| [2017] FWCFB 4032 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 2 AUGUST 2017 |
Application for permission to appeal decision [[2017] FWC 2536] of Commissioner Cribb at Melbourne on 19 May 2017 in matter number U2016/8894 – serious misconduct – alteration of medical certificate – whether for purposes of claiming leave – consideration of witness evidence – application of enterprise agreement – public interest not enlivened – application dismissed.
[1] Ms Halina Bluzer has applied for permission to appeal a decision of Commissioner Cribb issued on 19 May 2017 (Decision). 1 In the Decision, the Commissioner found that Ms Bluzer’s dismissal by Monash University was not unfair, and dismissed her application for an unfair dismissal remedy.
[2] The University dismissed Ms Bluzer on 27 July 2016 for serious misconduct, namely the falsification of a medical certificate that was submitted in support of a claim for paid sick leave. Ms Bluzer acknowledged altering the certificate, but claimed that she did not amend it for the purpose of claiming sick leave, and that she had submitted the certificate in error. The Commissioner considered and rejected Ms Bluzer’s explanations, accepted the University’s reasoning for the dismissal, and found that there was a valid reason for dismissal. 2
Permission to appeal
[3] An appeal under s604 of the Fair Work Act 2009 (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.
[4] This appeal is one to which s400 of the Act applies. Section 400 provides:
(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 decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the requirements of s.400 as “stringent”. 4
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may eliven 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.” 6
[7] 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. 7 However, the fact that a member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[8] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9
Background
[9] The background to this matter is set out in detail in the Decision. We restate it briefly.
[10] Ms Bluzer was employed by Monash University in the role of Executive Officer, Events, in the Faculty of Arts. Her employment was covered by the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 (Enterprise Agreement).
[11] From 11 to 15 February 2015, Ms Bluzer took annual leave and went to Bali, where she underwent a dental procedure. Upon her return, she submitted a sick leave application in respect of the day on which she had the procedure. The University did not approve the application because it did not state that Ms Bluzer had been unable to attend work on the date in question. 10
[12] Over a year later, in April 2016, Ms Elliott, Senior Events Coordinator in the Faculty of Arts, noticed that some of the annual leave taken by Ms Bluzer in February 2015 had been recorded as sick leave. She asked Ms Bluzer to apply formally for the leave to be converted from annual leave to sick leave.
[13] On 11 April 2016, Ms Bluzer submitted an application for sick leave in respect of 12 February 2015, together with a medical certificate dated 14 February 2015, signed by Dr Olivia, stating that Ms Bluzer had treatment at the clinic ‘from start Thursday 12th February 2015 and Saturday 14th February 2015 (sic).’ In the Decision, this was referred to as the first certificate. 11
[14] On 26 April 2016, Ms Bluzer submitted a revised sick leave application, this time in respect of 12 and 13 February 2015. Attached to it was a medical certificate, again signed by Dr Olivia and dated 14 February 2015, and again referring to treatment at the clinic ‘from start Thursday 12th February 2015 and Saturday 14th February 2015 (sic).’ However, this time the certificate contained the words ‘so was unable attended work (sic).’ In the Decision, this was referred to as the second certificate.
[15] Ms Elliott noticed that the first and second certificates were identical save for the addition of the words ‘so was unable attended work’. In particular, the signature of Dr Olivia on each document was in precisely the same place. Ms Elliott had concerns about the authenticity of the second certificate and conferred with Ms Owen, Workplace Relations Consultant, and Mr Rivett, Faculty General Manager.
[16] Ms Owen examined the certificates in the electronic application ‘Photoshop.’ She established that the second certificate had been altered and that images had been added to it. 12
[17] The unusual formulation ‘so was unable attended work’ had also appeared in another certificate that Ms Bluzer had provided to the University in relation to treatment she received in February 2016. This certificate, from the same clinic, was signed by Dr Guizot and was dated 11 February 2016. It stated that Ms Bluzer had attended the clinic on 5, 9 and 11 February 2016. 13 In the Decision and in transcript, this document is referred to as ‘Document P’. We refer to it as the certificate for 2016.
[18] A meeting was held on 10 May 2016 involving Ms Bluzer, Mr Rivett, Ms Owen, and Mr Lad of the National Tertiary Education Industry Union (NTEU), who was Ms Bluzer’s support person. Ms Bluzer was shown the first and second certificates and was asked why wording had been added to one of them. Ms Bluzer admitted that she had altered the second certificate to include the new words. She said that she had intended to send the altered certificate to the Bali clinic, in order to ask them to amend the original certificate in the same way. She also said that she had not intended to submit the second certificate to the University.
[19] At the meeting on 10 May, Ms Bluzer produced another certificate from the clinic. 14 It stated that she had attended the clinic on 12 and 14 February 2015. It was signed by Dr Guizot. It bore the same date as the first and second certificates, namely 14 February 2015. It also contained the same unusual formulation as the second certificate and the certificate for 2016 - ‘so was unable attended work’. This document was referred to in the Decision as the third certificate, and variously throughout the evidence was described as ‘the backdated certificate’.
[20] After further deliberation, the University invited Ms Bluzer to another meeting on 26 May 2016. The University put to Ms Bluzer that she had falsified the second certificate with the intent to claim sick leave. Ms Bluzer denied this. She said that she had altered the second certificate for professional development. This second, additional explanation by Ms Bluzer for altering the certificate is discussed further below. Ms Bluzer then provided yet another certificate, again signed by Dr Guizot. It was dated 23 May 2016, and stated that Ms Bluzer had not been fit to attend work on 12, 13 and 14 February 2015. It did not contain the words ‘so was unable attended work’. The Commissioner did not assign a number to this certificate. We refer to it as the fourth certificate.
[21] At this point, it should be noted that there are a total of five certificates. The first to fourth certificates related to the 2015 treatment: of these, and two of them contained the words ‘so was unable attended work’. The certificate for 2016 related to the 2016 treatment. It too contained the words ‘so was unable attended work’.
[22] The University did not accept Ms Bluzer’s explanations. She was suspended on 31 May 2016. At a meeting on 27 July 2016, her employment was terminated for serious misconduct, namely ‘fabrication of a medical certificate that you presented to the University in support of paid personal leave on 26 April 2016’. 15
Grounds of appeal
[23] Ms Bluzer attaches to her Notice of Appeal a document containing 27 paragraphs which are said to relate to significant errors of fact and interpretation. We refer to these paragraphs as grounds of appeal, although in some cases it is the interaction of various paragraphs that constitutes a ground of appeal.
[24] Various grounds of appeal have common themes and we deal with these in turn below. In the course of doing so, we focus attention on the submissions that we consider to be centrally relevant to the Decision.
[25] Before the Full Bench, Ms Bluzer tendered a document, containing 80 paragraphs and entitled ‘There was an error in decision because.’ 16 This document also puts forward contentions to the effect that the Commissioner misunderstood or should not have accepted much of the evidence. In particular, at heading 4, it is contended that the Commissioner ‘failed to untangle a complex case’. We have considered this document, together with Ms Bluzer’s filed submissions, in considering her grounds of appeal.
Permission to appear
[26] The University’s counsel sought permission to appear, and there was some discussion with the parties of whether the Full Bench should grant permission, by reference to s596 of Act. 17
[27] The Full Bench decided that granting permission to appear would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. 18
Alleged errors of fact concerning the medical certificates, error as to valid reason
[28] Grounds 1, 2, 3, 4, 5, 6 and 18 concern Ms Bluzer’s contention that the Commissioner erred in finding that she had provided an altered medical certificate for the purpose of claiming sick leave, and that the Commissioner erred in finding that there was a valid reason for dismissal.
[29] We have taken into account the fact that Ms Bluzer was a litigant in person at the hearing of the application for permission to appeal (although she was represented below), and have given close consideration to her contentions. In examining whether these grounds of appeal make out an arguable case of error on the part of the Commissioner it is important to take into account Ms Bluzer’s position on several matters: why she altered the second certificate; when she altered it; and why she submitted it to the University?
Why Ms Bluzer said she altered the second certificate
[30] Ms Bluzer admitted that she had altered the second certificate, but denied that it was for the purpose of claiming sick leave. Ms Bluzer put forward two principal reasons that motivated her to alter the document.
[31] First, Ms Bluzer said that she altered the second certificate in order to send it to the Bali clinic, to show them the amendment that she wanted them to make to the original certificate. 19 Her evidence was that she thought it would be clearer to alter the certificate and show the clinic the amendment that was required, rather than emailing the clinic with a request that the amendment be made.20 Ultimately, she did not send the document to the surgery.21 She decided to obtain a revised certificate in person on her next visit to the clinic.
[32] Secondly, Ms Bluzer submitted that she altered the second certificate to practice her PDF document editing skills. This was said to be in the nature of a professional development exercise. She said that she was practicing how editable files can be converted. According to Ms Bluzer, she chose the second certificate at random for this purpose. 22 Before the Full Bench, Ms Bluzer developed this explanation and put forward personal circumstances that, she said, further explained why she wanted to be able to edit files.23
[33] Ms Bluzer’s two stated reasons for altering the second certificate were concurrent, not alternative; 24 she amended the certificate both because she had wanted to send it to the Bali clinic, and for her ‘development’ purposes.
[34] Ms Bluzer’s position was that she returned from her trip to Bali in February 2016 with two certificates, namely the third certificate (the ‘backdated’ certificate concerning the 2015 treatment), and the certificate for 2016. These two certificates had the same ungrammatical formulation as did the ‘second certificate’. According to Ms Bluzer, it was a coincidence that the two certificates she obtained from the Bali clinic in February 2016 had the same ungrammatical formulation as the second certificate that she altered in 2015 but never sent to the clinic. 25
When Ms Bluzer altered the second certificate
[35] Ms Bluzer’s evidence before the Commissioner was that she amended the certificate between March and May 2015. 26 Her evidence on this point was clear. In Ms Bluzer’s list of documents before the Commissioner, the second certificate is described as the ‘amended certificate issued in 2015 … created in April / May 2015’.
[36] During Ms Bluzer’s cross examination by the University’s counsel, the following exchange occurred:
PN500
Yes, and in your document list you say, and you describe this as an amended certificate created in April / May 2015, so is that the case? --- Yes. It could have been between March and May 2015. Definitely before May.
[37] However, the University led evidence from Mr Condello who examined the properties of the PDF document containing the second certificate. This analysis established that the PDF had been created on 16 February 2016, and amended on 18 February 2016, on Ms Bluzer’s work computer. 27 Ms Bluzer’s response to this evidence was that she had no idea how this had happened. 28 Clearly it was at odds with her evidence that she had amended the second certificate definitely before May 2015.
[38] The question of when Ms Bluzer amended the second certificate is important. If she amended the certificate in 2015, she could not have taken the ungrammatical words from the certificate for 2016. However, the evidence that she amended the certificate in February 2016 is consistent with the University’s case that she did do this.
[39] Before the Full Bench, Ms Bluzer argued that she had had little notice of Mr Condello’s evidence, and that until the hearing before the Commissioner she was not aware of the fact that the document had been altered in February 2016. 29 It seems that by this Ms Bluzer meant that she did not know about Mr Condello’s proof that she had altered the certificate in February 2016; or that she had forgotten.
[40] Ms Bluzer accepted that she had amended the second certificate in February 2016. 30 However, she did not accept the University’s case, namely that she had copied the words ‘so was unable attended work’ from the certificate for 2016.31 She contended that the evidence that she had altered the second certificate in February 2016, rather than in 2015, was consistent with her second reason referred to above, namely that she used the certificate as professional training development.32 How this consistency arises is not apparent to us. Ms Bluzer also contended that she might have made a mistake when scanning the new certificates she obtained from the Bali clinic in February 2016.33
[41] It is evident that, in relation to the question of when she altered the second certificate, Ms Bluzer’s case before the Full Bench differed significantly from the case below. We would point out that the appeal process is for the purposes of correcting error, not to provide an opportunity for unsuccessful parties to recast their case.
[42] Further, the revelation that the certificate was altered by Ms Bluzer in February 2016 (upon her return from Bali, apparently with two new certificates, one of which was for the previous year) casts doubt on Ms Bluzer’s first stated reason for amending the second certificate – that she wanted to send it to the clinic to show the amendment she sought.
Why the second certificate was submitted
[43] Ms Bluzer sought to explain not only why and when she amended the certificate; she also contended that she never intended to submit the altered certificate, and that this was a mistake.
[44] In the proceedings before the Commissioner, Ms Bluzer gave evidence that she had made a series of ‘badly judged communications and statements’ and that these arose because of medication she was taking at the time. 34 Ms Bluzer contended that the effect of medication and stress explains why she accidentally submitted the altered second certificate.
The Commissioner’s findings concerning the medical certificates and valid reason
[45] In the Decision, the Commissioner sets out the evidence in considerable detail. Findings are made from paragraph 47, including in relation to key questions concerning the evidence relating to the medical certificates:
[49] In relation to the various issues in dispute set out in the chronology above, the Commission finds that:
[46] The Commissioner explains these finding in the subsequent paragraphs. She analyses the University’s concerns about the second certificate, and considers Ms Bluzer’s explanations about why she amended the certificate. 35 As to Ms Bluzer’s position that it was a coincidence that the second certificate, which she amended, contained the same ungrammatical formulation as two later certificates from the clinic, the Commissioner stated:
[56] Ms Bluzer’s other explanation was that it was a coincidence which she could not explain. It is difficult to accept that this was simply a coincidence. The phrase in question is unusual and the chance of it randomly appearing in all three certificates would seem to be remote. This is particularly so as it was Ms Bluzer’s evidence that she had created the amended certificate herself in 2015 in Melbourne and that the doctors at the Clinic in Bali had written the other two certificates in 2016. In this regard, the University provided technical evidence, through the statement of Mr Condello, in relation to the University’s view that the certificate was created and amended by Ms Bluzer on or about 18 February 2016.
[57] In terms of where the particular phrase came from, Ms Bluzer’s evidence was that she had cut and pasted it from some other document. However, Ms Bluzer did not indicate as to what the “some other document” was. Ms Bluzer had also said that she could have just written that phrase but she could not remember. On the other hand, the University provided a possible explanation about where the phrase had originated – the 2016 medical certificate for the 2016 treatment (Document P).
[58] Given Ms Bluzer’s command of the English language, it would seem unlikely that Ms Bluzer came up with that particular phrase by herself. In terms of what document Ms Bluzer might have ‘cut’ the words from, Ms Bluzer did not indicate as to which document it was. It is difficult to envisage that, if Ms Bluzer did cut and pasted the words in question from another document, Ms Bluzer would have had possession of a document with those words in it in 2015.
[59] Given the absence of a clear explanation from Ms Bluzer about where the phrase in question came from and my view that its appearance in all of the three certificates is unlikely to be a coincidence, it is not possible to find other than it is probable that the phrase in question was cut and pasted from the 2016 medical certificate for the 2016 treatment (Document P). As Document P, on Ms Bluzer’s evidence, was given to her by the doctor at the Clinic in February 2016, it flows from that that the original certificate was amended in 2016 rather than in 2015.
[47] The Commissioner also considers Ms Bluzer’s contention that she did not intend to submit the second certificate, and that this was done in error. The Commissioner states:
[60] Finally, in terms of whether Ms Bluzer attached the Second certificate by mistake or deliberately to the second leave application, there appears to be a number of inconsistencies in Ms Bluzer’s explanation for why she had attached a (the) certificate to the second (amended) leave application. This was in the context of Ms Bluzer being very clear that all she was amending was the leave application and not the certificate(s). Ms Bluzer’s evidence was that she had attached two medical certificates to the first application. However, there was no explanation by Ms Bluzer as to why she had wanted to attach only one of those two certificates to the second (amended) leave application. Further, it was not explained by Ms Bluzer as to why, on her evidence, she had attached two certificates to the first leave application.
[61] Further, Ms Bluzer has explained that the motivation for attaching a certificate to the second leave application was to make it easier for Ms Elliott by re-attaching what she thought was the certificate that she had attached with the first leave application (so that Ms Elliott did not have to try and locate the first application). This does not seem to sit with Ms Bluzer’s other evidence that she had attached two certificates to the first leave application – the First certificate and the backdated and reissued certificate. There was no mention in Ms Bluzer’s evidence that she had meant to reattach the reissued and backdated certificate to make it easier for Ms Elliott. Rather, Ms Bluzer referred to the original (First) certificate that had been attached to the first application. Given Ms Bluzer’s contradictory evidence, it is difficult to accept that the Second certificate had been attached by mistake to the second leave application.
[48] It is clear from the last line of the passage above that the Commissioner makes a finding that Ms Bluzer did not submit the altered second certificate by mistake.
[49] It does not appear to us that there is an arguable case of significant error of fact or other error in the Commissioner’s finding on this issue. As to the contradictory evidence referred to by the Commissioner at the end of paragraph 61, we would note that the inconsistency in Ms Bluzer’s testimony extended to the question of when the second certificate was altered.
[50] In relation to whether there was a valid reason for dismissal, the Commissioner concludes as follows:
[63] Taking into account the findings, on the balance of probabilities set out above, the Commission finds, on balance, that there was a valid reason for Ms Bluzer’s dismissal.
[64] In making this finding on the balance of probabilities, it is acknowledged that Ms Bluzer has worked very hard to try and persuade first, the University and second, the Commission, that her version of events is true and correct. However, despite all of the effort and busyness, unfortunately for Ms Bluzer, she has not been able to provide a reasonable explanation for the presence of the phrase in question in the three certificates nor for the internal inconsistencies in her own evidence.
[65] On the Commission’s part, there has been no lack of effort in trying to understand the various explanations and the convoluted and competing evidence given by Ms Bluzer. However, on the material before the Commission from Ms Bluzer, it has not been possible to distil a cogent and internally consistent explanation for what happened. Therefore, the Commission has no option other than to accept the reasoning of the University for Ms Bluzer’s dismissal and to find that there was a valid reason for her dismissal.
[51] As noted above, the University’s reason for terminating Ms Bluzer was serious misconduct arising from ‘fabrication of a medical certificate that you presented to the University in support of paid personal leave on 26 April 2016’. 36 The Commissioner does not state specifically what in her view the valid reason was. However, she states clearly that she accepts the University’s ‘reasoning for the dismissal’, which was set out earlier in her reasons (in particular the University’s case theory, which is referred to in paragraph 59) and in the termination letter.37 She also finds that the medical certificate was not submitted by mistake.38
[52] We have considered Ms Bluzer’s contention that she would not have submitted an altered certificate from 2015 deliberately, when by that time she had (she says) received a reissued certificate from the surgery concerning her 2015 visit. 39 This is a reference to the third, ‘backdated’ certificate. However, it will be recalled that the so called ‘backdated certificate’ had the same date as the first and second certificates (14 February 2015). The date when Dr Guizot signed the third certificate is not indicated. On the face of the document, it is not evident that it existed at the time she submitted the altered second certificate. Nor is it clear when Ms Bluzer received it.40 By contrast, the fourth certificate, which relates to the 2015 treatment and is signed by Dr Guizot and clearly dated 23 May 2016, is a document created after the submission of the second certificate.
[53] It is also significant that Ms Bluzer’s clear case below was that she amended the certificate between March and May 2015 (so presumably could not have taken the ungrammatical words ‘so was unable attended work’ from the 2016 certificates). Only when presented with technical evidence about the certificate being altered in 2016 did she change her evidence and the line of her argument. Ms Bluzer’s case theory was weakened by this change of tack. Further, it appears that for Ms Bluzer, the question of how it was that her amendment to the second certificate contained the same ungrammatical formulation as the certificate for 2016 remains either a coincidence or a mystery.
[54] We have given careful consideration to the question of whether there is an arguable case, for the purposes of permission to appeal, that the case against Ms Bluzer was not established to a sufficient standard of proof. It seems to us that this is one of the central arguments of the appellant, although it is not expressly put in these terms.
[55] The standard to which the Commissioner was required to be satisfied was not that of certainty, or beyond reasonable doubt, but the balance of probabilities. In cases such as the present, it may be accepted that the seriousness of potential findings against Ms Bluzer are such that the principles in Briginshaw v Briginshaw apply. 41 These require that reasonable satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’ However, having regard to the evidence and findings, we do not consider that there is an arguable case that the required standard of proof was not met.
[56] It appears to us that the Commissioner carefully considered all of the evidence put to her. In particular, the Commissioner considered Ms Bluzer’s various explanations for altering the medical certificate, in the light of all of the evidence. We do not identify an arguable significant error of fact in connection with the medical certificate, or arguable error in relation to the existence of a valid reason.
[57] We now deal with Ms Bluzer’s other grounds of appeal.
Application of the Enterprise Agreement
[58] Paragraphs 7, 8, 9 and 16 of the grounds of appeal relate to a contention by Ms Bluzer that the Commissioner erred in finding that Monash complied with the Enterprise Agreement when considering the validity of the certificates from 2015 and 2016.
[59] This contention concerns an error of law, rather than an error of fact. It is not apparent to us that Monash failed to comply with the Enterprise Agreement. Ms Bluzer submits that clause 37 of the Enterprise Agreement, which concerns the provision of doctor’s certificates, does not stipulate conditions as to their content. It is suggested that there was no basis for the University to require Ms Bluzer to submit certificates that confirmed her inability to work. However, the Agreement does not prevent the employer from asking for an improved certificate. Ms Bluzer did not object to the request. Further, this issue has no bearing on the central issue, namely that she altered the medical certificate.
[60] We do not consider these contentions give rise to an apparent error relating to the application of the Enterprise Agreement.
Contentions regarding witness evidence
[61] Paragraphs 10, 11, 12, 13, 22 and 23 concern Ms Bluzer’s submission that the Decision contains errors concerning either the acceptance of evidence from, or the interpretation of the evidence of, Ms Elliott, Mr Rivett, Ms Owen and Mr Lad. She also submitted that the Commissioner was swayed by ‘fraudulent testimony’. 42 These witnesses gave evidence and were the subject of cross examination. Whilst the Commissioner does not specifically address the question of witness credit, she accepts the evidence of the company witnesses. At several points Ms Bluzer contests the truthfulness of the evidence of Ms Elliott,43 Ms Owen44 and Mr Rivett.45 In our view, the Commissioner implicitly rejected Ms Bluzer’s challenge to the credit of these witnesses.
[62] Findings of fact at first instance, based on credibility of a witness, will only be set aside on appeal where incontrovertible facts or uncontested testimony show that the decision-maker’s conclusions are erroneous, or where the conclusions drawn are clearly improbable or contrary to compelling inferences. 46 We do not consider that Ms Bluzer’s contentions concerning the acceptance or understanding of the evidence by the Commissioner can be characterised in any of these ways. Ms Bluzer disputes the evidence and findings but we do not see substance in her arguments, much less any ‘significant error of fact’.
[63] Paragraph 24 contends that an error arose in connection with Ms Bluzer’s support person, Mr Lad, being declared a ‘hostile witness’. Ms Bluzer contends that Mr Lad was reluctant to give evidence on her behalf, and that she had to subpoena his meeting notes. It appears that Ms Bluzer was dissatisfied with Mr Lad’s performance as a witness. However, we do not see how this gives rise to an arguable error on the Commissioner’s part.
Other alleged misunderstandings
[64] Paragraphs 14, 17, 19, 20 and 27 relate to contentions that the Decision misrepresents or misinterprets various matters, namely the facts that caused the process for the dismissal, the alleged unfairness of the investigation process, and the facts more generally. Further ‘misrepresentations’ are said to exist in the Decision concerning Ms Bluzer’s ability to produce documents using PDF file, and her need to upgrade her editing skills in working with PDF files. 47
[65] We do not identify arguable error in the Commissioner’s decision concerning these matters.
Production of documents
[66] By ground 25, Ms Bluzer contended that an error occurred because Mr Lad did not make documents available for production pursuant to an order of the Commission. However, Mr Lad complied with the Commission’s order to produce documents dated 13 February 2017. Documents meeting the description of those required to be produced are on the Commission’s file. It is not evident that Ms Bluzer raised any concern with the Commissioner at first instance.
[67] We see no basis for a contention of error by the Commissioner in this regard.
Complaint about NTEU error
[68] In paragraph 26, Ms Bluzer raises a concern about the NTEU having committed an error in failing to meet a deadline to appeal the decision to terminate her employment under an internal review procedure. Whatever may be the position here there is no contention that it involved an error on the part of the Commissioner. It is not relevant to the question of permission to appeal.
Representation by counsel
[69] Before the Full Bench, Ms Bluzer contended that she had not been effectively represented by her counsel. She also claimed to have been at a disadvantage because she was represented only by a barrister, and not also a solicitor. Ms Bluzer contended that her counsel did not pursue certain points. In particular, Ms Bluzer contends that witnesses were not sufficiently challenged and ‘misinformation’ was admitted as evidence. 48
[70] It appears that Ms Bluzer also considers that her counsel should not have agreed to the tendering of Mr Condello’s affidavit. 49 However, it is evident from the transcript that she did not contest Mr Condello’s evidence that, according to the relevant metadata, the certificate was altered on 18 February 2016. Ms Bluzer acknowledged that she did not raise any concerns about her counsel with Commissioner Cribb.50
[71] In these circumstances, it is difficult to see any arguable case of error on the part of the Commissioner. Further, it is well established that parties are generally bound by the conduct of their counsel (see Smits v Roach, 227 CLR 423).
Claim regarding ulterior motive of the University
[72] Finally, Ms Bluzer contended that the University had an ulterior motivation to disregard her explanation, namely that it wished to ‘remove her from her role’. She contended that there was a misrepresentation of Mr Rivett’s evidence ‘denying that Monash was in the process of getting rid of Ms Bluzer’, 51 and the alleged role of Monash in ‘persecuting’ Ms Bluzer.52
[73] However, there is nothing in the Decision or the evidence that leads us to the conclusion that the Commissioner may have erred in not accepting these contentions.
Conclusion
[74] In her Decision, the Commissioner carefully analysed and weighed all of the evidence before her and made findings in relation to the evidence. We have reviewed the evidence and the findings with a view to establishing whether there is an arguable case of error – in the case of error of fact, an arguable case of significant error. This was evidentially a complex matter, and we have considered in particular Ms Bluzer’s contention that the Commissioner failed to untangle a complex case. However, in our opinion, Ms Bluzer has not pointed to any part of the evidence or reasoning of the Commissioner that establishes an arguable case of error for the purposes of permission to appeal.
[75] She has not identified any issue in the appeal that raises matters of importance or general application that enliven the public interest for permission to appeal to be granted. In our view, the conclusions of the Commissioner, in light of her findings, were harmonious with other decisions of the Commission. Further, the fact that Ms Bluzer presented to the Full Bench an argument that differed from the one run before the Commissioner would tell against the public interest being enlivened in this case.
[76] For these reasons, we do not consider that it would be in the public interest to grant permission to appeal. Therefore, in accordance with s400(1) of the Act, permission to appeal is refused.
PRESIDENT
Appearances:
Ms Halina Bluzer, self-represented
Mr Leigh Howard of counsel for the respondent
Hearing details:
2017.
Melbourne:
12 July
2 Ibid, at [65]
3 See Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 (2011) 192 FCR 78 at [43]
5 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] to [46]
6 Ibid at [27]
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 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 388, 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]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
10 Witness statement of Ms Bluzer, paragraph 6
11 Ms Bluzer maintained that she submitted two certificates on this date; the original 2015 certificate and the reissued certificate discussed below (see transcript of proceedings before Commissioner Cribb PN330, 338, 364. The Commissioner accepted the university’s evidence that only the first mentioned certificate was submitted by Ms Bluzer on 11 April 2016 – see paragraph 49 of the Decision.
12 Witness statement of Ms Owen, at paragraph 45.
13 This document was referred to in the proceedings as ‘Document P’.
14 Note: Ms Bluzer’s evidence was that it was the University that showed her this third certificate, which she had previously submitted. The university’s position was that Ms Bluzer produced it at the meeting. The Commissioner accepted the university’s evidence – see paragraph [49] of the Decision.
15 See letter of termination dated 26 July 2016, Document H’ in the Applicant’s list of documents.
16 MFI 1. Counsel for the Respondent did not object to the document being tendered.
17 Transcript, PN7-29.
18 See section 596(2)(a).
19 See transcript of proceedings before Commissioner Cribb, PN 158, 164, 166. Witness statement of Ms Bluzer, paragraph 10
20 Ibid, PN486-8
21 Evidence of Ms Bluzer before Commissioner Cribb, PN384; and witness statement of Ms Bluzer, paragraph 11.
22 Transcript of proceedings before Commissioner Cribb at PN489, 493, 856, 857
23 Transcript at PN68-92
24 Transcript at PN94-96
25 Transcript of proceedings before Commissioner Cribb at PN591
26 Transcript at PN500; see also the index to the Applicant’s document list.
27 Transcript of proceedings before Commissioner Cribb at PN624, 625
28 Transcript of proceedings before Commissioner Cribb at PN627
29 Transcript at PN64, PN85to 88
30 Transcript at PN64-65
31 Transcript at PN70
32 PN 65
33 PN69, 70
34 Transcript of proceedings before Commissioner Cribb at PN898-910
35 [2017] FWC 2536 at [53]
36 See letter of termination dated 26 July 2016, Document H’ in the Applicant’s list of documents.
37 [2017] FWC 2536 at [65]
38 Ibid, at [63]
39 Appellant’s outline of submission at 2.13
40 Before Commissioner Cribb, Ms Bluzer tendered a statutory declaration from Dr Olivia, dated 2 December 2016 (Appeal Book p545). In it Dr Olivia states that he treated Ms Bluzer on 12, 13 and 14 February 2015; that he provided her with a medical certificate on 14 February 2015; and that on 11 February 2016 he ‘reissued the 2015 certificate with an additional phrase about Ms Bluzer not being able to work and backdated it’. The university raised concerns about the declaration not being properly witnessed, but consented to it being admitted as an unsworn statement. Ms Bluzer did not seek to make any significant use of this document before Commissioner Cribb or the Full Bench. We note that the document from Dr Olivia was obtained nearly seven months after the university put its allegations to Ms Bluzer. We also note that, in his document, Dr Olivia states that he did not have copies of previous certificates, just records of visits.
41 Briginshaw v Briginshaw [FB 1938] HCA 34; (1938) 60 CLR 362
42 MFI 1at 4.2
43 Appellant’s grounds of appeal, ground 22
44 Appellant’s grounds of appeal, ground 12
45 Appellant’s grounds of appeal, ground 12-13
46 Short v Ambulance Victoria [2015] FCAFC 55
47 Paragraphs 19-21 of Attachment
48 Appellant’s outline of appeal, paragraph 7
49 Appellant’s outline of appeal at 2.11 – 2.12
50 Transcript at PN145-147
51 Ground 13, Notice of Appeal; Witness statement of Ms Bluzer, paragraph 82
52 Appellant’s grounds of appeal, ground 15
Printed by authority of the Commonwealth Government Printer
<Price code C, PR595022>