FEDERAL COURT OF AUSTRALIA Eliana Construction and Developing Group Pty Ltd v Moghimi [2016] FCAFC 113 Appeal from: Eliana Construction and Developing Group Pty Ltd v Moghimi [2015] FWCFB 7476 File number(s): VID 233 of 2016 Judge(s): NORTH, KATZMANN AND BROMBERG JJ Date of judgment: 18 August 2016 Legislation: Fair Work Act 2009 (Cth) ss 400(1), 570(2)(a) Date of hearing: 18 August 2016 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 26 Solicitor for the Applicant: Ms K Bramham of Eliana Construction and Developing Group Pty Ltd Counsel for the Respondents: Mr M Felman and Mr A Pollock (Pro Bono) Solicitor for the Respondents: Job Watch ORDERS VID 233 of 2016 BETWEEN: ELIANA CONSTRUCTION AND DEVELOPING GROUP PTY LTD (ABN 64 132 817 362) Applicant AND: LEYLA MOGHIMI First Respondent FAIR WORK COMMISSION Second Respondent JUDGES: NORTH, KATZMANN AND BROMBERG JJ DATE OF ORDER: 18 AUGUST 2016 THE COURT ORDERS THAT: 1. The application for judicial review is dismissed. 2. The applicant pay the costs of the first respondent fixed in the amount of $30,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 The applicant, Eliana Construction and Developing Group Pty Ltd, applies for judicial review under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) for relief in respect of two decisions of the Fair Work Commission (FWC). 2 The first decision was made by Commissioner Roe on 23 July 2015. He ordered that the applicant pay the first respondent, Leyla Moghimi, $27,500 compensation for unfair dismissal. The second decision was made by a Full Bench of the FWC (Vice President Watson, Deputy President Hamilton and Commissioner Johns). The Full Bench refused the applicant permission to appeal from the Commissioner's decision. 3 The application advanced six grounds of which the first two challenged the Commissioner's decision, and the remaining four grounds challenged the Full Bench decision. 4 The first respondent was employed by the applicant as an architectural draftsperson. Her partner was also employed by the applicant in the same office. In the early hours of the morning of 19 January 2015, the first respondent was the victim of domestic violence at the hands of her partner. On 20 January 2015, the police applied to the Ringwood Magistrates' Court which granted an intervention order inter alia prohibiting the partner from approaching nearer than three metres to the first respondent. This unusually close contact regime was arrived at in order to allow both to continue working in the same office. 5 The Commissioner held at [36] that the first respondent was dismissed by the applicant and rejected the applicant's argument that she had resigned. 6 Ground two of the application alleged that: Commissioner Roe erred given that both husband and wife work in an open space and a serious allegation was made against the ex-partner and concluded that "this is effectively telling the Respondent that she can no longer work for Eliana" which is not supported by the evidence. 7 The short answer to this ground is that the evidence did support the conclusion that the applicant terminated the employment of the first respondent. But even if that were not the case, there are other obstacles to the success of this argument. One is that the challenge is to only one piece of evidence although the Commissioner relied on a good deal more evidence to come to his conclusion. A further reason is that even if factual error had been shown, that would not ground relief in this application for judicial review. The applicant was bound to demonstrate jurisdictional error. The way in which the ground is drawn does not even attempt at that task. We return to the argument there was evidence referred to by the Commissioner which supported the conclusion that the applicant dismissed the first respondent. In particular the Commissioner accepted evidence of the first respondent that her manager, Mr Sowiha, a director of the applicant, told her at a meeting on 22 January 2015, that he had to terminate her employment because it would not be safe or nice for the employment to continue, and that it had been decided that either her employment or the employment of her partner had to be terminated and that Mr Sowiha had decided it would be the first respondent's employment that would be terminated. This is clear evidence from the employer that it intended to dismiss the first respondent. 8 The Commissioner dealt with the matter further at [32] to [36]: 32. Mr Sowiha says that he made the following statement to Ms Moghimi at the meeting: "I told Leyla that I can't have them both working in the office in the same department as I cannot protect her from him." Considered in context I am satisfied that this is effectively telling Ms Moghimi that she can no longer work for Eliana. 33. Mr Sowiha in cross examination confirmed that he told Ms Moghimi that he would not fire her partner. I am not satisfied that Mr Sowiha suggested that Ms Moghimi work from home but even if he did, this reinforced the message that it was the victim of domestic violence who had to be removed from the workplace not the man. 34. Mr Sowiha clarified that Ms Moghimi raised the issue of her partner's employment after he had made it clear to her that both of them couldn't work in the office and her partner was not going to be moved. He says that she then said "What really makes me happy is to sack me and sack him." This alleged statement makes sense if Ms Moghimi had already been told that she could no longer be employed; it makes no sense if Ms Moghimi had already told Mr Sowiha that she was going to resign. 35. I find no basis to conclude that Ms Moghimi came to work on 22 January 2015 intending to resign. Ms Moghimi was in an extremely vulnerable situation. So much of her security was at risk it is unlikely that she would want to give up her job. I accept the evidence that she liked her job and it was very important to her future. She was a recent graduate and she was developing her skills and her potential portfolio at Eliana. I accept the evidence that Mr Yassa told her to wait and talk to Mr Sowiha and this explains why she did not perform productive work that morning. Mr Yassa did not give evidence. 36. I am satisfied that Ms Moghimi was dismissed by Mr Sowiha at the lunch meeting on 22 January 2015. I accept the evidence of Ms Moghimi that Mr Spasevski later suggested it might help her employment prospects if she resigned and she did so. I do not find it at all strange that Ms Moghimi stayed at work for an hour or two after she was dismissed by Mr Sowiha. She was not accused of any misconduct or poor performance. Her only crime was to have a partner who worked in the same work place and who was the subject of a domestic violence Intervention Order. In these circumstances there is nothing unusual for an employee to take some time before leaving. 9 These passages demonstrate that ground two of the application cannot be sustained. There was abundant evidence that the applicant had dismissed the first respondent. 10 Ground one of the application alleged that the Commissioner: erred and pre-judged the ex-partner's guilt and made a determination about what an employer must do or not do based on that incorrect assumption. There is an error of fact, there is no guilt on the part of the ex-partner. The intervention order was made by consent without admission and it had not been determined that there is "a victim of domestic violence" or a "man responsible". 11 The conclusion that the first respondent's partner was responsible for domestic violence against her was inescapable on the evidence before the Commission. The first respondent gave evidence to that effect. Her evidence on the issue was not challenged. The Commissioner found, as he was entitled to do, that the first respondent was a credible witness. Her partner did not give evidence. 12 The reasoning of the Commissioner appears in [41] – [45] as follows: 41. I am satisfied that the reason for the dismissal was because Eliana, through Mr Sowiha and/or Mr Yassa, believed that the Intervention Order meant that Ms Moghimi could no longer work in the office. I am not satisfied that this was a valid reason. Firstly, it had nothing to do with Ms Moghimi's conduct and performance and everything to do with the conduct of another employee, Ms Moghimi's partner. Secondly, I am not satisfied that it was impossible for the two persons involved to continue in employment. 42. Ms Moghimi gave evidence, which I accept, that she felt safe in the open office given that there were many other work colleagues around, notwithstanding the presence of her partner. 43. It was the intention of the court in issuing the Order to make accommodation for Ms Moghimi's employment. The Order prevents Ms Moghimi's partner from contacting or communicating with Ms Moghimi and also prevents him from getting another person to do it for him. This does not prevent others from communicating with Ms Moghimi but it does prevent Ms Moghimi's partner from sending messages to Ms Moghimi through someone else. I do not see how this would prevent normal work from occurring given that the evidence is that they did not have to directly engage as part of a work project. 44. I accept that there are limits to the extent to which an employer can be expected to accommodate the private lives of employees. Ultimately employees have to be capable of performing the inherent requirements of their jobs. When seeking to accommodate the reasonable needs of employees the impact on the business will be a consideration. However, I am satisfied that Eliana did not explore all available options and discuss these matters over a reasonable period of time with those affected. 45. I am not satisfied that the Intervention Order provided a valid reason for termination. 13 In the result the applicant has not established any relevant error on the part of the Commissioner. We now turn to the decision of the Full Bench. 14 Section 400(1) of the Fair Work Act 2009 (Cth) (the Act) provides that "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". 15 The Full Bench referred to the principles governing the application of s 400(1) as follows: 4. 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'. The Commission must not grant permission to appeal unless it considers that it is 'in the public interest to do so'. 5. Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, 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 counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. [Footnotes omitted] 16 Then at [8] the Full Bench found that there was no issue of public interest as follows: The findings about domestic violence were specific to the case in question, and related to Ms Moghimi's absence from work because of domestic violence (paragraphs 30-31), and the consequent difficulties of Ms Moghimi and her former partner working together in the office (paragraphs 32-36). He made a specific finding of fact that Ms Moghimi was dismissed because Eliana believed that the intervention order directed at her former partner meant that Ms Moghimi could no longer work in the office (paragraph 41). There is no issue of general application arising from these findings, and no issue of public interest. They are findings specific to the evidence and submissions put to the Commissioner relating to the circumstances of Ms Moghimi and the workplace. The Commissioner was entitled to prefer the evidence of Ms Moghimi to other evidence. 17 Grounds four and six of the application alleged that: 4. The Full Bench of Commissioners erred in finding that there is no issue of public interest because "findings about domestic violence were specific to the case in question" which is inconsistent with the finding of Commissioner Roe. … 6. The Full Bench of Commissioners erred in assessing what is in the public interest. There is no guidance for employers where employees have intervention orders against each other and violence is an aggravating factor. 18 The argument of the applicant was no more than an assertion that it disagreed with the judgment and orders of the Full Bench. In order to succeed, however, the applicant needed to show that the Full Bench misconstrued, misunderstood or failed to apply the test of whether it was in the public interest to grant permission to appeal: Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78. 19 Grounds three and five of the application alleged errors of the Full Bench: 3. The Full Bench of Commissioners erred in accepting the errors of fact that the intervention order was granted by consent without admission. The facts against the ex-partner had not been tested and there had been no finding that there was a "victim of family violence". … 5. The Full Bench erred in finding that there could be a finding of "domestic violence" as it was an intervention order by consent, without admission from the husband. 20 These grounds are without substance. They depend on the applicant establishing that the Full Bench accepted erroneous findings made by the Commissioner that the first respondent was a victim of family violence. As earlier explained the applicant has failed to establish that the Commissioner erred in that respect. Without that foundation there is no basis for these challenges to the Full Bench decision. 21 Neither the applicant's written outline of submissions nor its oral argument was helpful. They were not focused on the grounds of the application. Both amounted to statements of disagreement by the applicant with the rulings of the FWC on the merits of the case. Those representing the applicant in an application for judicial review should have been aware that a general merits attack is not relevant to the issues on a judicial review application. In these circumstances, it is unnecessary for us to canvas in any more detail the contents of the written submissions. 22 It must be firmly stated, contrary to the oral submission of the solicitor for the applicant, that this proceeding does not turn on issues of family violence. It turned on whether or not the Full Bench fell into jurisdictional error. Absent a jurisdictional error, the Court has no power to grant the relief the applicant seeks. 23 For the above reasons, the application for judicial review is dismissed. 24 The first respondent, who was represented by pro bono counsel and by a solicitor employed at Job Watch, has sought costs on an indemnity basis. The claim for costs is made first on the basis that the application under s 39B of the Judiciary Act does not fall within s 570 of the Fair Work Act. On this basis, costs would follow the event and the first respondent would be entitled to costs without any limitation. Alternatively, the first respondent contends that if s 570 applies, then the matter falls within s 570(2)(a), in that the Court should be satisfied that the applicant instituted the application without reasonable cause. We accept that if s 570 applies then the application was instituted without reasonable cause and therefore s 570(2)(a) would apply. It is unnecessary for us to decide which of these two alternatives apply because we are satisfied that the first respondent should have her costs on either basis. 25 The application was made for costs on an indemnity basis. However, the first respondent did not give notice to the applicant of the prospect of such a claim being made and consequently we do not accept it. 26 Counsel for the first respondent has indicated the way in which the costs have been calculated and on an indemnity basis it would amount to $46,000. Counsel accepted that it was a fair assumption that the party/party calculation would amount to approximately 70 per cent of that amount. We are satisfied that a reasonable figure for costs taking into account the preparation and appearance together with the work of the instructing solicitor as outlined by counsel is $30,000. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North, Katzmann and Bromberg. Associate: Dated: 18 August 2016