Industrial Relations Commission New South Wales Medium Neutral Citation: Genna Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 Hearing dates: 12 December 2016 Date of orders: 12 December 2016 Decision date: 12 December 2016 Jurisdiction: Industrial Relations Commission Before: Tabbaa AM, Actg Chief Commissioner, Stanton C; Newall C Decision: Leave to appeal is refused Catchwords: LEAVE TO APPEAL – unfair dismissal – first instance decision to dismiss application – tests for leave to appeal – no substantial issues of principle or law – leave not required in the public interest – leave to appeal refused. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380; King v State Bank of New South Wales (No 2) (2002) 126 IR 407; Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353; Byrne v Australian Airlines Ltd [1995] HCA 24, (1995) 185 CLR 410; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420; Strathfield Group Ltd v Hall (2002) 121 IR 158; Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353; Mullins v Director General, NSW Department of Education and Training [2006] NSWIRComm 258; Public Service Association and Professional Officers Association Amalagamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. Category: Principal judgment Parties: Genna Martin (Appellant) Mosman Municipal Council (Respondent) Representation: Counsel: Mr M Fantin (Appellant) Mr A Britt (Respondent) Solicitors: Gary Cassim & Associates (Appellant) E Rooke – Local Government NSW (Respondent) File Number(s): 183501/2016 Judgment LEAVE TO APPEAL 1. This is an application pursuant to s 187 of the Industrial Relations Act 1996 ("the Act") filed on 16 June 2016 for leave to appeal, and if leave is granted, to appeal from a decision of Murphy C in Merrin v Mosman Municipal Council [2016] NSWIRComm 1021 ("the decision"'). 2. In that matter the Commissioner dismissed an application brought by Ms Genna Merrin ("the appellant") pursuant to s 84 of the Act and determined that her dismissal by the respondent on 22 December 2015 was neither harsh, nor unjust nor unreasonable. The appellant had been employed by the respondent for approximately 16 years. BACKGROUND 1. The respondent relied upon the following reasons to dismiss the appellant on 20 to 22 December 2015: 1. On Sunday 6 December 2015, the appellant removed a bag of uncooked sausages and two bowls of salad from the refrigerator at the Drill Hall, a Council facility used for holding functions and other activities, and took them with her for her own personal use. 2. On the same day the appellant allowed an unauthorised person, being a former Council employee whose services had been terminated, to access (at times alone) the Council's Marie Bashir Mosman Sports Centre administration office. 3. On Tuesday 8 December 2015, the appellant abandoned her post during her shift for more than two hours, over two separate occasions when she was not on Council property, leaving the Sports Centre open and unattended. COMMISSIONER'S DECISION 1. In dismissing the application, the Commissioner made the following determination at paragraphs [111] and [112] of his decision: 111. In this matter I do not find that the dismissal of the applicant to be disproportionate to the gravity of the misconduct or to be too harsh a consequence. 112. Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited ([2003] NSWIRComm 211), Antonakopoulos v State Bank of New South Wales [(1999) 91 IR 385] and Buckman v Burdekin [(1998) 85 IR 415] are all cases which deal with the obligation on an employer to afford an employee procedural fairness. As I have already stated, in the present matter the applicant was given ample opportunity to respond to the matters which ultimately led to her dismissal. There was no denial of procedural fairness to the applicant in this case. GROUNDS OF APPEAL 1. The grounds of appeal essentially dealt with three questions: 1. whether the Commission applied the correct authorities; 2. whether the Commission made an incorrect finding of fact or made an error of fact or error of fact and law; and 3. whether the credibility finding against Merrin was erroneous. LEAVE TO APPEAL 1. The principles in relation to the granting of leave to appeal a decision of the Commission were recently canvassed in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 where the Full Bench observed at [10] and [11]: [10] It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. [11] The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52] - [55] and Knowles at 381 - 382) and, subject to the requirements of s 188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. (See also the recent decision in Raveena Singh Rai v State Transit Authority of New South Wales [2015] NSWIRComm 27 which referred to the decision in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17). 1. An appeal cannot succeed in the absence of appellable error. It will rarely be appropriate to grant leave to appeal unless an arguable case of appellable error is demonstrated. Moreover, the fact that the Member at first instance may have made an error is not necessarily a sufficient basis for the grant of leave to appeal. 2. We have considered the appellant's grounds of appeal. We have formed the view that the appeal does not raise substantial issues of principle or law. Nor does the appeal have wider implications for the jurisprudence of this Commission. The thrust of the appeal seeks to challenge findings of fact, the interpretation of legal authorities and the exercise of discretion by the Commissioner. We consider the Commissioner's findings of fact were reasonably open to him based on the evidence before him 3. In conclusion, we see no basis to depart from the principles enunciated above in relation to the grant of leave. For the reasons we have set out above, the appellant has not made out an arguable case for intervention by the Full Bench. All relevant matters have been properly considered and determined by Murphy C. 4. No error has been disclosed. The matters raised on appeal by the appellant are not matters in respect of which, in the public interest, leave should be granted nor is there any other basis warranting the grant of leave. We are, therefore, not disposed to grant leave to appeal. Orders 1. The Full Bench makes the following order: 1. Leave to appeal is refused Amendments 13 December 2016 - Cover sheet: "wales" amended to read "Wales" Paragraph 3: "20 to December 2015" amended to read "20 to 22 December 2015" Paragraph 3: number (3) added Paragraph 4: "paragraphs [87] and [88]" to read "paragraphs [111] and [112] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2016