| [2019] FWCFB 6914 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Courtney Murphy
v
ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre
(C2019/3372)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 11 NOVEMBER 2019 |
Appeal against decision [2019] FWC 3169 of Commissioner McKinnon at Melbourne on 9 May 2019 in matter number U2018/12220.
[1] Ms Courtney Murphy (the Appellant) has applied for permission to appeal and has appealed against a decision 1 made by Commissioner McKinnon on 9 May 2019 (the Decision) in which the Commissioner determined that the Appellant’s dismissal was not harsh, unjust or unreasonable and thereby not unfair.
[2] The background to the proceedings may be shortly stated. The Appellant was employed as a Child Care Worker by ECEC Management Pty Ltd trading as Mooroolbark Child Care Centre (the Respondent) and was dismissed on 23 November 2018 for serious misconduct. The Appellant’s termination followed an altercation with a fellow employee at the Respondent’s childcare centre on 25 October 2018.
[3] The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal on 4 September 2019. The Appellant sought to be legally represented at the hearing pursuant to s.596 of the Fair Work Act 2009 (the Act). We were satisfied that the matter was invested with sufficient complexity, such that we would be assisted in the efficient conduct of the matter if we allowed the Appellant to be represented by Mr Andrew White of Counsel, and we exercised our discretion to grant the Appellant permission to be represented by him.
[4] Mr Naseem Abdul appeared for the Respondent.
[5] We turn firstly to the Decision which is the subject of the appeal.
[6] As required by s.396 of the Act, the Commissioner addressed the initial matters to be decided before considering the merits of the application.2 The Commissioner then proceeded to deal with each of the matters she was required to take into account as set out at ss.387(a) - (h) of the Act.
[7] In relation to the question of whether there was a valid reason for dismissal, the Commissioner traversed the evidence in relation to an incident that occurred on 25 October 2018 and relevantly found as follows:
“[21] I find that on 25 October 2018, at approximately 3.45pm, Murphy walked toward Whiting with her hands in the air, gesturing as if to fight and using words to the effect of “What, you want to go me?” In doing so, I find that she was challenging Whiting to a physical fight.
[22] Murphy explains her reaction by describing that she felt Whiting had spoken rudely by her, and she needed to defend herself. I accept this evidence.
[23] The outburst occurred in the context of what has clearly been a tense relationship between Murphy and Whiting for some time. Reasonably or otherwise, Murphy felt that Whiting was out to get her. Whiting lived nearby to the parents of Murphy’s former partner, with whom she had a history of domestic violence including court intervention orders. Murphy and Whiting had different (and it seems, strongly held) views about professional childcare and safety standards. Their relationship at work was competitive and not friendly. Centre gossip fanned the flames of this tension from time to time and caused unnecessary misunderstandings between them. Whiting’s children were in care at the Centre, in the room where Murphy worked. This also caused tension between Murphy and Whiting and her husband and there had been a recent ‘nappy changing incident’.
…………………
[25] Two days later, unresolved emotions were easily triggered by a sharp exchange between them. That helps to explain, but does not excuse, Murphy’s decision to threaten violence toward another staff member. She had other options. She could simply have finished cleaning up and come outside to give Louise her break. She could have walked away, and taken the matter of Whiting’s rudeness up with a more senior person. It is beside the point that Murphy did not actually assault Whiting. Given her admitted loss of control over her anger, it is entirely conceivable that without intervention, an assault may have occurred. The conduct occurred in the vicinity of a Centre parent and at least one child in care. In my view, it was serious misconduct.
[26] For the reasons set out above, I find that there was a valid reason for dismissal related to Murphy’s conduct on 25 October 2018. This weighs against a finding of unfair dismissal.” 3
[8] The Commissioner then dealt with the other matters she was required to consider under s.387 of the Act and variously found that;
• The Appellant was notified of the valid reason for her dismissal prior to the dismissal taking effect, which weighed against a finding of unfair dismissal (s.387(b)); 4
• The Appellant was given an opportunity to respond to the reasons for her dismissal relating to her conduct on 25 October 2018, which weighed against a finding of unfair dismissal (s.387(c)); 5
• There was no unreasonable refusal by the Respondent to allow the Appellant a support person in discussions relating to her dismissal, which was therefore a neutral consideration (s.387(d)); 6
• The Appellant’s dismissal was not related to unsatisfactory performance, but rather to her conduct during the incident on 25 October 2019 (s.387(e)); 7
[9] The Commissioner then turned to consider the size of the Respondent’s business (s.387(f)) and the absence of dedicated human resources specialists or expertise (s.387(g)). In doing so she found that the absence of expertise in the business affected the procedure followed in the dismissal. Further, the Commissioner considered that while some aspects of the investigation were orthodox, the process was deficient in what she regarded as two important respects. These were outlined by the Commissioner as follows:
“[42] However, other matters that arose during the course of the investigation – that is, Whiting’s contributory conduct and the well-intentioned but unsafe conduct of Farrell in putting a child in harms’ way, do not appear to have been dealt with on an equal footing, as the conduct in each case was not considered serious enough to warrant a disciplinary response. Whiting was not warned for her part in the incident that resulted in Murphy’s dismissal. Willingly or not, she was a participant in the conflict both on that day and also, in my view, in the weeks and months leading up to it. The result was that the investigation and disciplinary process was not a balanced one. This highlights both the importance of objectivity and the difficulty for inexperienced employers in ensuring procedural fairness for employees absent specialist advice and support. It weighs in favour of a finding of unfair dismissal (in relation to fairness between Murphy and other employees of the Centre) and against a finding of unfair dismissal (in relation to the Centre’s size and related lack of dedicated human resources management or expertise in the business).
[43] Secondly, Murphy’s history of domestic violence and related mental health were matters that I find were taken into account by the Centre in reaching the conclusion that dismissal was warranted. The Centre explained this as part of its duty of care to staff. As I understand the argument, it did not wish to find itself in a position where there was an incident at the Centre and it had not acted to protect staff from a person that it was aware had a history of violence.
[44] The premise of the submission is inherently problematic because it fails to recognise the necessary causal link between one’s prior history and present employment circumstances. An added difficulty is that there is no evidence it put Murphy on notice that the matter was considered relevant to the investigation of her conduct and subsequent findings. There is no evidence that it gave her an opportunity to help put her past in context, or even to object to the matter being relied upon in connection with her dismissal. While the matters may have been relevant in helping to explain the tension between Murphy and Whiting, it could only have been considered fairly with the input of Murphy herself. The result was a denial of procedural fairness to Murphy. This weighs in favour of a finding of unfair dismissal.” 8
[10] The Commissioner in addressing other relevant matters (s.387(h)), considered the “relevance or otherwise of workplace policies” that were in dispute. The Commissioner concluded that the Respondent’s policies were available to the Appellant and although there was some uncertainty as to whether she had read them, she understood, prior to the incident on 25 October 2018, that staff should be treated with respect and that violence at work was not acceptable. The Commissioner also referred to the apology offered and remorse felt by the Appellant at the time of the incident and considered these as weighing in favour of a finding of unfair dismissal. However, the Commissioner then balanced this against the conduct of the Appellant and her later retreat from the position of remorse, and found each of those weighed against a finding of unfair dismissal. 9
[11] The Commissioner then weighed each of the matters that she was required to under s.387 and concluded that;
“[48] The procedural failings I have identified in the period after 25 October 2018 put the Centre on notice of other measures it may now need to take to ensure that ultimately, balance is achieved and the safety of children in care is never compromised. However, they do not mitigate the seriousness of Murphy’s conduct on that day. Having regard to all of the relevant facts and circumstances above, on balance, I am not satisfied that Murphy’s dismissal was harsh, unjust or unreasonable. Accordingly, I find that Murphy was not unfairly dismissed.” 10
[12] While the Appellant outlined five grounds of appeal in the Form F7 – Notice of Appeal (Form F7), these were refined to three grounds in her written submissions and confirmed at the hearing before us to be:
1. The Commissioner erred in failing to take into account whether the termination of the Appellant’s employment was harsh;
2. The Commissioner erred in failing to find that the termination of the Appellant’s employment was harsh; and
3. The Commissioner erred in applying s.387 of the Act in that she first determined whether there was a valid reason (s.387(a)), and thereafter considered whether the matters prescribed in ss.387(b)-(h) were sufficient to displace that finding. Specifically, the Appellant submits the Commissioner gave overriding effect to s.387(a) of the Act, being the existence of a valid reason for the dismissal. 11
(our emphasis)
The Appellant’s submissions
[13] The essence of grounds 1 and 2 is that there was a failure by the Commissioner to take into account a material consideration and to exercise the appropriate discretion. The Appellant submits grounds 1 and 2 raise, in substance, the same complaint, being that the Commissioner failed to consider a clearly articulated submission that the Appellant was a survivor of domestic violence and an abusive relationship, such that the dismissal was harsh. The Appellant submits that if ground 1 was accepted, this would reopen the discretion to decide whether the dismissal was unfair, and ground 2 “asks the Full Bench to go a step further” by accepting the submission and making the finding that the termination of her employment was harsh and therefore, unfair. 12
[14] After some discussion prompted by our questioning at the hearing, the Appellant confirmed the submissions as to harshness that were pressed before the Commissioner were:
“56. Any harsh effect on the individual employee is relevant to whether an employee’s dismissal was harsh, unjust or unreasonable within the meaning of section 385(b). In determining the harshness or otherwise of termination, the Commission will take into account all the circumstances of the termination. “Harsh” includes “harsh in its consequences for the personal and economic situation of the employee”
57 … Further, given the time of year, the Applicant has found it difficult to find employment in the industry. The result is that the Applicant is experiencing severe financial hardship, and this outcome was foreseeable by the Respondent at the time of dismissal.
58. The Applicant was also the victim of domestic violence and had just undergone the process to obtain an intervention order against her ex-partner. As a result, the Applicant has developed psychological problems including anxiety. The Applicant submits that the Respondent was aware of this fact.
59. The Applicant submits that her dismissal was harsh on these bases.” 13
(references omitted)
[15] The Appellant contends that her personal circumstances were in evidence before the Commissioner by way of her witness statement and the statement annexed to it that she had made for the purposes of the Respondent’s internal disciplinary investigation, 14 which respectively outlined:
a) “As background, I ended an abusive relationship with my ex-partner in February 2018, which resulted in a domestic violence claim and an intervention order awarded against both of us on 26th of April 2018. I have suffered psychological injury as a result of this which effects [sic] my ability to process and respond to confrontation. ECEC is aware of this”; 15
b) “Due to my own personal mental health battles that all management are fully aware of, I was unable to process the information or prioritize this out of hours as it put a huge amount of mental stress on myself”; 16 and
c) “…this conversation sent my mental health into an absolute spiral, I contacted Ben directly and spoke with him over the phone the next day. I took myself back to my GP, to which he put me on stress leave for 3days.” 17
[16] The Appellant submits that, on the basis of this material, a clearly articulated submission was advanced that in her particular circumstances, the consequences of her dismissal were harsh, including because of the effect on her mental health. Further, the Appellant submits that because the submissions were made, regardless of whether there was a basis in evidence for it, the Commissioner ought to have addressed them, even if it was simply saying that they were not accepted because there was no evidence. 18
[17] The Appellant submits that while referring to the Appellant’s domestic violence history at paragraphs [23] and [43] of the Decision, the Commissioner did so in a different context and nowhere in the Commissioner’s reasons is there a reference to the submission that the dismissal was harsh, having regard to the Appellant’s history of domestic violence. The Appellant contends that submission was not recorded, let alone resolved.
[18] Specifically in relation to ground 2, the Appellant submits that on the evidence before the Commissioner, it should be concluded that the dismissal had a detrimental effect on the Appellant's psychological and emotional wellbeing and that, taken together with other matters, which the Commissioner accepted as weighing in favour of a finding of unfair dismissal, 19 should have led to the conclusion that the dismissal was unfair.20
[19] In relation to ground 3, the Appellant submits that the Decision discloses a two-step process applied by the Commissioner to the consideration of s.387 of the Act, the first step being whether there was a valid reason and secondly whether there were any mitigating factors. The Appellant further submits the Commissioner considered herself bound to rely upon the valid reason as being paramount and considered the other matters under s.387 of the Act to be only subsidiary.
[20] At the hearing, the Appellant submitted the granting of permission to appeal is in the public interest for the following reasons:
a) In relation to grounds 1 and 2, the appeal raises an issue of public importance, being the Appellant’s history of domestic abuse and intimate partner violence, which are themselves matters of significant public interest. Specifically, the interrelationship between domestic violence and workplace issues arouses the public interest.
b) Additionally, in relation to grounds 1 and 2, an issue of general application arises, being the obligation of the Commission to consider a clearly articulated submission by a party and the extent to which the Commission is required to record consideration of submissions and issues within its written reasons; and
c) In relation to ground 3, the Commissioner gave overriding importance to s.387(a) of the Act, contrary to the requirement to consider and weigh each of the matters in s.387 and this Full Bench could provide specific guidance.
[21] The Appellant also submits that because of the Commissioner’s errors, the Decision manifests an injustice and for this reason the appeal attracts the requisite public interest. This was said to be “lightly pressed” as a basis for permission to appeal. 21
[22] As to the disposition of the appeal the Appellant seeks orders that:
(a) permission to appeal be granted;
(b) the appeal be allowed; and
(c) compensation be determined.
Respondent’s Submissions
[23] The Respondent submits that the appeal should be dismissed as the public interest was not enlivened, that no significant error of fact was disclosed and that the Decision did not manifest an injustice. The Respondent goes on to variously submit that the Commissioner;
• Took account of all the criteria that she was required to consider pursuant to s.387 of the Act;
• Took account of the information before her at the hearing, including written statements and testimony of the Appellant as evidenced in her Decision from paragraphs [7]-[48];
• Weighed the procedural failings of the Respondent along with the seriousness of the Appellant’s misconduct and summarised her conclusion at paragraph [48];
• Addressed the question of harshness of the dismissal and after considering all the facts, found that the Appellant was not unfairly dismissed; and
• Considered the Appellant’s personal and economic situation as detailed in the Appellant’s evidence and submissions before her.
[24] As regards the issue of the Appellant’s personal circumstances and whether they were considered by the Commissioner in relation to the question of harshness, the Respondent submits that there was no medical evidence and limited evidence in relation to the domestic violence presented by the Appellant in the proceedings before the Commissioner.
[25] The Respondent further submits that in assessing the harshness of the dismissal of the Appellant, it is also necessary for us to have regard to other measures taken by the Respondent including:
• Transfer of the Appellant from the Tecoma childcare centre to the Mooroolbark childcare centre when the Appellant had lost her driver’s license, such transfer making travelling to work by public transport less difficult for the Appellant;
• Allowing the Appellant time off during her employment to attend court in relation to the apprehended violence order (AVO) against her then boyfriend;
• The Appellant was remunerated above the Award;
• The extended period of several weeks, over which the Respondent considered the Appellant’s employment before effecting her dismissal and then the additional week’s pay in lieu of notice granted to her; and
• The duty of care and obligation owed to parents of children placed in the Respondent’s care to ensure that staff were qualified and capable of providing care to those children.
[26] An appeal under s.604 of 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.22 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[27] As we have mentioned, the Appellant has applied for permission to appeal, and has appealed, the Decision.
[28] The Decision at first instance was a refusal to grant an unfair dismissal remedy under s.390 of the Act. It was a discretionary decision. It follows that the Decision can only be challenged by demonstrating error in the decision-making process. 23
[29] It is not sufficient for the Appellant to invite an Appeal Bench to simply substitute its own determination for that of the Member whose decision is the subject of the appeal. It is necessary to demonstrate error of the type identified by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission: 24
“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 challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, 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.’” 25(footnotes omitted)
[30] Further, this appeal is from a decision made under Part 3-2 (Unfair Dismissal) of the Act and hence s.400 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.”
[31] The legislative scheme manifests an intention that the threshold for a grant of permission to appeal be higher in respect of unfair dismissal appeals than the threshold applicable to appeals generally. 26
[32] 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”.27
[33] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.28 In GlaxoSmithKline Australia Pty Ltd v Makin 29 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.”30
[34] 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.31 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 and the public interest is not satisfied simply by the identification of error, or a preference for a different result.32
[35] In accordance with s.400(1) of the Act, we consider that the grant of permission to appeal would be in the public interest because the appeal raises a significant issue of general application concerning the intersection between family and domestic violence and the workplace and, more particularly, responding to employee conduct in circumstances where an employee has been subjected to family and domestic violence. We are therefore satisfied that it is in the public interest to grant permission to appeal and we grant permission on that basis.
[36] We deal firstly with ground 3. It is submitted the Commissioner gave overriding effect to s.387(a) of the Act and erred in that she first determined whether there was a valid reason and thereafter considered whether the matters prescribed in ss.387(b)-(h) of the Act were sufficient to displace that finding. The Appellant submits that an inference should be drawn from the words “….However, they do not mitigate the seriousness of Murphy’s conduct on that day…” in paragraph [48] of the decision that the Commissioner considered herself bound to rely upon the valid reason as being paramount, with the other matters under s.387 of the Act subsidiary.
[37] We are not persuaded by the Appellant’s submissions. As summarised at paragraphs [7]-[11] above, the Commissioner adopted an orthodox approach to consideration of each of the matters in s.387 of the Act and having dealt with each of them, the Commissioner then weighed them in reaching her conclusion at paragraph [48] of the Decision. Ground 3 is therefore rejected.
[38] Ground 1 contends the Commissioner erred in failing to take into account whether the termination of the Appellant’s employment was harsh and it is said that ground 2, being the contention that the Commissioner erred in failing to find that the termination of the Appellant’s employment was harsh, flows from this. Due to some issues with the audio recording, the precise nature of the oral submissions made by the Appellant’s advocate at the hearing before the Commissioner on this question is unclear but the Commissioner’s ultimate response to them at the hearing before her, having raised some questions with the Appellant’s advocate relating to evidence in support, was to indicate she would read the Appellant’s written submissions on the question of harshness. 33
[39] The Appellant submits grounds 1 and 2 raise, in substance, the same complaint, being that the Commissioner failed to consider the “clearly articulated submission” that the dismissal was harsh. We have outlined at [14] and [15] above what we understand to have been the “clearly articulated submission”.
[40] As to these grounds, we do not regard ground 2 as an appeal ground. It is simply an expression of the desire for a different result. However, we agree with the contention of the Appellant that there was no reference in the Decision to the submission that had been made that the dismissal was harsh and we have concluded the Commissioner did not take into account the material considerations we have outlined at [14] and [15] above. The Commissioner’s references to the Appellant’s history of domestic violence and related mental health were made in a different context, which was outlined in the Decision at [43]:
“…Murphy’s history of domestic violence and related mental health were matters that I find were taken into account by the Centre in reaching the conclusion that dismissal was warranted. The Centre explained this as part of its duty of care to staff. As I understand the argument, it did not wish to find itself in a position where there was an incident at the Centre and it had not acted to protect staff from a person that it was aware had a history of violence.”
[41] Accordingly, we have decided to uphold the appeal and quash the Decision.
[42] In rehearing the matter, we adopt the Commissioner’s finding that there was a valid reason for the termination of the Appellant’s employment. This finding was not challenged on appeal 34 and we have outlined, at [7] above, the Commissioner’s findings in relation to the conduct of the Appellant leading to her ultimate conclusion that the Appellant had engaged in serious misconduct.
[43] Further, we adopt the Commissioner’s conclusions in relation to the factors in ss.387(b) and (c) of the Act and consider they weigh against a finding of unfair dismissal. We also adopt the Commissioner’s findings in relation to the considerations in s.387(d) and s.387(e) of the Act.
[44] We have considered whether the size of the Respondent’s enterprise and its lack of dedicated human resource management specialists and expertise was likely to and did impact on the procedures followed in effecting the Appellant’s dismissal. We have noted the Respondent is a member of the Australian Child Care Alliance and that it consulted this body for advice as to how the incident in question ought be investigated and the response it could make to it. 35 Neither the advice it received nor the extent to which it was followed is apparent. However, we are satisfied the Respondent, a relatively small employer, had no obvious systems in place to respond to an incident as serious as this. We therefore consider the factors in s.387(f) and s.387(g) of the Act weigh against a finding of unfair dismissal. In the future however, instead of “crying poor” and claiming inexperience as it has done at every point of its engagement with the conduct of this proceeding, the Respondent would do well to instead start addressing its systems and knowledge deficits.
[45] In relation to s.387(h) of the Act, we note the parties adopted differing positions in relation to the Appellant’s knowledge of the workplace policies of the Respondent but ultimately we have had regard to the Appellant’s evidence that prior to the incident, she knew that staff of the Respondent were to treat each other “in a respectable manner” and that violence was not acceptable. 36 These things go without saying.
[46] We have also had regard to the fact that the incident involved a number of employees and that the other employee who played a central role, Ms Caitlin Whiting, appears not to have been sanctioned, and we have noted the way in which the Appellant’s domestic violence history and related mental health was taken into account by the Respondent, but not raised with the Appellant herself.
[47] As the central premise of the Appellant’s appeal is that the Commissioner failed “to exercise the appropriate discretion” because of her failure to take into account the submissions and evidence going to whether the dismissal was harsh, we have noted what was put forward by the Appellant in this particular case:
“I ended an abusive relationship with my ex-partner in February 2018, which resulted in a domestic violence claim and an intervention order awarded against both of us on 26th of April 2018. I have suffered psychological injury as a result of this which effects [sic] my ability to process and respond to confrontation. ECEC is aware of this.” 37
[48] We have also noted the absence of any medical evidence regarding mental health issues experienced by the Appellant in the lead up to the incident on 25 October 2018, although after the incident, in her statement of events dated 29 October 2018, the Appellant raised some issues she was experiencing. 38
[49] Further, the state of the evidence before the Commissioner on the matters going to the Appellant’s difficulty in finding employment, financial hardship and medical consequences was acknowledged by the Appellant’s Counsel on appeal as being limited. 39 The material before the Commission comprised:
• the submission that given the time of the year at which the termination of her employment had occurred, she had found it difficult to find employment in the childcare industry and had experienced extreme financial hardship, the outcome of which was foreseeable when the Respondent terminated her employment”; 40 and
• evidence that the Applicant was without employment for an 8 week period, 41 resulting in economic loss of $8,223.00 (gross), albeit she appeared to receive an additional week’s worth of wages when terminated on 23 November 2018.42
[50] As outlined above at [14]-[16], it was only after repeated queries from us at the hearing and some clarification from the Appellant’s Counsel that the matters going to harshness which were relied upon became apparent. The Appellant’s Counsel ultimately submitted that regardless of whether there was a basis in the evidence for it, the submission that the dismissal was harsh because the Appellant had found it difficult to find employment and was the victim of domestic violence was made and the Commissioner ought to have addressed it, even if it was to simply state that the submission was not accepted because there was no evidence for it. 43
[51] We have taken into account the matters set out at s.387 (a) – (h) of the Act insofar as they are relevant to this case, including the evidence regarding the particular circumstances of the Appellant, and have concluded her dismissal was not harsh, unjust or unreasonable. It follows that she was not unfairly dismissed. In our view, the Appellant’s serious misconduct whilst engaged in her employment as a childcare worker, when she made an angry threat of violence towards a colleague in the vicinity of a parent client and the even closer vicinity of a young child, warranted her dismissal. Parents placing their young children in childcare are entitled to be comfortable in the knowledge that their children are safe, in the best possible environment of care and education, and that they will not be exposed to either threats or acts of violence. Accordingly, the Appellant’s application for unfair dismissal remedy is dismissed.
[52] For the reasons given, we grant permission to appeal, uphold the appeal and quash the Decision. On rehearing the matter, we have decided to dismiss the Appellant’s application for unfair dismissal remedy.
DEPUTY PRESIDENT
Appearances:
A White of Counsel for the Appellant.
N Abdul for the Respondent
Hearing details:
Melbourne, via VC to Brisbane.
2019.
4 September.
Printed by authority of the Commonwealth Government Printer
<PR713092>
2 Ibid at [3]-[6].
3 Ibid at [21]-[26].
4 Ibid at [31].
5 Ibid at [34].
6 Ibid at [37].
7 Ibid at [38].
8 Ibid at [42]-[44].
9 Ibid at [46].
10 Ibid at [48].
11 Transcript of Appeal Proceedings dated 4 September 2019 at PN50.
12 Ibid at PN49.
13 Ibid at PN112-PN121 and PN195-PN220, Appellant’s Outline of Submissions dated 12 February 2019 at [56]-[59] and Transcript of Proceedings dated 14 March 2019 at PN1026-PN1029.
14 Transcript of Appeal Proceedings dated 4 September 2019 at PN102-PN112.
15 Appeal Book at 73-74, Witness Statement of Courtney Murphy dated 12 February 2019, paragraph [4].
16 Appeal Book at 79, Annexure CM-1 to the Witness Statement of Courtney Murphy dated 12 February 2019.
17 Appeal Book at 83, Annexure CM-1 to the Witness Statement of Courtney Murphy dated 12 February 2019.
18 Transcript of Appeal Proceedings dated 4 September 2019 at PN209.
19 See paragraphs [42]-[44] and [48] of Decision.
20 Transcript of Appeal Proceedings dated 4 September 2019 at PN248.
21 Ibid at PN 83.
22 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
23 Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78 at [53] per Buchanan J, Marshall and Cowdroy JJ agreeing; Mt Arthur Coal v Goodall (2016) 260 IR 391 at [40]-[41] per Hatcher VP and Wells DP.
24 (2000) 203 CLR 194.
25 Ibid at [21].
26 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].
27 (2011) 192 FCR 78 at [43].
28 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].
29 [2010] FWAFB 5343, 197 IR 266.
30 Ibid at [27].
31 Wan v AIRC (2001) 116 FCR 481 at [30].
32 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, (2010) 197 IR 266 at [26]-[27]; 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].
33 Transcript of Proceedings dated 14 March 2019 at PN1027-PN1029.
34 Transcript of Appeal Proceedings dated 4 September 2019 at PN84-PN85.
35 Transcript of Proceedings dated 14 March 2019 at PN498 and PN552-PN553.
36 Ibid at PN211-PN214.
37 Appeal Book at 73-74, Witness Statement of Courtney Murphy, paragraph [4].
38 As outlined above at [15](b) and [15](c).
39 Transcript of Appeal Proceedings dated 4 September 2019 at PN108, PN195-PN204.
40 Appellant’s Outline of Submissions dated 12 February 2019 at [57].
41 Amended Witness Statement of Courtney Murphy dated 13 March 2019 at paragraph [31].
42 Appeal Book at 85, Annexure CM-2 to the Witness Statement of Courtney Murphy dated 12 February 2019.
43 Transcript of Appeal Proceedings at PN195-PN219 and, in particular, PN209.