DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Tawanda Gadzikwa
v
Commonwealth of Australia (Department of Human Services)
(C2018/5247)

Appeal against decision [2018] FWC 4878 of Deputy President Colman at Melbourne on 30 August 2018 in matter number U2018/3060.

Introduction and background

[1] Mr Tawanda Gadzikwa has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Colman on 30 August 2018 1 (Decision). The Decision concerned an application by Mr Gadzikwa for an unfair dismissal remedy in respect of his dismissal from his employment in the Commonwealth Department of Human Services (Department) effective from 1 March 2018. In the Decision, the Deputy President found that Mr Gadzikwa’s dismissal from his employer was not unfair and dismissed his application. Mr Gadzikwa contends in his notice of appeal that the Decision was in error in a number of respects and that it would be in the public interest to grant permission to appeal.

[2] The factual background to the matter may be summarised as follows. Mr Gadzikwa commenced employment in the Department on 13 January 2014. In June 2016 he went on unpaid sick leave for mental health reasons, and except for three days in September 2016, did not return to work. Medical reports sent to the Department in August and September 2017 indicated that Mr Gadzikwa was not fit to return to work. On 30 November 2017 the Department advised Mr Gadzikwa that, in order for the Department to assess whether it would continue to grant him further unpaid leave from work, it was necessary for him to advise whether he envisaged being in a position to return to work in the next two months. He was further advised that the Department would not be able to grant him unpaid personal leave indefinitely, and that if he intended to return to work he needed to provide a medical clearance by 16 January 2018, the date to which his unpaid personal leave was approved. The period of approved leave expired on 16 January 2018 without Mr Gadzikwa having provided a medical clearance, and he did not return to work.

[3] On 18 January 2018, the Department granted Mr Gadzikwa a further five days unpaid personal leave up to and including 23 January 2018, but advised him that he would not be granted any more personal leave from 24 January 2018. Mr Gadzikwa did not in this additional period provide the Department with a medical clearance nor did he return to work on 24 January 2018. On 25 January 2018, the Department advised Mr Gadzikwa that his absence from work was unauthorised and that five days’ unauthorised absence in a 12 month period might lead to termination of employment. The Department reminded Mr Gadzikwa on 1 February 2018 and again on 13 February 2018 that his absence from work was unauthorised. On 15 February 2018 the Department sent Mr Gadzikwa a proposed notice of termination of his employment on the basis of his unauthorised absence from work, and gave him until 23 February 2018 to respond.

[4] On 20 February 2018 an employee of the rehabilitation provider assisting Mr Gadzikwa sent the Department notes of a case conference at which Mr Gadzikwa’s treating doctor, Dr Shumba, had said that Mr Gadzikwa was fit to return to work three days a week for five hours per day. On 21 February 2018 Mr Gadzikwa requested and was granted an extension until 28 February 2018 to respond to the proposed notice of termination. On 23 February 2018 Mr Gadzikwa supplied the Department with a short medical certificate from Dr Shumba simply stating that he was fit to return to work for five hours per day, three days a week. On 26 February 2018 the Department advised that the certificate was inadequate and requested additional detail. There was further correspondence between Mr Gadzikwa and the Department about this, but no further medical report or certificate was ever provided. Mr Gadzikwa responded to the proposed notice of termination on 28 February 2018. On 1 March 2018 Mr Gadzikwa was advised by the Department that his employment was terminated due to his unauthorised absence from work from 24 January until 13 February 2018 and his consequential non-performance of his duties.

The Decision

[5] In the Decision the Deputy President, after setting out the facts of the matter, dealt with each of the matters he was required to consider under s 387 of the Fair Work Act 2009 (FW Act). In relation to s 387(a) the Deputy President found that it was not in contest that Mr Gadzikwa was absent from work without authorisation from 24 January 2018, that his dismissal was authorised by s 29 of the Public Service Act 1999 (Cth), that a dismissal for a reason identified in s 29(3) of the Public Service Act based on substantiated facts was ipso facto for a valid reason, and in any event that the dismissal was plainly for a valid reason. 2 The Deputy President considered at length, and rejected, Mr Gadzikwa’s arguments as to why there was not a valid reason for his dismissal.3 In relation to s 387(b) and (c), the Deputy President found (in substance) that Mr Gadzikwa had been afforded procedural fairness.4 In relation to s 387(h), the Deputy President took into account the proportionality of the dismissal,5 whether Mr Gadzikwa had been afforded a reasonable opportunity to return to work,6 the adequacy of the Department’s communications with Mr Gadzikwa,7 the fact that Mr Gadzikwa had secretly recorded meetings with his colleagues,8 whether Mr Gadzikwa’s role needed to be filled,9 whether the dismissal complied with the Public Service Act,10 and the personal impact of the dismissal upon Mr Gadzwika and the nature of his relationship with the Department.11 The Deputy President then concluded:

“[96] I am satisfied that there was a valid reason for Mr Gadzikwa’s dismissal. The termination of his employment was not attenuated with procedural or other unfairness. It was not disproportionate to the relevant conduct. Mr Gadzikwa’s personal circumstances, and the effect of his dismissal on him, are not such as to render the dismissal harsh, or unjust or unreasonable.

[97] Taking into account all of the circumstances and the considerations in s 387, I consider that the dismissal of Mr Gadzikwa was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair.

Appeal grounds and submissions

[6] In his notice of appeal, Mr Gadzikwa identified (in summary) two grounds of appeal:

(1) The Deputy President failed to take material considerations into account, namely that Mr Gadzikwa was promised rehabilitation assistance to seek employment elsewhere but that this was not provided; that the Department had declined to accept medical evidence from Dr Shumba; that on 26 February 2018 the Department declined to speak to Mr Gadzikwa’s GP and rehabilitation provider by telephone; that Dr Shumba’s earlier 2017 medical report saying Mr Gadzikwa was unfit for work suggested a review in March 2018; that Mr Gadzikwa had identified a number of intervening and special circumstances supporting why he should not be dismissed; and that he was not granted a telephone discussion to go over the proposed termination with his support person when he requested it, despite the Department earlier offering to do this.

(2) The Deputy President mistook the facts when he found that:

● Mr Gadzikwa did not contest the factual basis for his dismissal, namely his unauthorised absence from work and his non-performance of his duties;

● the Department treated Mr Gadzikwa with due sensitivity and ensured a fair and reasonable process having regard to his mental health difficulties;

● the fact the Department had offered Mr Gadzikwa a voluntary redundancy in February 2017 was not evidence that it was determined to get rid of him;

● in relation to s 387(f) and (g), the Department was a large organisation which could be expected to put in place good procedures to deal with Mr Gadzikwa’s situation; and

● the Department’s cancellation of a fitness for duty assessment on 11 December 2017 was a logical and reasonable step in response to medical reports supplied by Mr Gadzikwa that he was not fit to return to work.

[7] The grounds for the grant of permission to appeal set out in the notice of appeal were (in summary) that:

● Mr Gadzikwa had suffered an injustice because he was not granted access to a key witness and numerous documents, was not granted an adjournment to assist him in attending to his health, and was not granted an extension to contest the decision to permit the Department to be legally represented; and

● The Decision was disharmonious with the decision in Ambulance Victoria v Ms V, 12 in which it was held that a valid reason for termination based on incapacity was to be assessed by reference to the applicant’s current medical condition rather than by reference to whether prior medical circumstances had changed.

[8] The written submission filed by Mr Gadzikwa in support of his application traversed matters well beyond those canvassed in his notice of appeal, and identified numerous paragraphs in the Decision in relation to which it was contended that the Deputy President had applied principles that were disharmonious when compared with other recent decisions dealing with similar matters, had made significant errors of fact or had failed to take material considerations into account.

[9] At the hearing of his application for permission to appeal, Mr Gadzikwa again raised a range of matters that went beyond the scope of his notice of appeal and contested the merits of a number of findings made by the Deputy President.

Consideration

[10] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.¹³ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[11] This appeal is one to which s 400 of the FW 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.

[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.¹⁴ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 15

[13] 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.¹⁶ 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.¹⁷

[14] 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. 18

[15] We are not satisfied that the grant of permission to appeal would be in the public interest in this case, for the following reasons:

(1) The Decision, which we have earlier summarised, dealt with Mr Gadzikwa’s unfair dismissal remedy application in an orthodox way. The Deputy President dealt with the relevant issues of fact, considered all the matters required to be taken into account under s 387 of the FW Act, and reached a conclusion based on the findings he had made.

(2) No issue of legal principle is raised by the appeal. The Full Bench decision in Ambulance Victoria v Ms V 19 is of no relevance to the matter because Mr Gadzikwa was dismissed because of his unauthorised absence from work and non-performance of his duties from 24 January 2018 onwards, not because of medical incapacity.

(3) The contentions of factual error contained in the notice of appeal and Mr Gadzikwa’s written and oral submissions are largely directed at tangential matters, and therefore cannot be characterised as contentions of significant errors of fact as required by s 400(2). The critical factual matters concerning Mr Gadzikwa’s unauthorised absence from work were, as the Deputy President found, not in dispute and were in any event evidenced by the written communications passing between Mr Gadzikwa and the Department.

(4) We do not consider it to be reasonably arguable that the Deputy President failed to take into account any consideration materially relevant to Mr Gadzikwa’s unfair dismissal remedy application. Our perusal of the Decision and the materials discloses that the Deputy President dealt exhaustively with the matters raised by Mr Gadzikwa in support of his application, and it is far from clear that the matters said not to have been taken into account were identified as relevant by Mr Gadzikwa at first instance. Nor do they appear to us to have been matters of significance.

(5) The procedural issues raised in the notice of appeal do not appear to have any substance. The evidence before the Deputy President disclosed that the witness to whom Mr Gadzikwa contends he did not have access was unavailable to give evidence because of health reasons, and we note that the Deputy President declined to issue an order requiring his attendance to give evidence because it would not be of sufficient relevance. The documents Mr Gadzikwa was said not to have been given access to such as to cause injustice were not identified, although we note that the Deputy President declined to issue a number of orders for production of documents requested by Mr Gadzikwa on the ground that they were insufficiently relevant to the proceedings. Mr Gadzikwa did not identify the circumstances of any adjournment he requested on health grounds. We note that the transcript demonstrates that the Deputy President was appropriately sensitive to Mr Gadzikwa’s health issues in the conduct of the proceedings, including by allowing him to conduct his case by telephone rather than attending the hearing. The issue concerning the alleged refusal of an “extension” for Mr Gadzikwa to “contest” the grant of permission for legal representation to the Department does not appear to us to attract the public interest.

(6) The matter turned entirely on its own facts. The appeal does not raise any issue of novelty, importance or general application. The notice of appeal did not contest the Deputy President’s conclusion that a dismissal for a reason identified in s 29(3) of the Public Service Act based on substantiated facts was ipso facto for a valid reason, and in any event the Deputy President determined in the alternative that there was a valid reason for the dismissal on the conventional basis. Accordingly the correctness of his analysis concerning s 29(3) of the Public Service Act does not arise for consideration in Mr Gadzikwa’s appeal.

[16] As set out earlier, s 400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to grant permission to appeal. Accordingly permission to appeal must be refused.

VICE PRESIDENT

Appearances:

T. Gadzikwa on his own behalf

A. Bell of Counsel on behalf of the Commonwealth of Australia (Department of Human Services)

Hearing details:

2018.

Sydney/Melbourne:

14 November.

 1   [2018] FWC 4878

 2   Decision at [37]-[43]

 3   Decision at [44]-[55]

 4   Decision at [56]-[58]

 5   Decision at [63]-[64]

 6   Decision at [65]-[72]

 7   Decision at [73]-[80]

 8   Decision at [81]-[87]

 9   Decision at [88]-[89]

 10   Decision at [90]

 11   Decision at [91]-[95]

 12   [2012] FWAFB 1616

13 This is so because on appeal the Commission 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

14 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]

 15   [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

16 Wan v AIRC (2001) 116 FCR 481 at [30]

17 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, 241 IR 177 at [28]

 18   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 19   [2012] FWAFB 1616

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