Ali Kiani v Fuji Xerox Document Management Solutions Pty Limited
[2020] FWCFB 5340
•11 NOVEMBER 2020
| [2020] FWCFB 5340 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ali Kiani
v
Fuji Xerox Document Management Solutions Pty Limited
(C2020/5345)
VICE PRESIDENT HATCHER | SYDNEY, 11 NOVEMBER 2020 |
Appeal against decision [2020] FWC 3418 of Deputy President Sams at Sydney on 9 July 2020 in matter number U2019/14425
Introduction and background
[1] Mr Ali Kiani has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Sams on 9 July 2020 1 (decision) in which the Deputy President dismissed Mr Kiani’s application made pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy against Fuji Xerox Document Management Solutions Pty Limited (Fuji).
[2] In circumstances where the current COVID-19 pandemic limits the capacity of the Commission from conducting in-person hearings, the Commission inquired of the parties whether they were prepared to have the question of permission to appeal determined on the basis of written submissions and without conducting a hearing. Both parties consented to this course. It was considered that the question of permission to appeal could be adequately determined without the parties making oral submissions for consideration. Accordingly, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the FW Act.
[3] The background to the matter is as follows. Mr Kiani was employed from 18 April 2017 as a Senior Developer earning a salary of $118,705. He was dismissed for misconduct on 16 December 2019 after having received three written warnings. The grounds of dismissal were:
(1) Repeated refusals to accept work and/or perform tasks as directed - 5 incidents between June and December 2019.
(2) Repeated lateness and/or unauthorised absenteeism which constitute breaches of the Respondent's Leave Management Policy and Workplace Conduct and Performance Policy.
(3) Refusals to follow lawful directions to attend internal company training - 2 incidents between September and November 2019.
(4) Refusal to follow lawful directions of the respondent, both verbally and in writing.
[4] In the proceedings before the Deputy President, Mr Kiani contended that his dismissal was unfair because the first two warnings against him were unjustified and the third and final warning was invalid, that although he may have refused to perform certain work, there were plenty of examples where he accepted work, and that none of the uncompleted tasks related to his position.
The decision
[5] In his decision, the Deputy President summarised at length the evidence given and submissions made by Mr Kiani, and also set out the evidence of Fuji’s four witnesses and Fuji’s submissions. The Deputy President noted in relation to Mr Kiani’s submissions in reply that “…the applicant repeated his earlier submissions in defence of his arguments, and I do not repeat them”. 2 In his consideration of the matter, after dealing with the preliminary matters requiring initial determination under s 396, the Deputy President first outlined his assessment of the evidence given by the witnesses. In respect of Mr Kiani’s evidence, the Deputy President made adverse credit findings to the following effect:
“[110] … This evidence was mostly irrelevant and unhelpful to assisting the Commission as to the relevant issues in this case. I am bound to observe that the applicant’s heightened sense of superiority and self-importance was delusional and a far cry from reality; almost being beyond belief. If was as if the applicant operated in a parallel universe as to what was expected of a responsible employee in a functional, efficient and effective workplace…”
[6] The Deputy President went on to find that Mr Kiani had defied management directions on many occasions, and specified four particular examples of such defiance in which Mr Kiani had refused to attend training as directed, ignored directions as to his first point of escalation in respect of any issues which arose, turned up to work at 10.00am the day after being given his first written warning and directed to commence work at 9.00am, and continued to arrive late and leave early despite continuous warnings. 3 The Deputy President went on to find that Mr Kiani had an “overblown and unjustified sense of his own value and importance to the business”, and had a misplaced view that he knew what was best and would decide what work he would perform and when he would do it, when he would turn up for and leave work, who he would report to and who he would take direction from, and that he was entitled to defy the instructions and directions of senior managers.4 The Deputy President concluded that Mr Kiani’s continued employment became untenable and unworkable when he persistently refused a direction to undertake a particular task (the “Warehouse Project”) – a direction which the Deputy President found to be lawful and reasonable.5
[7] The Deputy President made further credit findings against Mr Kiani to the effect that his evidence was often “rambling and irrelevant”, that his answers were mostly unresponsive, and that he had “an explanation or excuse for any proposition put to him with which he disagreed, no matter how preposterous or absurd”. 6 The Deputy President concluded:
“[117] In opinion, the applicant was a witness of little credit, whose evidence was mostly irrelevant and not directed to the issues in this case, notably his own conduct and behaviour. Where his evidence conflicts with that of the respondent’s witnesses, it is their evidence I prefer.”
[8] The Deputy President then dealt with each of the matters he was required to take into account under s 387 of the FW Act. In relation to s 387(a), the Deputy President found that there was a valid reason for Mr Kiani’s dismissal given his two earlier warnings and his refusal to comply with the direction to perform the Warehouse Project work. 7 In relation to s 387(b), the Deputy President found that Mr Kiani had been informed verbally and in writing of the reason for his dismissal, and that this was a neutral consideration for the purpose of s 387.8 As to s 387(c), the Deputy President said
“[132] The applicant was given an opportunity to respond to the reason for his dismissal. However, his only response was to refuse to comply with the direction to undertake the Warehouse Project work. He was given a number of opportunities to comply, but consistently refused to do so. While the applicant criticised the short period between the third counselling meeting and the termination meeting both on 16 December 2019, there was no denial of procedural fairness, as the applicant had nothing to say after being told of his possible termination, other than to refuse to comply with the direction, unless he was promoted. In these circumstances, there was no obligation on the employer to allow a further period of the reflection when the answer was going to be no different. Even to the point of this hearing on 24 June 2020, the applicant has not changed his objection to performing the work and he put nothing more than he had said on 16 December 2019. There was no denial of procedural fairness. This tells against a finding of unfairness.”
[9] It is not necessary for present purposes to refer to the Deputy President’s findings in relation to s 387(d), (e), (f) or (g). In relation to s 387(h), the Deputy President took into account Mr Kiani’s length of service, the difficulties he may encounter in obtaining alternative commensurate employment, and his lack of any acknowledgement of any wrongdoing or contrition or remorse. 9 Weighing up all the matters under s 387, the Deputy President concluded that Mr Kiani’s dismissal was not harsh, unjust or unreasonable.10
Appeal grounds and submissions
[10] Mr Kiani’s grounds of appeal are as follows:
“1. The decision to dismiss my application is based on warnings I have received. This is while during the hearings I provided enough evidence that the warnings were invalid and unfair and that was everyone’s impression I believe.
2. The work which I’m alleged to have refused was not related to my position at all and I provided the Commission with a lot of evidence for that. For example Warehouse Facility was Architectural and Web Development task and not related to my position.
3. The decision seems to have ignored many of the critical evidence and submissions I had provided.
4. The decision does not include my final submission on the ground that it was repeat of previous submissions whereas it was not.
5. Unlike the decision states, there was procedural unfairness. For example the termination letter and the final warning were given at the same time. Also the whole process since the first warning took just over a month.
Significant errors of fact
6. Many of the statements in the published decision are not true. For example in paragraph 116 part a I never said that in the hearing. Other examples include paragraph 116 part j, k, g and paragraph 110 part b.
[11] Mr Kiani contends that the grant of permission to appeal would be in the public interest because the outcome in the decision “makes the Australian work environment feel unsafe and unfair for the employees”. In respect of this proposition Mr Kiani submits:
• he has been without a job and income since his dismissal;
• his dismissal happened right before Christmas which, he believed, was harsh and unfair;
• he received his final warning letter together with the termination letter, which was a major procedural issue and unfair;
• the work on the Warehouse Project was required to be performed by architects and web designers, and he was neither;
• as to the “CUSCAL meeting” (his non-attendance at which being one of the matters the subject of the first written warning), he was told that the meeting was rescheduled, and he had attended many meetings before and after that without problem;
• regarding working hours, he had done the same thing since the start of his employment, he spent more time than average in the office, and it was a concern that it had taken so long for this issue to be raised;
• his non-attendance at a training session could not have been a valid ground of dismissal and the training was not related to his position;
• he had only once not dealt with his direct manager in relation to a leave application, and escalated issues to his direct manager first; and
• significant errors of fact were that critical parts of his submissions were not fully included in the decision, his reply submission was not included in the decision on the ground that it was a repeat of previous submissions whereas it was not, and “Many of the statements in the published decision are not true” including the matters identified in appeal ground 6.
Consideration
[12] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.11 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[13] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(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.
[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 12Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.13 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… 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.” 14
[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.15 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.16
[16] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 17 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[17] We are not satisfied that the grant of permission to appeal to Mr Kiani would be in the public interest for the following reasons:
(1) As our earlier summary of the decision makes plain, the wholesale rejection of Mr Kiani’s credit as a witness and the consequent non-acceptance of his evidence were fundamental to the Deputy President’s conclusion that Mr Kiani’s dismissal was not unfair. In order for Mr Kiani to have reasonable prospects of success in his appeal, it would be necessary for him to advance some reasonably arguable challenge to the credit findings. However, this issue is not addressed at all in his submissions. For that reason, there is no realistic prospect of his appeal succeeding were permission to appeal to be granted.
(2) In most instances, Mr Kiani’s appeal grounds and submission simply “double down” on the matters which led the Deputy President to conclude that his dismissal was not unfair. For instance, he maintains that the Warehouse Project work was not part of his duties, that the warnings which were issued to him were invalid and unfair, that arriving at work late and leaving early was acceptable because it was his normal practice, and that the training session he did not attend (despite being directed to do so) was not related to his position. These contentions tend to confirm rather than refute the Deputy President’s conclusions as to Mr Kiani’s attitude to his employment.
(3) The issue of the third warning being issued together with the notice of termination does not involve any contention of error in the decision, since in finding that there was a valid reason for dismissal, the Deputy President only relied on the first two warnings. The Deputy President also found, it is to be noted, that the fact that the third disciplinary meeting and the termination meeting both occurred on 16 December 2019 did not deny Mr Kiani procedural fairness because, even at the hearing, Mr Kiani had not changed his position of unreasonably refusing to comply with a direction of the employer. We also note that Mr Kiani’s position did not change in the appeal
(4) The extent to which the Deputy President summarised Mr Kiani’s submissions in the decision involves no determination of fact which could be the subject of a contention of a serious error of fact for the purpose of s 400(2). We also note that it is not contended by Mr Kiani that the Deputy President failed to take any critical aspect of his submissions into account.
(5) We are not satisfied that the other contentions of significant factual error in appeal ground 6 are reasonably arguable. There has been no attempt to demonstrate why the identified findings, even if significant in nature, are erroneous. For example, in relation to the first contended factual error, Mr Kiani simply asserts that he did not say what is attributed to him in paragraph [116](a) of the decision, namely “There was no concern about his timekeeping because the hall clock was faulty”. However, the transcript discloses that he said as part of an answer when being cross examined about his timeliness in attending for work: “The hall clock is faulty so no one could believe that the real concern was timekeeping”. 18
(6) Mr Kiani’s unfair dismissal application was determined on the basis of its own facts. The Deputy President considered and had regard to all of the matters specified in s 387, and did so in an orthodox way. The appeal raises no issue of law, principle or general application. The outcome is not counterintuitive nor does it manifest any injustice.
[18] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1).
VICE PRESIDENT
Determined on the basis of written submissions.
Printed by authority of the Commonwealth Government Printer
<PR723346>
1 [2020] FWC 3418
2 Ibid at [106]
3 Ibid at [110]
4 Ibid at [111]
5 Ibid at [112]-[114]
6 Ibid at [116]
7 Ibid at [130]
8 Ibid at [131]
9 Ibid at [137]-[140]
10 Ibid at [142]
11 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
12 [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
13 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
14 [2010] FWAFB 5343, 197 IR 266 at [27]
15 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
16 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
17 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
18 Transcript, 6 April 2020, PN 216
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