1
Fair Work Act 2009
s.604 - Appeal of decisions
Lion Dairy and Drinks Milk Limited
v
Peter Norman
(C2016/2805)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON
MELBOURNE, 24 MARCH 2016
Appeal against decision [2016] FWC 840 of Deputy President Bartel at Adelaide on 10
February in matter number U2015/7090 – permission to appeal – whether grounds of appeal
attract the public interest – whether arguable case of appealable error – Fair Work Act 2009
– ss.394, 400 and 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of
Deputy President Bartel handed down on 10 February 2016.1 The decision of the Deputy
President concerned an application for unfair dismissal remedy made by Peter Norman on 23
April 2015 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of
his employment by Lion Dairy and Drinks Milk Limited (Lion).
[2] In her decision, the Deputy President found that Mr Norman had been unfairly
dismissed, with his dismissal being unjust and unreasonable. She ordered as the remedy that
Mr Norman should be reinstated to his former position and that an order for remuneration lost
by him as a result of his dismissal was appropriate to be paid.
[3] By way of background, and relevant to the matters now under appeal, the Deputy
President found;
Mr Norman had been injured in a skydiving accident in February 2014 and that
he had not returned to work after the accident and was dismissed on 15 April
2015 because, in Lion’s view, he was no longer able to perform the inherent
requirements of his position;2
She did not accept the assessment of Dr Graham, an occupational physician, that
Mr Norman would not be fit to return to his position within 3 months of an
examination on 5 March 2015;3
[2016] FWCFB 1887
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 1887
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She preferred instead the evidence of Professor Jaarsma, an orthopaedic surgeon,
whose evidence she recorded being that there was no barrier to Mr Norman
returning to work;4
It would be wrong to conclude in March 2015, shortly before he was dismissed,
that Mr Norman was unable to perform all the inherent requirements of his
position, and that she was satisfied he could perform the requirements of his
position.5
[4] At the hearing of the appeal matter on 17 March 2016 Ms R. Preston, of counsel,
appeared on behalf of Lion and Mr T. Bryant, of counsel, appeared on behalf of Mr Norman.
Grounds of Appeal
[5] The grounds of appeal advanced by Lion include that the Deputy President made the
following errors:
1. The Deputy President failed to find Mr Norman’s incapacity to safely perform
the inherent requirements of his position amounted to a valid reason for
dismissal;
2. The Deputy President’s finding that there was no valid reason for Mr Norman’s
dismissal, failed to take into the risk of falls presented by his osteoarthritis when
climbing ladders, an inherent requirement of his position;
3. The Deputy President erred in finding that it was Professor Jaarsma's evidence
that “the degenerative change in the applicant's left knee was not a barrier to
performing his role as maintenance technician”; and that “there was no barrier to
the applicant returning to work”;
4. There was a failure to distinguish between the condition of Mr Norman’s hips
and knees from osteoarthritis and the functional impact that condition had on
him;
5. When rejecting Dr Graham’s evidence that Mr Norman was at risk of further
exacerbating his osteoarthritis if returned to his position the Deputy President
made significant errors of fact, took into account irrelevant or extraneous
materials and failed to take into account material consideration;
6. The Deputy President failed (a) to take into account material considerations when
she found that the restrictions suffered by the applicant when assessed by Dr
Graham on 5 March 2015 were predominantly connected to the trauma he
suffered and the healing process; and (b) that he continued to improve after this
date;
7. The Deputy President erred when rejecting Dr Graham's assessment in March
2015 that Mr Norman would not be fit to return to his position within three
months; and
[2016] FWCFB 1887
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8. The Commission’s assessment of backpay upon reinstatement made an error of
law because she did not properly apply the principle of “a fair go all round”
including by not taking into account delays in the hearing caused by Mr Norman;
and that Lion had incurred expenses by keeping his job open for over a year.
[6] Lion submits that it is in the public interest to grant permission to appeal, as there are
numerous significant errors of fact, as well as errors of law.
Permission to Appeal
[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.
604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These
requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which
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 the FWC 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.”
[8] 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’6. The Commission must not grant permission to appeal unless it considers that it is ‘in
the public interest to do so’
[9] The test for determining the public interest has been described as follows:7
“[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.”
[2016] FWCFB 1887
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[10] It is also important to note that the decision under appeal is of a discretionary nature.
Usually such a decision can only be successfully challenged on appeal if it is shown that the
discretion was not exercised correctly.8 It is not open to an appeal bench to substitute its view
on the matters that fell for determination before the Commissioner in the absence of error of
an appealable nature in the decision at first instance. As the High Court said in House v The
King:9
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. 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.”
Conclusion
[11] The basis of Lion’s argument for appeal is that the findings made by the Deputy
President about Professor Jaarsma’s evidence that led her to accept his evidence over Dr
Graham’s were not open to her on the evidence. In particular, Lion argue that there was no
evidence that Professor Jaarsma challenged Dr Graham’s risk assessment of the aggravation
or progression of osteoarthritis, so it was not open to her to prefer Professor Jaarsma on the
subject. They also argue that it was not Professor Jaarsma’s evidence that “[t]he degenerative
change in the applicant's left knee was not a barrier to performing his role as maintenance
technician” or that “[t]here was no barrier to the applicant returning to work”.10
[12] A review of the material before the Deputy President allows both the consideration
that her acceptance of Professor Jaarsma’s evidence was on the basis of her findings of fact
about his evidence, as well as the consideration that Lion’s submission that such findings rest
on a significant error, is at least arguable. The error in question is whether Professor
Jaarsma’s evidence may properly be characterised in the findings made at paragraph [69] of
the original decision.
[13] In considering Lion’s appeal, we note the decision of the Full Federal Court in
Gregory v Qantas Airways Ltd11 in which consideration was given to the operation of the
appeal rights arising under s.400:
“45. Thus, in a case which turns on findings of fact, two significant obstacles to an
appeal are erected: the appeal can only be made on the ground that the decision
involved a significant error of fact, and a Full Bench must conclude that it is in the
public interest that permission to appeal be granted.”12
[2016] FWCFB 1887
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[14] We consider that the argument put by Lion in relation to the Deputy President’s
preference for Professor Jaarsma’s evidence involves what is potentially a significant error of
fact, while making no findings at this time about whether it is.
[15] Consideration was also given in Gregory v Qantas Airways Ltd to the proper
assessment of “the public interest” in unfair dismissal appeals. After endorsing the passage
referred to above in GlaxoSmithKline Australia Pty Ltd v Makin,13and noting that its
formulation of the public interest had repeatedly been affirmed by the High Court, the Full
Federal Court expressed the following:
“55. In other words, assessment of what is in the public interest, so far as it concerns
matters coming before the FWC, and the assessment of when the public interest
requires a grant of permission to appeal in an unfair dismissal case, is primarily a
matter for the Full Bench, unless it pays regard to some matter extraneous to its task or
to that evaluation, or fails to pay attention to relevant matters or misunderstands the
nature of the examination required.”14
[16] We are satisfied in this matter that a potential significant error of fact may have led the
Commission to erroneously decide Mr Norman was able to perform the inherent requirements
of his position, when his employer took the view the evidence available to it led to a decision
to the contrary, enlivens the public interest.
[17] We are therefore satisfied that it is in the public interest to grant permission to appeal
in relation to those grounds of appeal in which the Deputy President’s preference for
Professor Jaarsma’s evidence on the basis of the findings of fact made at paragraph [69] of the
original decision is pivotal.
[18] We have given consideration to the last ground of appeal, which discloses an argument
of an error of law in assessing backpay upon reinstatement (ground 8 above), and are not
persuaded that the public interest is enlivened. We therefore do not give permission to appeal
in respect to that ground.
[19] Directions will be issued for the filing of supplementary written submissions in
advance of the appeal hearing.
VICE PRESIDENT
THE OF THE FAIR WORK C. SEN THE NOISS
[2016] FWCFB 1887
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Appearances:
Ms R. Preston, of counsel, on behalf of Lion Dairy and Drinks Milk Ltd.
Mr T. Bryant, of counsel, on behalf of Mr Norman.
Hearing details:
2016.
Melbourne—Video Link to Adelaide
17 March.
Final written submissions:
Lion Dairy and Drinks Milk Ltd on 11 March 2016.
Mr Norman on 15 March 2016.
Printed by authority of the Commonwealth Government Printer
Price code C, PR578369
1 [2016] FWC 840.
2 Ibid, at [1] - [2].
3 Ibid, at [68].
4 Ibid, at [69].
5 Ibid, at [72].
6 (2011) 192 FCR 78 at paragraph 43.
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
8 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
9 Ibid.
10 [2016] FWC 840, at [69].
11 [2016] FCAFC 7.
12 Ibid, at [45], per Buchanan J.
13 [2010] FWAFB 5343.
14 [2016] FCAFC 7, at [55].
