DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Elizabeth Gomes
v
Gemela Pty Ltd t/a Kool Kidz Preston
(C2019/5659)

Appeal against decision [2019] FWC 5850 of Commissioner Bissett at Melbourne on 26 August 2019 in matter number U2019/1842.

Introduction and Background

[1] Ms Elizabeth Gomes has applied under s 604 of the Fair Work Act 2009 (FW Act) for permission to appeal against a decision of Commissioner Bissett issued on 26 August 2019 1 (compensation decision) and an order issued in conjunction with that decision (order).2 The compensation decision followed an earlier decision issued on 26 June 20193 (liability decision) in which the Commissioner determined that Ms Gomes’ dismissal by the respondent, Gemela Pty Ltd (Gemela) was unfair. In the compensation decision, the Commissioner determined that Ms Gomes should be awarded an amount of $355.20 plus 9.5% superannuation as compensation for her unfair dismissal. The order gave effect to the compensation decision. Ms Gomes contends in her notice of appeal that the Commissioner made various factual errors, the compensation decision manifested an injustice and that permission to appeal should be granted in the public interest.

[2] Ms Gomes was employed as an Early Childhood Assistant by Gemela, commencing employment in May 2017. She went on maternity leave in May 2018. She returned to employment in November 2018 and remained there until her dismissal on 1 February 2019. She was dismissed following two incidents in relation to children in the care of Gemela. These involved not properly securing a child in a highchair, resulting in the child slipping out, and not raising the side rail of a cot in which a child was sleeping.

Liability decision

[3] In the liability decision, the Commissioner comprehensively set out the witness evidence, and made a finding that she preferred the evidence of Gemela’s witnesses, Ms Zhang and Ms Sayers, to that of Ms Gomes, and set out her reasons for doing so. The Commissioner then turned to consider the allegations which caused Ms Gomes to be dismissed and considered each of the matters under s 387 of the FW Act.

[4] As to s 387(a), the Commissioner concluded that Ms Gomes had engaged in the conduct the subject of the allegation. She formed this view on the basis of Ms Gomes’ failure to deny that the incidents occurred and her preference for the evidence of Gemela’s witnesses. Having found that Ms Gomes had engaged in the conduct that was the subject of the termination, the Commissioner then considered whether such conduct provided a valid reason for the dismissal. The Commissioner concluded that there was a valid reason because both incidents represented serious matters, based on the gravity of the incidents and their potential consequences.

[5] The Commissioner then considered the matters in s 387(b)-(g). As to s 387(b) and (c), the Commissioner made findings to the effect that Gemela did not provide Ms Gomes with procedural fairness. In respect of s 387(d), the Commissioner concluded Ms Gomes did not have the opportunity to have a support person to assist in any discussions relating to dismissal. As to s 387(e), the Commissioner concluded that a warning was not a necessary precondition in these circumstances.

[6] Under s 387(h), the Commissioner noted that Ms Gomes had disputed her termination following the dismissal and that in Ms Gomes’ view she was dismissed because Gemela did not want her back at work following her maternity leave. The Commissioner made no findings about this. The Commissioner’s overall conclusion was that, notwithstanding that there was a valid reason for the dismissal, the dismissal was unreasonable and therefore unfair because Ms Gomes was not given a proper opportunity to respond to the allegations and was therefore denied procedural fairness. The Commissioner then made directions concerning the provision of additional information to assist her in assessing the remedy to be awarded.

Compensation decision

[7] In the compensation decision, the Commissioner addressed the further submission of Ms Gomes and Gemela and the matters required to be taken in account under s 392 of the Act. In assessing compensation, the Commissioner’s starting point was that, if Ms Gomes had not been dismissed and been provided with a reasonable opportunity to respond, Gemela would have been unlikely to reach a different conclusion and still would have dismissed Ms Gomes. The Commissioner concluded on this basis that Ms Gomes would have remained in employment for a further four weeks, had she not been terminated. The Commissioner then made a 50% deduction from the amount of four weeks’ pay on the following basis:

“[30] I have taken into account the lack of responsibility and contrition of the Applicant in relation to the two incidents in circumstances where I have found that the conduct did occur. In her submissions on remedy the Applicant has maintained that the situation was fabricated in some way by the Respondent to get rid of her and claims that she is the victim. This lack of acceptance of the decision of the Commission and lack of insight as to her conduct warrants a reduction of 50% on the amount of compensation. This reduces the compensation payable to $710.40 plus superannuation.”

[8] The Commissioner then deducted a further 50% on account of her finding that Ms Gomes’ dismissal occurred because of the misconduct which she had found had occurred. These deductions resulted in the final amount of compensation determined in the compensation decision and required to be paid by the order being the equivalent to one week’s pay.

Appeal grounds and submissions

[9] Ms Gomes’ notice of appeal stated, as the grounds of appeal, that the Commissioner had:

•  mistaken the facts;

•  failed to take some material consideration into account;

•  been in error in the original decision;

•  acted upon a wrong principle; and

•  appeared partial, biased and acted upon her beliefs rather than independently assessing facts and evidence present in front of her.

[10] No particulars of these contentions of error were provided. The notice of appeal contended that the grant of permission to appeal would be in the public interest because:

•  the decision manifested an injustice;

•  the result was counter-intuitive or the legal principles applied appeared disharmonious when compared with other recent decisions dealing with similar matters;

•  the decision was attended with sufficient doubt to warrant its reconsideration;

•  the Commissioner did not appear to bring an impartial or unprejudiced mind to the question she was required to decide or show diligence and care in the discharge of the Commission’s duties;

•  the Commission at first instance may have exceeded its jurisdiction;

•  the decision would damage the Commission’s reputation or image if permission was refused; and

•  substantial injustice would result if permission was refused.

[11] Again, no particulars of these grounds were provided.

[12] In her submissions in support of the grant of permission to appeal, Ms Gomes primarily challenged the conclusion in the liability decision that she had committed conduct which constituted a valid reason for her dismissal. Insofar as she challenged the compensation decision, it was on the basis that the assessment of compensation was a product of the finding in the liability decision that she had engaged in misconduct warranting dismissal. Ms Gomes’ written submissions allege six specific errors of fact in the liability decision, none of which concern the findings made by the Commissioner concerning the conduct which was found to constitute a valid reason for Ms Gomes’ dismissal. The submissions also identify six instances in which in which the Commissioner was said to have failed to take into account some material consideration, which include (by way of example) that:

•  “the member got carried away with the consequences of the incident and whether the incidents happened ...rather than how the incidents happened”;

•  “...the Commissioner disregarded a lot of valuable facts about the incidents. If an unbiased independent reasonable person took the surrounding facts leading to the cot incident, would surely have come to a different conclusion”; and

•  (in respect of her return from maternity leave) “...the member states, it was unclear who came up with 2 days per week. Even though the email from Ms Petrakos received before returning from maternity leave ... clearly states ‘I don’t currently have shifts for you on the other days...we have more staff than we need which means that I need to reduce your shifts to cater for everyone’... and yet the member was unclear who came up with the 2 days post maternity leave”.

[13] Ms Gomes also contended that there had been an error in the liability decision, and the Commissioner acted upon a wrong principle, in that (for various specified reasons), if the relevant incidents did occur, they did not amount to misconduct. Ms Gomes also submitted that the Commissioner appeared to have acted in a partial and biased way and acted upon her beliefs rather than independently assessing facts and evidence presented before her, in that:

•  the Commissioner only took into account parts of the incident’s facts that suited her pre-determined belief rather than the whole surrounding facts that contributed to the incident, and had attention been given to the details that were given, an unbiased independent reasonable person would have come up with a completely different conclusion;

•  the Commissioner stated that the employer had made up their minds before speaking to Ms Gomes, but went on to justify Gemela’s conduct by classing it as a “preliminary view”, which is not what a reasonable person would do;

•  the Commissioner accepted Gemela’s witnesses’ statements as truthful even though Gemela had a track record of manipulating valuable facts and lying to suit their needs; the witnesses were all current employees and under the direct influence of Gemela; the witnesses were the ones that directly complained to Gemela, resulting in Ms Gomes’ dismissal, and they had to justify their complaints at any cost; the witnesses could not remember the exact details; Ms Sayers was nowhere near the incident when it occurred; the witnesses’ evidence “didn’t really stack up” and contradicted each other at times; and there was evidence that Ms Sayers was emotionally driven and frustrated with the way Ms Gomes worked, which made it “crystal clear” why she provided the witness statement.

[14] Ms Gomes also made submissions about her previous good record of employment in child care, and said that “... just because [of] an accident (the alleged highchair incident) happened in a single day, the employer shouldn’t disregard my long positive track record and instantly dismissed without any discussions/response” and that “...the dismissal has caused severe emotional and financial stress for me and my family, as well as caused humiliation, destroyed my confidence and ruined my career”.

[15] Ms Gomes’ submissions contained little that addressed the compensation decision, except it was notably submitted at the hearing of her application for permission that, prior to the hearing, Gemela made a monetary settlement offer that was ten times the remedy ultimately awarded by the Commission and would have changed her dismissal to a resignation. This was said to manifest an injustice.

Consideration

[16] 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.⁴ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[17] This appeal is one to which s.400 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.

[18] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others 5 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.⁶ A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,7 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.” 8

[19] 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.⁹ 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.¹⁰

[20] 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. 11

However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[21] We are not satisfied that the grant of permission to appeal would be in the public interest, for the following reasons. First, the finding of fact of overriding significance in the liability decision was that Ms Gomes had on 1 February 2019, as alleged by Gemela, failed to properly secure a child in a highchair, resulting in the child slipping out, and failed to raise the side rail of a cot in which a child was sleeping. Ms Gomes’ submissions do not directly contend that this finding was wrong, and indeed Ms Gomes does not appear to actually deny that the incidents occurred (although she does not admit them either). In the absence of such a contention of error and any clear denial that the relevant conduct occurred, the challenge to the Commissioner’s acceptance of the evidence of Ms Zhang and Ms Sayers, who witnessed the conduct in question, lacks any substantive purpose. The other alleged factual errors go to peripheral matters and do not identify any error in respect of a factual matter of significance in the Commissioner’s decision-making process.

[22] Second, we do not consider that Ms Gomes has identified any reasonably arguable basis for the proposition that the Commissioner was in error in characterising the conduct found to have occurred as constituting a valid reason for dismissal. Child safety is obviously a critical matter in the operation of a child care centre, and in that context it cannot be said that a conclusion that the conduct was capable of justifying dismissal was other than reasonably available.

[23] Third, Ms Gomes’s submissions refer to a number of matters which rendered her dismissal unfair, including her previous good record, the isolated nature of the conduct, the failure to afford her procedural fairness and the economic and personal consequences of the dismissal. However, in respect of the liability decision, these matters do not demonstrate any rationale for the grant of permission to appeal since the Commissioner determined in Ms Gomes’ favour that her dismissal was unfair. The only matter that could properly be the subject of a grant of permission to appeal is the remedy awarded and, since Ms Gomes did not seek reinstatement, that was confined to the quantum of monetary compensation.

[24] Fourth, Ms Gomes has not identified any reasonably arguable contention of error in respect of the Commissioner’s assessment of monetary compensation in the compensation decision. As earlier explained, the Commissioner’s finding that Ms Gomes had engaged in conduct which constituted a valid reason for her dismissal necessarily guided the amount of compensation that could reasonably be awarded. That Ms Gomes failed to acknowledge or accept responsibility for the conduct which caused her dismissal was clear in her evidence and submissions before the Commissioner and was amply confirmed in the conduct of the application for permission to appeal. The offer of settlement made by Gemela prior to the hearing, which Ms Gomes presumably rejected or failed to accept, was not demonstrative of anything beyond a catastrophic error of judgment on her part. We also note in this connection that Ms Gomes refused to participate in conciliation of her unfair dismissal remedy application.

[25] Finally, Ms Gomes’ unfair dismissal remedy application was determined on the basis of its particular facts, and her appeal does not raise any issue of law or principle which might have a wider application.

[26] Because we are not satisfied the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.

VICE PRESIDENT

Appearances:

J Gomes on behalf of the Appellant.

Hearing details:

2019.

11 November:

Sydney.

Printed by authority of the Commonwealth Government Printer

<PR714149>

 1   [2019] FWC 5850

 2   PR711623

 3   [2019] FWC 4222

4 This is so because on appeal the Commission has power to receive further evidence, under s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 5   (2011) 192 FCR 78.

6 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].

 7   [2010] FWAFB 5343, 197 IR 266.

 8   Ibid at [24] – [27].

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

10 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].

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