Callan Charlesworth v FIP Group Services Pty Ltd & Tijana Lalovic
[2024] FWCFB 445
•29 NOVEMBER 2024
| [2024] FWCFB 445 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Callan Charlesworth
v
FIP Group Services Pty Ltd & Tijana Lalovic
(C2024/7352)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 29 NOVEMBER 2024 |
Appeal against decision [2024] FWC 2638 of Commissioner Crawford at Sydney on 26 September 2024 in matter number C2024/3896 – permission to appeal refused.
Mr Callan Charlesworth has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission is required, against a decision of Commissioner Crawford delivered on 26 September 2024.[1] Mr Charlesworth had applied under s 365 of the Act alleging that the first respondent, FIP Group Services Pty Ltd dismissed him in contravention of the general protections provisions of the Act. Mr Charlesworth alleged that the second respondent, Ms Lalovic, was involved in the contraventions. The Commissioner dismissed Mr Charlesworth’s application as he found that FIP Group had not dismissed Mr Charlesworth within the meaning of s 386(1) of the Act.
The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing under s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.
Decision under appeal
The decision records that Mr Charlesworth was employed on a full-time basis with FIP Group as an Onsite Account Manager based at Coominya, west of Brisbane. His employment commenced on 13 February 2023. FIP Group contended that Mr Charlesworth’s employment ceased by reason of his resignation on 31 May 2024, and he was not dismissed.
Mr Charlesworth’s position at first instance was that FIP Group dismissed him within the meaning of s 386(1)(a) of the Act by repudiating his employment contract in a number of ways including by:
(a)hiring Mr Aaron Burgess and implementing a reporting structure that Mr Charlesworth considered unreasonable;
(b)failing to provide Mr Charlesworth with a safe workplace and protecting him from bullying;
(c)not properly investigating his complaints of bullying;
(d)not taking necessary disciplinary action against the persons whom he said bullied him;
(e)issuing a warning letter unfairly and in retaliation for his bullying complaint; and
(f)failing to afford him procedural fairness in relation to the warning letter.
In the alternative, Mr Charlesworth contended that if it is found that he resigned from his employment, such resignation was forced within the meaning of s 386(1)(b) of the Act.
The Commissioner summarised the relevant principles when determining each of Mr Charlesworth’s contentions and proceeded to consider Mr Charlesworth’s argument that FIP Group had repudiated his employment contract. The Commissioner did not accept that there was any evidentiary foundation to this contention, including because the conduct relied upon by Mr Charlesworth did not demonstrate an intention by FIP Group to no longer be bound by the employment contract. Nor was the Commissioner persuaded that Mr Charlesworth’s own conduct supported this contention, including because the delay between the conduct of which Mr Charlesworth complained in mid to late 2023 and the cessation of Mr Charlesworth’s employment in mid-2024 weighed “heavily” against a finding that FIP Group had engaged in repudiatory conduct which had been accepted by Mr Charlesworth.
The Commissioner next considered Mr Charlesworth’s alternative argument that he had been forced to resign due to conduct or course of conduct engaged in by the respondent. The Commissioner placed great weight on email correspondence between Mr Charlesworth and the respondent, finding that FIP Group went to “extensive lengths” to confirm with Mr Charlesworth that it would support his return to work upon provision of a medical clearance. Notwithstanding that FIP Group did not engage with the conditions that Mr Charlesworth said were required to enable his return to work, the Commissioner declined to accept that FIP Group intended to force Mr Charlesworth to resign or that Mr Charlesworth’s resignation was a probable result of its conduct. Accordingly, the Commissioner concluded that Mr Charlesworth was not forced to resign from his employment.
Not being satisfied that Mr Charlesworth was dismissed by FIP Group within the meaning of s 386(1) of the Act, the Commissioner dismissed the application.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so. Determining whether a matter raises the public interest is a discretionary value judgment.[2] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[3] The public interest is not satisfied simply by the identification of error or a preference for a different result.[4]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
In determining whether to grant permission to appeal, our task is not to conduct a detailed examination of the appeal grounds but to identify whether the appellant has demonstrated an arguable case of appealable error.[5] As established by the High Court in Fox v Percy,[6] an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences. For there to be legal error, it would need to be shown that the Commissioner acted on a wrong principle, took into account irrelevant matters, mistook facts or is manifestly wrong in the manner described in House v King.[7] It is not enough that a different member or an appellate body might have reached a different conclusion.
Grounds for appeal
Mr Charlesworth, in his notice of appeal, identified nine alleged errors in the decision, upon which he elaborated in his statement of reasons for appeal,[8] and his outline of submissions (appeal).[9]
In summary, Mr Charlesworth disagrees with the following findings made by the Commissioner:
(a)that Mr Charlesworth had not accepted the repudiation as he was negotiating options with FIP Group;
(b)that FIP Group was prejudiced by Mr Charlesworth’s delay in accepting the repudiation;
(c)that Mr Charlesworth had willingly resigned as demonstrated by the language used in his email of 31 May 2024;
(d)that there was no conduct of FIP Group that could be considered a serious breach of the employment contract;
(e)that Mr Charlesworth’s position description and working hours did not form part of the contract of employment; and
(f)that there were options available to Mr Charlesworth other than resignation
Mr Charlesworth also argues that the Commissioner made errors in law when assessing the subjective intentions of the party rather than their objective intention.
Mr Charlesworth further contends that the Commissioner failed to address his argument about FIP Group’s failure to fairly and thoroughly investigate his bullying complaint, being repudiatory conduct. It is also said that the Commissioner did not address that Mr Charlesworth was not afforded procedural fairness in this process or in relation to the warning that the respondent issued to Mr Charlesworth on 6 December 2023.
Last, Mr Charlesworth submitted that the Commissioner considered irrelevant matters when he stated that the list of conditions that Mr Charlesworth said were required to enable a return to work were unachievable by the respondent.
In relation to the public interest, Mr Charlesworth submits that allowing the Commissioner’s decision to stand would mean that the bar would be set so high that it would be impossible for any employee to seek redress for repudiatory conduct or establish constructive dismissal.
Consideration
We are not persuaded that the appeal grounds relied upon by Mr Charlesworth, as developed in his written submissions, disclose any arguable appealable error; rather they demonstrate that Mr Charlesworth is seeking to reargue his case again, with a preference for a different result. This is not the function of an appeal bench in considering whether to grant permission to appeal. Mr Charlesworth’s grounds which seek to challenge the Commissioner’s factual findings do not disclose any arguable basis for concluding that such findings were either not reasonably open on the evidence, were glaringly improbable or were contrary to incontrovertible facts, in the manner described in Fox v Percy above. The Commissioner dealt with each of Mr Charlesworth’s contentions and reached conclusions in the exercise of his discretion, that appear to be supported by the volume of evidence before him.
The decision demonstrates that the Commissioner correctly approached the question of whether there had been a dismissal by reference to s 386 of the Act, including by reference to authorities upon which the Commissioner correctly applies in the decision. The contention that the Commissioner erred in law by failing to consider what was conveyed objectively by the conduct of the respondent and Mr Charlesworth is not arguable having regard to paragraphs [34], [38] [42], [63], [64] and [65] of the decision where the Commissioner correctly records the relevant legal test and applies it in his consideration of the evidence before him. No arguable case of error is disclosed.
The contention that Mr Charlesworth was not afforded procedural fairness is directed towards the conduct of FIP Group and it is not contended that the Commissioner failed to provide Mr Charlesworth with procedural fairness. The Commissioner engages with Mr Charlesworth’s concerns in relation to the respondent’s approach to the issuance of the 6 December 2023 warning in his reasons at paragraph [63].
Mr Charlesworth’s contention that the Commissioner considered an irrelevant matter by proposing a list of unrealistic changes at the workplace level to allow Mr Charlesworth to resume work does not provide a basis for appellate review. The Commissioner was dealing with Mr Charlesworth’s submissions about the respondent’s failure to negotiate his return to work and made a finding that resignation was not an objective or probable result of such conduct in the determination of Mr Charlesworth’s argument. While Mr Charlesworth has a preference for a different conclusion, this does not give rise to an arguable case of appealable error.
We are not otherwise persuaded that the balance of matters raised in Mr Charlesworth’s written material demonstrates a basis for granting permission to appeal on any other discretionary ground. Nor are we persuaded, for the purposes of s 604(2) of the Act, that the appeal attracts the public interest as it does not raise any issue of law or principle that might have a wider application, nor does the decision manifests an injustice.
Conclusion and order
For the reasons given, permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant, 18 November 2024.
[1] Charlesworth v FIP Group Services Pty Ltd & Lalovic [2024] FWC 2638 (the decision)
[2] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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]
[3] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[4] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28]
[5] Wan v AIRC [2001] FCA 1803 as referred to in Liao v Canberra Grammar School[2023] FWC 2790 at [17]-[18]
[6] Fox v Percy [2003] HCA 22; 214 CLR 118
[7] House v The King [1936] HCA 40; 55 CLR 499
[8] Dated 29 September 2024
[9] Dated 16 October 2024
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