1
Fair Work Act 2009
s.604—Appeal of decision
Andrew Kim
v
ORC International Pty Ltd
(C2016/574)
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SAUNDERS
SYDNEY, 6 MAY 2016
Appeal against decision [2016] FWC 1029 and order PR577119 of Deputy President Gooley
at Melbourne on 19 February 2016 in matter number U2015/13199.
Introduction
[1] On 11 March 2016 Mr Andrew Kim (the appellant) lodged a notice of appeal in which
he sought permission to appeal a decisioni and orderii issued on 19 February 2016 by Deputy
President Gooley (decision). Deputy President Gooley dismissed an unfair dismissal remedy
application under s.394 of the Fair Work Act 2009 (FW Act) which Mr Kim had lodged in
respect of his alleged dismissal from employment with the respondent. She found that
Mr Kim was not dismissed by the employer, and did not resign his employment because of
conduct or a course of conduct engaged in by the employer.
Representation
[2] The respondent applied under s.596 of the FW Act for permission to be represented by
a legal representative. This application was grantediii.
Appeal
[3] Mr Kim alleged that Deputy President Gooley did not consider a number of previous
authorities, and made significant errors of fact. In his written submission he also raised the
issue of apprehended bias, and provided examples of what were said to be significant errors of
fact.
Consideration
[4] This appeal is one to which s.400 of the FW Act appliesiv. Section 400 provides:
[2016] FWCFB 2642
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 2642
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(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC 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.
[5] In the Federal Court Full Court decision 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”.v The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgmentvi. 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 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.”vii
[6] 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.viii 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.ix
Decision
[7] The Deputy President gave due regard to relevant authorities, including Kylie Bruce v
Fingal Glen Pty Ltd (in liquidation)x; O’Meara v Stanley Works Pty Ltd (2006)xi; Pawel v
Advanced Precast Pty Ltdxii; Mohazab v Dick Smith Electronics Pty Ltd (No 2)xiii; ABB
Engineering Construction Pty Ltd v Doumitxiv; Elgammal v BlackRange Wealth Management
Pty Ltdxv; Victorian Association for the Teaching of English Inc v Debra de Lapsxvi It is not
enough to list a number of authorities and claim that the decision is in disharmony with them.
In fact the Deputy President made her decision having regard to relevant authorities.
[8] The appellant has not demonstrated that the Deputy President made a significant error
of fact. The appellant raised a number of factual disputes but none relate directly to the issue
of whether or not there was a dismissal by the employer, or whether or not the Deputy
President was in error in finding that there was not a dismissal. They relate to other issues
such as whether or not there was regular and systematic employmentxvii, and a complaint
made against Mr Kimxviii. We are not satisfied that the Deputy President made errors of fact,
let alone significant errors of fact which have any relevance to the decision to dismiss
Mr Kim’s application. The complaint of bias is without foundation. The Deputy President was
entitled to ask questions and raise issues of principle and law during proceedings.
[2016] FWCFB 2642
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Conclusion
[9] There is no public interest in granting permission to appeal. The matter does not raise
issues of importance and general application, there is no 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, the result is not counter intuitive, and the legal principles applied do
not appear disharmonious when compared with other recent decisions dealing with similar
matter. We refuse permission to appeal and dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr Andrew Kim, the applicant
Mr Andrew Maher for the respondent
Hearing details:
2016
Sydney and Melbourne (video)
12 April
Printed by authority of the Commonwealth Government Printer
Price code A, PR579494
i [2016] FWC 1029
ii PR577119
iii PN15
iv See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]
v (2011) 192 FCR 78 at [43]
vi 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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
vii [2010] FWAFB 5343 at [27], 197 IR 266
viii Wan v AIRC (2001) 116 FCR 481 at [30]
ix GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
x [2013] FWCFB 5279
xi 58 AILR 100 [23]
xii Unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904
xiii (1995) 62 IR 200
WORK COMMISSION AIR WORK THE SEAL OF THE
[2016] FWCFB 2642
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xiv Unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996, Print N6999
xv [2011] FWAFB 4038
xvi [2014] FWCFB 613
xvii Applicant Outline of Submissions, paragraphs 16-23
xviii Ibid, paragraphs 24-28
