C2014/8119, Transcript of Proceedings [2015] FWCTrans 46 (12 February 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051301-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL

C2014/8119

s.604 - Appeal of decisions

Hua v Braemar Presbyterian Care
(C2014/8119)





Sydney

2.02PM, WEDNESDAY, 21 JANUARY 2015

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

Reserved for Decision

PN1

VICE PRESIDENT HATCHER: Can I have the appearances, please. On behalf of the appellant, Ms Hua? You can remained seated. Are you representing yourself?

PN2

MS X. HUA: Yes

PN3

JUSTICE ROSS: Okay, thank you. And who is appearing on behalf of Braemar Presbyterian Care?

PN4

MR S. FARRELL: Good afternoon, your Honour. Farrell initial S from the Chamber of Commerce and Industry Western Australia, and with me is Ms R. Reid, for the respondent.

PN5

JUSTICE ROSS: Thank you, Mr Farrell. Ms Hua, we've got a copy of your grounds of appeal, which is a three page document. Is there anything you wanted to add to that or in support of your application that we should grant you permission to appeal?

PN6

MS HUA: No, that's all written down on there, thanks.

PN7

JUSTICE ROSS: Mr Farrell, what do you say in response to the application for permission to appeal?

PN8

MR FARRELL: Thank you, your Honour. Your Honours, Commissioner, it's the respondent's submission that permission should not be granted to the appellant in this matter. I refer your Honours and commission to a decision of the full bench of the commission, and that's Michael Brandleby v Australian Postal Corporation T/A Australia Post [2014] FWCFB 9000, in which the full bench set out in paragraphs 13 to 24 the legislative provisions of the Act and the principles that should be followed when deciding whether or not to grant permission to appeal an unfair dismissal decision of the commission.

PN9

The appellant, in their notice of appeal, provides a summary of the following grounds for appeal: and that is that McCarthy DP was in error in finding the evidence of the respondent's witnesses to be clear, concise and consistent because the respondent's witnesses lied and gave inconsistent evidence; that McCarthy DP erred when finding that the appellant's reasons for taking the documents home were not justifiable as the respondent's actions left the appellant with no choice but to take the documents; that McCarthy DP did not take into consideration the unlawful practices (indistinct) the respondent; that McCarthy DP did not take into consideration that only the appellant was dismissed for breaching confidentiality when other documents relating to the appellant's employment and probation were missing and other employees had conversations outside of the workplace about residents; that McCarthy erred when finding that the appellant's dismissal was fair when another employee referred to as Fumoey deliberately caused the appellant distress and failed in her duties as to residents that McCarthy DP did not take into consideration that the respondent's poor management practices created an environment of confusion and mistrust; that McCarthy DP rushed through the hearing and did not give the appellant a proper opportunity to present her case; and that McCarthy DP predetermined the outcome of the case before the hearing.

PN10

The appellant then submits that the public interest is invoked because, firstly, care workers are advocates as residents and the respondent will (indistinct) its carers by dismissing them without justification. The respondent should take responsibility for neglect of care to residents resulting from poor management of their employees. The possibility a resident may die in the respondent's care, and unfair dismissals will occur again if the respondent is not made to pay (indistinct) it's my respectful submission, your Honours and Commissioner, that by the principles and precedents outlined before in the case I referred to, the appellant has failed to demonstrate that the public interest is enlivened in this case.

PN11

The appellant's grounds of appeal, in my opinion, can be separated into three distinct categories, namely, the appellant's disagreement with McCarthy DP's findings about her voracity as a witness and conversely that of the respondent, her conduct and the circumstances surrounding her dismissal. McCarthy DP failed to take into consideration the conduct of the respondent, and McCarthy DP failing to provide the appellant with procedural fairness by, firstly, not taking into consideration certain documents and alleged facts, and, secondly, rushing through the appellant in the hearing.

PN12

In relation to group 1, it is my submission that these matters fall squarely within the first limb of the principles annunciated in House v King, namely, that it's a discretional decision. The appellant has failed to demonstrate any error on the part of McCarthy DP in reaching his findings. McCarthy DP was present in the hearing, he heard first-hand the evidence provided by the witnesses, he viewed their demeanour and body language and so was in the best position to make his findings, and I submit that he was in a better position than the full bench to determine the voracity and truthfulness of the witnesses.

PN13

In relation to group 2, I submit that none of the grounds in this group satisfy the considerations referred to in GlaxoSmithKline and/or fall within the scope of public interest. Finally, in relation to group 3, and that being that McCarthy DP failed to provide the appellant with procedural fairness, I submit that a review of the transcript of the hearing a decision will not find either a prima facie case that McCarthy DP considered the appellant's application in an unfair and biased manner. The transcript shows that the appellant was given a fair opportunity to present her evidence and explain her version of the events leading up to the dismissal.

PN14

I refer your Honours and Commissioner to section 577 of the Fair Work Act in the performance or the functions by the Fair Work Commission, which says that:

PN15

The Fair Work Commission must perform its functions and exercise its powers in a manner that is fair and justice and is quick, informed and avoids unnecessary technicalities, is open and transparent and provides harmonious and cooperative workplace relations.

PN16

The transcript shows that McCarthy DP was keen to ensure that the issues relating to the dismissal of the appellant were canvassed and put forward. I refer your Honours and Commissioner to an observation of Buchanan J, which Marshall and Cowdroy JJ agreed, in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 25, where he said:

PN17

Referring to section 577 of the Act, there is no doubt that members of Fair Work Australia, as were members of the statutory predecessors, the Commonwealth Conciliation and Arbitration Commission, and the Australian Industrial Relations Commission, are bound to act judicially in the sense that they are obliged to respect and apply traditional notices of procedural fairness and impartiality.

PN18

However, it is an inform aspect of the work of FWA at all levels, including an appeal, as it was with the statutory predecessors, that it is to proceed without unnecessary technicality and as informally as the circumstances of the case permit. FWA is not a court and its members are not judicial officers as such, although the president has the same status as a judge of this court, and some senior members of FWA retain equivalent status from earlier statutory arrangements. It is not inappropriate to say that members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible.

PN19

It's my submission the transcript shows that McCarthy DP was correct in not allowing the appellant to go off on a tangent with irrelevant matters. What was germane to the issue of the application with conduct of the appellant and the response from the respondent, and whether that dismissal was fair or not? The conduct of the respondent in other matters is not relevant, and McCarthy DP was correct in insisting that the appellant only discuss and canvas the issues at hand.

PN20

The appellant, in my view, has not demonstrated any significant error on the part of McCarthy DP, nor has enlivened the public interest in their appeal. The appellant clearly disagrees with the outcome of their application; however, I submit that mere dissatisfaction of the outcome does not provide a proper basis for the appeal. It's my respectful submission for the respondent that permission to appeal should be refused and the appeal dismissed. Thank you, your Honour.

PN21

JUSTICE ROSS: Thank you. Ms Hua, do you wish to say anything in reply?

PN22

MS HUA: Yes, I don't have anything else to reply. All is written here. Unlike other people who were dismissed because of their poor performance, I have kept a great level of performance. All I did is to advocate for the residents and I got a dismissal for reporting on what was going on without a supervision management of the respondent. So I just try to do the right thing under such circumstances.

PN23

I understand that without a manager or a nurse there, I was aware that we can remove the documents and that was the only thing that can stop the residents from being harmed, because this coworker of mine is giving the residents poisonous medications, not just doing another role, like showering or toileting. She was giving medications not pre-packaged, not dispensed. I don't know what that medication was. It could be rats poison, it could be fly spray, but the respondent failed to respond to my reports and complains of putting the residents in danger. I just do the right thing and I got dismissed for doing the right thing.

PN24

Because advocating for the residents is so important, it's all written into a job description and we were given these prevention of elder care, to tell us how we should proceed when we suspect elder abuse. I just do the right thing and I got dismissed for the right thing, and the judge, Mr McCarthy, failed to see this point, and he made a lot of significant errors in establishing the facts as I have listed here. So that's all I want to say. Thank you.

PN25

JUSTICE ROSS: Thank you, Ms Hua. Anything finally either party wishes to say? If not, thank you for your submissions. We'll adjourn and we'll reserve our decision in relation to that matter.

<ADJOURNED INDEFINITELY [2.15PM]