DECISION

Fair Work Act 2009
s.604—Appeal of decision

Angele Chandler
v
Bed Bath N Table Pty Ltd
(C2021/1395)

Appeal against decision [2021] FWC 1346 of Commissioner Lee at Melbourne on 12 March 2021 in matter number U2019/2368. Section 394 application – remedy of compensation. Permission to appeal refused.

[1] On 12 March 2021, Commissioner Lee delivered a decision (the Decision) in respect of an application which had been filed on 4 March 2019 (the Application), under s. 394 of the Fair Work Act 2009 (Cth) (the Act), by Ms Angele Chandler (the Appellant), seeking relief in respect of the termination of her employment. The Appellant seeks to appeal the Decision.

[2] In the Decision, the Commissioner was only dealing with the remedy of compensation, having previously issued a decision on 13 August 2020 (the Liability Decision) that found that the Appellant had been unfairly dismissed and that reinstatement was inappropriate in the circumstances. The Appellant appealed the Liability Decision, and the Full Bench of the Commission heard that appeal on 21 December 2020. The Full Bench refused the Appellant permission to appeal the Liability Decision. 1

[3] The appeal is pursuant to ss. 400 and 604 of the Act, for permission to appeal and appeal the Decision. The appeal was listed before the Full Bench on 3 May 2021 for submissions as to permission to appeal only. The Appellant filed written submissions prior to the hearing. The Appellant represented herself, and Mr N Tindley represented the Respondent, with permission being granted by the Full Bench, pursuant to s. 596 of the Act.

The Decision

[4] In the Decision, the Commissioner observed that having found that reinstatement was inappropriate in the Liability Decision, it did not automatically follow that a payment for compensation was appropriate, and whether to order such a remedy in a case where a dismissal has been found to be unfair remained a discretionary decision. 2 Nonetheless, in all of the circumstances, the Commissioner considered that an order for payment of compensation was appropriate because the Appellant should be compensated for losses reasonably attributed to the unfair dismissal.3

[5] The Commissioner observed, 4 that section 392(2) of the Act required all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Appellant in lieu of reinstatement including:

(a) the effect of the order on the viability of the Respondent’s enterprise;

(b) the length of the Appellant’s service;

(c) the remuneration that the Appellant would have received, or would have been likely to receive, if the Appellant had not been dismissed;

(d) the efforts of the Appellant (if any) to mitigate the loss suffered by the Appellant because of the dismissal;

(e) the amount of any remuneration earned by the Appellant from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by the Appellant during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

[6] In determining the compensation payable, the Commissioner relied upon the Appellant’s relatively brief period of employment, 5 that it was clear that the employment relationship was under some strain as a result of the small amount of work being offered to the Appellant around the time of her dismissal and would not have continued for any longer than two months,6 and that the Appellant had taken reasonable steps to mitigate her loss.7 No deductions were made for contingencies or taxation.8

[7] The Commissioner awarded an amount of $4,495.64, plus superannuation of 9.5%, as an appropriate amount of compensation in all the circumstances of his matter. 9 That amount was calculated as what the Appellant would have earned for work on an average of 40 hours per fortnight for two months beyond the date the dismissal took effect.10

Permission to Appeal Principles

[8] This appeal is one to which s. 400 of the Act applies. 11 Section 400 provides that:

“(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.”

[9] In the Federal Court Full Court Decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under section 400 as “a stringent one.” 12 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.13 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:14

“… 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.”

[10] 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. 15 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.16

Grounds of Appeal

[11] The grounds of appeal were not outlined in any coherent way by the Appellant in either the Notice of Appeal or the Appellant’s submissions. The Appellant did specify the reasons why the Appeal was said to be in the public interest, and they were:

•  “where a matter raises issues of importance and general application

•  where there is a diversity of decisions so that guidance from a Full Bench of the Commission is required

•  where the original decision 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.”

[12] It is apparent from the contents of the Notice of Appeal and the Appellant’s submissions that the Appellant alleged the Commissioner erred in various respects, including in his consideration of covert recordings made by the Appellant of a meeting that took place on 26 February 2019, and of similar decisions by the Commission in matters where covert recordings were made.

Consideration

[13] The question of the compensation to be awarded to the Appellant upon the finding of unfair dismissal and inappropriateness of reinstatement was to be determined in accordance with the relevant provisions of s.392 of the Act. The Commissioner applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.

[14] Insofar as the Appellant alleged error in the Commissioner’s consideration of covert recordings made by the Appellant of a meeting that took place on 26 February 2019, the Decision is clear that those covert recordings did not have a material impact on the Commissioner’s calculation or conclusion regarding compensation. In particular, at [26] and [51] of the Decision, the Commissioner found:

“[26] Having considered this factor, I agree that were it not for the termination of employment of the Applicant and her provision of the recordings as part of her evidence in the case, the Respondent may well have become aware of the recordings and dismissal could have been the result. However, I do not accept this would have necessarily occurred, and if it did, that it would have necessarily occurred within the time frame urged on me by the Respondent.

…

[51] In this matter, I am satisfied that Applicant engaged in misconduct by making the covert recordings. However, the consideration under s.392(3) is confined to misconduct that contributed to the employer’s decision to dismiss. As the Respondent did not know of the recordings, it could not and did not contribute to the decision to dismiss the Applicant. In the circumstances it is not appropriate to deduct an amount for misconduct.”

(Emphasis added)

[15] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.

[16] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

(a) The appeal raises issues of importance and/or general application;

(b) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or

(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[17] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.

[18] Permission to appeal is refused.

[19] On 23 March 2021 by consent the Commission ordered that the Decision and order 17 made by Commissioner Lee on 12 March 2021 be stayed pending the hearing and determination of this appeal.18 Given that the appeal has now been heard and determined, the stay ceases to operate.

DEPUTY PRESIDENT

Appearances:

Ms A Chandler, Appellant
Mr N Tindley, Respondent

Hearing details:

2021.
Sydney (by videoconference and telephone):
May 3.

Printed by authority of the Commonwealth Government Printer

<PR729758>

 1   [2020] FWCFB 6714.

 2   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, at [9].

 3   Decision at [15].

 4   Decision at [16].

 5   Decision at [21].

 6   Decision at [28] and [29].

 7   Decision at [42].

 8   Decision at [46] and [47].

 9   Decision at [49].

 10   Decision at [35].

 11   See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].

 12   (2011) 192 FCR 78 at [43].

 13   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].

 14   [2010] FWAFB 5343 at [27], 197 IR 266.

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

 16   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 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 at [28].

 17   PR727727

 18   PR727998