Abdul Soomro v Murray's Australia Pty Limited T/A Murray's Australia
[2017] FWCFB 768
•6 FEBRUARY 2017
| [2017] FWCFB 768 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Murray’s Australia Pty Limited T/A Murray’s Australia
(C2016/7131)
VICE PRESIDENT CATANZARITI | SYDNEY, 6 FEBRUARY 2017 |
Appeal against decision [[2016] FWC 8211] of Vice President Watson at Melbourne on 16 November 2016 in matter number U2016/8573.
[1] Mr Abdul Soomro appealed the decision 1 of Vice President Watson to dismiss his application for an unfair dismissal remedy.
[2] The matter was listed to deal with whether permission to appeal, the appeal itself and whether an extension of time to file the appeal should be granted.
[3] Mr Soomro represented himself at the appeal and Ms R. Preston, of Counsel, sought permission to appear on behalf of Murray’s Australia Pty Limited (“Murray’s”). We had regard to the fact that Mr Soomro was unrepresented, however, we did not consider, in circumstances where the parties had filed written material, that any disadvantage to Mr Soomro as a self-represented party would cause us to deny Murray’s permission to be represented. Therefore, given the complexity of the matter, and having regard to section 596 of the Act, permission was granted to Murray’s to be represented.
The Matter at First Instance
[4] As is the Commission’s practice, directions were issued for the filing of material. Mr Soomro was to file submissions by 19 September 2016 and Murray’s by 10 October 2016. Mr Soomro complied with the directions and filed two witness statements, along with his submissions. Due to the unavailability of one of Mr Soomro’s witnesses, an adjournment request was made, however, that request was refused.
[5] Murray’s did not comply with the Commission’s directions and were subsequently granted an extension of time to file material until 25 October 2016. On 26 October 2016, Murray’s filed three witness statements and an outline of submissions. On 28 October 2016, Murray’s filed a further witness statement. On 31 October 2016, Murray’s filed a copy of the investigation report, which had attached to it a number of statements provided to the investigator, as well as another witness statement.
[6] Prior to the hearing, Mr Shaw, Mr Soomro’s representative, objected to the receipt of this new material and put that if it were to be considered, the matter should be adjourned to enable him to take instructions in relation to the material filed.
[7] At the commencement of the hearing on 7 November 2016, Mr Shaw pressed the application for an adjournment. He submitted that there was insufficient time for him to consider the material and prepare cross-examination. Murray’s representative opposed the adjournment and submitted that there had been sufficient time for Mr Shaw to consider the material. Mr Shaw, in response to questioning from the Vice President, agreed that two of Murray’s witnesses, Mr Lee and Mr Blewitt, would only require minor cross-examination. Vice President Watson proposed dealing with Mr Soomro’s witnesses and then Mr Lee and Mr Blewitt. The matter would then be adjourned until the next day to give Mr Shaw additional time to consider the material. Mr Shaw opposed this and pressed for an adjournment.
[8] Vice President Watson then determined to proceed and advised that Mr Shaw could revisit the issue after the cross-examination of Mr Lee and Mr Blewitt. The matter then proceeded and after the closing of Mr Soomro’s case, Mr Shaw sought an adjournment until the next day to enable him to take instructions that afternoon. After being advised that one of Murray’s witnesses had come from interstate, he withdrew this adjournment application. After the conclusion of the evidence on the first day, Mr Shaw did not further press for an adjournment.
[9] Mr Soomro was allegedly dismissed for misconduct. He was alleged to have breached Murray’s Equal Opportunity, Discrimination, Harassment, Bullying and Workplace Violence Policy and Murray’s Drivers Manual. Further, it was alleged that he had been dishonest in the investigation process.
[10] Much of the evidence before the Vice President was not in dispute.
[11] Mr Soomro accepted that he sent text messages to his co-worker in June, October and December 2015. Mr Soomro said he did so because he thought his co-worker was interested in him. 2
[12] Mr Soomro also accepted that he sent seven unsolicited messages via Whatsapp in September 2015 because he thought his co-worker was interested in him. 3
[13] Mr Soomro also accepted that, after 10.00pm on 21 October 2015, he telephoned his co-worker three times. 4
[14] Mr Soomro accepted that, on 14 March 2016, he telephoned his co-worker three times. 5
[15] Mr Soomro accepted that, on 29 April 2016, he called his co-worker again. 6
[16] Mr Soomro denied sending his co-worker fourteen anonymous messages on Whatsapp from 29 April 2016 to 12 May 2016. 7
[17] Mr Soomro was alleged to have attended the Wharf Hotel on two occasions to unsettle his co-worker. Mr Soomro accepted that he had gone to the Wharf Hotel in December 2015. He denied that he knew his co-worker would be there. He further accepted that he was at the same hotel in April 2016. Again, he denied knowing his co-worker would be there. 8
[18] Further, on this last occasion, Mr Soomro was alleged to have firmly grabbed his co-worker on the arm. Mr Soomro accepted that he had a conversation with his co-worker in which she told him she was really uncomfortable and offended by his presence. He accepted that he grabbed her by the arm. He denied being aggressive. 9
[19] There were other allegations made about inappropriate behaviour and comments at work not related to the co-worker, however, the Vice President made no findings in relation to these allegations.
[20] It was further alleged that Mr Soomro had been dishonest during the disciplinary process. On 4 May 2016, Mr Soomro was asked if he had attended two social functions at the Wharf Hotel attended by his co-worker and he denied doing this. It was further alleged that he denied having his co-worker’s telephone number. Mr Soomro said he had his co-worker’s number, but he had deleted it a long time ago. Mr Soomro said he did not obtain her number until early 2016 and that he had not saved it to his phone. 10 He accepted that he had denied attending the Wharf Hotel to avoid an altercation and because he felt intimidated.11
The Decision
[21] Vice President Watson held that Mr Soomro did engage in the conduct alleged. In particular, he found that he sent unsolicited text messages to his co-worker in the latter part of 2015. He found that the messages were either not responded to or responded to negatively by the co-worker, with requests that Mr Soomro not contact her. 12
[22] He also found that there had been an informal complaint made by the co-worker and that complaint was raised with Mr Soomro, and he was asked to stop the conduct. He found that Mr Soomro had agreed not to contact the co-worker, unless it was work related. 13 He found that there was a conflict in the evidence given by Mr Blewitt and Mr Soomro on this matter and he preferred Mr Blewitt’s evidence.
[23] Vice President Watson also found that the text messages sent in April 2016 from the pseudonym “Yakflyer 1” were, on the balance of probabilities, sent by Mr Soomro and that those messages represented a serious breach of policy. 14
[24] The Vice President found that the messages and contact were made outside work hours and during work hours and they were inappropriate in nature. He found the contact was unwelcome and had implications for the relationship between employees of Murray’s. He also found that the allegations of dishonesty in the investigation were established on the evidence. 15
[25] Vice President Watson found that Mr Soomro had been afforded procedural fairness. 16
[26] Vice President Watson found that his misconduct was extremely serious, given Mr Soomro was warned to stop the behaviour and the conduct was clearly inappropriate and amounted to harassment of a fellow employee in a totally inappropriate manner. He found that the dismissal was not a disproportionate response. 17
Extension of Time
[27] Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules 2013) deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The decision was given on transcript on 8 November 2016. Mr Soomro had until 29 November 2016 to institute an appeal, however, the appeal was lodged on 3 December 2016, which was not within the 21 day time constraint stipulated. Nevertheless, rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[28] The authorities 18 indicate that the following matters are relevant to considering whether to exercise the Commission’s discretion under Rule 56(2)(c):
● Whether there is a satisfactory reason for the delay;
● The length of the delay;
● The nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
● Any prejudice to Murray’s if time were extended.
[29] Murray’s submitted that the Commission should refuse permission to appeal because it was lodged out of time, Mr Soomro had not provided an adequate explanation for the delay and none of his appeal grounds were likely to be upheld.
[30] Mr Soomro said he was told by the Commission that he had 21 days from the date the decision was published and, as such, his appeal was lodged in time. He said he needed a copy of the written reasons for the decision before deciding to appeal.
[31] We are satisfied that Mr Soomro had a reasonable explanation for the delay in lodging the appeal. There is no suggestion of any prejudice to the employer caused by the late lodgement of the application. Therefore, we consider it appropriate in all the circumstances to extend the time for the filing of the appeal.
Grounds of Appeal
[32] We summarise the submissions of Mr Soomro into the following main five grounds of appeal:
1. Vice President Watson did not take into account, nor did he not consider Mr Soomro’s evidence in his decision;
2. Vice President Watson made significant errors of fact;
3. Vice President Watson accepted Murray’s evidence without permitting Mr Soomro to cross-examine their witnesses and the complainant;
4. Murray’s did not comply with the directions issued until four days before the hearing and Mr Soomro was prejudiced in his preparation for the case and he was denied an adjournment; and
5. The main complainant did not attend and despite the conflict in Murray’s witness statements, Vice President Watson accepted Murray’s version of events and did not give sufficient weight to Mr Soomro’s evidence.
Public Interest
[33] Mr Soomro submitted that it was in the public interest that permission be granted because:
1. His case is in the spotlight in his community, the decision is full of significant errors and has created anxiety in his community;
2. People are worried if the public will get a fair go in the Commission and his community and co-workers are concerned about the Commission’s practices and whether they could get fair justice and not favour employers; and
3. Granting permission to appeal would restore faith in the public and other employees who decided to lodge unfair dismissal applications.
Principles on Appeal
[34] This appeal is one to which section 400 of the Act applies. 19 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.
[35] 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”. 20 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.21 The Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin identified some of the instances when the public interest might be attracted:
“… 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.” 22
[36] In order to grant permission to appeal, an arguable case of appealable error should be demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 23 However, an error made by the Member at first instance is not necessarily a sufficient ground for the grant of permission to appeal.24
[37] In an appeal from a decision involving an exercise of discretion, an error in the exercise of discretion must be demonstrated:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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.” 25
Consideration
[38] We now turn to consider each of the grounds of appeal in making our decision.
[39] Ground 1 of the appeal asserted that Vice President Watson did not take into account, nor did he consider Mr Soomro’s evidence in making his decision.
[40] The Vice President Watson did not reproduce all of the evidence submitted in the matter when making his decision. We note that much of the evidence was not contested. In relation to the evidence that was contested, the Vice President preferred the evidence of Murray’s. The Vice President’s acceptance of the evidence put forward by Murray’s is not indicative of failing to take into account or consider Mr Soomro’s evidence in making his decision. Therefore, we are satisfied that there is no arguable case of error in relation to the findings made by the Vice President in this regard.
[41] Ground 2 of the appeal asserted that Vice President Watson made significant errors of fact.
[42] Mr Soomro did not set out either in his application or in his written submission what significant errors of fact were made by the Vice President. At the hearing, he submitted that there was no evidence that he sent the text messages in 2016. Submissions were made by both parties as to the findings that should be made in relation to this issue. There was evidence before the Vice President that the co-worker received the text messages, however, Mr Soomro denied sending these text messages. We are satisfied that there is no arguable case of error in relation to the Vice President’s finding that Mr Soomro sent the text messages, or any other findings of fact.
[43] Ground 3 of the appeal asserted that the Vice President accepted Murray’s evidence without permitting Mr Soomro to cross-examine Murray’s witnesses and the complainant.
[44] All the witnesses called by Murray’s were cross-examined by Mr Shaw. The complainant was not called as a witness by Murray’s. Mr Soomro asserted that those witness statements attached to the investigation report were before the Commission. However, those statements were not evidence before the Commission and Vice President Watson made no findings based on those statements. Murray’s were not obliged to call all persons who made statements during the investigation to give evidence. There was no submission made by Mr Shaw that the Vice President should draw any adverse inference from the failure of Murray’s to call these persons. Further, Mr Shaw sought to rely on the co-worker’s statement to the investigator to support Mr Soomro’s case. Due to the above, we are not satisfied that there is an arguable case that Vice President Watson denied Mr Soomro the opportunity to cross-examine the witnesses called by Murray’s.
[45] Ground 4 of the appeal asserted that Murray’s did not comply with the directions issued until four days before the hearing and Mr Soomro was prejudiced in his preparation for the case and he was denied an adjournment.
[46] As set out above, Murray’s did not comply with the Commission’s directions. However, while Mr Shaw’s applications for an adjournment were rejected prior to the hearing, at the hearing Vice President Watson proceeded on the basis that, after hearing from Mr Soomro and his witness and from two witnesses which Mr Shaw had indicated he was able to cross-examine, Mr Shaw could make a further application for an adjournment. Mr Shaw did not press any further application for an adjournment. We are not satisfied that there is an arguable case that the approach of the Vice President denied Mr Soomro a reasonable opportunity to present his case and cross-examine witnesses.
[47] Ground 5 of the appeal asserted that the main complainant did not attend and despite the conflict in Murray’s witness statements, Vice President Watson accepted Murray’s version of events and did not give sufficient weight to Mr Soomro’s evidence.
[48] We have already addressed the fact that the complainant did not give evidence. In his written submissions, Mr Soomro did not detail what conflict in the evidence he was referring to. We are not satisfied that there is an arguable case of error in the decision of the Vice President to prefer the evidence of Murray’s over Mr Soomro’s.
[49] In his submissions, Mr Soomro referred to his attendances at the Wharf Hotel. Vice President Watson made no findings in relation to this allegation. Mr Soomro further made reference to the other complaints by other employees, but again, Vice President Watson made no findings in relation to these allegations.
[50] Therefore, we are not satisfied that there is an arguable case of error in relation to the findings made by the Vice President.
[51] We are not satisfied that the other grounds relied upon by Mr Soomro to support his application for permission to appeal are valid. The concerns he asserts exist in the community are mere assertions and, in any event, we are satisfied that there is no arguable case of error in relation to the findings made by the Vice President.
Conclusion
[52] For the reasons set out above and, in particular, the absence of an appealable error, we are not satisfied that it would be in the public interest to grant permission to appeal. We are further not satisfied that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. Therefore, and in accordance with section 400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr A. Soomro appeared for himself.
Ms R. Preston, of Counsel, appeared for the Respondent.
Hearing details:
2016.
Melbourne.
12 January.
1 [2016] FWC 8211.
2 Exhibit S1 at [11] at subparagraphs (16-23).
3 Ibid at subparagraphs (26-39).
4 Ibid at subparagraph (43).
5 Ibid at subparagraph (48).
6 Ibid at subparagraph (55).
7 Ibid at subparagraphs (64-65).
8 Ibid at subparagraphs (70-84).
9 Ibid.
10 Ibid at subparagraph (113-114).
11 Ibid at subparagraph (115-116).
12 [2016] FWC 8211 at [7].
13 Ibid at [8].
14 Ibid at [9].
15 Ibid at [10].
16 Ibid [13].
17 Ibid at [17].
18 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
19 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37]; (2011) 282 ALR 561.
20 [2011] FCAFC 54 at [43]; (2011) 192 FCR 78.
21 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].
22 [2010] FWAFB 5343 at [27], 197 IR 266.
23 Wan v AIRC (2001) 116 FCR 481 at [30].
24 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 388, 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].
25 House v The King (1936) 55 CLR 499 at 505.
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