1
Fair Work Act 2009
s.604 - Appeal of decisions
Kylie Jeffrey
v
IBM Australia Limited
(C2014/7304)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL
MELBOURNE, 30 JANUARY 2015
Appeal against decision [2014] FWC 8166 of Deputy President McCarthy at Perth on 17
November 2014 in matter number U2012/13165 - arguable case of error in respect of the
decision to refuse compensation - permission to appeal granted on a limited basis - appeal to
be listed for hearing.
[1] Kylie Jeffrey (the appellant) was dismissed from her employment with IBM Australia
Limited (the respondent) on 29 August 2012, and subsequently lodged an application for an
unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act).
[2] On 17 November 2014 Deputy President McCarthy issued a decision in relation to the
appellant’s application.1 In that decision, the Deputy President found that the appellant’s
dismissal was harsh, unjust or unreasonable, but declined to order any remedy. The appellant
has appealed the Deputy President’s decision to refuse any remedy for her unfair dismissal,
and that is the matter before us.
[3] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the
FW Act. Section 400(1) provides that permission to appeal must not be granted from such a
decision unless the Commission considers that it is in the public interest to do so. Further, in
such matters appeals on a question of fact may only be made on the ground that the decision
involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as “a stringent one”.2 The Commission must not grant permission to
appeal unless it considers that it is “in the public interest to do so”.
[4] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.3 In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Commission 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
[2015] FWCFB 397
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 397
2
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.”4
[5] 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.5 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.6
[6] The appellant was dismissed by the respondent on the basis that, for medical reasons,
she did not have the capacity to perform the requirements of her position for the foreseeable
future. In his decision, the Deputy President found that this was not a valid reason for the
appellant’s dismissal:
“[111] The dismissal was for the reason that the Applicant did not have the capacity to do the
job for the foreseeable future. Resulting from my findings above I do not consider that was a
valid reason for dismissal. There may have been other reasons that influenced the decision to
dismiss the Applicant such as Mr Williams’ loss of faith and confidence in the Applicant. A
further reason could have been the uncooperativeness of the Applicant in previous RTWP and
especially endeavouring to include matters irrelevant to the RTWP for other purposes.
Another reason may have been one expressed by Mr Williams of the amount of his time
required to deal with issues involving the Applicant which was detracting from his other duties
and management of other staff. I had the impression from the evidence as a whole, but
unstated, that IBM had simply had enough and had arrived at a point where the resources and
effort devoted to the Applicant’s grievances could not be justified. There was insufficient
evidence for me to make a finding that these other reasons either individually or as a whole
established a valid reason for dismissal.”
[7] Largely on the basis of that finding, the Deputy President found that the appellant’s
dismissal was unfair. The Deputy President then turned to the question of remedy, and made
the following introductory comment in his analysis:
“[117] The remedy or a remedy is thus a discretion to issue an order or to not issue an order.
There are a number of issues in this matter that are relevant to that consideration.”
[8] The Deputy President then considered three matters in relation to whether he should
exercise his discretion to grant any remedy to the appellant. The first was the conduct of the
appellant in raising, throughout the hearing, issues concerning the professional conduct of Dr
Ryan, a medical practitioner engaged by the respondent as its occupational physician who had
examined the appellant at the respondent’s request during her employment and who gave
evidence concerning, among other things, the appellant’s medical condition. The Deputy
President characterised the appellant’s conduct in respect of Dr Ryan as constituting a
“vendetta” and involving her “creating a stage in which she had decided she would vent her
anger about Dr Ryan”. He concluded at paragraph [121] that “The conduct of the Applicant
during proceedings and her use of the proceedings for that purpose and for other purposes I
regard as matters that weigh against an order of any type being issued.”
[9] The second matter was that the Deputy President regarded the appellant as having
made “very serious allegations and accusations about others with little or no foundation” in
the course of or in connection to the proceedings. The Deputy President gave two examples of
this, one of which concerned allegations made against one of the respondent’s managers, and
concluded at paragraph [132] that the appellant “improperly and unfairly endeavoured to use
[2015] FWCFB 397
3
these proceedings to besmirch others”. The Deputy President also found that the appellant had
failed to consider that any of her own conduct may have been improper and that in cross-
examination she “improperly avoided answering relevant and fair questions” (paragraph
[134]).
[10] The third matter was that the appellant was, during her employment, absent for a
significant amount of time, including on paid sick leave, unpaid leave or absences for which
workers’ compensation was claimed. The Deputy President found that these absences should
have been a cause for the appellant to fully cooperate with the Return to Work Plans, but
instead the evidence had demonstrated that the appellant “did not cooperate but rather
frustrated efforts to have a reasonable programme for her return to work” (paragraph [136]).
This, the Deputy President said, “influenced my decision not to issue an order”.
[11] The Deputy President then stated the following conclusions concerning remedy:
“[137] It is clear from the analysis of the evidence and my findings above that I find that it
would be inappropriate for the Applicant to be reinstated.
[138] I also do not consider that it is appropriate in all of the circumstances of this case to
issue an order for compensation.”
[12] We consider that the appellant has established an arguable case that, in his refusal to
grant the remedy of compensation, the Deputy President’s decision was attended by
appealable error in the following respects:
(1) Although the respondent at the hearing at first instance mounted a
comprehensive case against the grant of the remedy of reinstatement which
made reference, directly or indirectly, to the three matters earlier identified
which were relied upon by the Deputy President to refuse a remedy, its case
against the grant of the remedy of compensation made no reference to those
matters. It simply asserted that it was not appropriate to award compensation,
and in the alternative submitted that if any compensation was awarded, the
amount should be assessed having regard to the appellant’s receipt of salary
continuance insurance payments. Neither party suggested that the Deputy
President had himself placed the appellant on notice that he intended to take
these matters into account in determining whether the grant of the remedy of
compensation was appropriate. In those circumstances, the appellant may have
been denied procedural fairness.
(2) The Deputy President’s consideration in respect of compensation did not
involve any assessment as to whether the appellant had suffered any financial
loss as a result of her unfair dismissal. As we read the submissions made by the
respondent at first instance, it did not dispute the appellant’s contention that
she had suffered financial loss as a result of her dismissal, although it did
submit that that loss was mitigated to a significant degree but not wholly by the
appellant’s receipt of salary continuance insurance payments. In those
circumstances the Deputy President may have erred by failing to take into
account a relevant consideration in the exercise of his discretion.
[2015] FWCFB 397
4
(3) In relation to the first two of the three matters relied upon by the Deputy
President in refusing to grant any remedy, whilst they were of obvious
relevance to the primary remedy of reinstatement (since they went to the
relationship between the appellant and certain persons who worked for the
respondent, and thus to the question of whether the restoration of a relationship
of trust and confidence was practicable), their connection to the remedy of
compensation is not readily apparent, and is certainly not explained in the
decision. The Deputy President may therefore have erred in the exercise of his
discretion by taking into account irrelevant considerations.
[13] We emphasise that we have not reached any final conclusion that the Deputy President
erred in his refusal to grant the remedy of compensation, but only that we are satisfied that
there is an arguable case that he erred. We are satisfied that, insofar as the appeal challenges
the refusal of compensation, it attracts the public interest. The first potential error identified
above, because it involves a denial of procedural fairness, is jurisdictional in nature. The
second and third issues may give rise to a more general consideration as to what matters may
or may not be relevant to the exercise of the discretion to award compensation. They may also
indicate that the appellant, who on the unchallenged finding of the Deputy President was
unfairly dismissed, has suffered a manifest injustice.
[14] In respect of the Deputy President’s refusal of reinstatement, we do not consider that
the appellant has demonstrated any arguable case of error or has otherwise raised any issue
that would attract the public interest. The decision in this respect was responsive to the case
presented by the respondent against reinstatement, and so no issue of a denial of procedural
fairness arises. The three matters relied upon by the Deputy President which we have earlier
identified were clearly relevant to the remedy of reinstatement - the first two because, as
already stated, they pertained to the issue of trust and confidence, and the last because it went
to the extent to which the appellant may have contributed to the respondent’s decision to
dismiss her.
[15] We are satisfied that the grant of permission to the appellant to appeal the Deputy
President’s decision to refuse to order the remedy of compensation is in the public interest,
and permission to appeal is granted in that respect. The hearing of the appeal will occur before
a reconstituted Full Bench. Directions will be made to require the parties to file and serve
written submissions addressing not only whether the Deputy President erred in refusing to
award compensation but also, in the event that error is found, what the appropriate outcome
should be upon a re-hearing of the matter.
[16] We are not satisfied that the grant of permission to appeal in respect of the Deputy
President’s refusal of reinstatement is in the public interest. In that respect, permission to
appeal is refused in accordance with s.400(1) of the FW Act.
PRESIDENT
[2015] FWCFB 397
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Appearances:
The Appellant: Ms K Jeffrey on her own behalf
The Respondent: Ms S. Woodbury
Hearing details:
Sydney with video link to Perth
21 January 2015.
Printed by authority of the Commonwealth Government Printer
Price code C, PR560123
1 [2014] FWC 8166
2 (2011) 192 FCR 78 at [43]
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46].
4 (2010) 197 IR 266 at [27]
5 Wan v AIRC [2001] FCA 1803 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied
Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
