Amber Aviation Academy Pty Ltd v Dmitry Agarev
[2018] FWCFB 1066
•20 FEBRUARY 2018
| [2018] FWCFB 1066 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Amber Aviation Academy Pty Ltd
v
Dmitry Agarev
(C2017/6247)
JUSTICE ROSS, PRESIDENT | SYDNEY, 20 FEBRUARY 2018 |
Appeal against decision [2017] FWC 5416 of Deputy President Gooley at Sydney on 23 October 2017 in matter number U2017/6277 – application to extend time to file the appeal dismissed.
[1] Amber Aviation Academy Pty Ltd (Amber Aviation; the Appellant) has applied for permission to appeal against a decision 1 made by Deputy President Gooley on 23 October 2017 (the Decision). In the Decision the Deputy President found that Mr Agarev’s dismissal by Amber Aviation was harsh, unjust or unreasonable and ordered2 that Amber Aviation pay Mr Agarev $3,205.48 (less tax) and $394.52 to his superannuation fund.
[2] In a decision 3 issued on 24 November 2017 Deputy President Colman dismissed the Appellant’s application for a stay order to suspend the obligation to pay the compensation order until the appeal is determined (the Stay Decision).
[3] 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. Amber Aviation’s appeal was instituted one day outside of the time prescribed. 4 Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[4] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
[5] The authorities 5 indicate that the following matters are relevant in considering whether to exercise the Commission’s discretion to extend time 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 the respondent if time were extended.
[6] Amber Aviation submitted that ‘the application for leave to appeal was filed only a single day late, due to an oversight in failing to take account of the public holiday on the Tuesday of Melbourne Cup Day not being a working day.’ A Statutory Declaration filed by the Appellant’s solicitor confirmed that he had received instructions to institute the appeal on 30 October 2017.
[7] It is not clear why the Appellant’s solicitors did not file the appeal until 14 November 2017, despite receiving instructions to do so some 2 weeks earlier. Nor is it clear why they failed to count Melbourne Cup Day when calculating the 21 day period. The 21 day period is expressed in ‘calendar days’ not ‘working days’. 6
[8] The circumstances indicate that representative error is the reason for the delay in instituting the appeal and that Amber Aviation is not responsible for that delay. We are satisfied that there is a satisfactory reason for the delay and this weighs in favour of granting an extension of time.
[9] The period of the delay was short (one day). This is also a factor which weighs in favour of granting an extension of time.
[10] In light of the short period of delay and the fact that Mr Agarev has not adduced any evidence of any particular prejudice he would suffer if time were extended, prejudice to the Respondent is a neutral factor in this case.
[11] Finally we turn to the likelihood of permission to appeal being granted and the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time were extended. For the reasons which follow we have formed that view that the appeal is devoid of merit and have decided to refuse to extend the time for filing the appeal.
[12] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Fair Work Act 2009 (Cth) (the FW Act). Section 400 (1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). 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’. 7 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 8 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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.’ 9
[14] 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. 10 As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.
[15] Before turning to the grounds advanced in support of the appeal we propose to briefly deal with the relevant facts and the Deputy President’s decision. The relevant facts are conveniently summarised in the Stay Decision at [8]-[15] and, drawing on that summary, can be shortly stated.
[16] Mr Agarev was employed by Amber Aviation from January 2016 until his summary dismissal on 5 June 2017, first as an instructor pilot and then in the position of Head of Aircraft Airworthiness and Maintenance Control. In May and early June 2017, he was involved in a number of incidents that were of concern to Mr Naidu, the CEO of Amber Aviation.
(i) The whiteboard incident
[17] On 2 May 2017, Mr Agarev deleted from a whiteboard certain data relating to maintenance schedules and aircraft operations. Although he took a photograph of the board, the data was not readily available the next day when a CASA inspection took place. Mr Naidu asked Mr Agarev to provide him with an urgent written explanation and subsequently ‘recorded’ the incident as ‘leaving the aircraft status board blank and proceeding to change an approved system without formal change request or approval’. 11 However, notably, Mr Naidu did not take any disciplinary action against Mr Agarev in relation to the whiteboard incident.
(ii) The confidentiality incident
[18] Also on 2 May 2017, Mr Naidu and Mr Agarev had a discussion about redundancies. In the course of his evidence Mr Agarev said that Mr Naidu told him that he would be made redundant. Mr Naidu says he simply flagged the possibility of redundancy and that no definite decisions had been made. One week later, on 11 May 2017 Mr Agarev told a student that he was going to be made redundant. In his evidence Mr Agarev said that a student had overheard him talking to his union representative about his impending redundancy and wanted to know if he was leaving. Amber Aviation contend that in responding to the student Mr Agarev breached the confidentiality obligations in his contract of employment by disclosing the businesses restructuring plans to a student.
(iii) The sick leave incident
[19] On 15 May 2017, Mr Agarev was ill and obtained a medical certificate. He was absent for 5 days. According to the Company, regulations and policy required Mr Agarev to disclose the nature of his condition, but he did not do so. Mr Naidu requested that Mr Agarev obtain clearance from a Designated Aviation Medical Examiner (DAME), which he did. Mr Naidu subsequently learnt that Mr Agarev had been suffering from stress at the time of his sick leave. Mr Naidu considered that Mr Agarev should have told the Company about his stress and that had Mr Naidu known about it, he would not have assigned Mr Agarev to active flight duties.
(iv) The flight plan incident
[20] On the afternoon of 2 June 2017 Mr Agarev was booked to undertake a three hour training flight with a student which required him to plan the flight such that the aeroplane would land at Essendon Airport at least 10 minutes before last light. Mr Agarev did not confirm the end of daylight in the plan and ultimately had insufficient time to return to Essendon Airport before last light and was forced to land at another airport south west of Melbourne.
(v) The fuel incident
[21] Amber Aviation contended that when the plane landed on 2 June 2017 it was discovered that it only had ten litres of fuel remaining, which is below the fuel reserves required by CASA regulations and company policy.
[22] Mr Naidu met with Mr Agarev on 6 June 2017 to put to him the allegations about the breaches of policy arising from the ‘flight plan incident’ and the ‘fuel incident’. Mr Naidu raised the allegation relating to the ‘confidentiality incident’, and a further allegation concerning deficiencies in student records. At the conclusion of the meeting, Mr Naidu said:
‘there is a number of things that’s a great concern here, my job is to ensure and protect this company and ensure that everybody operates with safety mandate. And as well as not only protect the clients, stakeholder and protect the company’s operational certificates at all costs. So based with everything, presenting to me today, which I will provide you all in writing and I will sate all reasons in that very clearly, I’m gonna immediately due to all these bridges (sic) and the confidentiality is very serious and that information is not to leak out of this room, as remoulding the business. And it has been pass around through the students and one of our students has sat here with me and has literally said and told me that and said this is what Dmitry told me on this flight. You (Dmitry) will return everything that belongs to the company to Sundeep and Chang.’ 12
[23] Mr Agarev was summarily dismissed.
[24] The unfair dismissal proceedings before the Deputy President were conducted as a determinative conference. It was common ground that Amber Aviation was a small business for the purposes of the Act. As required by s.396, the Deputy President initially considered whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).
[25] To comply with the Code in the context of a summary dismissal, an employer must believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Deputy President was not satisfied that Mr Naidu held such a belief in relation to the flight plan incident, or any of the other incidents mentioned above. 13 The Deputy President also concluded that, taking all of the conduct together, Mr Naidu did not have reasonable grounds to believe that Mr Agarev’s conduct warranted summary dismissal and on that basis found that the dismissal had not been consistent with the Code (see [44]-[59] of the Decision).
[26] The Deputy President then proceeded to consider whether Mr Agarev had been unfairly dismissed, taking into account the considerations in s.387(a)-(h). The Deputy President made the following findings:
• There was a valid reason for the dismissal (at [61] of the Decision);
• Mr Agarev was notified of that reason and was given an opportunity to respond to the reason for his dismissal (at [62]-[63] of the Decision);
• Mr Agarev was not denied access to a support person (at [64] of the Decision); and
• Mr Agarev had not been issued with a warning in respect of unsatisfactory performance (at [65] of the Decision).
[27] No submissions were advanced by Amber Aviation as to the matters in s.387(f) and (g). As to ‘any other matters’ (s.387(h)) the Deputy President said, at [67]:
‘Mr Agarev was terminated without notice in circumstances where his conduct did not warrant summary termination. There was no evidence that Mr Agarev’s conduct in failing to check end of light was wilful or deliberate or that his conduct caused a serious and imminent risk to anyone’s health or safety or the reputation, viability or profitability of the business.’ 14
[28] The Deputy President concluded (at [68]) that dismissal without notice was harsh and went on to award Mr Agarev compensation of $3,205.48 (less tax) and $394.52 to his superannuation fund.
[29] In its Notice of Appeal Amber Aviation submitted that there were errors of fact made by the Deputy President in relation to:
1. The consideration given to ‘safety’ matters. The Appellant contends that it was not given an opportunity to provide information and evidence about the Respondent’s breach of CASA Regulations and their Operations Manual. It submits that it was not given an opportunity to provide additional evidence in relation to the Respondent’s breach of safety policies on more than one occasion.
2. The matter pertaining to fuel levels (the fuel incident). The Appellant contends that the Respondent failed to ensure that he had sufficient fuel and would never have made it back to base, forcing a termination of flight mid-course.
3. Operational matters key stakeholder responsibilities (the whiteboard incident). The Appellant contends that consideration was not given to the fact that the Respondent was the incumbent Head of Aircraft Airworthiness and Maintenance controller and had wiped out a system of maintenance and aircraft status control system from the whiteboard without letting anybody know that the whiteboard had not been fully populated.
4. The sick leave matter. The Appellant contends that during a prehearing conference the Respondent disclosed that he had taken stress leave and sought medical clearance by the Designated Aviation Medical Examiner. The Appellant contends that the Respondent’s failure to disclose the reason for his medical leave meant that he could not have been properly cleared as the Medical Examiner could not have made an assessment in regard to his mental condition.
[30] Amber Aviation submitted that it was in the public interest to grant leave to appeal on the basis that:
1. The aviation industry is a niche industry that has particular strict occupational health and requirements (additional to the usual OHS workplace requirements). The industry relies on third-party approval for its operations, therefore any event of a safety breach it jeopardises Amber Aviation Academy’s license to operate as a business and will leave the business ‘grounded’.
2. If the decision of the [Commission] stands, it means that it would set a precedent that an employee within the industry can have a lazy attitude to safety, with little regard to the consequences of failing to follow mandatory regulations and protocols (e.g. failing to properly plan for a flight). This would result in massive safety ramifications for the industry, CASA Regulations and safety requirements.
[31] Ground 1 contends that Amber Aviation was not afforded an opportunity to provide information and evidence about safety matters. There is no substance to this ground of appeal. Amber Aviation chose not to file a statement of evidence in advance of the hearing, as it was required to do by directions of the Commission. Nor was any request for an adjournment made to the Deputy President. The opportunities afforded to Amber Aviation in the proceeding at first instance, and the limited nature of the case it advanced, are detailed in the Decision:
‘[4] Directions were issued to the parties to file material. Amber Aviation was directed to file material both in support of its objection and in relation to the substantive application. Amber Aviation filed an outline of argument in support of its objection and a Form F4 but did not file any statements of evidence. Amber Aviation did not file any material in response to Mr Agarev’s substantive application. At the commencement of the matter, I asked Mr Naidu if Amber Aviation intended calling any evidence and he advised that Amber Aviation relied on its application and documents filed and he would give sworn evidence in relation to the facts set out in those documents. There was no objection to this. Mr Agarev filed a witness statement and submissions…
[41] In this matter, Mr Naidu represented Amber Aviation. The material filed by Amber Aviation was extremely limited. Further, despite being advised at the hearing of the need to deal with Mr Agarev’s evidence where it was in conflict with his evidence, Mr Naidu did not challenge significant parts of Mr Agarev’s evidence. For example Mr Agarev gave evidence about the allegation about the amount of fuel in the aircraft. Mr Naidu did not challenge this evidence at the hearing or in the material filed on 7 August 2017.’ 15
[32] Ground 2 contends that the ‘fuel incident’ was particularly serious and that the aircraft would not have made it back to Essendon Airport with the fuel it had on board. As the Deputy President observed at [41] (set out above), Mr Agarev gave unchallenged evidence that Mr Naidu instructed him and a Mr Rao to evaluate the fuelling system of the aircraft and that, when they did so, they found that the fuel gauge and dipsticks in the plane produced inaccurate readings. It was therefore not established that the aircraft in fact had insufficient fuel.
[33] Ground 3 is that proper consideration was not given to the seriousness of the ‘whiteboard incident’, in which Mr Agarev wiped important data from the board, knowing that CASA was visiting the next day, and then proceeding on 5 days of RDO’s. In assessing the seriousness of the ‘whiteboard incident’, it is relevant to note that in the termination meeting Mr Naidu did not refer to the incident and nor did Mr Agarev receive a warning about it. Further, at [46] of the Decision the Deputy President found:
‘I am satisfied that Mr Agarev sought Mr Naidu’s approval prior to cleaning the whiteboard and that Mr Naidu was aware on 2 May 2017 that Mr Agarev was cleaning the whiteboard. I am further satisfied that Mr Agarev sent Mr Naidu an email which provided Mr Naidu with a link to the relevant information. To the extent that there is a conflict between Mr Agarev’s evidence about this and Mr Naidu’s, I prefer Mr Agarev’s evidence as it is consistent with the meeting minutes and with Mr Naidu’s email in which he acknowledged that he saw Mr Agarev clearing the whiteboard and there was no evidence that he raised any concerns.’ 16
[34] We are not satisfied that Amber Aviation has advanced an arguable case that the Deputy President erred in respect of her consideration of this issue.
[35] The final ground of appeal contends that Mr Agarev did not disclose that stress had been a cause of his sick leave. The Deputy President deals with this issue at [26] – [27] and [53] of the Decision:
‘[26] Mr Naidu said that Mr Agarev was obliged to disclose to management the nature of his medical condition. Mr Naidu said that this was required by the regulations and the operations manual. Neither document was put before the Commission. Mr Naidu said that if a pilot believes that they may not be fit for duty they had an obligation to advise his or her employer.
[27] Mr Naidu said that when Mr Agarev returned to work he would not disclose the nature of his illness and he consequently requested that Mr Agarev obtain a clearance from a Designated Aviation Medical Examiner which he did. Mr Naidu said that had he known Mr Agarev was absent from work in part due to stress, he would not have assigned active flight duties to him.
[53] I am not satisfied that Amber Aviation genuinely believed that Mr Agarev’s conduct in not advising it of the reasons for his sick leave was sufficiently serious as to warrant Mr Agarev’s summary dismissal. This was because the response of Amber Aviation to this refusal was to require Mr Agarev to provide a further medical clearance which he did.’ 17
[36] We are not satisfied that Amber Aviation has advanced an arguable case that the Deputy President erred in respect of her consideration of this issue.
[37] As to the submissions in respect of the public interest in granting permission to appeal, it is relevant to observe that the Deputy President found (at [67]) that there was no evidence that the flight plan incident causing ‘a serious and imminent risk to anyone’s health and safety or the reputation, viability or profitability of the business’. Further, Mr Naidu did not contend before the Deputy President that there was a serious and imminent risk to safety. Indeed, the proposition now advanced by Amber Aviation is inconsistent with Mr Naidu’s evidence that had Mr Agarev ‘been a junior grade 3 instructor … it would have been acceptable and they would have done remediation and worked with that instructor.’ 18 Clearly, the employer expected more of Mr Agarev, given his seniority. But the flight plan incident does not appear to have posed a serious safety risk to Mr Agarev or others. As Mr Agarev’s representative submitted in the proceedings before us:
‘He was meant to land at Essendon and he landed at Lethbridge. There were 12 potential airports he could have landed in. He was in constant communication throughout this with the employer. It wasn't like he tried to disguise anything, his error. He made a report to the employer about the incident. No one was harmed or endangered. The landing was commissioned safely, there was no damage to property or anything.
There's no evidence before the Commission and at no point has this been led by Amber Aviation that a report's been made to CASA or the ATSB in regards to this incident. Nor have CASA investigated or taken any punitive action in regards to either Mr Agarev or in relation to the incident. It's our submission that it's just not reasonable to believe that Amber deemed this incident of sufficient seriousness to warrant a summary termination at any material time, considering they believed it to be of so little note that it didn't even warrant a report to CASA’ 19
[38] We also reject the contention that if the Decision stands ‘it would set a precedent that an employee within the industry can have a lazy attitude to safety’. The submission put ignores the nature of the safety breach in this case and the Deputy President’s finding that it gave rise to a valid reason for termination.
[39] During the course of oral argument Amber Aviation’s representative sought to challenge other aspects of the Decision. We are not persuaded that any of the submissions advanced give rise to an arguable case of error on the part of the Deputy President.
[40] In our view there is no public interest in the present matter such as to support a grant of permission to appeal and we are not persuaded that an arguable case has been made out that the Deputy President made any significant errors of fact. Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly, we dismiss Amber Aviations’s application to extend time to file the appeal.
PRESIDENT
Appearances:
Mr R Sorenson of counsel for the Appellant.
Ms C Larkins from the Australian Federation of Air Pilots, for the Respondent.
Hearing details:
2018.
Melbourne;
9 January.
1 [2017] FWC 5416.
2 PR596941.
3 [2017] FWC 6160.
4 21 days after 23 October 2017, not including 23 October 2017, is 13 November 2017.
5 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; 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.
6 Rule 56(2)(a).
7 (2011) 192 FCR 78 at [43].
8 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44]-[46].
9 (2010) 197 IR 266 at [27].
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
11 Exhibit A1 at DA11.
12 Exhibit A1 at DA9.
13 [2017] FWC 5416 at [50] and [55].
14 [2017] FWC 5416 at [67].
15 Ibid at [4] and [41]
16 Ibid at [46].
17 Ibid at [26]-[27] and [53].
18 Transcript of proceedings at first instance, 11 September 2017 at [553].
19 Transcript of proceedings, 9 January 2018 at [133] and [137].
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