Asmerom Weldemichael v Carbridge Pty Ltd T/A Easycart Australia

[2016] FWCFB 4279

[2016] FWCFB 4279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Asmerom Weldemichael
v
Carbridge Pty Ltd T/A Easycart Australia
(C2016/3169)

SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER BISSETT SYDNEY, 11 JULY 2016

Appeal against decision [2016] FWC 164] of Commissioner Roberts at Sydney on 10 March 2016 in matter number U2015/11271.

[1] Mr Asmeron Weldemichael (Mr Weldemichael) has applied for permission to appeal a decision issued by Commissioner Roberts on 10 March 2016 1 (the Decision). In that decision the Commissioner found the existence of a valid reason for the termination of Mr Weldemichael’s employment but, nevertheless, found the dismissal to be harsh, unjust or unreasonable.

[2] In reaching his decision that there was a valid reason for dismissal, the Commissioner found:

[65] As I have noted above, I accept Ms Haddad’s evidence as to the events of 29 July 2015 and am satisfied that Mr Weldemichael misconducted himself on that date. However, subsequent events are again peculiar.

[66] The incident on 29 July 2015 resulted, initially, in the ‘Record of Communication’ dated 29 July 2015 which is cited at paragraphs 37 and 38 above. That Record of Communication closes by saying: “This is your final warning, if you display intimidation in the workplace to Management or any employees your employment with Carbridge will cease effective immediately.” The TWU then telephoned the Company on 30 July 2015 putting forward Mr Weldemichael’s version of events. This was followed by a text message to Mr Weldemichael from Mr Hensley on 2 August 2015 summoning Mr Weldemichael to a meeting on 3 August 2015…

[67] Mr Weldemichael and Mr Sherwood therefore attended the 3 August meeting in the context of a final warning having been issued to Mr Weldemichael concerning the events on 29 July 2015 and Mr Sherwood’s telephone call to Ms Haddad of 30 July offering an explanation of Mr Weldemichael’s actions on 29 July. However, the meeting with Mr Hensley and Ms Haddad on 3 August 2015 proceeded as a disciplinary meeting in which the Company considered Mr Weldemichael’s prior history of poor behaviour and re-visited the events of 29 July 2015. Neither Mr Weldemichael nor Mr Sherwood could have been properly prepared for such a meeting. Company managers at the meeting put a number of accusations against Mr Weldemichael then left the meeting, and returned a few minutes later, at which time Mr Hensley terminated Mr Weldemichael’s employment with immediate effect. As noted earlier, Mr Weldemichael received payment in lieu of notice. He never received a formal letter of termination setting out the reason(s) for his dismissal.

[68] My examination of the history of this matter shows that I must accept that Mr Weldemichael had a lengthy history of conflict in the workplace which culminated in his misconducting himself on 29 July 2015 towards Ms Haddad. I therefore find that Carbridge had a valid reason to terminate the employment of Mr Weldemichael but it carried out the termination process in a procedurally flawed, and ultimately unfair manner.

[3] In considering remedy, the Commissioner first of all considered reinstatement and found:

[81] In all the circumstances of this case, reinstatement would in my view be both impractical and undesirable. I am unable to see how the employment relationship could ever be restored given Mr Weldemichael’s attitude and past behaviour. I therefore find that reinstatement is not an appropriate remedy in this case.

[4] Having found reinstatement to be inappropriate, the Commissioner turned his mind to compensation. He concluded:

[85] In the case before me, I am satisfied that a species of misconduct occurred and this provision is therefore relevant to my consideration. My assessment of the contribution by the Applicant towards the Company’s decision to termination his employment can reasonably be set as 75 per cent. All in all, I find that the termination of Mr Weldemichael’s employment was procedurally harsh and unjust and an order will be issued that Carbridge pay him a total of $3581.52 (less appropriate tax according to law), being 4 weeks wages at the rate he was earning as at the date of the termination of his employment. I have arrived at the figure of 4 weeks wages after applying a 75 per cent discount to the amount of 16 weeks wages which I would otherwise have awarded had the Applicant’s conduct not contributed to his own dismissal to such an extent. The sum awarded is to be paid within 14 days of the date of this decision. The amount awarded does not include any compulsory superannuation contributions that may be due to Mr Weldemichael.

[86] I wish to make it clear to the parties that my finding as to harshness and unjustness is solely derived from my assessment of the fundamentally flawed process followed by Carbridge in effecting the dismissal. Given the facts of this case, had the Company followed a fair and transparent process, it would have been highly unlikely that any award would have been made in the Applicant’s favour given my views as to his conduct during the employment relationship.

[5] In his Notice of Appeal, Mr Weldemichael expressed general dissatisfaction with the decision of the Commissioner on the grounds that he had worked for the company with honesty but had been treated badly and that he did not engage in the conduct found to have occurred.

Consideration

[6] An appeal under s.604 of the Fair Work Act 2009 (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. 2 An appeal may only be made with the permission of the Commission.

[7] 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.

[8] 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 s.400 as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 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. 5

[9] 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. 6 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.7

[10] Mr Weldemichael’s appeal is a statement of dissatisfaction with the conclusions of the Commissioner. He has failed to demonstrate any error on the part of the Commissioner in determining his unfair dismissal application. The Commissioner properly considered the evidence before him, including that of Mr Weldemichael, and his conclusions were reasonably open to him.

[11] There is no basis on which we could be satisfied that it is in the public interest to grant permission to appeal. In accordance with s.400(1) of the Act permission to appeal must be refused.

SENIOR DEPUTY PRESIDENT

Appearances:

A. Weldemichael on his own behalf.

L. Todd for Carbridge Pty Ltd T/A Easycart Australia

Hearing details:

2016.

Melbourne and Sydney (via video link):

June 15.

 1  [2016] FWC 164.

 2    Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 3   (2011) 192 FCR 78 at [43]

 4   O’Sullivan v Farrer and Another (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].

 5  [2010] FWAFB 5343 at [27], 197 IR 266.

 6   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].

 7   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 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR582198>