1
Fair Work Act 2009
s.604—Appeal of decision
Sharlene Ryan
v
ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services
(C2014/1737)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER WILLIAMS PERTH, 27 NOVEMBER 2014
Appeal against decision of Deputy President McCarthy - meaning of dismissed - constructive
dismissal - whether the Deputy President had failed to consider relevant facts - whether the
Deputy President had failed to apply correct legal principles - whether it is in the public
interest to grant permission to appeal - permission to appeal not granted.
[1] This is an application under s.604 of the Fair Work Act 2009 (the Act) for permission
to appeal and, if permission is granted, an appeal against a decision of Deputy President
McCarthy made on 29 August 2014.1 In the decision, the Deputy President dismissed an
application made by Mrs Sharlene Ryan (the Applicant) under s.394 of the Act alleging that
she had been unfairly dismissed by her employer ISS Integrated Facility Services Pty Ltd (the
Respondent).
[2] The evidence and facts relating to the matter are summarised in the decision of the
Deputy President.2 In brief terms, the Applicant was employed by the respondent in April
2008 as a part-time Post Office Assistant at Pannawonica. She was later promoted to Post
Office Manager and in this role had supervisory responsibilities for another employee who
was appointed as Post Office Assistant. The relationship between the two employees was
problematic with complaints of unsatisfactory performance by one and of harassment and
bullying by the other. The complaints were the subject of several meetings and enquiries by
the Respondent over the period from about February 2010. Although a full investigation with
definite findings was not conducted by the Respondent, there was clearly a conclusion
reached that the two employees were not able to work together at the Post Office.
[3] As a result, the Applicant was transferred to several other jobs in the period from
November 2012 to November 2013 (in a Bank agency and a supermarket, providing general
administrative support and back at the Post Office) with her salary and other entitlements
maintained by the Respondent. The Applicant was not satisfied with these arrangements and
had several absences from work during the period, some of which were for medical reasons.
1 [2014] FWC 5714.
2 Ibid at [10] - [25].
[2014] FWCFB 8451
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 8451
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She continued to press for an investigation and determination of the complaint made against
her and wanted to return to the position as Post Office Manager. After it became clear that she
would not be returning to this position, the Applicant tendered her resignation on 28
November 2013. The resignation letter to the Respondent referred to the failure to pursue the
investigation process regarding the bullying complaint and concluded that it was a “forced
resignation”.
[4] The issue before the Deputy President was whether the Applicant had been
“dismissed” by the Respondent. The Respondent submitted that she was not protected from
unfair dismissal as she had resigned from her employment. The Applicant submitted that she
had been forced to resign.
[5] Section 386(1) of the Act provides as follows:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her
employer.
[6] The Deputy President considered the facts and circumstances surrounding the
termination of employment and concluded as follows:
“[26] The first issue to determine here is whether the Applicant resigned from her
employment, but was forced to do so because of conduct, or a course of conduct,
engaged in by the Respondent. Essentially, did the Applicant have any other course of
action other than to resign?
[27] The Respondent argues, and I accept the argument, that they had a right to
transfer the Applicant in her employment. That however is not the issue here. The
issue here is the reasons for transferring the Applicant and in the manner that she was
transferred, was the Respondent creating a situation where the Applicant had no other
course other than to resign.
[28] It is clear that the Applicant was a conscientious worker, competent and was
endeavouring to pursue the best interests of the Respondent by dealing with an
employee that reported to her by trying to improve her conduct and performance. It
could easily be perceived to be a circumstance where the Applicant’s reward for
furthering the Respondent’s interests was to be transferred herself, thus giving every
appearance of rewarding an underperforming employee who complained.
[29] This matter is not concerned with the fairness of the transfer, but rather
whether the dismissal was forced. An apparent unfairness in treatment does not in
itself create a forcing of resignation. Clearly the Applicant could consider herself
unfairly treated but that did not, in my view, create a circumstance where she had no
other option but to resign, or was forced to resign. In short I find that the Applicant
was not forced to resign.
[2014] FWCFB 8451
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[30] I therefore find that the termination of employment of the Applicant was her
own decision and not one forced upon her. Thus, the Applicant is precluded from
making an application of this nature. The Application that was made is dismissed for
that reason.”
[7] In the appeal, it was submitted by the Applicant that the Deputy President failed to
make findings of fact about issues that were critical to reaching a conclusion as to
constructive dismissal and to consider properly the evidence regarding the Respondent’s
conduct which led to the resignation.
[8] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the
powers of the Full Bench being exercisable only if there is error on the part of the primary
decision-maker.3
[9] The majority of the High Court explained in the following passage how error may be
identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has
some latitude as to the decision to be made, the correctness of the decision can only be
challenged by showing error in the decision-making process (See Norbis v Norbis
(1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it
is only if there is error in that process that a discretionary decision can be set aside by
an appellate tribunal.”4
[10] The errors that might be made in the decision-making process were identified, in
relation to judicial discretions, in House v The King5 in these terms:
“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”;6 and
“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...”7
[11] An appeal under s.604 of the Act may only be pursued with the permission of the
Commission. Section 604(2) requires the Commission to grant permission to appeal if it is
satisfied that it is in the public interest to do so. However, there is a note following the
subsection to the effect that this does not apply in relation to an application to appeal from an
unfair dismissal decision.8
3 See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205.
4 Ibid at [21].
5 (1936) 55 CLR 499
6 Ibid at 505.
7 Ibid at 504-505.
8 See s.400 of the Act.
[2014] FWCFB 8451
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[12] The effect of s.400 is twofold. Firstly, the Commission may only grant permission to
appeal from an unfair dismissal decision where it considers it is in the public interest to do so
(s.400(1)). Secondly, an appeal of an unfair dismissal decision, to the extent that it is an
appeal on a question of fact, may only be made on the ground that the decision involved a
significant error of fact (s.400(2)).
[13] We have considered the submissions in the appeal and, in particular, the submissions
of the Respondent relating to the requirement in s.400(1) of the Act that the Commission must
not grant permission to appeal from an unfair dismissal decision unless it considers that it is
“in the public interest to do so”.9
[14] The “public interest” is not defined in the Act but it generally refers to a benefit or
advantage to the whole community, as opposed to an individual. The task of assessing
whether the public interest requirement is met is a discretionary one involving a broad value
judgment. The Full Bench in GlaxoSmithKline Australia Pty Ltd v Colin Makin identified
some of the considerations that may attract the public interest as follows:10
“[27] ...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.”
[15] The approach to be adopted in considering whether there has been a constructive
dismissal was considered in Mohazab v Dick Smith Electronics (No. 2)11 and other cases. In
O’Meara v Stanley Works Pty Ltd12 a Full Bench of the Australian Industrial Relations
Commission summarised the legal position as follows:
“[23] In our view the full statement of reasons in Mohazab which we have set out
together with the further explanation by Moore J in Rheinberger and the decisions of
Full Benches of this Commission in Pawel and ABB Engineering require that there to
be some action on the part of the employer which is either intended to bring the
employment to an end or has the probable result of bringing the employment
relationship to an end. It is not simply a question of whether “the act of the employer
[resulted] directly or consequentially in the termination of the employment.”
Decisions which adopt the shorter formulation of the reasons for decision should be
treated with some caution as they may not give full weight to the decision in Mohazab.
In determining whether a termination was at the initiative of the employer an objective
analysis of the employer’s conduct is required to determine whether it was of such a
nature that resignation was the probable result or that the appellant had no effective or
real choice but to resign.”
(references omitted)
9 See Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at 90 [43].
10 GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343 at [27].
11 (1995) 62 IR 200.
12 PR973462 [2006] AIRC 496 at [23].
[2014] FWCFB 8451
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[16] The Deputy President in his decision considered whether the Applicant had been
forced to resign from her employment because of conduct or a course of conduct engaged in
by the Respondent. The Deputy President concluded that, although the Applicant might have
considered herself unfairly treated, she was not placed in a position where she was forced to
resign or had no other option to resign.
[17] We do not consider that it has been demonstrated on appeal that there is any error in
the approach adopted by the Deputy President in his consideration of the dismissal or in the
conclusion reached.
[18] The legal principles relating to constructive dismissal are well established. The Deputy
President identified the test to be satisfied in relation to whether the Applicant was forced to
resign13 and considered the relevant facts and circumstances of the present matter leading to
the conclusion that she had not been dismissed by the Respondent.
[19] Mere dissatisfaction by a party with the outcome of a case does not provide a proper
basis for appeal. The decision of the Deputy President was clearly open to him under the Act
and upon the evidence before him. The Applicant has not demonstrated that there is any
matter relating to the appeal which satisfies the considerations referred to in GlaxoSmithKline
or which would persuade us that it would be in the public interest to grant permission to
appeal in this matter.
[20] For these reasons, we have decided not to grant permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
P Mullally appeared on behalf of the Applicant.
J Moore appeared on behalf of the Respondent.
Hearing details:
2014:
Perth.
November 25.
Printed by authority of the Commonwealth Government Printer
Price code C, PR558216
13 [2014] FWC 5714 at [3] and [26].
