1
Fair Work Act 2009
s.604 - Appeal of decisions
James Jones T/A The Pet Cemetery & Crematorium
v
Ms Raquel Ciuzelis
(C2014/6135)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SIMPSON
SYDNEY, 22 JANUARY 2015
Appeal against decision [2014] FWC 5566 of Deputy President Asbury at Brisbane on
15 August 2014 in matter number U2013/10511 - ss.388 and 400 Fair Work Act 2009 (Cth) -
Small Business Fair Dismissal Code should be raised by the Commission where it is apparent
that the employer is a small business - dismissal not consistent with the Code - denial of
procedural fairness in the consideration of an appropriate remedy - in the public interest to
grant permission to appeal - permission granted - appeal upheld in relation to remedy only -
matter remitted.
Background
[1] On 6 June 2013 Ms Ciuzelis was dismissed from her employment with the Pet
Cemetery & Crematorium, which is operated by Mr Jones as a sole trader. Ms Ciuzelis made
an unfair dismissal application to the Fair Work Commission (the Commission). Ms Ciuzelis’
application for relief was heard by Deputy President Asbury on 27 May 2014 and her reasons
for decision were published on 15 August 2014.1 The Deputy President was satisfied that
Ms Ciuzelis had been unfairly dismissed; that reinstatement was not appropriate and that an
award of compensation should be made. The amount of compensation awarded was
$18,397.85, less tax and an order was made to that effect.2
[2] Mr Jones seeks permission to appeal the Deputy President’s decision, that the appeal
be allowed, that the decision be set aside and, Ms Ciuzelis’ application for relief be dismissed.
[3] The relevant facts may be briefly stated, Ms Ciuzelis was absent from work from
10 May 2013 until the termination of her employment. The absences were supported by
medical certificates which were tendered in the proceedings at first instance. On 5 June 2013
Ms Ciuzelis received a clearance from her doctor to return to work on 10 June 2013. What
then took place is set out in the Deputy President’s decision at paragraphs [21] - [22] ,:
[2015] FWCFB 84
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 84
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“[21] Ms Ciuzelis was referred by her GP to a physiotherapist for mobility and conditioning
assessment and on 5 June 2013 received a clearance to return to work on 10 June 2013. After
receiving this certificate, and prior to 10 June 2013, Ms Ciuzelis telephoned Mr Jones and told
him that she was cleared to return to work from that date. Ms Ciuzelis also forwarded the
medical certificate to Mr Jones by facsimile on 5 June 2013 and again telephoned Mr Jones to
ensure that it had been received. During this telephone call Mr Jones told Ms Ciuzelis that he
would need to consult with his solicitor and would get back to her.
[22] On 6 June 2013 Ms Ciuzelis telephoned Mr Jones after missing a call from him, and was
told that he had a purchaser for the business who had chosen to take on all employees except
Ms Ciuzelis, as she was away. Mr Jones terminated Ms Ciuzelis’ employment and paid her
two weeks wages in lieu of notice and her accrued annual leave. Ms Ciuzelis also received an
Employment Separation Certificate stating that the reason for separation was redundancy...”
[4] In the proceedings at first instance Ms Ciuzelis contended that she was dismissed
because she injured her back at work and that her dismissal was unfair. Mr Jones contended
that his business had been sold and that the purchaser (Vepa Labs Pty Ltd) was under no
obligation to offer employment to any of his employees. Vepa Labs Pty Ltd offered
employment to all of Mr Jones’ employees who were at work when the sale was effected and
as Ms Ciuzelis was not at work at the relevant time she was made redundant.
[5] The evidence as to the sale of Mr Jones’ business is that the business had been for sale
for some time and on 22 May 2013 Mr Jones received an offer to purchase the business, via
his broker and a due diligence process commenced. On 17 June 2013 Mr Jones was informed
that it appeared that the sale would proceed. Settlement occurred on 20 June 2013 and on that
day seven of Mr Jones’ former employees (and Mr Jones himself) were offered (and
accepted) employment with Vepa Labs Pty Ltd. Ms Ciuzelis was not offered a position with
Vepa Labs Pty Ltd.
[6] The Deputy President concluded that Ms Ciuzelis’ dismissal was not a case of
‘genuine redundancy’ within the meaning of s.389 of the FW Act. At paragraphs [38] - [39]
of her decision the Deputy President states:
“[38] I do not accept that Ms Ciuzelis’ dismissal was a genuine redundancy so that she is
prevented from making an application for an unfair dismissal remedy. Ms Ciuzelis was
dismissed on 6 June 2013. Mr Jones states that at that point, a casual employee was
performing her role and continued to do so after her dismissal. That casual employee was
offered ongoing work by Greencross upon purchase of the business from Mr Jones. The
documentary material in relation to the sale shows that a casual employee commenced the day
after Ms Ciuzelis’ dismissal.
[39] Regardless of when the casual employee commenced employment, it could not be said
that at the point of her dismissal, Mr Jones no longer required Ms Ciuzelis’ job to be done by
anyone. The job was being done by a casual employee who, on Mr Jones’ evidence, was
replacing Ms Ciuzelis while she was absent from the workplace due to an injury. If this was
not the case, the casual employee commenced employment the day after Ms Ciuzelis was
dismissed. It is irrelevant for these purposes whether Ms Ciuzelis suffered the injury at work
or whether she was in receipt of Workers’ Compensation payments. The simple fact of the
matter is that at the point she was dismissed, her job was required to be done.”3
[2015] FWCFB 84
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[7] Having found that the dismissal was not a case of genuine redundancy the Deputy
President turned to consider whether Ms Ciuzelis’ dismissal was harsh, unjust or
unreasonable. Section 387 of the FW Act sets out the relevant criteria:
Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[8] In relation to the matters set out in s.387 the Deputy President found as follows:
s.387(a): there was not a valid reason for Ms Ciuzelis’ dismissal (see [41]-[49] of
[2014] FWC 5566).
s.387(b): Ms Ciuzelis was notified of the reason for her dismissal (see [50] of [2014]
FWC 5566).
s.387(c): this matter was not relevant because Ms Ciuzelis was not dismissed for
reasons relating to her capacity or conduct (see [50] of [2014] FWC 5566).
s.387(d): this matter was not relevant because there were no discussions relating to the
dismissal other than the telephone discussion during which Mr Jones effected the
dismissal (see [50] of [2014] FWC 5566).
s.387(e): this matter was not relevant because the dismissal did not relate to
unsatisfactory work performance (see [51] of [2014] FWC 5566).
s.387(f) and (g): the Deputy President noted that the employer is a small business and
there was an absence of dedicated human resource management specialists and that
these factors ‘had an impact on the procedures followed in effecting the dismissal’
(see [51] of [2014] FWC 5566).
[2015] FWCFB 84
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s.387(h): there were no other relevant matters (see [51] of [2014] FWC 5566).
[9] The Deputy President concluded that Ms Ciuzelis had been unfairly dismissed and that
a remedy order should be made.4
[10] Section 390 of the FW Act deals with the circumstances in which the Commission
may make a remedy order,:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of
compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see
Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the
circumstances of the case.
[11] If the Commission is persuaded to order a remedy then it may order reinstatement or
the payment of compensation. The structure of s.390(3) requires the Commission to first
consider the question of reinstatement. It is only if the Commission is satisfied that
reinstatement is inappropriate that it may consider an order for the payment of compensation.
[12] The Deputy President concluded that reinstatement was not appropriate and that an
award of compensation should be made.5 There is no challenge to this aspect of the Deputy
President’s decision.
[13] The making of an order for the payment of compensation in lieu of reinstatement is
dealt with in s.392 of the FW Act,:
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s
employer at the time of the dismissal pay compensation to the person in lieu of
reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC
must take into account all the circumstances of the case including:
[2015] FWCFB 84
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(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to
receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because
of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other
work during the period between the dismissal and the making of the order for
compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during
the period between the making of the order for compensation and the actual
compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision
to dismiss the person, the FWC must reduce the amount it would otherwise order under
subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not
include a component by way of compensation for shock, distress or humiliation, or other
analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not
exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the
26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed
during any part of that period—the amount of remuneration taken to have been
received by the employee for the period of leave in accordance with the regulations.
[14] The Deputy President addressed the criteria in s.392 at paragraphs [54] - [58] of her
decision:
“[54] There is no evidence that an order for compensation will affect Mr Jones. He has made
no submissions in relation to capacity to pay any amount awarded by the Commission. Ms
Ciuzelis has at all times indicated that she seeks the maximum compensation under the Act.
[55] There is no evidence upon which I could conclude that Greencross would not have
offered Ms Ciuzelis employment if her name was on the list of transferring employees
[2015] FWCFB 84
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provided by Mr Jones. Contrary to Mr Jones’ evidence, there was no other employee to
which Greencross did not make an offer of employment. An offer was also made to a casual
employee who was performing the job that had been performed by Ms Ciuzelis either prior
to her dismissal or the day after. Ms Ciuzelis had a medical clearance to return to her full
duties before the completion date of the sale and had she been allowed to do so, there is no
apparent reason why she would not have been offered employment. I can see no reason why
Ms Ciuzelis would not have remained in employment for at least a 12 month period.
[56] Making allowance for contingencies such as that Ms Ciuzelis may have reinjured
herself or left employment for some other reason, or that Greencross may have declined to
offer her employment, or dismissed her for some reason, I have concluded that for the
purpose of calculating compensation it is reasonable to adopt a six month period. In that
period, Ms Ciuzelis would have earned an amount of $22,880.00.
[57] In relation to mitigation, I accept that Ms Ciuzelis made reasonable attempts to apply
for other positions. Ms Ciuzelis obtained another position on 2 December 2013, just over six
months from the date of her dismissal. Ms Ciuzelis was paid two weeks wages in lieu of
notice on termination of employment totalling $1,760.00. Ms Ciuzelis received an amount of
$2,722.15 in payments from Centrelink. These amounts are deducted. As Mr Jones pointed
out, any payments made to Ms Ciuzelis as a result of her Workers’ Compensation claim will
be recovered by WorkCover as a result of the rejection of that claim. Accordingly I make no
deduction for such amounts. Given that Ms Ciuzelis’ dismissal was not for misconduct, I
also make no deduction on that basis.
[58] Accordingly, the amount of $18,397.85 less taxation at the appropriate rate is to be paid
to Ms Ciuzelis by Mr Jones within fourteen days of the date of this Decision. An Order to
this effect will issue with this Decision.”
The Appeal
[15] An appeal under s.604 of the FW 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.6 Section 604 gives a qualified right of appeal in that an appeal may
only be made with the permission of the Commission.
[16] The decision subject to appeal was made under Part 3-2 (Unfair Dismissal) of the FW
Act. Section 400(1) provides that in an appeal from a decision made under Part 3-2 the
Commission must not grant permission to appeal unless it considers that it is ‘in the public
interest to do so’. In other words, while under the general provisions of s.604 the
Commission’s satisfaction as to the public interest criterion is a non limiting circumstance
that would mandate the granting of permission to appeal, if the decision subject to appeal was
made under Part 3-2 the Commission’s satisfaction with respect to that criterion is an essential
requirement for the grant of permission to appeal. 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)).
[17] In Coal & Allied Mining Services Pty Ltd v Lawler7 Buchanan J (with whom Marshall
and Cowdroy JJ agreed) described the public interest test in s.400(1) as ‘a stringent one’.8 The
identification of error in the decision subject to appeal is not of itself sufficient to enliven the
[2015] FWCFB 84
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public interest. Nor is it sufficient that the Appeal Bench would have reached a different
conclusion from the Member at first instance.9
[18] What is required by s.400(1) is the formation of a broad value judgment or opinion as
to whether the public interest favours the grant of permission to appeal. 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 issue 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.”10
[19] The Notice of Appeal filed by Mr Jones states that ‘[T]here are far too many errors of
fact in the judgment for there to be confidence in it’. The alleged errors of fact are set out at
Annexure A to the Notice of Appeal and some additional matters are raised in a subsequent
submission filed by Mr Jones on 30 October 2014. The alleged errors of fact may be
summarised as follows:
(i) Ms Ciuzelis was not employed as an office manager ([2014] FWC 5566 at [2] and
[10]).
(ii) Ms Ciuzelis did not sustain a back injury while at work on 5 July 2012 ([2014] FWC
5566 at [2] and [13]).
(iii)Ms Ciuzelis’ assertion that ‘she did not seek treatment for her injury at the outset
because she had seen Mr Jones dismiss other employees in similar circumstances and
her job had previously been threatened when she enquired about Award conditions
([2014] FWC 5566 at [13]), is said to be ‘completely untrue’.
(iv)The casual employee engaged to undertake the work performed by Ms Ciuzelis did not
commence on 7 June 2013 (see [2014] FWC 5566 at [35], [38] and [48]) and in fact
covered most of Ms Ciuzelis’ absences since 10 May 2013.
[20] In addition to these alleged errors of facts the appellant submits that there are a
number of other errors in the decision subject to appeal. These alleged errors are set out
below.
(i) There were other reasons which supported the termination of Ms Ciuzelis’
employment. The appellant submits that Ms. Ciuzelis was ‘an obnoxious employee
worthy of the sack at most times for over four months’, but his ill health and the
workload caused by the due diligence prevented him from dismissing Ms Ciuzelis.
The appellant contends that there was a valid reason for the dismissal, namely ‘serious
misdemeanor, dishonesty and deception’. In support of this contention the appellant
makes the following submission:
“Had she returned to work as she claims she wanted, she could not have been trusted
to perform any of her duties because of her general hostility and the nature of the
[2015] FWCFB 84
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complaints that I was aware of. It was still the case that she was refusing to perform
her usual duties. I was however aware that she had abused more clients. That alone
would have been sufficient reason to dismiss her, as there had been prior warnings of
which she was aware. The most important issue that would have resulted in her
instant dismissal, was that the client had sent an email to me of complaint of Ms
Ciuzelis’ disgusting phone manner. Ms Ciuzelis intercepted that complaint email and
replied with an apology email, falsely representing it to come from me. Ms. Ciuzelis
wrote this email of apology in my name without my knowledge, in my absence. She
tried to cover her tracks by then deleting the email. That sacking would not have
necessitated payment of two weeks’ pay. I took the softer option of redundancy
believing it was in her best interest.”
The appellant seeks to adduce fresh evidence in support of his submission, namely an
unsworn statement from a former employee, Ms Nola Murphy.
(ii) The Deputy President failed to give proper consideration to the fact that the business
was a small business which did not have dedicated human resource advisors.
(iii) The Deputy President did not correctly understand the chronology of events regarding
the sale of the business.
(iv)The Deputy President erroneously dismissed the appellant’s evidence.
(v) The Deputy President misunderstood the difference between the “Information
Memorandum” which listed Ms Ciuzelis as an employee, and the purchaser’s request
for a list of those Employees currently performing duties, which did not list
Ms Ciuzelis as she was not performing duties at that time. The Deputy President also
failed to take proper account of the fact that the appellant’s wife was not offered a job
by Vepa Labs Pty Ltd.
(vi)The Deputy President failed to properly consider Ms Ciuzelis’ behavior in relation to
‘her questionable back injury, her insistence it was a work injury, even though it was
rejected by WorkCover, her failure to keep her medical certificates current at all times
and her general demeanor in the workplace’.
[21] The appellant also submits that the amount of compensation awarded was excessive
and that the Deputy President made a number of errors in calculating the quantum of
compensation, in particular:
(i) there was a reliance on incorrect information about funds paid by WorkCover which
Ms Ciuzelis received but had not repaid following the rejection of the claim. Further,
the WorkCover payment of $2891 should have been deducted from the sum awarded,
and
(ii) the Deputy President was wrong to conclude that Ms Ciuzelis would not have
remained in employment for at least a 12 month period.
[22] It is convenient to deal with the alleged errors of fact first. In our view none of the
alleged errors of fact - if they be errors at all - constitute ‘significant errors of fact’ within the
[2015] FWCFB 84
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meaning of s.400(2) of the FW Act. None of the alleged factual errors underpinned any of the
Deputy President’s findings in relation to the statutory criteria she was bound to consider. In
relation to the alleged factual errors set out at paragraph [19](i), (ii) and (iii) the Deputy
President’s findings were based on Ms Ciuzelis’ unchallenged evidence (see Exhibit 1 at pp 1
and 3). The appellant had an opportunity to challenge these aspects of Ms Ciuzelis’ evidence
in the proceedings below but did not do so. It is not the function of the appeal process to
permit a party to argue the case they should have run at first instance. The alleged error in
relation to the time at which a casual employee was engaged to undertake the work performed
by Ms Ciuzelis (see paragraph 19(iv) above), if it be an error, is not significant. The
significant fact is that at the time of the dismissal the work being performed by Ms Ciuzelis
was being performed by another employee. The Deputy President made no error in relation to
that fact.
[23] We now turn to the other errors alleged by the appellant (at paragraph [20] above).
[24] As to the proposition that there were other reasons which supported the termination of
Ms Ciuzelis’ employment (see paragraph 20(i)), none of these matters were put by the
appellant in the proceedings at first instance. We do not propose to grant permission to appeal
for the purpose of permitting the appellant to run a different factual case to that which he ran
at first instance.
[25] As to the matter at paragraph 20(ii) the Deputy President gave consideration to these
matters at paragraph [51] of her decision,:
“The employer is a small business and undoubtedly this factor, together with the absence of
dedicated human resource management specialists, had an impact on the procedures followed
in effecting the dismissal. I note, however, that Mr Jones managed to obtain advice to the
effect that he could not dismiss Ms Ciuzelis while she was absent on Workers’ Compensation.
Unfortunately, he applied this advice by forming the view that once a claim for Workers’
Compensation was rejected, he could dismiss Ms Ciuzelis with complete impunity. There are
no other relevant matters.”
[26] The Notice of Appeal advances the following submission in relation to this matter:
“There was a failure to give proper consideration to the business structure, being a small
business which did not have dedicated HR advisors. I received advice from an insurance
salesman proposing a policy covering businesses from legal actions by employees, and did
not engage lawyers. I did not seek a barrister’s opinion on my reply to the email mentioned in
(2) above.”
[27] The Deputy President’s observation as to the advice received by the appellant is
consistent with Mr Jones’ evidence in the proceedings at first instance, where he said:
“But on the applicant’s evidence, you knew on 5 June that she was returning on 10 June?---
Yes, that’s right. I had advice. I didn’t hire any lawyer. There was a firm that sell insurance
against this sort of action and they charge 6 per cent of the wages. I have forgotten the name
of the firm. It’s an English company. It’s multinational. For 6 per cent of the wages bill they
will cover you for any such legal action such as this. They were aware – their rep called and
spoke with me and they were aware that, I made them aware that the business was actually for
sale very confidentially and that I didn’t need the service but as a lawyer, he was very helpful.
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He said not to dismiss her until the workers’ compensation claim was settled and it was
rejected.”11
[28] We are not persuaded that the Deputy President erred in the manner contended by the
appellant.
[29] There is however a further matter relating to the appellant’s status as a small business
with which we need to deal.
[30] At the time of Ms Ciuzelis’ dismissal Mr Jones employed less than 15 employees and
accordingly the Small Business Fair Dismissal Code (the Code) applied. Section 388 of the
FW Act deals with the Code,:
The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal
Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a
small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.
[31] Section 385 is also relevant, it provides:
What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[32] The Deputy President did not mention the Code in the decision subject to appeal and
nor was it mentioned during the course of the proceedings. We acknowledge that the Code
was not raised by the appellant at first instance, but having regard to the terms of s.385
compliance with the Code is a matter which should be raised by the Commission in any case
in which it is apparent that the employer is a ‘small business employer’ within the meaning of
the Code.
[33] During the appeal proceedings we raised the application of the Code with both parties.
Having considered those submissions we are not persuaded that the Deputy President’s failure
to consider the Code enlivens the public interest such as to warrant the grant of permission to
appeal. Ms Ciuzelis was not summarily dismissed and at first instance the appellant’s case
was that the dismissal was due to redundancy. Having regard to the nature of the dismissal
and the manner in which the appellant put his case at first instance had the Deputy President
considered the Code she would doubtlessly have concluded that the dismissal was not
consistent with the Code, within the meaning of s.388.
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[34] As to the proposition (at paragraph 20(iv)) that the Deputy President erroneously
rejected the appellant’s evidence, this is a reference to paragraph [44] of the decision subject
to appeal,:
“I do not accept his submission that he was told to simply provide a list of employees who
were performing work at some particular date. There is nothing in the contract that remotely
suggests that this was the case. This contention is arguably contrary to the terms of the
contract. Greencross is a large employer with in-house legal expertise, as was apparent from
that Company’s involvement in these proceedings in response to the notices to produce
documents. It is highly improbable that Greencross would have told Mr Jones to only include
employees who were at work on a particular date or during a particular period or to exclude
employees who were absent on any form of leave from the list of employees to be provided by
Mr Jones as part of the Due Diligence process in connection with the sale.”
[35] Having reviewed the transcript and the evidence in the proceedings at first instance we
are satisfied that it was open to her Honour to reject this aspect of the appellant’s evidence.
Further, as Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy,12 in a passage which has
been applied since,:13
“[23] [An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in
the case of any appellate court proceedings wholly or substantially on the record.14 These
limitations include the disadvantage that the appellate court has when compared with the trial
judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which
an appellate court reading the transcript, cannot always fully share.”15
[36] For the same reasons we are not persuaded that the Deputy President erred in her
assessment of Ms Ciuzelis’ evidence (see paragraph 20(vi) above).
[37] As to the matters at (iii) and (v) of paragraph [20] we are not persuaded that the
Deputy President erred in the manner suggested.
[38] To the extent that it may be said that the Deputy President erred failing to take account
of the fact that the appellant’s wife was not offered a position by the purchaser we are not
persuaded that this was a significant factual error and nor are we persuaded that it enlivens the
public interest.
[39] The appellant also submitted that the amount of compensation awarded was excessive
and that the Deputy President made a number of errors in calculating the quantum of
compensation.
[40] In determining the quantum of compensation to order the Commission must take into
account all of the circumstances of the case including the matters specified in s.392(2)(a) to
(g). In this matter the Deputy President concluded that the remuneration that Ms Ciuzelis
would have been likely to receive if she had not been dismissed was $22,880.00 (ie six
months’ pay). The Deputy President reasoned that Ms Ciuzelis would have remained in
employment for at least 12 months and then discounted this period to take account for
contingencies and arrived at six months pay, for the purpose of s.392(2)(c).
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[41] The appellant advances two contentions in relation to the Deputy President’s
assessment of the quantum of compensation to be awarded. First, it is submitted that the
workcover payments made to Ms Ciuzelis should have been deducted from the sum awarded
by the Deputy President. We reject this submission. Ms Ciuzelis has not received any
workcover payments since her dismissal and, as the Deputy President noted at [57] of her
decision, any payments made to Ms Ciuzelis relating to her workers’ compensation claim will
be recovered by WorkCover as a result of the rejection of that claim.
[42] The second contention advanced by the appellant is that the Deputy President did not
provide any opportunity for either party to make submissions in relation to the criteria set out
in s.392(2). In particular, the appellant challenges the finding that Ms Ciuzelis would ‘have
remained in employment for at least a 12 month period’.16
[43] It is common ground that the Deputy President did not draw the attention of either
party to the terms of s.392 and nor did she invite submissions as to the criteria in s.392(2).
The transcript of the proceedings at first instance confirms this to be the case. As a
consequence of the procedure adopted the Deputy President’s findings and decision in
relation to the quantum of compensation to be awarded were made in a vacuum, without the
benefit of submissions from either of the parties.
[44] In circumstances where a party is self represented it cannot be assumed that they will
have a complete understanding of the relevant legislative provisions. The Commission has an
obligation to provide a fair hearing to all parties and this includes the provision of appropriate
assistance to parties in the presentation of their case, particularly self represented parties. In
the context of this matter the appropriate course would have been for the Deputy President to
direct the parties attention to the terms of s.392 and to invite their submissions as to the
various criterion set out in that section. This course was not taken and instead the Deputy
President proceeded to make findings in relation to the matters set out in s.392(2) without the
benefit of any submissions and those findings provided the basis of the quantum of
compensation awarded.
[45] We have concluded that the Deputy President failed to accord the parties procedural
fairness in her consideration of the remedy to be awarded and accordingly this aspect of the
decision subject to appeal manifests an injustice which attracts the public interest. We are
satisfied that it is in the public interest to grant permission to appeal in relation to the
challenge to the Deputy President’s decision on remedy. We grant permission to appeal on
that limited basis only. We uphold the appeal against the award of compensation and quash
this part of the Deputy President’s decision (at [54]-[58] of [2014] FWC 5566). We remit the
issue of an appropriate remedy to Commissioner Simpson for hearing and determination. We
will issue an order giving effect to our decision in due course.
PRESIDENT
[2015] FWCFB 84
13
Appearances:
The Appellant: Mr J. Jones in person
The Respondent: Ms R. Ciuzelis in person
Hearing details:
Brisbane
13 January 2015
Printed by authority of the Commonwealth Government Printer
Price code C, PR559729
1 [2014] FWC 5566.
2 PR554303
3 [2014] FWC 5566
4 [2014] FWC 5566 at [52]
5 [2014] FWC 5566 at [53]
6 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
7 [2011] FCAFC 54
8 Ibid at [34] and [44]-[45]
9 GlaxoSmithKline Australia Pty Ltd v Makin (Makin) [2010] FWAFB 5343 at [28], cited with approval in C & A Mining
Services at [42]-[43]
10 Ibid at [27]
11 First instance transcript at PN302
12 (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at para 23.
13 Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522; 286 ALR 501; 88 ACSR 246; [2012]
HCA 17 at para 130; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357;
270 ALR 204; [2010] HCA 31 at para 76.
14 Dearman v Dearman (1908) 7 CLR 549 at 561; 15 ALR 287 at 291; [1908] HCA 84. See also Scott v Pauly (1917) 24
CLR 274 at 278-81; 24 ALR 27 at 31-3; [1917] HCA 60.
15 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 AII ER 635 at 637, per Lord
Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 AII ER 21 at 26. See also Chambers v
Jobling (1986) 7 NSWLR 1 at 25.
16 [2014] FWC 5566 at [55]
