Boris v Metcash Trading Limited t/a Metcash
[2019] FWCFB 8213
•11 DECEMBER 2019
| [2019] FWCFB 8213 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Boris
v
Metcash Trading Limited t/a Metcash
(C2019/5224)
VICE PRESIDENT HATCHER | SYDNEY, 11 DECEMBER 2019 |
Appeal against decision [2019] FWC 3993 of Deputy President Beaumont at Perth on 2 August 2019 in matter number U2019/2038.
Introduction and factual background
[1] Boris 1 has lodged pursuant to s 604 of the Fair Work Act 2009 (FW Act) an appeal, for which permission to appeal is necessary, against a decision of Deputy President Beaumont issued on 2 August 20192 (decision). The decision concerned an application made by Boris for an unfair dismissal remedy in respect of the termination of his employment with Metcash Trading Limited t/a Metcash (Metcash) on 15 February 2019. The Deputy President determined that Boris’ dismissal was not harsh, unjust or unreasonable and accordingly dismissed the application. Boris contends in his appeal that the Deputy President erred in a number of respects, which we will detail later in this decision.
[2] The factual background to this matter is as follows. Boris was employed by Metcash as a storeperson at its warehouse in Canning Vale, Western Australia, commencing in 2005. At the time of his dismissal, he was employed on a part-time basis working 20 hours per week. Mr Luis Torres was at all relevant times Boris’ supervisor, and there was a history of antagonism between them. Prior incidents between them included:
• In May 2017, Mr Torres made a complaint about Boris repeatedly calling him a liar, and at a subsequent meeting with human resources management Boris agreed to show respect and use appropriate language towards supervisors and fellow employees and to comply with management’s lawful and reasonable instructions.
• On 11 December 2017, when Mr Torres counselled Boris about the way he was wrapping a pallet, which he considered unsafe, Boris began recording Mr Torres with his mobile phone. Mr Torres said that Boris was not allowed to use his mobile phone at work and he was not authorised to record what he was saying.
[3] On 23 November 2018, Mr Torres approached Boris and requested that he attend a meeting to discuss the results of an Associate Technique Review (ATR) assessment he was undertaking that day. Mr Torres may have also adverted to a discussion about Boris’ performance more generally, although this was a factually disputed matter. Boris responded to this by stating that he needed the request for the meeting to be put in writing in order to organise a representative to be in attendance. Mr Torres refused to do this and tried to continue the discussion, whereupon Boris produced his mobile phone and video-recorded himself saying that he needed to speak to his nominated representative and any request for a meeting needed to be in writing. Mr Torres then stated that he did not authorise Boris to record him. However, Boris did not stop recording the conversation, and it continued with Mr Torres repeating his request for a meeting with Boris, and Boris reiterating that the request had to be in writing and that his nominated representative had to be present. A third-party witness to the discussion said that Boris appeared agitated and aggressive in his demeanour. The conversation eventually broke off without any resolution. Later that day, on instruction from Carol Briggs, Metcash’s Operations Manager at the site, Mr Torres again approached Boris and requested him to meet to discuss his ATR and his performance, and Boris reiterated his position. Mr Torres affirmed that there would be a meeting.
[4] On 29 November 2018, a day upon which Boris was not rostered to attend for work, he was sent a text message from a number not known to him, which said:
“Hi Boris I’m Luis Torres from Metcash, letting you know I have schedule a meeting for Friday 10:00 to have a conversation about you ATR and poor performance standards, please bring your nominate representative. Regards” [sic]
[5] Boris also received three phone calls on the same day from the same number, none of which he answered. He said he had never been phoned by a supervisor on his day off before. The telephone calls had been made and the text message sent by Mr Torres, on instruction from Nicole Dyk, Metcash’s People and Culture Advisor. Mr Torres had obtained Boris’ telephone number from another employee.
[6] On 30 November 2018 the scheduled meeting took place attended by Boris, Mr Andrew Bacon, a delegate of Boris’ union, the Shop, Distributive and Allied Employees’ Association (SDAEA), Mr Torres and Ms Dyk. As the meeting commenced, Boris refused to sit down and remained standing. Mr Torres attempted to initiate a discussion about the ATR, but there appears to have been an initial issue about Mr Torres refusing to let Boris see his ATR document. Boris then proceeded to express his displeasure about not being given a request for the meeting in writing, being contacted on his day off, and his inability to obtain a meeting when he wanted one in contrast to Metcash’s demand that he attend a meeting at short notice. Boris was swearing as he expressed these sentiments. Eventually Boris said to Mr Torres:
“Under no circumstances are you to contact me out of work hours for any reason whatsoever. If you ever harass me out of work hours again, I will tell you exactly what I think of you and your mother.”
[7] Mr Torres became upset when Boris said this and left the meeting. The meeting resumed without Mr Torres after a break. Ms Dyk remonstrated with Boris about his swearing, and in response Boris referred to a court case where swearing in a blue-collar environment was considered acceptable. Ms Dyk gave evidence that Boris called her a “city princess”, but Boris had no precise recollection of what he said in that respect. Boris continued to air various grievances and indicated he wished to make a complaint against Mr Torres. The meeting then ended inconclusively.
[8] Later the same day, Boris was called into a meeting with David Norris, the Logistics Operations Manager. Mr Norris said that there had been a complaint about Boris swearing at Mr Torres and Ms Dyk at the meeting that morning, that this behaviour was unacceptable and that he was suspended immediately on full pay pending an investigation.
[9] On 3 December 2018, Boris was advised at a meeting and by letter that an investigation had concluded that he had behaved inappropriately in his discussions with Mr Torres on 23 November 2018 and at the two stages of the meeting on 30 November 2018, and he was requested to show cause why he should not be dismissed. Boris was not given an opportunity to give his version of events during this investigation. On 5 December 2018, the SDAEA sent a letter to Metcash on Boris’ behalf demanding that an independent investigation of the allegations be conducted, and as a result Metcash decided (over the further objection of the SDAEA) to have a further investigation conducted by Jackie Ho, another People and Culture Manager for Metcash. Boris, with the assistance of the SDAEA, provided Ms Ho with a statement setting out his version of events.
[10] Ms Ho’s investigation concluded that Boris had engaged in unacceptable conduct in that he had:
(1) failed to follow a reasonable request from Mr Torres to attend an ATR debrief on 23 November 2018;
(2) inappropriately used his mobile phone to video record Mr Torres without his agreement on 23 November 2018; and
(3) behaved aggressively and in a threatening and inappropriate way at the meeting with Mr Torres and Ms Dyk on 30 November 2018.
[11] At a meeting on 1 February 2019, Boris was provided with the findings of Ms Ho’s investigation and requested to show cause why he should not be dismissed. The SDAEA responded in a letter dated 6 February 2019, in which it contended among other things that while Boris’ behaviour was deserving of disciplinary action, dismissal would be a grossly disproportionate response. Metcash nonetheless dismissed Boris effective from 15 February 2019.
The decision
[12] In the decision the Deputy President, after outlining the facts of the case, proceeded to make findings concerning each of the matters required to be taken into account under s 387 of the FW Act. In respect of the existence of a valid reason for the dismissal under s 387(a), the Deputy President found that:
• Mr Torres’ instruction to Boris on 23 November 2018 to attend an ATR debrief meeting was a lawful and reasonable instruction, and Boris’ response requiring written notice of the meeting to enable him to organise a representative to attend amounted to a failure to comply with that instruction;
• Boris’ use of a mobile phone to record the conversation with Mr Torres on 23 November 2018 was antagonistic, disrespectful and intrusive, and contrary to the requirement in Metcash’s code of conduct that employees treat others with dignity, courtesy and respect, and his contention that the recording was necessary to protect his interests was preposterous;
• the evidence of Ms Dyk and Mr Torres concerning Boris’ conduct at the meeting on 30 November 2018 was preferred to the extent that it was in conflict with that of Boris and Mr Bacon, and the Deputy President found that Boris had made the comment concerning Mr Torres’ mother at the meeting (which caused considerable distress to Mr Torres) and had sworn throughout the meeting, in breach of Metcash’s code of conduct; and
• this conduct on the part of Boris constituted a valid reason for his dismissal,
[13] In respect of s 387(b)-(d), the Deputy President was satisfied that Boris was notified of the reasons relied upon by Metcash for his termination, given the opportunity to respond to the allegations during the investigation, and not unreasonably refused a support person in the discussion relating to this dismissal. In doing so, the Deputy President rejected contentions advanced by Boris that Ms Ho was insufficiently independent to conduct a fair workplace investigation and that Mr Torres’ conduct in requesting a meeting with Boris on 23 November 2018 and in contacting Boris on his day off on 29 November 2018 should also have been the subject of investigation. The Deputy President made findings in respect of s 387(e)-(g) which are not presently relevant. In respect of s 387(h), the Deputy President took into account that Boris’ conduct was manifestly serious in that he acted in a manner that was confronting and intimidating, and warranted summary dismissal. The Deputy President also took into account Boris’ acknowledgment of wrongdoing and preparedness to apologise at the hearing (albeit at the suggestion of the SDAEA), his length of service and the loss of regular income his dismissal would entail. The Deputy President, having taken into account all the matters required to be considered under s 387, concluded that Boris’ dismissal was not harsh, unjust or unreasonable.
Appeal grounds and submissions
[14] Boris’ notice of appeal contained 14 grounds, but his written and oral submissions (which, consistent with the Commission’s directions, addressed both the application for permission to appeal and merits of the appeal) reduced these to three propositions. The first was there was no valid reason for dismissal and, in particular, summary dismissal. In this respect, the following propositions were advanced:
• the Deputy President erred in finding that the meeting Boris was directed to attend on 23 November 2018 was only a debrief following an ATR, when it was in fact a meeting to discuss Boris’ poor performance standards, as was confirmed in the text message of 29 November 2018;
• Boris’ actions in refusing to attend the meeting was not a refusal to carry out a lawful and reasonable instruction because the meeting was not insignificant to Boris’ employment, there was an established course of conduct that Boris was entitled to have a nominated representative present at ATR debrief meetings, and Boris believed he was entitled to have a representative under the terms of the applicable enterprise agreement;
• Boris’ conduct in filming the conversation, and his refusal to cease doing so when requested, was not conduct which justified dismissal in the context of a proposed meeting about his performance and a denial of his rights to have a representative present;
• the Deputy President erred in finding that Boris was aggressive in his behaviour towards Mr Torres on 23 November 2018;
• Boris’ conduct at the meeting on 30 November 2018 did not amount to misconduct justifying dismissal when assessed in the context of him being annoyed at being contacted on his day off and the refusal to show him the ATR document;
• Ms Dyk’s evidence about the meeting was seriously divergent to those of the other witnesses such that it was glaringly improbable, and the Deputy President should have preferred Mr Bacon’s evidence, which would have justified the conclusion that Boris’ conduct did not justify dismissal.
[15] The second proposition was that, in the alternative to the first proposition, if the Deputy President was correct to find that Boris had engaged in serious misconduct she nevertheless erred in finding that summary dismissal was justified based on that misconduct. In this respect the Deputy President should have found that the events which caused the dismissal were precipitated by the unreasonable conduct of Metcash including that:
• Metcash had failed to manage the longstanding difficulties in the relationship between Boris and Mr Torres;
• Metcash was inconsistent in its responses to Boris’ behaviour;
• the evidence showed that Boris had admitted that his use of the mobile phone, his “mother” comment and use of swear words was inappropriate and he wanted to offer an apology;
• at the second stage of the meeting on 30 November 2018, Ms Dyk had herself engaged in swearing; and
• Boris had been engaged by Metcash for 13.5 years.
[16] The above matters, it was submitted, rendered the dismissal harsh.
[17] The third proposition was that Boris was denied procedural fairness and, but for the flawed investigation, he would not have been dismissed. The evidence showed that Metcash had made a firm decision to dismiss Boris prior to the commencement of any investigation, in that Ms Dyk met with Grant Ramage, Metcash’s General Manager WA, shortly after the 30 November 2018 meeting and said what had happened from her perspective, to which Mr Ramage responded to the effect that he did not want Boris working for Metcash. It was immediately after this that Mr Norris suspended Boris with pay. The first investigation did not give an opportunity for Boris to give his version of events, and the second investigation was not conducted by a genuinely independent investigator, leading to substantive unfairness. Additionally, the dismissal letter relied upon Boris’s prior disciplinary record, and this was never identified as a reason for possible dismissal to which Boris could respond.
[18] It was submitted that it was in the public interest to grant permission to appeal because the decision and the decision-making process were affected by significant errors of fact and law, the decision was attended with sufficient doubt to warrant its reconsideration, substantial injustice would result if permission was refused in that Boris was deprived of a “fair go all round” and the remedy for unfair dismissal to which he was entitled, and the legal principles which were applied in the decision were disharmonious compared to other recent decision in which applicants had been awarded an unfair dismissal remedy despite having engaged in conduct of comparable seriousness or because of a flawed and partial investigation process.
Consideration
[19] 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.3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] 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.
[21] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan 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.4 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.” 5
[22] 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
[23] We are not satisfied that it would be in the public interest to grant Boris permission to appeal. It appears to us, notwithstanding the best efforts of Boris’ counsel, that the fundamental facts in his case were not in dispute and that the outcome determined by the Deputy President flowed in a straightforward way from those facts. Having regard to our earlier description of the factual background, it appears to us that the matter can be boiled down to the following uncontentious propositions of facts:
(1) On 23 November 2018, Mr Torres requested Boris to meet with him to discuss his ATR results, and perhaps more general performance issues. Boris, by demanding that the request be made in writing and that he be given time to arrange the attendance of a nominated representative, effectively refused to comply with this request.
(2) In the process of conversing with Mr Torres on 23 November 2018, Boris video-recorded what occurred with his mobile phone, and continued to do so notwithstanding that Mr Torres said that he did not consent to this occurring.
(3) At the first stage of the meeting on 30 November 2018, Boris remained standing, strongly challenged the right of Metcash to contact him on a non-working day to give him notice of a meeting, repeatedly swore when doing so, and eventually said to Mr Torres “Under no circumstances are you to contact me out of work hours for any reason whatsoever. If you ever harass me out of work hours again, I will tell you exactly what I think of you and your mother.” This caused Mr Torres considerable distress.
[24] The first matter indubitably constituted a failure to comply with a lawful and reasonable instruction. It makes no difference whether or not Mr Torres described the requested meeting as involving just the ATR results or in addition some wider performance issues. In circumstances where there was no evidence to suggest that the intended meeting was disciplinary in nature or could lead to some adverse employment consequence for Boris, Mr Torres was entitled to make the request and have it complied with. It was a function of his job as a supervisor. Boris did not have an entitlement, under the applicable enterprise agreement or otherwise, to demand that the request be made in writing or to be accompanied by a nominated representative, and he did not positively contend otherwise. As earlier stated, it was contended that Boris held a subjective belief that he had such an entitlement under the disputes resolution procedure in the applicable enterprise agreement. The evidence that Boris actually held such a belief as at the time of the incident on 23 November 2018 was marginal, but even if he did, we do not consider that any arguable contention has been advanced that he had a reasonable basis for holding such a belief.
[25] The second matter clearly involved inappropriate and disrespectful workplace behaviour, particularly in circumstances where Boris had done this before and was told that it was not permitted. There were no legal rights or legitimate interests that needed to be protected by Boris video-recording his discussion with Mr Torres because, as we have stated, Mr Boris had no legal right to be given written notice of the meeting or to bring a nominated representative to the meeting, nor was there ever any suggestion that the meeting which Mr Torres was requesting might lead to any form of disciplinary action.
[26] In respect of the third matter, the basic facts as we have described them disclose conduct on the part of Boris that can fairly be described as aggressive and intimidatory. As earlier stated, those facts at least were not in contest for the purpose of the appeal. It is not necessary to chase down every detail concerning whether Boris was leaning over the table or was yelling or shouting. The proposition that the objective seriousness of Boris’ conduct was vitiated by contextual matters is not reasonably arguable. Particularly in circumstances where Boris was at work only 20 hours per week, it could hardly be said that a simple message to inform him of a meeting the following day on a day when he was not at work was unreasonable or justified his subsequent conduct. It may be noted that in giving Boris this message, Metcash effectively acceded to Boris’ demand of 23 November 2018 that he be given notice of the meeting in writing and time to arrange the attendance of a nominated representative. If Mr Torres at the outset of the meeting refused to give Boris a copy of the document containing his ATR results, that had no logical connection to Boris’ subsequent behaviour.
[27] It was plainly available to the Deputy President to find that the three instances of undisputed conduct, considered cumulatively, constituted a valid reason for Boris’ dismissal for the purpose of s 387(a) of the FW Act. We would reach the same conclusion ourselves. It needs to be emphasised that satisfaction as to the existence of a valid reason for the purpose of s 387(a) does not require a finding of misconduct sufficiently serious to justify summary dismissal. 8
[28] Boris’ third proposition concerning an alleged denial of procedural fairness does not address the specific matters required to be taken into account under s 387(b) and (c) and the findings made by the Deputy President in relation to those provisions. There is no factual dispute that Boris was notified of the reasons for his dismissal which we have set out in paragraph [10] above and given an opportunity to respond prior to his dismissal, and in that respect the findings made by the Deputy President are unimpeachable. It is simply wrong to say that Boris’ previous disciplinary record formed a reason for his dismissal of which he was not notified; his dismissal letter merely says that it was taken into account in the decision to dismiss him for his established misconduct. Boris’ more general attack on the independence and fairness of the investigation process is entirely misconceived. Insofar as the initial investigation denied Boris an opportunity to give his version of events, Metcash corrected this by re-initiating the investigation process. That the second investigation was not “independent” is obviously correct, since it was conducted by an employee of Metcash, Ms Ho, who was undoubtedly acting in Metcash’s interests. However, it does not follow that the investigation was flawed since, as earlier stated, the fundamental facts of the matter were never seriously in contest and Ms Ho’s conclusions were entirely consistent with those facts. That distinguishes this case from one where there is a major dispute about whether an employee engaged at all in the conduct in question; in such a case a higher standard of investigative independence may be called for.
[29] Having found that there was a valid reason for the dismissal and that Boris was accorded procedural fairness, it only remained for the Deputy President to determine whether other matters which might be regarded as relevant under s 387(h) would render the dismissal harsh. In the exercise of the discretion which this task involved, the Deputy President found that the dismissal was not harsh (as well as not being unjust or unreasonable). Boris’ second proposition in his appeal does not identify any arguable contention of error in the exercise of the discretion; rather, it simply involves an argument concerning what the Deputy President “should have found” in relation to the issue of harshness. The matters which were obviously relevant to harshness, namely the seriousness of Boris’ misconduct, his length of service and the financial consequences of his dismissal were taken into account by the Deputy President in reaching the conclusion that she did. The other matters raised by Boris we do not regard as even arguably relevant. The contentions that Metcash “failed to manage” the relationship between Boris and Mr Torres, or was inconsistent in its responses to Boris’ behaviour, seek to treat Boris as having no agency in his own behaviour. That Ms Dyk might have uttered a single swear word in the second stage of the meeting on 30 November 2018 has no logical connection to Boris’ misconduct, which had already occurred, nor does it ameliorate his altogether different conduct.
[30] Because we do not consider that Boris’ appeal grounds and submissions disclose any arguable basis for the displacement of the decision on appeal, it follows that we do not consider that the decision was counter-intuitive or manifests any injustice. Nor do we consider that Boris’ appeal raises any question of law or principle that is of general application. Boris’ submissions contend that the decision applied legal principles that were said to be disharmonious with three other decisions (Illawarra Coal Holdings Pty Ltd v Gosek, 9 Linfox Armaguard Pty Ltd v Symes10and Francis v Patrick Stevedores Holdings Pty Ltd11), but each of these cases were decided on their own particular facts. We can identify no difference in the principles applied.
[31] Because we are not satisfied that the grant of permission would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the FW Act.
VICE PRESIDENT
Appearances:
Mr T Dixon of counsel with Mr D Rafferty on behalf of Boris.
Mr A Pollock of counsel and Ms K Korbel on behalf of Metcash Trading Limited t/a Metcash.
Hearing details:
2019.
Melbourne with video link to Perth:
2 October.
Printed by authority of the Commonwealth Government Printer
<PR714840>
1 The appellant has a single name and does not, as we understand it, seek that his name be preceded by any honorific.
2 [2019] FWC 3993
3 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
4 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, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
5 [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
6 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
7 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]
8 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]
9 [2018] FWCFB 1829
10 [2019] FWCFB 556
11 [2014] FWC 775
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