to the allegations. 3 At paragraph [181] the Commissioner found that Ms Dafallah was provided with the opportunity to respond and at paragraphs [177] to [180], made findings that for each of the incidents that were the subject of written warnings, a meeting was held and a letter setting out the allegations was subsequently provided to Ms Dafallah. The Commissioner did recognise at paragraph [183] that the process followed by Melbourne Health contained some procedural flaws, but said that such mistakes where not fatal and did not outweigh the finding of a valid reason for dismissal.
[17] The Commissioner was satisfied that Ms Dafallah was able to have a support person present with her at the meetings regarding her performance.
[18] The Commissioner made the following findings in relation to previous warnings:
“[191] As set out above, Ms Dafallah received a first and second written warning on 10 August in relation to unsatisfactory performance (asleep whilst on shift, not communicating with nursing staff, not answering her pages) on 4 July 2009 and 25 July 2009. A final written warning was issued on 26 October 2009 for the incidents on 13 and 17 September 2009 of not communicating with the nurse in charge, not responding to her pager and unprofessional conduct. Following the events of 22 July 2010 and the meeting to discuss her unsatisfactory performance on 12 August 2010, a letter was sent to Ms Dafallah dated 25 August 2010 advising her that a recommendation was being made to terminate her employment.”
[19] The Commissioner stated at paragraph [192] that Melbourne Health was a large employer with dedicated human resource personnel involved in the disciplinary process of Ms Dafallah. The Commissioner noted other factors relied on by the parties, including the length of service and previous counselling and warnings.
[20] The Commissioner’s ultimate conclusion is expressed as follows:
“[195] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on balance, that the termination of Ms Dafallah’s employment was not harsh, unjust or unreasonable. On the one hand, there was a valid reason for Ms Dafallah’s dismissal. On the other hand, the procedural aspects with respect to the written warnings were deficient as set out above. However, in balancing all of the factors set out in s.387, Ms Dafallah’s continued unsatisfactory performance outweighs the procedural deficiencies.”
Permission to Appeal
[21] An appeal under s.604 of the Act in a matter of this nature is determined by reference to the provisions of s.400 of the Act. Section 400 provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA 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.”
[22] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 4 (GlaxoSmithKline) considered the impact of s.400(1) on the approach to granting permission to appeal. It said:
“[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. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (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.”
This case has frequently been quoted by the Full Bench as an indication as to how s.400 should be applied. 5
[23] In a recent decision of a Full Court of the Federal Court of Australia, the requirements of s.400 were described as importing a more stringent test than the previous legislation. 6 Justice Buchanan described the public interest test as a discretionary task involving a broad value judgement.7
[24] The decision subject to appeal in this matter is properly viewed as a discretionary decision. 8 The appeal is therefore to be considered in accordance with the principles of House v R.9 Those principles are expressed in that decision as follows [at 504-505]:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[25] Section 400(2) modifies the House v R principles by limiting any review based on a mistake of fact to a significant error of fact. Section 400 clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters under the Act.
Grounds of Appeal
[26] In her notice of appeal, Ms Dafallah submitted 76 grounds of appeal. Written submissions were filed in advance of the hearing and were expanded upon in written submissions tendered at the hearing of the appeal. In essence the grounds of appeal concern the following alleged errors of the Commissioner:
Denial of Natural Justice and Delay
Errors regarding specific findings of fact and a lack of objectivity
Errors of Law
[27] In summary it was submitted for Ms Dafallah that many of the alleged flaws in the Commissioner’s decision raise questions of law rather than questions of fact. To the extent that they involve errors of fact, they were significant errors going to the heart of the matters which Fair Work Australia is required to consider under s.387.
[28] Further details of the arguments advanced on behalf of Ms Dafallah are contained in the 592 paragraphs of the written submissions filed in the appeal proceedings. It was submitted that the alleged errors separately or in combination satisfy the public interest test for permission to appeal.
Melbourne Health’s submissions
[29] Melbourne Health submitted that the application for permission to appeal does not meet the legislative requirement of s.400 of the Act.
[30] Melbourne Health submitted that the appeal fails to attract the public interest necessary for a Full Bench to grant an appeal pursuant to s.400(1). Melbourne Health therefore contended that the appeal can be determined without having to examine the grounds of appeal articulated in Ms Dafallah’s notice of appeal and should be dismissed for failing to meet the requirements of s.400 of the Act.
[31] Further, it submitted that the notice of appeal and submissions do not identify any significant error of fact in the Commissioner’s decision, as required by s.400(2), which would result in the decision being set aside. Rather the grounds of appeal constitute an expression of overall dissatisfaction with the decision andin particular aspects of it. It was submitted that the matters raised did not provide any basis for a finding that is in the public interest to grant permission to appeal.
[32] Despite the above contention, Melbourne Health also submitted responses to Ms Dafallah’s grounds of appeal both in its written submissions and orally at the hearing.
[33] Melbourne health submitted that the length of time taken for the Commissioner to produce her decision did not constitute an injustice and contended that the lengthy period of time that the Commissioner took to write the decision is evidence of a decision produced with much thought and consideration.
Delay
[34] In Fox v Australian Industrial Relations Commission 11 the Federal Court of Australia considered the impact of delay between the hearing of an unfair dismissal matter and the handing down of a decision. It applied the approach of the High Court in NAIS v Minister for Immigration and Multicultural Affairs.12 In that case Gleeson CJ said (at [10]):
“[10] In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.”
[35] In that case Kirby J said (at 59-60):
“[59] Not every decision-maker, in a court or tribunal, can be as swift as Sir William Page Wood VC or as accurate as Sir George Jessel MR or as scintillating as Hamilton J (later Lord Sumner) in the delivery of ex tempore reasons at the conclusion of the hearing. The habits of those judges (to whom I could add some Australian decision-makers of like capacity) are described by Heydon JA in Hadid v Redpath. Nor is the immediate delivery of decisions always possible or even desirable. However, where (as here) the delay is extensive, it invites vigilance on the part of a court with responsibilities for an appellate decision or judicial review.
[60] Whilst different considerations apply to delay in a court subject to appeal and in a tribunal subject only to judicial review, there are, unsurprisingly, common principles. Ultimately, in either case, if the court, on appeal or review, concludes that the delayed decision is unsafe or involves material unfairness or injustice to the losing party, an affront to the common hypothesis of decision-making is established. That affront cannot be allowed to stand. Appropriate relief will then be granted, as it must be in this case.” (References omitted)
[36] The circumstances and extent of delay need to be considered in each case against these considerations. In our view, the delay in this case between the hearings and the handing down of the decision was longer than could reasonably be expected. We have therefore considered the detail of the decision, the evidence in the matter and the extensive criticisms of the Commissioner’s findings made in the notice of appeal and submissions.
[37] As noted above the decision is long and detailed. It makes numerous references to the evidence in the matter. The decision discloses an exhaustive process of analysis of that evidence with extensive reference to the transcript of proceedings. In some cases, such as a review of the evidence regarding the incidents that led to warnings, we doubt that an analysis to such an extent was necessary. In other respects the evidence was considered, findings were made and the statutory test was applied. The matter has some complexity. The submissions on the tests to be applied and the evidence were detailed and extensive. They contained very strong criticisms of the employer’s processes and decisions.
[38] The Commissioner’s decision demonstrates a full and balanced consideration of the matters raised. Findings that are not consistent with Ms Dafallah’s submissions have not been shown to be obviously incorrect. After reviewing those materials we have concluded that the delay did not make the decision unsafe or amount to material unfairness. In all of the circumstances we find that the delay in delivering the decision does not in itself constitute grounds for allowing the appeal.
Public Interest
[39] Counsel for Ms Dafallah contended that the following matters demonstrate that it is in the public interest to grant permission to appeal:
● The matter raises issues of importance and general application regarding proper principles to be applied in unfair dismissal cases.
● The matter raises issues of importance and general application regarding the obligations imposed by s.577 of the Act.
● The Commissioner’s decision manifests an injustice.
● The result of the Commissioner’s decision is counterintuitive.
● Legal principles were ignored or applied in a manner disharmonious with Tribunal decisions dealing with similar matters.
[40] Counsel for Melbourne Health submitted that the decision of the Commissioner bears none of the features listed in GlaxoSmithKline as attracting the public interest. Mr Millar submitted that the case merely concerns the direct parties and turns largely on findings of fact which are of relevance only to this case. Mr Millar submitted that none of the findings have been shown to involve significant errors of fact.
[41] There is no doubt in our view that the decision and the grounds of appeal almost entirely relate to disputed factual issues. Ms Dafallah was dismissed from her employment on the grounds of unsatisfactory work performance which did not improve despite counselling and warnings. As we have already observed the analysis conducted by the Commissioner was exhaustive and detailed. It appears to traverse the circumstances of earlier warnings which we doubt was relevant to the task.
[42] In matters such as this, the performance problems over the recent period of employment are relevant considerations although the decision may be taken when a “final straw” demonstrates that performance has not improved despite warnings and an opportunity to improve. On our review of the evidence there can be no doubt that this was the situation. Many incidents over the course of Ms Daffallah’s employment are disputed and many of these incidents were considered by the Commissioner. Even allowing for some confusion between the circumstances giving rise to warnings and the circumstances constituting the “final straw”, the fundamental ongoing performance problems are beyond dispute.
[43] We are of the view that the Commissioner’s conclusion on the existence of a valid reason for dismissal was correct. We also find no error in the approach of the Commissioner in considering all of the other relevant circumstances and her finding that the termination was not harsh, unjust or unreasonable. Ms Dafallah was advised of the reasons for dismissal and had an opportunity to respond to the allegations against her. She had a support person from the Health Services Union of Australia present at meetings leading to her termination. The Commissioner considered the other relevant matters raised by the parties. These included her length of service, her performance history, the importance of her role and whether the penalty of termination was a reasonable response to the performance issues that arose.
[44] We do not consider that the matter raises issues of general principle in unfair dismissal matters. We do not consider that the outcome is counterintuitive or that the decision manifests an injustice. We do not believe that any relevant legal principles were misapplied. We have dealt with the issue of delay above. It follows from these conclusions that the matter does not attract the public interest.
Conclusion
[45] For the reasons above we do not consider that the appeal attracts the public interest. Permission to appeal is denied. The application for permission to appeal is dismissed.
VICE PRESIDENT WATSON
Appearances:
M. Willoughby-Thomas for Ms Dafallah.
R. Millar, of counsel, for Melbourne Health.
Hearing details:
2012.
Melbourne.
April, 3.
2 AB0400 .
3 Submissions of the applicant in reply, dated 20 March 2011 at paragraph 172 and Exhibit A1 at paragraph 16 and Transcript of original hearing at PN 3312-3313.
5 For instance, Shortland v The Smiths Snackfood Co [2011] FWAFB 2303, Gramotnev v Queensland University of Technology [2011] FWAFB 2306, Paramalat Food Product Pty Ltd v Wililo [2011] FWAFB 1166.
6 Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 per Buchanan J at [34].
7 Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 per Buchanan J at [44]. See also Hogan v Hinch (2011) 85 ALJR 398 and O’Sullivan v Farrer (1989) 168 CLR 210.
8 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
9 (1936) 55 CLR 499.
10 Set out at paragraph 43 of Exhibit W1.
11 [2007] 161 FCR 263.
12 (2005) 80 ALJR 367.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR522811>