1
Fair Work Act 2009
s.604 - Appeal of decisions
Tenterfield Care Centre Limited
v
Mrs Madeline Wait
(C2018/2925)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON SYDNEY, 31 JULY 2018
Permission to appeal against a decision [[2018] FWC 2472] of Commissioner Cambridge at
Sydney on 10 May 2018 – reinstatement – public interest not enlivened – not contended that
the decision involved a significant error of fact – permission to appeal refused.
[1] On 10 May 2018 Commissioner Cambridge issued a decision1 (the Decision) in which
he determined that Ms Madeline Wait had been unfairly dismissed from her employment with
the Tenterfield Care Centre Limited (‘Tenterfield’). The Commissioner issued an Order2 that
Ms Wait be reinstated to the position she was employed immediately before her dismissal;
that her continuity of employment be maintained; and a sum of compensation lost because of
the dismissal. Tenterfield seeks permission to appeal the Decision.
[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the 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.3 There is no right to appeal and an appeal may only be
made with the permission of the Commission. The matter was listed for hearing in respect of
both permission to appeal and the merits of the appeal.
[3] The background to the proceedings is described in the Decision and may be shortly
stated. Ms Wait is 61 years of age and worked for the Appellant for about 5 and a half years,
initially as a kitchen hand and then as a Maintenance/Gardening Officer. Ms Wait was
dismissed on 5 October 2017 arising from two allegations of misconduct:4
1 [2018] FWC 2472.
2 PR606775.
3 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.
4 Appeal Book Tab 5 pp 214-216.
[2018] FWCFB 3844
DECISION
E AUSTRALIA FairWork Commission
2
(i) An allegation of unauthorised use of the appellant’s equipment by reason of
Ms Wait borrowing a chainsaw and hedge trimmer for personal use on 19
August 2017.
(ii) An allegation that Ms Wait had refused to follow a lawful and reasonable
request in a timely manner and being insubordinate by not clearing up some
leaves and debris on 1 September 2017.
[4] The Commissioner sets out the factual background at [7] to [31] before setting out the
submissions advanced on behalf of the applicant (at [32] to [42]) and the employer (at [43] to
[51]). The Commissioner deals with the first allegation of misconduct ((i) above at [3]) at [57]
to [68] finding that:
the evidence presented ‘overwhelmingly’ supported the proposition that the
applicant had been given verbal approval by her previous manager, Ms Johnston, to
‘borrow the hedge trimmer’ (see [57] to [60]).
during the hearing the employer raised a distinction between authorisation for the
private use of the hedge trimmer as opposed to any authorisation for the private use
of the chainsaw. The Commissioner found that no such distinction arose during the
employer’s investigation into the allegation and that ‘it was clear that the applicant
made the assumption that the verbal approval to use the hedge trimmer would be
equally applicable to the chainsaw’ (at [63]).
at its highest the applicant’s conduct ‘might properly attract some reprimand and
warning’ (at [66]) (emphasis added).
[5] The Commissioner deals with the second allegation of misconduct ((ii) above at [3]) at
[69] to [77], noting that the letter of dismissal stated that the applicant was directed ‘on three
times by two of your supervisors’ to clean up leaf debris. The Commissioner found that the
factual position as understood by the employer was incorrect (see [70]). The Commissioner
found that the applicant had made an ‘intemperate remark’ to her manager, saying words to
the effect of: ‘what do you think I am, get real’. But the Commissioner notes that this remark
was made in response to an ‘unreasonable instruction’ to immediately commence the clean up
of the leaf debris and to not take her scheduled tea break.
[6] The Commissioner concluded (at [77]) that when properly examined the alleged
insubordination could not be sustained:
‘The applicant disobeyed an unreasonable and possibly unlawful instruction, and disobedience
in such circumstances does not constitute insubordination. However, the applicant should have
been reprimanded about her inappropriate verbal comments, and it would have been
appropriate to warn her about her general level of undiplomatic or discourteous verbal
communication with other employees and managers in particular. Importantly, the actions of
the applicant on 1 September 2017 during her verbal exchanges with Ms Ellis, did not
represent a refusal to follow lawful and reasonable requests in a timely manner, nor did it
represent insubordination.’5
5 [2018] FWC 2472 at [77].
3
[7] In relation to both allegations and the question of whether there was a valid reason for
dismissal the Commissioner concludes at ([78]):
‘In summary therefore, the reasons for the dismissal of the applicant were artificially elevated
to represent serious misconduct. Although particular aspects of the applicant’s conduct on
both 19 August and 1 September 2017 were open to justifiable criticism, there was no valid
basis to characterise her conduct as serious misconduct. The purported serious misconduct of
the applicant was not a reason that was sound, defensible or well-founded. Therefore, there
was not a valid reason for the dismissal of the applicant related to her capacity or conduct.’6
[8] The Commissioner deals with the other matters he was required to take into account
(s.387(b) to (h)) at [79] to [87] and concludes as follows (at [88], [90] and [91]):
‘The applicant was dismissed upon findings that the employer made of serious misconduct.
Upon proper analysis of the conduct of the applicant in respect to events of 19 August and 1
September 2017, there was no proper basis upon which the employer established serious
misconduct. The employer had artificially elevated the seriousness of the transgressions,
mistakes and impolite comments made by the applicant in respect to the events of 19 August
and 1 September 2017. Consequently, the reasons for the applicant’s dismissal were not sound,
defensible or well-founded. The applicant was not dismissed for valid reason related to her
capacity or conduct.
…
In summary, this case has involved a very regrettable absence of valid reason for the
applicant’s dismissal. The employer issued unreasonable instructions to the applicant, and an
unfortunate verbal exchange occurred between the applicant and Ms Ellis. As a result of this
unfortunate verbal exchange the employer artificially elevated the level of seriousness of the
matters under consideration, and it erroneously determined that the applicant was guilty of
serious misconduct.
Consequently, the dismissal was without valid reason and it was infected with procedural
deficiency. The dismissal of the applicant was harsh, unjust and unreasonable. The applicant is
a person protected from unfair dismissal, and she is entitled to have the Commission provide
an appropriate remedy.’7
[9] The Commissioner dealt with the question of remedy at [92] to [97] and determined
that an order for reinstatement was appropriate ‘in all the circumstances of this case’. The
Commissioner issued an Order8 that Ms Wait be reinstated to the position she was employed
immediately before her dismissal; that her continuity of employment be maintained; and a
sum of compensation lost because of the dismissal. Tenterfield seeks permission to appeal the
Decision.
[10] This appeal is one to which s.400 of the Act applies. Section 400 provides:
6 Ibid at [78].
7 Ibid at [88], [90] and [91].
8 PR606775.
4
(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.
[11] The legislative scheme manifests an intention that the threshold for a grant of
permission to appeal be higher in respect of an unfair dismissal appeal than the threshold
applicable to appeals generally.9 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’.10
[12] The Appellant advanced nine grounds of appeal outlined in the Notice of Appeal. In
its submissions filed on 26 June 2018, the Appellant advised it no longer pressed grounds 1 to
7 and only sought permission to appeal in respect of Grounds 8 and 9, both of which relate to
the decision to reinstate.11 Before turning to those grounds we will briefly deal with the
relevant legislative provisions and the general principles concerning reinstatement.
[13] Remedies for unfair dismissals are dealt with in Division 4 of Part 3-2 of the Act
(ss.390-393). Section 390 is the relevant provision for present purposes, it states:
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.
Note: Division 5 deals with procedural matters such as applications for remedies.
9 G & S Fortunato Group Pty Ltd v Stranieri (2013) 233 IR 304 at [13]; Barwon Health – Geelong Hospital v Colson (2013)
233 IR 364 at [6]; Becke v Edenvale Manor Aged Care [2014] FWCFB 6809 at [11].
10 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43].
11 Appellant’s Submissions, para 6.
5
[14] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair
dismissal as the discretion to order a remedy of compensation may only be exercised if the
Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of
Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is ‘to provide remedies
if a dismissal is found to be unfair, with an emphasis on reinstatement’.12 We would observe
that to describe reinstatement as the ‘primary remedy’, is to simply recognise that
reinstatement is the first, perhaps even the foremost, remedy under the Act.13 The relevant
question in determining whether to grant the remedy of reinstatement of an employee in
relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is
appropriate in the particular case.14
[15] The general principles concerning consideration of whether the remedy of
reinstatement should be granted were dealt with in the Full Bench decision in Nguyen
v Vietnamese Community in Australia.15 Relevantly, the Full Bench determined that:
whether to order a remedy is a discretionary decision;16
reinstatement might be inappropriate in a range of circumstances, including that it
would be futile, or the employee was incapacitated by illness or injury, or because of
a loss of trust and confidence;17
‘trust and confidence’ is that which was necessary to make an employment
relationship workable;18
trust and confidence is not the sole or even a necessary criterion for reinstatement;19
in relation to a contention of a loss of trust and confidence, each case had to be
decided on its own facts;20 and
an allegation of a loss of trust and confidence must be soundly and rationally
based.21
12 Section 381(1)(c) Fair Work Act 2009 (Cth).
13 Wark v Melbourne City Toyota, Print R4864, 20 May 1999 per Williams SDP, Acton SDP and Tolley C; Newtronics Pty
Ltd v Salenga, Print R4305, 29 April 1999 per Polites SDP, Acton DP and Smith C; Rowley v EDI Rail Pty Ltd [2008]
AIRCFB64; Colson v Barwon Health [2014] FWCFB 1949.
14 Regional Express Holdings Limited trading as REX Airlines v Richards [2010] FWAFB 8753 at [23]-[24]; Colson v
Barwon Health [2014] FWCFB 1949 at [30]-[31].
15 [2014] FWCFB 7198.
16 Ibid at [9].
17 Ibid at [17]-[20].
18 Ibid at [23].
19 Ibid at [24].
20 Ibid at [27].
21 Ibid at [27].
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb7198.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1949.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb8753.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1949.htm
6
[16] The most common argument advanced in support of the proposition that reinstatement
is inappropriate is the notion, variously expressed, that there has been a loss of trust and
confidence such that it would not be feasible to re-establish the employment relationship.
[17] In Perkins v Grace Worldwide (Aust) Pty Ltd (‘Perkins’)22 the Full Court of the
Industrial Relations Court considered the effect of a loss of trust and confidence on the
question of the “practicability” of a reinstatement remedy and said:
‘Trust and confidence is a necessary ingredient in any employment relationship... So we accept
that the question whether there has been a loss of trust and confidence is a relevant
consideration in determining whether reinstatement is impracticable, provided that such loss of
trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an
employer, accuses an employee of wrongdoing justifying the summary termination of the
employee’s employment, the accuser will often be reluctant to shift from the view that such
wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution
of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship
of trust and confidence between employer and employee, and so made reinstatement
impracticable, an employee who was terminated after an accusation of wrongdoing but later
succeeded in an application under the Division would be denied access to the primary remedy
provided by the legislation. Compensation, which is subject to a statutory limit, would be the
only available remedy. Consequently, it is important that the Court carefully scrutinise any
claim by an employer that reinstatement is impracticable because of a loss of confidence in the
employee.
It may be difficult or embarrassing for an employer to be required to re-employ a person the
employer believed to have been guilty of wrongdoing. The requirement may cause
inconvenience to the employer. But if there is such a requirement, it will be because the
employee’s employment was earlier terminated without a valid reason or without extending
procedural fairness to the employee. The problems will be of the employer’s own making. If
the employer is of even average fair-mindedness, they are likely to prove short-lived.
Problems such as this do not necessarily indicate such a loss of confidence as to make the
restoration of the employment relationship impracticable.’23
[18] Although Perkins was decided in a different statutory context, the Court’s
observations remain relevant to the question of whether reinstatement is appropriate in the
context of s.390.24
[19] As mentioned earlier, the Appellant does not challenge the Commissioner’s finding
that there was no valid reason for dismissal and the dismissal of Ms Wait was harsh, unjust
and unreasonable. The only issue now raised on appeal is the decision as to remedy, that is,
grounds 8 and 9, which state:
22 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.
23 Ibid.
24 McLauchlan (1998) 84 IR 1 at 18. Also see IGA Distribution (Vic) Pty Ltd v Cong Nguyen [2011] FWAFB 4070; Colson v
Barwon Health [2014] FWCFB 1949.
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1949.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb4070.htm
7
‘8. The Commission erred in finding that there has been not been a genuine loss of trust
and confidence such that the employment relationship should not be re-established; in
making this error the Commissioner wrongly rejected unchallenged evidence directly
on point.
9. The Commission erred in finding that the job existed into which the respondent could
be reinstated, and unreasonably dismissed the appellant's unchallenged evidence in
that regard.’
[20] The question of whether reinstatement is appropriate involves the exercise of a
discretion which will invariably be particular to the circumstances of the case. 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 successfully challenged
on appeal by showing error in the decision-making process.25 It is only if there is error in that
process that a discretionary decision can be set aside by an appellate tribunal. The errors that
might be made in the decision-making process were identified, in relation to judicial
discretions, in House v The King 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. 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.’26
[21] In the course of oral argument counsel for the Appellant submitted that the
Commissioner provided no proper analysis of the evidence and submissions regarding the
inappropriateness of reinstatement and erred in failing to provide adequate reasons. The
Appellant contended that the Commissioner had made the type of error identified as the final
category in House v The King namely that 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. The Appellant contends that the only reasonable conclusion is that the
Commissioner ignored relevant material in concluding that there had not been a genuine loss
of trust and confidence on the part of the employer.
[22] Part of the Appellant’s case is the proposition that Ms Wait had lied to her employer
during the investigation into her alleged misconduct. It is said that the Commissioner failed to
take this matter into account. This submission proceeds on a false premise. It is based on the
proposition that Ms Wait was not authorised to use the chainsaw for private use; knew she
was not authorised; and lied about this during the investigation.
25 Coal & Allied v Australian Industrial Relations Commission (2000) CLR 194 at [21].
26 House v The King (1936) 55 CLR 499 at 505.
8
[23] The proposition put is inconsistent with the Commissioner’s findings at [63]:
‘Although a distinction was made during the Hearing between any approval to take the hedge
trimmer as opposed to the chainsaw, no such distinction arose during the employer’s
investigation into the allegations regarding the applicant’s unauthorised use of the employer’s
equipment. Further, it was clear that the applicant made the assumption that the verbal
approval to use the hedge trimmer would be equally applicable to the chainsaw. The hedge
trimmer and the chainsaw are similar pieces of equipment, both being handheld motorised
gardening tools. In my view, it was reasonable and open to the applicant to assume that the
verbal approval provided for the hedge trimmer would similarly apply to the chainsaw.’
[24] During the course of oral argument counsel for the Appellant contended that the above
finding was erroneous. The grounds of appeal contain no allegation that the Commissioner
made a significant error of fact or that he erred in finding that ‘it was reasonable and open to
the applicant to assume that the verbal approval provided for the hedge trimmer would
similarly apply to the chainsaw’. Counsel belatedly sought to amend the grounds of appeal to
contend that the Commissioner made a significant error of fact at [63] of the Decision. The
application to amend the grounds of appeal was opposed.27
[25] The Appellant has had the benefit of legal advice in drafting the grounds of appeal and
in preparing the written submissions filed in support of the appeal. Further, any amendments
to those grounds would lead to the Respondent incurring additional costs and delay to the
resolution of the matter. In our view the interests of justice did not favour the grant of leave
and on that basis leave was refused.
[26] As to the proposition that the Commissioner failed to provide adequate reasons we
note that in Barach v University of New South Wales28 the Full Bench noted that a decision
should articulate the essential grounds for reaching a decision, but that (at [16]):29
‘… the reasons for decision of a tribunal member need not be lengthy or elaborate and need
not spell out every detail in the reasoning process or deal with every matter of fact or law
which was raised in the proceedings.’
[27] As noted in Barach, a decision-maker is ‘not required to mention every fact or
argument relied on by the losing party’30 or expose every step of his or her chain of reasoning,
nor is it necessary for reasons to be elaborate or lengthy.31 Whether reasons are adequate
depends upon the circumstances, including the nature of the statutory function being
exercised, the decision and the submissions and material in the case.32 In the context of this
case we are not persuaded that the reason were inadequate. At first instance the submissions
of the respondent in relation to reinstatement were brief. In each of its written submissions,
27 See Transcript at [129] to [153].
28 (2010) 194 IR 259.
29 See also Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21 at
[84]; Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd (2014) 261 IR 194 at [30]-[31].
30 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]; Kovan Enginerring (Aust) Pty Ltd v Gold Peg International Pty
Ltd (2006) 234 ALR 241 at [45].
31 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-272; Housing Commission of New South Wales v
Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386.
32 Transport Workers’ Union of Australia v WA Freightlines Pty Ltd (2011) 211 IR 369 at [10].
9
the respondent devoted a single paragraph to the question of reinstatement33 and, in oral
submissions, counsel only briefly addressed the issue.
[28] As we have mentioned, the Commissioner dealt with the question of remedy at [92] to
[97] of the Decision. At [94] to [96] the Commissioner states:
‘I have carefully considered whether it would be appropriate to make Orders for the
reinstatement of the applicant. I do not accept that there has been a genuine loss of trust and
confidence such that the employment relationship should not be re-established. Further, I have
not been persuaded that the rearrangement of the work previously performed by the applicant
now being undertaken by a casual employee, establishes any barrier to reinstatement, or would
otherwise make reinstatement inappropriate.
In the particular circumstances of this case, I have formed the view that a significant injustice
would occur if the applicant was not provided with the remedy that she has earnestly sought.
Therefore, I have concluded that reinstatement would be appropriate in all of the
circumstances of this case.
Consequently, for the reasons stated above, I find that the dismissal of the applicant was
unfair, and I am prepared to make Orders for the reinstatement of the applicant.’
[29] Further, the Decision is be read fairly and as a whole and not with an eye attuned to
detect error. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan
Liang (1996) 185 CLR 259 at 291:34
‘The reasons under challenge must be read as a whole. They must be considered fairly. It is
erroneous to adopt a narrow approach, combing through the words of the decision maker with
a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting
the inference of an error of law.’
[30] The passages which expressly deal with reinstatement ([94] to [96]), set out above)
must be read in the context of the Decision as a whole. In particular, at [49] to [50] the
Commissioner summarised Tenterfield’s submissions regarding reinstatement:
‘Ms Lowson made further submissions which stressed that the applicant’s insubordination
reflected an attitude which meant that the employer had lost trust and faith in the applicant and
the employment relationship had been irrevocably damaged. In this regard, Ms Lowson
submitted that the employment relationship had been damaged and therefore any reinstatement
of that relationship would be inappropriate.
Ms Lowson stressed that the employer primarily relied upon its submission that the dismissal
of the applicant was not unfair. However, by way of alternative further submissions, Ms
Lowson strongly opposed any remedy of reinstatement. Ms Lowson said that the employment
relationship had been severely damaged by the insubordinate conduct of the applicant, and that
she had been shown to be dishonest in her answers during the investigation process. Further,
Ms Lowson said that the work of the applicant previously undertook had now been allocated
33 Appeal Book Tab 18 p377-378 at [20]; Tab 19 p390 at [27].
34 See also Technical and Further Education Commission (t/as TAFE NSW) v Pykett (2014) 240 IR 130 at [45]; Esso
Australia Pty Ltd v Australian Manufacturing Workers’ Union (2015) 247 IR 5 at [25].
10
to a casual employee and so therefore the job that the applicant previously did no longer
existed.’
[31] The Appellant’s submissions below made plain that it suggested reinstatement was
inappropriate as a result of an alleged breakdown of trust and confidence which was said to
arise substantially from the same matters alleged to provide the valid reason for termination.
The essential assertion was that Ms Wait was insubordinate, rude and difficult to work with,
which overlapped with the matters relied upon to dismiss Ms Wait in the first place. 35 In
addition, it was alleged that Ms Wait’s work was now being done by a casual employee in a
lesser period of time.36
[32] The Commissioner addressed these submissions in the Decision and there is no basis
for concluding that the Commissioner failed to consider the question of whether or not trust
and confidence had broken down so as to cause reinstatement to be inappropriate or ignored
or overlooked the material relied upon by the Appellant.
[33] The Commissioner was not required to set out each and every matter raised by the
Appellant in his reasons, particularly where the substance of the issue raised by the Appellant
as to trust and confidence were considered by the Commissioner earlier in the decision. The
Commissioner also directly addressed (at [94]) the question of whether the rearrangement of
the work performed by Ms Wait established a barrier to reinstatement or otherwise made
reinstatement inappropriate.
[34] We are also cognisant of the fact that the Commissioner had the advantage of seeing
the witnesses give evidence, including Ms Wait, Ms Murphy and Ms Ellis. The only witness
who expressly gave evidence in relation to reinstatement was Ms Murphy and she was
challenged on her evidence.37
[35] As mentioned earlier, in the case of an appeal from a decision made under Part 3-2 of
the Act, s 400(1) dictates that we must not grant permission to appeal ‘unless’ we consider
that it is in the public interest to do so. While the ‘public interest’ criterion involves the
making of a broad value judgement, the test imposed by s.400(1) is intended to be a ‘stringent
one’.38 The Full Bench ‘must not’ grant permission to appeal ‘unless’ satisfied that it is in the
public interest to do so.39
[36] Factors that might attract the public interest include where a matter raises issues of
importance and general application, where there are a diversity of decisions at first instance,
where the decision at first instance manifests an injustice or the legal principles applied
35 The respondent’s written submissions handed up on the final day of hearing asserted that reinstatement would not be an
appropriate remedy “relying on the same matters set out above, as well as unchallenged evidence from Ms Ellis and
other staff concerning the difficulties in working with Ms Wait”: Appeal Book Tab 19 p390 at [27].
36 Appeal Book Tab 18 p378 at [20a].
37 Appeal Book Tab 3 p107-109 PN1114-1146.
38 Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [43].
39 See, for example, Pilbara Iron Company (Services) Pty Ltd t/a Rio Tinto Iron Ore v Ballam [2018] FWCFB 1747 at [94].
11
appear disharmonious when compared with other recent decisions.40 The public interest is not
satisfied simply by the identification of error, or a preference for a different result.41
[37] In our view, the appeal raises no issue or question of principle, of broader importance
or with implications beyond the present case. The principles to be applied by the Commission
in determining the question of remedy under s.390 are well established and were not in
dispute in the present appeal.
[38] The public interest is not enlivened in a case where the only issue raised is remedy; no
issue of principle arises; it is not contended that the decision involved a significant error of
fact and the decision subject to appeal turns on the particular facts of the case. Such other
circumstances in the matter before us. We do not consider that it is in the public interest to
grant permission to appeal.
[39] Permission to appeal is refused.
PRESIDENT
Appearances:
P Lowson for the Appellant.
E Gibian for the Respondent.
Hearing details:
Sydney.
2018.
13 July.
Printed by authority of the Commonwealth Government Printer
PR608560
40 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27]; Construction, Forestry, Mining and Energy Union
(Construction and General Division) v Port Kembla Coal Terminal Ltd (2015) 251 IR 241 at [28].
41 Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388 at [28] affirmed on judicial review in Coal & Allied
Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v McAuliffe (2014) 241 IR 177 at [28].
