[2011] FWAFB 6612 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT WATSON |
|
Appeal against decision [2011] FWA 3532 of Senior Deputy President O'Callaghan at Adelaide on 06 June 2011 in matter number U2010/14050 - significant error of fact - public interest test - Fair Work Act 2009 ss 400, 604.
Introduction
[1] This decision concerns an application for permission to appeal by Ms A (name not revealed at the request of the appellant) against the decision of Senior Deputy President O’Callaghan dated 6 June 2011 in relation to an unfair dismissal application under s 394 of the Fair Work Act 2009 (the Act). That application concerned the termination of Ms A’s employment by The Commonwealth of Australia, represented by Centrelink (Centrelink). The Senior Deputy President concluded that the dismissal was not harsh, unjust or unreasonable and dismissed the application.
[2] Directions were issued in relation to the filing of material prior to the hearing of the appeal. Ms A was directed to file an outline of submissions by 5:00pm Monday 18 July 2011 and Centrelink were required to file an outline of submissions in response by 5:00pm Thursday 4 August 2011. Ms A filed a brief one page outline of submissions 1 by email on 18 July 2011 and a further submission on 5 August 2011.2 The 5 August submission of Ms A raised a number of matters which were not addressed in the 18 July email. Centrelink filed its outline of submissions on 4 August 2011.
[3] At the hearing of the appeal on 11 August 2011, Mr McDonald and Mr Fleeton of counsel appeared on behalf of Centrelink. Permission for legal representation in the appeal was granted by this Full Bench prior to the hearing on the basis of written submissions of both parties. 3 Ms A with permission of the Full Bench did not appear at the hearing and filed written submissions in response to Centrelink’s oral submissions on 13 September 2011.
Background
[4] The Senior Deputy President set out the background to the matter at paragraphs [9] to [21] of his decision:
“[9] Ms A commenced employment with Centrelink on 9 September 1996. From at least 2008 she worked as a Customer Service Advisor within the Centrelink Adelaide Call Centre. At the time of the termination of her employment she was classified at the highest possible Customer Service Adviser classification.
[10] While the full details associated with Ms A’s work arrangements are not absolutely clear, Centrelink were aware, from 2000 that Ms A suffered from psychological disorders specified as Social Phobia and Dysthymic Disorder. She was taking antidepressant medication. These conditions were assessed as pre-existing conditions rather than being caused by her work and the advice provided in 2000 and confirmed in 2006 was that Ms A was psychologically fit for her duties at Centrelink although in 2000 her difficulty in coping with work monitoring, performance appraisals and feedback was noted.
[11] It appears that the allocation of call centre duties to Ms A some time after 2006 reflected an agreed approach to best accommodate Ms A’s psychological conditions.
[12] Ms A’s employment was terminated on 29 October 2010, as a result of a conclusion reached by the Call Centre Manager, Mr B, that Ms A had failed to attain, and sustain, the necessary standards of work performance for a Customer Service Advisor. This decision was reached after the implementation of a formal performance improvement programme.
[13] Centrelink assert that this formal performance improvement programme (the PIP) was instituted as a result of performance concerns which were subsequently addressed through regular coaching. An informal performance management process was put in place in early 2010 consistent with normal Centrelink performance management processes. The PIP was instituted in April 2010 and reflects an approach set out in the Centrelink Agreement 2009 -2011 (the Agreement) such that it follows informal performance improvement endeavours. There is no dispute that Ms A was given, and utilised an opportunity to have input into this formal PIP. Its initial eight-week duration was extended by Mr B for a further four weeks. Throughout the PIP process Ms A declined to meet with her Team Leader, Mr C about the PIP. However, over the latter part of the PIP she met on a regular basis with Mr B. The formal PIP concluded on 10 August 2010.
[14] Ms A was subsequently advised that termination of her employment was being considered and she was invited to respond to this advice. Ms A provided a detailed response on 2 September 2010. In this response she disputed the extent to which Centrelink asserted that she had not adequately met the performance standards. Secondly, she disputed the extent to which Centrelink should consider termination of her employment, as distinct from reassignment to different duties at the same, or at a lower classification or pay level. She asserted that the PIP was flawed in that Mr C had exhibited bias against her and that her performance was affected by earlier managerial deficiencies. In her response Ms A asserted that her performance was affected because of her health. She attached a medical certificate, which stated:
“Miss A age 34 years has been my patient for years. This is the confirmation that she has been seeking medical treatments on a regular basis due to matters arising from stress induced anxiety & depression since December 2009. [? If not before]. As a result she probably has to take time off to attend treatment until her condition becomes better.”
(amended for confidentiality)
[15] Centrelink subsequently provided advice to Ms A’s doctor (with her approval) to the effect that termination of her employment was being considered. It sought urgent provision of the doctor’s opinion about the duration of Ms A’s psychiatric illness, its impact on her ability to perform her duties, the extent to which it could be caused by the PIP and what adjustments Centrelink could make to take account of Ms A’s position.
[16] The doctor’s response, received by Centrelink on 8 October 2010, confirmed Ms A’s psychiatric condition was long-standing but had been, and continued to be, treatable. It proposed possible changes to her working hours.
[17] On 20 September 2010 Centrelink referred Ms A for a Fitness for Duty assessment consistent with the provisions of the Agreement. Centrelink provided background advice and a series of questions to a consultant psychiatrist, Dr D. This background advice included earlier psychiatric assessments.
[18] Dr D’s report was provided to Centrelink on 11 October 2010. It noted Ms A’s psychiatric history and her concerns relative to the performance management initiatives which had been in effect since October 2009. It recommended that she take a month off work, noted that her condition was chronic and could be expected to vary over time, but concluded that she was not partially permanently incapacitated for work. Further, that Ms A’s performance would have likely been reduced because of the increased checking and lower confidence that she had endured over the past 12 months. Finally, Dr D’s report concluded that it was reasonable and appropriate for normal performance management to the undertaken given Ms A’s health conditions.
[19] On receipt of this report Centrelink arranged for Ms A to take leave from work. It also provided her with an opportunity to seek a review of this medical assessment. Ms A did not make any such request.
[20] Commencing in late August 2010, Mr B initiated a number of enquiries of other Centrelink functions to ascertain if alternative employment for Ms A could be identified.
[21] Ms A’s employment was terminated on 29 October 2010. She was paid four weeks pay in lieu of notice.”
Grounds of appeal
[5] In the notice of appeal Ms A identifies two alleged errors. The first alleged error was that the Senior Deputy President should not have concluded that the employer did not have an obligation to keep itself informed of relevant matters relating to employees information on personnel files. This appears to be a reference to parts of His Honour’s decision such as paragraph [39] which states:
“[39] There is no medical evidence that confirms that Ms A’s psychological health substantially affected her performance in the period before and during the informal, or, for that matter, the formal performance management process. Perhaps even more significantly, if Ms A considered this to be the case, she did not raise it as a factor which she sought that Centrelink take into account until after the formal PIP was completed. In this respect I do not consider that Ms A could reasonably expect that Centrelink modify the application of the normal performance management processes in 2009 and 2010 on the basis of the medical advice provided to it in 2000 or in 2006. Nothing in those advices indicates an ongoing requirement for Centrelink to modify normal management processes.”
[6] Ms A asserts that the Senior Deputy President’s decision is erroneous:
● in that Ms A contends the medical information on her employee file specifically instructed the employer to remain aware of certain medical conditions and that Centrelink had an obligation as well as a duty of care to consider that medical information in managing Ms A;
● in that the decision maker in respect of the termination of employment, despite evidence to the contrary, was aware of Ms A’s medical condition;
● in that there are no privacy restrictions imposed on an employer accessing an employee’s personnel file or using information on the file where it is relevant to do so;
● in that Centrelink were aware of Ms A’s medical condition and ought to have remained aware of the medical condition.
[7] The second alleged error is that the Senior Deputy President’s decision is affected by bias. The grounds of appeal in relation to this matter appear to relate to Ms A’s disagreement with certain findings of His Honour.
[8] Ms A asserts that the Senior Deputy President erred:
● by attributing statements to Ms A that she believes she did not make;
● in concluding that Centrelink’s evidence should be given more weight than her own evidence; and
● in preferring witness opinion over actual data.
[9] In the notice of appeal Ms A asserts that the decision of the Senior Deputy President gives rise to the public interest as follows:
“Public interest 1: defining the responsibility and accountability of employers to maintain and keep relevant their employee records, and to use those records in a relevant way...
Public interest 2: defining for staff with ongoing (and embarrassing) health conditions the extent to which staff can rely on their employer already being aware of their condition and not having to discuss said embarrassing conditions with any and every passing or new co-worker.
Public interest 3: the public confidence in FWA’s ability to make decisions that are truly unbiased, and which do not value an employer’s opinion over the evidence of actual data.”
Submissions of the parties
[10] Ms A filed lengthy submissions, on 5 August 2011 and a further 26 page written submission in response to Centrelink’s oral submissions on 13 September 2011. Ms A submits that the decision of the Senior Deputy President is erroneous in the conclusion that the termination of her employment was not harsh, unjust or unreasonable. She submits that given her medical condition and the fact that it had previously been disclosed to Centrelink the performance management process ought to have been modified to accommodate her condition.
[11] Ms A submits that the Senior Deputy President erroneously overlooked her ongoing medical condition and the impact of her medical condition on her in the workplace. Ms A further submits that she does not believe that the Senior Deputy President gave full consideration to each of the individual items she identified as exhibiting unfairness.
[12] In essence Ms A submits that after 14 years employment with Centrelink, she did not deserve to end up in the place she is currently in.
[13] Centrelink submits that Ms A has not identified any relevant public interest considerations that would justify the granting of permission to appeal. It submits that the public interest grounds referred to in Ms A’s notice of appeal appear to be based upon an erroneous assumption that the Senior Deputy President determined that an employer is not obliged to stay informed of information on an employee’s personnel file.
[14] Centrelink further submits that the Senior Deputy President’s decision was based on the circumstances of the case and does not seek to establish any principles of general application or raise maters of general importance.
[15] In response to the third public interest ground identified in the notice of appeal, Centrelink submits that there is no reasonable basis for an assertion of bias.
[16] Centrelink submits that if permission to appeal is granted, the appeal should be dismissed on that basis that Senior Deputy President O’Callaghan’s decision is not affected by any appealable error. It submits the Senior Deputy President did not make any significant error of fact, act on any wrong principle, allow irrelevant matters to guide him, did not mistake the facts and took all material considerations into account.
Permission to appeal
[17] An appeal under s 604 of the Act in a matter of this nature is determined by reference to the provisions of s 400 of the Act. Section 400 provides:
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA 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] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 4 considered the impact of s 400 on the approach to granting permission to appeal. It said:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[19] The decision subject to appeal in this matter can be described as a discretionary decision. 5 The appeal is therefore to be considered in accordance with the principles of House v R.6 Those principles are expressed in that decision as follows [at 504-505]:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[20] Section 400(2) modifies the House v R principles by limiting any review based on a mistake of fact to a significant error of fact.
Conclusions
[21] We have considered the submissions made by the parties. In our view Ms A has failed to establish that it is in the public interest to grant permission to appeal. His Honour considered all of the circumstances of the matter and made findings which in our view were clearly open to him. We are not satisfied that the decision involves issues of general importance or that the decision manifests an injustice. Ms A has not established any other reason why it is in the public interest that permission to appeal be granted.
[22] We therefore decline to grant permission to appeal. The application for permission to appeal is dismissed.
VICE PRESIDENT WATSON
Appearances:
S McDonald with D Fleeton of counsel for The Commonwealth of Australia, represented by Centrelink
Hearing details:
2011.
Adelaide.
August, 11
Final written submissions:
Ms A, 13 September 2011.
1 Exhibit A1
2 Exhibit A2
5 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
6 (1936) 55 CLR 499.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR514999>