Christopher Strauss v Patrick Projects Pty Ltd
[2017] FWCFB 2810
•7 JULY 2017
| [2017] FWCFB 2810 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Patrick Projects Pty Ltd
(C2017/1885)
VICE PRESIDENT HATCHER | SYDNEY, 7 JULY 2017 |
Permission to appeal against decision [2017] FWC 1574 of Senior Deputy President Drake at Sydney on 17 March 2017 in matter number U2014/5970.
[1] Mr Christopher Strauss has applied for permission to appeal a decision of Senior Deputy Drake issued on 17 March 2017 1 (the Decision). The Decision determined Mr Strauss’ application pursuant to section 394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for his alleged unfair dismissal by Patrick Projects Pty Ltd (Patrick Projects).
[2] Mr Strauss was dismissed from his employment with Patrick Projects on 18 March 2014 for serious misconduct. The misconduct relied upon by Patrick Projects to justify the dismissal was set out in a letter it sent to Mr Strauss on 14 March 2014. The letter relevantly stated:
“Your serious misconduct
It has come to our attention that on 29 January 2014 you wrote to Scott Hynes at Agility Project Logistics Pty Ltd (Agility) and that you did so on behalf of 6166 Pty Ltd (Your Letter).
As you are aware, Patrick Projects Pty Ltd (Patrick) provides stevedoring services to Agility for the Gorgon Project.
In your letter you have made allegations regarding Patrick operations. You have also told Agility both in Your Letter and via numerous other communications with Scott Hynes that you and 6166 Pty Ltd, being a company wholly owned by you, are available to provide services which are currently being performed by Patrick (Stevedoring Proposal).
You have also sent communications to Scott Hynes which included an MLF North Yard Line Marking Proposal and an MLF South Yard Line Marking Proposal and asking Scott whether Agility is looking for someone to reinstate the fleet wash (Proposals).
Your communications with Scott Hynes have also included making disparaging remarks about Patrick’s operations…”
[3] Mr Strauss had argued before the Senior Deputy President that his employment was terminated so that Patrick Projects could avoid resolving the many disputes he had raised, and also so it did not have to provide training to him that it was required to provide. He also asserted that he did not engage in the serious misconduct alleged by Patrick Projects.
[4] In the Decision, the Senior Deputy President found that Mr Strauss had engaged in the misconduct alleged against him, and that for the purposes of s.387(a) of the FW Act this constituted a valid reason for his dismissal. 2 In reaching that conclusion, the Senior Deputy President engaged in a detailed and thorough analysis of the evidence and the submissions. Her findings of fact included the following:
- Mr Strauss had tried to establish business for himself, and/or a company with which he was associated, with an existing client of Patrick Projects. 3
- Mr Strauss had attempted to obtain the work of Patrick Projects, and had denigrated Patrick Projects to its client in the process of doing so. Mr Strauss’ evidence on this issue was not credible. 4
- The work of Patrick Projects on the project with Chevron was coming to an end, and the loss of any work of Patrick Projects at that point in time would have been a serious matter. Patrick Projects was therefore entitled to take a serious view of the approach by Mr Strauss to its client, and consider this approach to be a breach of his obligations to Patrick Projects which amounted to serious misconduct. 5
- The text messages sent by Mr Strauss to the client of Patrick Projects were critical of Patrick Projects, and amounted to a valid reason for the summary termination of his employment. In doing so, he had breached his obligations arising from his contract of employment. 6
- Mr Strauss’ contact with the client of Patrick Projects was likely to have damaged the relationship between Patrick Projects and its client, and Mr Strauss refused to acknowledge this. 7
- Patrick Projects was entitled to convene a show cause meeting and direct Mr Strauss to attend. Mr Strauss’ refusal to attend the meeting was a refusal to obey a lawful and reasonable direction. 8
[5] The Senior Deputy President considered the other matters she was required to consider under s.387 9. In relation to Mr Strauss’ contention that he was denied procedural fairness, the Senior Deputy president said:
“[76] I have considered the possibility of procedural unfairness arising from the short time between the correspondence from the respondent and the show cause meeting and the fact that the respondent had conducted an investigation without interviewing Mr Strauss or providing him with a copy of the report. Despite these circumstances, the facts surrounding the termination of Mr Strauss’ employment and the details of the allegation of misconduct are such that I am satisfied and find that Mr Strauss’ prospects of providing a satisfactory explanation were so unlikely as to make no difference to the outcome of the meeting.”
[6] The Senior Deputy President, having considered the s.387 matters, ultimately came to the conclusion that Mr Strauss’ application for an unfair dismissal remedy should be dismissed. 10
[7] In the hearing of Mr Strauss’ application for permission to appeal, Mr Strauss represented himself. Patrick Projects applied for permission to be represented by lawyers, which was opposed by Mr Strauss. We decided to grant permission to be represented as we were satisfied that the jurisdictional criterion in s.596(2)(a) was satisfied for three reasons. Firstly, the litigation out of which this appeal arose had been extremely long and complex. Secondly, the factual matrix of the matter itself was also extensive and complex, as exhibited by the size of the appeal book. Thirdly, the legal practitioner the subject of the application for permission, Mr Fletcher, had been granted permission to represent Patrick Projects at first instance and therefore could be presumed to have familiarity with the complexity of the matter. For the same three reasons we considered it appropriate to exercise our discretion to permit Patrick Projects to be legally represented.
[8] Mr Strauss advanced a number of grounds for appeal which can be summarised as follows:
- the Senior Deputy President erred in finding that Patrick Projects was entitled to require Mr Strauss to attend a show cause meeting on a day which would otherwise not have been at work;
- the Senior Deputy President erred in finding that Mr Strauss’ refusal to attend the show cause meeting was a lawful and reasonable direction and was a valid reason for dismissing him;
- the Senior Deputy President erred in finding that the outcome of the show cause meeting would have been the same if Patrick Projects had not engaged in procedurally unfair conduct, namely convening a meeting at very short notice and without first completing a fair investigation into the relevant matters, and placing Mr Strauss in a position where he could not access advice or a support person between the date he was notified of the show cause meeting and the scheduled time for the meeting;
- the Senior Deputy President erred in finding that Patrick Projects afforded Mr Strauss an opportunity to respond to the reasons for which he was dismissed; and
- the Senior Deputy President erred by failing to have regard, or sufficient regard, to the procedure set out in Patrick Projects’ performance management policy.
[9] Mr Strauss also contended that the Senior Deputy President made the following significant errors of fact, in finding that:
- Mr Strauss would not have been able to provide an explanation for his conduct;
- Mr Strauss was not entitled to refuse to attend the show cause meeting; and
- the procedurally unfair conduct of Patrick Projects did not change the outcome of its disciplinary deliberations.
[10] Mr Strauss, in his written submission, contended that the Senior Deputy President made the following specific errors:
- mistakenly concluding that Mr Strauss had attempted to obtain a contract from an existing client of Patrick Projects;
- mistakenly concluding that he had made derogatory remarks about Patrick Projects to its client;
- mistakenly concluding that he failed to attend a meeting to discuss these issues;
- mistakenly concluding that taken as a whole, Mr Strauss’ conduct constituted serious misconduct, providing a valid reason for the termination of his employment; and
- mistakenly concluding that an offer of employment by Patrick Projects referred to the Agreement and the Deed.
[11] Mr Strauss argued that it would be in the public interest for the Commission to grant permission to appeal because the Decision undermined the statutory intention to ensure that dismissals are both procedurally and substantively fair, and because the Decision undermined the principle that employers should follow their own rules particularly when they represent to employees that they will follow those rules.
[12] Mr Strauss also submitted that the public interest was attracted because the Senior Deputy President had made many errors of fact that were significant and should be corrected, the Decision was an unjust decision, and that the Senior Deputy President had changed the administrative arrangements as to how she would conduct the hearing without sufficient notice to Mr Strauss, thereby prejudicing his ability to properly present a significant aspect of his case.
Consideration
[13] 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. 11 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[14] 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.
[15] 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”. 12 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment13. 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.” 14
[16] 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. 15 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.16
[17] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 17
[18] We have given careful consideration to the issues raised by Mr Strauss. In our view, the matters upon which Mr Strauss relies do not demonstrate any arguable case of appealable error. The evidence that he engaged in the misconduct alleged against him was incontrovertible, since the text messages containing the communications to Mr Hynes of Agility, the business for which Patrick Projects provided stevedoring services, were placed into evidence. For example, on 13 January 2013, Mr Strauss sent to Mr Hynes a message which included the following:
“There have been incidents on site Agility has not been made aware of last weekend and going back to October 2012. These events are documents and there may be evidence Patrick Projects are in breach of legislation, regulations and the Chevron Gorgon Ground Rules. If this were the case Agility may have grounds to consider terminating the Patrick Projects contract forthwith. I am sure there is a solution to ensure work on site proceeds without interruption and to the satisfaction of Agility, KJV and Chevron.”
[19] The following day, Mr Strauss sent this text message:
“Hi Scott, How can I find out more about any other options, if Qube is quoting to or against Agility as Patrick is and if Patrick is now damaged beyond recovery? I understand my proposal of teaming with Agility is only one. The next large chunk of the experience will be made redundant shortly. That will then be 50% gone. Some extra knowledge in advance might be useful, Chris.”
[20] Later that day, Mr Hynes texted a reply saying that due to “commercial sensitivity” he could not elaborate further, but he would be in touch if he were advised to “pursue further”. Mr Strauss replied:
“Thanks Scott yes I do appreciate the sensitivity, totally, just trying to manoever [sic] into best position, thanks again.”
[21] Mr Strauss denied attempting to solicit any stevedoring services or any stevedoring business away from Patrick Projects. During the hearing before us, Mr Strauss said his approaches to Agility were in relation to different work from that of his employer. However on 15 January 2014 he sent the following message to Mr Hynes:
“Hi Scott, just letting you know we are now considering conversion of our informal concept into a formal approach for the supply and management of stevedoring labour, Christopher”. (emphasis added)
[22] The explanation provided by Mr Strauss for this text message during hearing before us was that it was “just a thought process” and no stevedoring proposal was actually made to Agility. In our view, the Senior Deputy President was clearly correct to conclude that Mr Strauss did attempt to solicit stevedoring services away from Patrick Projects.
[23] The Senior Deputy President’s decision contains a detailed and comprehensive consideration of the evidence, submissions and the application of the FW Act. No error on any serious question of fact is apparent. We consider that the inferences drawn and conclusions reached were reasonably available to her. Mr Strauss’ contention that he was denied procedural fairness was ultimately dealt with in paragraph [76] of the Decision, earlier set out, in a manner which was also reasonably open to the Senior Deputy President. There does not appear to us to be anything irregular in her approach. The appeal is effectively a statement of dissatisfaction with the conclusions and findings of the Senior Deputy President.
[24] This matter turned on its particular facts. No general issue of law or principle is raised by the appeal. The public interest is not enlivened by dissatisfaction with an outcome where there is no arguable case of appealable error. None of the matters on which the Appellant relies as public interest grounds persuade us that the public interest is enlivened. We are not satisfied that it would be in the public interest to grant permission to appeal, and accordingly permission is refused as required by s.400(1) of the FW Act.
VICE PRESIDENT
Appearances:
C. Strauss on his own behalf.
D. Fletcher on behalf of Patrick Projects Pty Ltd.
Hearing details:
2017.
Sydney:
29 May.
1 [2017] FWC 1574
2 Decision at [70]-[72], [78]-[79]
3 Decision at [68]
4 Decision at [69]
5 Decision at [70]
6 Decision at [71]
7 Decision at [72]
8 Decision at [73]
9 Decision at [80]-[86]
10 Decision at [115]
11 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
12 (2011) 192 FCR 78 at [43]
13 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]
14 [2010] FWAFB 5343, 197 IR 266 at [27]
15 Wan v AIRC (2001) 116 FCR 481 at [30]
16 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 388, 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]
17 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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