Botte v Hear Data Pty Ltd T/A Audiometric & Acoustic Services
[2015] FWCFB 2565
•20 APRIL 2015
| [2015] FWCFB 2565 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Hear Data Pty Ltd T/A Audiometric & Acoustic Services
(C2015/1625)
VICE PRESIDENT CATANZARITI | SYDNEY, 20 APRIL 2015 |
Appeal against decision [2015] FWC 489 of Commissioner Blair at Melbourne on 19 January 2015 in matter number U2014/6576 - no appealable error - public interest not enlivened - permission to appeal refused.
[1] Mr Frederic Botte (the Appellant) was dismissed from his employment with Hear Data Pty Ltd T/A Audiometric & Acoustic Services(the Respondent) on 31 March 2014and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act).
[2] On 19 January 2015 Commissioner Blair issued a decision in relation to the Appellant’s application. 1 In that decision, the Commissioner found that the Appellant’s dismissal was not harsh or unjust and dismissed his application. The Appellant seeks permission to appeal the decision and that is the matter before us.
[3] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of 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’. 2
[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 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.” 4
[5] 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 an appealable error. 5 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.6 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.
[6] It is necessary to briefly outline some key facts of this matter in order to put the Commissioner’s findings in context. The Appellant’s employment was terminated for a number of reasons provided by the Respondent including:
● the Appellant’s inability to meet monthly budget or complete work in a timely manner;
● the Appellant’s propensity to shout and swear at staff and clients;
● his inability to take directions; and
● his refusal to undertake work as specified by relevant Australian Standards.
[7] The Appellant submitted a series of allegations against the Respondent, including that:
● he was not given notice of his dismissal or any reasons for it;
● he was bullied and threatened with withdrawal of a relevant professional membership;
● he was not paid out his entitlements in respect of notice; and
● the Respondent submitted the F3 form twice with different answers in an attempt to mislead the Commission that he was properly dismissed.
[8] By way of remedy, the Appellant claimed 16 weeks’ salary as compensation for his alleged unfair dismissal. At the first instance hearing, some allegations were conceded by the Respondent but relevantly the issue of the Appellant’s inability to perform his work, refusing instructions and his shouting and swearing outbursts were pressed.
[9] The Commissioner found (at paragraph [49]) that the requirements of s.386(1)(a) of the Act were met and the Appellant was validly dismissed by the Respondent. In relation to s.397 of the Act, the Commission found that there was a valid reason for the Appellant’s dismissal and made the following findings:
“[52] In relation to s.387(a), the Commission is satisfied that there was a valid reason for the dismissal of the Applicant relating to their capacity or conduct. The capacity or conduct goes to the ability of the Applicant to be able to perform his duties to a level that is required to meet Australian Standards, which the Applicant consistently challenged, and also, in refusing reasonable and lawful instructions by the Respondent.
[53] Considering the number of concerns related by clients concerning the conduct and quality of work performed by the Applicant and in dealing with the safety and welfare of other employees, the Commission is satisfied that there was a valid reason due to the Applicant’s offensive language and conduct towards other employees working in the office, particularly Ms Hossack.
[54] In relation to s.387(b), the Commission is satisfied that there were sufficient discussions between the Applicant and the Respondent concerning his conduct and his work performances and his use of offensive language towards other employees working in the office.
[55] In relation to s.387(c), the Commission is satisfied that the Applicant was made aware on a number of occasions that there were issues relating to his capacity or conduct in the performance of his duties but those issues were ignored or rejected by the Applicant.
[56] In relation to s.387(d), as indicated earlier, the Commission is unable to form a view as to whether or not the Applicant requested a support person and whether or not a support person was allowed.
[57] In relation to s.387(e), as indicated earlier, the Commission is satisfied that the Applicant was aware that there were serious issues regarding his performance and that it needed to improve.
[58] In relation to s.387(f) and (g), the Commission is satisfied that it would not have had any impact upon the dismissal procedures that occurred on 31 March 2014 or leading up to 31 March 2014 if the Respondent had a dedicated human resource person nor if the Respondent did not meet the definition of a small business.
[59] In addressing s.387 of the Act, the Commission is satisfied that the termination was not harsh nor was it unjust, given the conduct of the Applicant leading up to 31 March 2014. That conduct went to the relationship between himself and his employer, himself and clients of his employer, himself and other employees of the employer, the damage to the reputation of the Respondent and the financial impact upon the Respondent based on his poor work performance and incurring additional costs on behalf of the Respondent in preparing unsatisfactory or unprofessional reports and, in particular, the evidence of Ms Curran in relation to her business, the loss of $8000 that would have been available to the Respondent if the Applicant had not continued to be employed with the Respondent.”
[10] On the issue of whether the termination was harsh, unjust or unreasonable and whether the Appellant should have been awarded the compensation that he was seeking by way of remedy, the Commissioner made the following findings:
“[60] In terms of whether or not the termination was unreasonable, given that the Respondent did not follow the Small Business Fair Dismissal Code, the Commission is satisfied that to some degree the termination may have been unreasonable simply because the Respondent failed to follow the Small Business Fair Dismissal Code. However, the Commission is not prepared to issue an order for compensation. Any form of compensation would be a form of penalty against the Respondent for failing to follow the Small Business Fair Dismissal Code.
[61] Having considered all the material and the financial damage as well as the reputational damage done by the Applicant to the Respondent, the Commission is not prepared to impose a penalty upon the Respondent by way of compensation to the Applicant.
[62] Accordingly, having found that the termination was not harsh or unjust but may have been unreasonable, the Commission is not prepared to award any form of compensation. Therefore, the Applicant’s claim is dismissed.”
[11] The Appellant failed to advance in his written submissions any grounds of appeal that indicate an appealable error in the Commissioner’s decision. He did not raise any proper considerations that may attract the public interest. In summary, his contention is that during the hearing before the Commissioner certain witnesses were lying under oath and one particular witness, Mr Radoslav Vlajic, was not put in the witness box due to time constraints. There has been no material provided in support of the assertion that witnesses were lying under oath. In respect of his submission regarding Mr Vlajiv’s evidence, the Commissioner clearly considered Mr Vlajiv’s evidence at paragraph [29]-[31] of the decision at first instance.
[12] With respect to attracting the public interest, the Appellant claims that there have been procedural errors related to an F3 form and that a member of the registry staff gave advice to the Respondent. He has not provided any further evidence in support of these unparticularised assertions. In any event, the allegations, even if made out, do not give rise to the public interest being enlivened.
[13] During oral submissions, the Appellant made a number of unsubstantiated assertions with respect to the facts in the decision at first instance, and repeated the allegation that certain witnesses were lying under oath, but he still failed to identify any appealable error or relevant public interest consideration.
[14] The Appellant also drew the Full Bench’s attention to PN3354 of the transcript of the hearing before the Commissioner where he made the following comments:
“I’ve got to say this is one of the most exhaustive hearings that I’ve had and I’ve been sitting on the bench for some 22 years.”
[15] The Appellant sought to assert that these comments were subjective and not appropriate from a member of the Commission. Notwithstanding, the fact that the comments may have been subjective in nature, they did not form part of the reasons given in the Commissioner’s decision for dismissing the application. The Commissioner’s well-reasoned decision clearly sets out the basis on which the Appellant’s application was dismissed, as extracted above.
[16] The appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case, absent error on the part of the primary decision maker, simply because they are dissatisfied with the outcome of the decision at first instance. During the hearing and in the Appellant’s written submissions we were not directed to anything which provided objective support for the Appellant’s subjective perceptions about the hearing.
[17] Having regard to all materials before us including the decision at the first instance, the transcript of the hearing before the Commissioner and the Appellant’s submissions, we consider that the Appellant was afforded a proper opportunity to put his case and that the findings of the Commissioner were reasonably open on the evidence.
[18] No arguable case of appealable error has been demonstrated by the Appellant, and no basis upon which the public interest is attracted has been identified. We are not satisfied that it would be in the public interest to grant permission to appeal, and accordingly as required by s.400(1) permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr F Botte in person.
Ms J Hossack for the Respondent.
Hearing details:
Sydney with a telephone link to Dubai;
8 April 2015.
1 [2015] FWC 489.
2 [2011] FCAFC 54 at [43].
3 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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at [44] - [46].
4 (2010) 197 IR 266 at [27].
5 Wan v AIRC [2001] FCA 1803 at [30].
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A 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]
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