Barry Harvey v Egis Road Operation Australia Pty Ltd
[2015] FWCFB 4034
•9 JULY 2015
| [2015] FWCFB 4034 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Egis Road Operation Australia Pty Ltd
(C2015/3698)
VICE PRESIDENT HATCHER | SYDNEY, 9 JULY 2015 |
Permission to appeal sought against decision [2015] FWC 2306 of Senior Deputy President Richards at Brisbane on 7 April 2015 in matter number U2014/8966.
Introduction
[1] Mr Barry Harvey has applied for permission to appeal a decision made by Senior Deputy President Richards on 7 April 2015 1 (Decision).
[2] The Decision of the Senior Deputy President concerned an application under s.394 of the Fair Work Act 2009 (FW Act) by Mr Harvey for an unfair dismissal remedy against his employer, Egis Road Operation Australia Pty Ltd (Egis/Respondent). The Senior Deputy President dismissed that application.
[3] The issue of whether or not permission to appeal should be granted was heard by the Fair Work Commission (Commission) on 18 June 2015. At that hearing Mr Harvey appeared on his own behalf, while Mr J. Murphyof counsel attended on behalf of the Respondent. We determined that it was not necessary to hear from Mr Murphy and, accordingly, we did not have to decide whether to grant him permission to appear for the Respondent.
The Decision of the Senior Deputy President
[4] In the Decision the Senior Deputy President determined the following in relation to the legislative criteria under s.387 of the FW Act:
s.387(a) - valid reason
- while “Applicant may or may not [have been] guilty of the various claims made against him,…his fundamental and proven failing was in his inability – in a small work group – to conduct himself in a cooperative and civil way, and exhibit the desired suite of managerial traits.” 2
- “[consequently] the employer had a valid reason for the dismissal of the Applicant because of the manner in which he had conducted himself.” 3
- “Generally, the Applicant was unwilling to engage constructively in any process that caused him to reflect upon his performance or conduct.” 4
- He “disparag[ed] his superior Mr Cain”; 5
- “These further reasons provided the employer with a valid reason for the termination of the Applicant’s employment.” 6
s.387(b) – notified of the reason
- “The Applicant was not expressly informed or notified prior to his dismissal of the reasons the employer relied upon for that purpose.” 7
s.387(c) – opportunity to respond
- “[I]t cannot be found that the Applicant expressly had an opportunity to respond to [the reasons contained in the termination letter].” 8
s.387(d) – refusal of support person
- “The circumstances…did not give rise to the Applicant having been refused an opportunity to have a support person present…” 9
s.387(e) – warnings about unsatisfactory performance
- “…the Applicant was afforded ample opportunity to address his employer’s concerns. Given the context in which they occurred, it is sufficient to conclude that the Applicant was “warned” about his performance…” 10
s.387(f) – size of the employer’s enterprise
- “This is not a matter in which the size of the employer’s enterprise affected the manner in which the dismissal was brought about.” 11
s.387(g) – absence of dedicated human resource management specialist
- This was found to be an irrelevant consideration. 12
s.387(h) – other matters
- “There were other matters that negatively affected the employment relationship and which reflected poorly on the Applicant’s judgment. One such matter was the offensive email that was brought to the attention of [the Respondent’s] parent company by its recipient [and sent from the Applicant’s LinkedIn account which identified him as an employee of the Respondent]. 13…It would ordinarily be thought that the Applicant ought to have been sufficiently conscious of the need to preserve the good name and reputation of this employer.14
- The Senior Deputy President saw nothing in the claim that the Applicant was a victim of “his employer’s bullying conduct.” 15
- “The Applicant…was not a long standing employee…” 16
[5] The Senior Deputy President concluded:
“[146] Taking all the circumstances into account, including the apparent lapses in the procedural steps taken in relation to the dismissal (as it was), the Applicant’s dismissal in my view was not harsh unjust or unreasonable. I add that I do not see the procedural lapses as bearing greatly on the outcome in this matter - the Applicant had held a fixed attitude towards the concerns raised by the employer (which were re-presented over the course of these proceedings) and a further opportunity to restate that view would have yielded no different a result.
[147] Further to this, the Applicant’s conduct at the meeting of 27 August 2014 demonstrated - through the evidence of Mr Crous and Ms Brown - his own view that the employment relationship with Egis had come to an end. Again, if the Applicant had been accorded further opportunities to express his views and opinions about Egis’ decision to terminate his employment, reasonably it would have led to no different an outcome.”
The appeal proceedings
[6] Mr Harvey relied upon various grounds of appeal. In the appeal proceedings he submitted that the Senior Deputy President had:
(a) acted upon a number of wrong principles;
(b) been guided by irrelevant facts; and
(c) made his decision based on 11 mistaken facts.
[7] Substantially, Mr Harvey contended that the Senior Deputy President erred in finding that there was a valid reason or valid reasons for the dismissal. In his Notice of Appeal, 9 out of the 11 alleged mistaken facts are to be found in that part of the Decision where the Senior Deputy President made findings under s.387(a) of the FW Act.
Dealing with the Appeal
[8] This appeal is one to which s.400(1) of the FW Act applies. Section 400(1) 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.
[9] 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”. 17 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment18. 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.” 19
[10] 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. 20 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.21
Public interest considerations
[11] In his Notice of Appeal Mr Harvey did not specifically address whether:
(a) the matter raised issues of importance and general application;
(b) there is a diversity of decisions at first instance so that guidance from an appellate court is required;
(c) 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.
[12] However, we discern from his Notice of Appeal that Mr Harvey considers the Decision at first instance manifests an injustice, or the result is counter intuitive. This is because almost all of what is said to be public interest in the matter relates to findings of fact made by the Senior Deputy President.
[13] In the submissions filed by Mr Harvey, he submitted that the “appeal should be heard, and allowed, because it is both in the public interest to do so and because the member who made the decision relied on a number of significant errors of fact.”
[14] We will deal with each of the public interest considerations raised by Mr Harvey.
(1) His role only became tenuous “because [he] made a bullying complaint.”
- However, having considered the evidence before him the Senior Deputy President addressed the bullying allegation in the Decision and found there was “nothing in this claim.” 22 Mr Harvey’s appeal in relation to this matter is little more than him disagreeing with the Senior Deputy President’s finding and an attempt to re-litigate it on appeal. That is not the proper basis for an appeal and we reject Mr Harvey’s submission.
In relation to s.387(b) and s.387(c) the Senior Deputy President found in favour of Mr Harvey. However, after taking all circumstances into account, the Senior Deputy President was not satisfied that the procedural errors on behalf of Egis outweighed the valid reason for termination. Mr Harvey’s challenge here is that the Senior Deputy President did not give sufficient weight to the procedural defects. However, it is well established that the weight attributed to a matter under consideration in relation to a discretionary determination cannot be the subject of challenge on appeal.
(3) “It is not in the public interest for private specific actions such as [the email sent by Mr Harvey] to become precedent in workplace law”.
We apprehend this submission to be that the alleged “private email” sent from a LinkedIn account that identified where Mr Harvey worked could not be found as a valid reason for termination. We disagree. The Senior Deputy President found that there was a sufficient nexus between the email and Mr Harvey’s employment. We discern no error in that approach.
(4) The Senior Deputy President “failed to properly follow legislative principles in the Fair Work Act for unfair dismissal in section 387 of the [FW Act] and has not applied any common law authority to the criteria of this section.”
Aside from this sweeping statement about the errors that the Senior Deputy President is said to have fallen into, Mr Harvey was unable to articulate the wrong principles that the Senior Deputy President acted upon. The Senior Deputy President did not apply any legal principle that was disharmonious when compared with other recent decisions dealing with similar matters.
(5) “It is not in the public interest for employers to submit dodgy notes after termination”.
- To the extent that this submission is about the witness evidence during the hearing it is to be noted that the Senior Deputy President made the following finding:
“[113] The evidence in this matter led by Mr Cain and corroborated to a large extent by Ms Brown suggests that the Applicant was advised on a number of occasions as to the employer’s expectations of him as a manager. I have had no reason to doubt the evidence of Mr Cain and Ms Brown - it was given frankly and without any of the hallmarks of fabrication or exaggeration. It was evidence given under a particularly exacting cross-examination by the Applicant, but was not seriously challenged nonetheless. It was also evidence that was largely reflective of the documentary evidence led in these proceedings, a deal of which I have set out above. I would add that Mr Cain’s evidence was marked by his willingness to concede openly to the Applicant’s claims in some respects, which suggested something less than a dogmatic view of his own position relative to the Applicant’s evidence.”
That is to say, the Senior Deputy President (who had the benefit of observing the witnesses give their evidence) made a positive finding that he found both Mr Cain and Ms Brown to be witnesses of credit. There is nothing in the material before us that would cause us to disturb that finding.
There is nothing in these submissions that give rise to a GlaxoSmithKline public interest consideration.
(7) “It is not in the public interest to be called to a performance management meeting at a public hotel foyer” or for “employers to be allowed to conduct an irregular dismissal”.
- The manner of the dismissal is just one consideration in determining if a termination of employment was harsh, unjust or unreasonable. The Senior Deputy President considered all that he was required to consider under s.387 of the FW Act. To the extent that, having considered all the matters, the Senior Deputy President found that the termination was not harsh, unjust or unreasonable, the submission is based on a false assumption that, on appeal, the appeal bench should disturb the weight given to matters properly considered at first instance. We decline to do so.
The number of errors identified in the Notice of Appeal (11) expanded to more than 49 in Mr Harvey’s submissions. However, it is to be noted that most of what was identified as an error of fact was:
(a) not a finding of fact made by the Senior Deputy President, but rather
(b) a statement by the Senior Deputy President of what evidence was put before him.
To the extent that the errors are said to fall within that section of the Decision where the Senior Deputy President considered the matters he was required to consider under s.387 of the FW Act, Mr Harvey’s submissions on those findings amounts to little more than an attempt to re-litigate matters heard and determined by the Senior Deputy President or otherwise relate to matters that were not significant.
In unfair dismissal cases, if the error that is alleged is an error of fact, then the appellant must demonstrate that it is a significant error of fact. We are not satisfied that Mr Harvey has done so in this matter. Nothing in what Mr Harvey submitted before us demonstrates that the Decision of the Senior Deputy President was contrary to the overwhelming weight of the evidence before him.
Having considered the material before us we are satisfied that the conclusions reached by the Senior Deputy President were reasonably open on the facts before him. As such, there is no basis for this Full Bench to change or interfere with the Decision.
For completeness, we discern no error in how the Senior Deputy President exercised his powers such that an error of a House v The King 23 nature arises.
None of the alleged errors, even if they are errors, manifest an injustice in this matter such that the substantive finding of the Senior Deputy President (that there was a valid reason or valid reasons for the termination of Mr Harvey’s employment) could or should be disturbed on appeal.
Conclusion
[15] From the above analysis of each of the submissions relied upon by Mr Harvey it is clear that the appeal does not raise any issue of importance or general application which would attract the public interest. Further, we do not consider that the Decision otherwise manifests any injustice or was attended by any appealable error. Having considered all of the matters raised by Mr Harvey, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal.
[16] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
B. Harvey on his own behalf.
J. Murphy of counsel for Egis Road Operation Australia Pty Ltd.
Hearing details:
2015.
Sydney:
18 June.
1 [2015] FWC 2306
2 Decision at [122]
3 Ibid at [123]
4 Ibid at [128]
5 Ibid
6 Ibid at [129]
7 Ibid at [133]
8 Ibid at [136]
9 Ibid at [137]
10 Ibid at [138]
11 Ibid at [139]
12 Ibid at [140]
13 Ibid at [142]
14 Ibid at [143]
15 Ibid at [144]
16 Ibid at [145]
17 (2011) 192 FCR 78 at [43]
18 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]
19 [2010] FWAFB 5343 at [27], 197 IR 266
20 Wan v AIRC (2001) 116 FCR 481 at [30]
21 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 (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
22 Decision at [144]
23 (1936) 55 CLR 499
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