Club Assist Pty Ltd v Yen Yap
[2022] FWCFB 175
•15 SEPTEMBER 2022
| [2022] FWCFB 175 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Club Assist Pty Ltd
v
Yen Yap
(C2022/5155)
| VICE PRESIDENT CATANZARITI | SYDNEY, 15 SEPTEMBER 2022 |
Appeal against decision [2022] FWC 520 and order PR743594 of Deputy President Boyce at Sydney on 8 July 2022 in matter number U2021/9643 – permission to appeal refused.
Club Assist Pty Ltd (Club Assist) seeks permission to appeal and if granted, appeals a decision[1] and order[2] of Deputy President Boyce dated 8 July 2022.
The Deputy President determined that Mr Yen Yap had been unfairly dismissed by Club Assist within the meaning of s 385 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President issued an order that Mr Yap be reinstated to the position in which he was employed immediately before the dismissal; that his continuity of service be maintained; and that Club Assist pay Mr Yap an amount representing remuneration lost because of the dismissal, including superannuation.[3]
Club Assist seeks leave to appeal solely with respect to the Deputy President’s conclusion that reinstatement was not inappropriate (reinstatement conclusion).
Club Assist sought a stay of the decision and order pending the hearing and determination of the appeal. The stay application was granted[4] and an order made[5] on 27 July 2022.
For the reasons that follow, permission to appeal is refused.
Background
Club Assist conducts a roadside repair service. It provides roadside assistance services to motorists, and specialises in the storage, distribution, and installation of car batteries in vehicles.[6]
Club Assist’s business is organised around “hubs.”[7] It employs Technical Roadside Responders (TRR) and Non-Technical Roadside Responders (NTRR) who travel from the hubs to provide roadside services to customers in surrounding areas.[8] TRR’s have more responsibilities than NTRR’s, such as battery replacement, changing tyres or assisting members to access their vehicle, but do not perform the functions of a mechanic.[9]
Mr Yap is 61 years of age. He is a qualified motor mechanic.[10] He commenced employment with Club Assist on 27 November 2017 as an NTRR and was appointed as a TRR on and from 4 April 2018.[11] Mr Yap was one of four TRR’s based at Club Assist’s Chatswood hub.[12]
In late May 2020, Mr Yap was placed on a coaching and performance improvement plan which required him to meet specific key performance indicators.[13] Mr Yap was advised that a failure to meet the performance expectations may result in his employment being terminated.[14]
Mr Yap attended monthly meetings with his manager, Mr Matthew Ashton, to track his performance against the terms of the improvement plan.[15] Mr Ashton has since left the employ of Club Assist and did not participate in the proceedings.[16] Club Assist, primarily through Mr Ashton, produced performance reports at each of these meetings, which were put to Mr Yap for signature.[17] Mr Kinsella, Club Assist’s General Manager for New South Wales and the Australian Capital Territory,[18] was provided with copies of Mr Yap’s performance reports.[19]
On 2 October 2020, Mr Yap was issued with a warning for failing to meet his performance expectations. The warning put Mr Yap on notice that his employment was at risk of being terminated.[20]
Following a series of meetings,[21] on 30 August 2021 Club Assist issued Mr Yap with a show cause letter.[22] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) provided a response to the show cause letter on 17 September 2021 on Mr Yap’s behalf.[23] An internal memorandum dated 30 September 2021 prepared by Club Assist’s Senior Human Resources Business Partner recommended that Mr Yap’s employment be terminated.[24]
Mr Yap was dismissed by Club Assist on 12 October 2021.[25]
The Decision
The Deputy President set out the factual background to the application, noting that while the parties were in contest over the evidence in relation to Mr Yap’s performance, they agreed on a number of issues.[26] Following the resolution of various initial matters,[27] the Deputy President turned to consider the matters in s.387(a) to (h) of the Act. Noting that these matters are not challenged on appeal, the Deputy President concluded that:
(a) there was no valid reason for Mr Yap’s dismissal related to his capacity or conduct;[28]
(b) the criteria at ss.387(b), (c) and (d) were neutral considerations;[29]
(c) Mr Yap was not warned about unsatisfactory performance before the dismissal;[30]
(d) the criteria at ss/387(f) and (g) were neutral considerations;[31] and
(e) the lack of any prior disciplinary action taken against Mr Yap, the financial impact upon him, Mr Yap’s age, the proportionality of dismissal as a sanction and Mr Yap’s otherwise positive job performance, commitment, and diligence in performing work weighed in favour of a finding that the dismissal was harsh.[32]
The Deputy President concluded that Mr Yap’s dismissal was unfair.[33]
The Deputy President turned to consider the issue of remedy. The analysis commenced with the Deputy President noting that Mr Yap desired to return to work with Club Assist on the basis that he “loved his job and [Club Assist’s] assertions that there is a loss of trust and confidence “is not soundly or rationally based.”[34] The Deputy President observed that Club Assist strongly opposed reinstatement on the basis that the relationship was no longer viable and productive as a result of the animosity between Mr Yap and Club Assist.[35]
The Deputy President set out ss.390-391 of the Act,[36] and a passage from the Full Bench in Nguyen v Vietnamese Community in Australia[37] which observed that there is no right to reinstatement, but rather that reinstatement is a discretionary remedy granted by the Commission if satisfied that it is appropriate.[38]
The Deputy President then addressed the evidence of Mr Kinsella as it related to the potential for Mr Yap’s reinstatement. The Deputy President first extracted paragraphs [127]-[132] of Mr Kinsella’s witness statement.[39] That evidence is, in summary:s:
(a) Mr Kinsella’s view, which was largely based off Mr Yap’s performance reports over two years, is that he had no trust or confidence in Mr Yap, that Mr Yap could not perform the TRR role, and that Mr Yap had no desire to improve such that reinstatement should not be granted;[40]
(b) Mr Kinsella felt deeply troubled by Mr Yap’s attitude, considering him to be “rude and belligerent” towards his manager, and that his poor attitude, thinly veiled threats and rude comments have further irreparably damaged the relationship between Club Assist and Mr Yap;[41] and
(c) Mr Kinsella observed that achievement of KPI’s were essential to Club Assist maintaining a key contract.[42]
The Deputy President then extracted Mr Kinsella’s oral evidence during the proceedings as it related to the question of remedy.[43] Relevantly, this evidence involved Mr Kinsella affirming his concern in respect of Mr Yap’s performance, expressing his concern over Mr Yap’s attitude which Mr Kinsella found to be “belligerent and rather hostile,” and referring to “the trust relationship” being irrevocably broken such that reinstatement was inappropriate. Mr Kinsella also said the following with respect to reinstatement:
“…the role itself in that area that it was in has actually now been replaced over the past couple of months, so even if we were to be able to consider to reinstate that it would not be anywhere near, and when I say nowhere near, it would probably require at least a two hour drive to get to the nearest location.”[44]
The Deputy President noted that Mr Kinsella made two key concessions during cross examination. Firstly, Mr Kinsella had only met Mr Yap personally two or three times, and secondly, Mr Kinsella had never discussed with Mr Yap the KPI’s or Mr Yap’s state of mind as it pertained to working with Club Assist.[45] The Deputy President concluded that Mr Kinsella’s assessment of Mr Yap’s character and performance was based solely of a review of the “KPI sheets” and the feedback obtained from Mr Yap’s former manager, Mr Ashton.[46]
The Deputy President then extracted paragraphs [75]-[79] of Club Assist’s closing submissions in relation to remedy.[47] In short, Club Assist submitted that Mr Yap should not be reinstated as there has been a loss of trust and confidence to the point where the relationship could not be viable and productive. In support of this submission, Club Assist referred to the evidence of Ms Denise Scully, Senior Human Resources Business Partner for Club Assist,[48] who believed Mr Yap to be unhappy in his employment with Club Assist. The submissions also referred to the evidence of Mr Kinsella in respect of his concern that the relationship was irrevocably broken. Paragraph [79] of Club Assist’s submissions then provide as follows:
79. Further, Mr Kinsella explained that the Applicant’s role has in any event been replaced, and there are no similar jobs available within the Respondent’s business within two hours of the hub the Applicant was previously based out of.
The Deputy President proceeded by setting out paragraphs [56]-[59] of Mr Yap’s closing submissions in relation to remedy.[49] It was contended by Mr Yap that no weight should be given to Mr Kinsella’s opinion as to whether Club Assist could re-establish trust and confidence with Mr Yap in circumstances where (a) Mr Kinsella had communicated with Mr Yap on only two occasions, (b) Mr Kinsella did not supervise Mr Yap in his work or work from the same location, and (c) Mr Kinsella would not manage Mr Yap upon any reinstatement. It was submitted that the asserted loss of trust and confidence should be attributed no weight in circumstances where Mr Yap’s evidence was that he loved his job and wanted to return to it.
Mr Yap made further submissions in relation to remedy in his closing submissions in reply. The Deputy President extracted paragraphs [61]-[66] of these submissions which are responsive to Club Assist’s closing submissions (referred to as RCS in the extract that follows).[50] Relevantly, Mr Yap submitted:
64. RCS [79] should be rejected. The fact that Club Assist may have replaced Mr Yap is not a barrier to reinstatement. This is an irrelevant consideration in determining whether reinstatement is appropriate and the Commission should make an order under s 391(1)(a) reappointing Mr Yap to his previous position. There is no evidence that the position no longer exists or has been made redundant.
Having extracted the parties’ relevant submissions, the Deputy President posed the question, “Is reinstatement appropriate?” The Deputy President stated that Club Assist’s case as to reinstatement being inappropriate “essentially hinges upon an asserted loss of trust and confidence” based on Mr Yap’s attitude towards his former manager, Mr Ashton and Mr Yap’s repeated failure to meet certain KPIs, which Club Assist says is highly likely to continue despite Mr Yap’s assertions otherwise.[51]
The Deputy President set out the propositions from Nguyen relevant to the assessment of an asserted loss of trust and confidence when considering the appropriateness of a reinstatement order.[52] The Deputy President then stated:
“[h]aving considered the evidence and submissions of the parties, I do not consider that reinstatement of the Applicant is inappropriate, for the following reasons…”
The Deputy President’s reasons at [77] of the decision address the contention that there had been a breakdown of trust and confidence between the parties. The Deputy President concluded that “a sufficient level of trust and confidence can be restored between the parties to make their relationship viable and productive going forward.” [53]
Appeal grounds
By its notice of appeal, Club Assist seeks to challenge the Deputy President’s “reinstatement conclusion,” that is, the finding that Mr Yap’s reinstatement was not inappropriate. Club Assist advances three grounds of appeal, which contend that the Deputy President erred in the following way:[54]
1. In concluding that reinstatement was not inappropriate, the Deputy President failed to consider, or gave manifestly inadequate weight to the evidence that:
(a)Mr Yap’s role at the Chatswood hub had been replaced, and the only TRR role available into which Mr Yap could be reinstated would require at least a two-hour drive to the nearest location;
(b)Mr Yap had commenced working another full-time job as a vehicle delivery coordinator; and
(c)Mr Yap “did make the statements attributed to him in Mr. Ashton’s notations on CAPP meeting and KPI catch up sheets.”
2. In concluding that reinstatement was not inappropriate, the Deputy President failed to give sufficient (or any) weight to Club Assist’s submission that Mr Yap’s role at the Chatswood hub had been replaced.
3. In concluding that reinstatement was not inappropriate, the Deputy President reached an unreasonable or plainly unjust outcome. In support of this ground, Club Assist relies upon the following matters:
(a)Mr Kinsella gave uncontested evidence as to the matters referred to at ground 1(a) above;
(b)Mr Yap gave uncontested evidence as to the matters referred to at ground 1(b) above;
(c)the Deputy President gave disproportionate weight to the fact that Mr Ashton no longer worked for Club Assist, and Mr Yap would not be working with or directly reporting to Mr Kinsella upon any reinstatement; and
(d)there are significant practical issues associated with compliance with the Orders, as there is no available TRR role into which Mr Yap can be reinstated, the nearest alternative hub would necessitate a two-hour drive, and Mr Yap has commenced alternative employment.
Club Assist submits in its notice of appeal that the grant of permission to appeal would be in the public interest. Club Assist’s position is that the appeal grounds demonstrate a failure by the Deputy President to take into account material considerations and therefore a failure to properly exercise his discretion to make a reinstatement order. It is also submitted that the Orders cannot practically be complied with. Further, Club Assist contends that the appeal grounds raise general matters of importance concerning the correct approach to the assessment of whether reinstatement is “not inappropriate” pursuant to s.390(3) of the Act. Finally, Club Assist says that the reinstatement conclusion and Orders are attended by sufficient doubt to warrant their reconsideration.[55]
Mr Yap submits, in summary, that permission to appeal ought not be granted. Mr Yap says that the appeal, which relates to a discretionary decision concerning the appropriateness of reinstatement, does not raise any matters sufficient to attract the public interest.
Nature of the appeal
An appeal under s.604 of the 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.[56] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies.[57] 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.
The Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others[58] 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.[59] 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.”[60]
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.[61] 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.[62]
As the appeal concerns the Deputy President’s decision to reinstate Mr Yap to his position with Club Assist, it is appropriate that we make some preliminary observations about the nature of the statutory power exercised by the Deputy President as it relates to remedy.
In circumstances where a finding has been made that a person (1) is protected from unfair dismissal, and (2) has been unfairly dismissed, s.390(1) of the Act affords the Commission a broad discretionary power to award the remedy of reinstatement. Section 390(3) provides that the Commission must not order the payment of compensation to a person unless the Commission is satisfied that reinstatement is “inappropriate.” The assessment of whether something is appropriate or otherwise necessarily involves the exercise of a broad evaluative judgment.[63]
Consistent with the object stated in s.381(1)(c) of the Act, reinstatement is regarded to be the primary remedy under Part 3-2. This is because reinstatement must be considered and rejected as inappropriate before consideration may be given to the alternative remedy of monetary compensation. However, it does not follow that a reinstatement order is an automatic consequence of a finding that a dismissal was unfair. The relevant question is whether reinstatement is appropriate in the particular case.[64]
Having regard to these matters, it is necessary for Club Assist to demonstrate that in the Deputy President’s exercise of a broad discretionary power, the Commissioner erred by determining that reinstatement of Mr Yap was not inappropriate. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.[65] The High Court in House v R identified the two categories of error that may be made in this type of decision-making process. The first is where a decision maker “acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration.” The second type of error arises where “it may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”[66]
We now turn to consider Club Assist’s grounds of appeal.
Consideration
Appeal grounds (1)(a) and 2
We intend to deal with appeal grounds 1(a) and 2 concurrently. Each of these grounds allege error in relation to the Deputy President’s approach to Club Assist’s evidence and submission that Mr Yap’s role at the Chatswood hub had been replaced.
Club Assist contends that Mr Kinsella gave uncontested evidence that Mr Yap’s role at the Chatswood hub had been replaced and the only TRR role available to which Mr Yap could be reinstated was at least a two-hour drive from the Chatswood hub. Club Assist submits that this is a material consideration which it referred to in its closing submissions. It says that the issue warranted proper and genuine consideration by the Deputy President. However, Club Assist contends that Mr Kinsella’s evidence, and Club Assist’s submission in respect of it, were not considered by the Deputy President in the decision at all or were otherwise given insufficient weight.
Club Assist submits that the Deputy President simply restated its submission regarding the replacement of the role. Club Assist’s position is that this does not equate to consideration of the issue. We accept that the Deputy President approached his consideration of remedy by selectively extracting the parties’ respective submissions. However, it is not contended that in doing so, the Deputy President omitted a relevant submission. Rather, the criticism is that the Deputy President did not “grapple with” Mr Kinsella’s evidence in the sense that he did not address why he did not accept that the replacement of the position rendered reinstatement inappropriate, and nor did he deal with the submission at all. However, for the reasons that follow, we are not persuaded that the Deputy President erred in either manner contended.
We accept that the Deputy President did not refer to the evidence given by Mr Kinsella that the closest TRR role in which Mr Yap could be replaced was at least a two-hour drive from the Chatswood hub. In Soliman v University of Technology, Sydney[67] it was said that “there is no requirement that a decision-maker need refer to every piece of evidence and every submission which may be advanced for resolution.”[68] It is trite to observe that not every submission and piece of evidence is of equal relevance to a decision. The factual and statutory context and the parties’ contentions may mean that express consideration of certain submissions or evidence is necessary to avoid creating an inference that relevant matters were not taken into account.
In the context of reinstatement under s.390(3)(a), which prohibits an award of compensation unless the Commission is satisfied that reinstatement is “inappropriate,” the statutory task is to consider whether reinstatement of the person is appropriate.[69] We accept that consideration of the remedy of reinstatement must always take into account the circumstances which have pertained since the dismissal took effect.[70] Notwithstanding this, not every post-dismissal fact will bear upon the broad discretionary assessment to such a degree that it requires express consideration in a decision-maker’s reasons.
It is not in dispute that the mere fact an employer has filled the position previously occupied by the dismissed employee may be a matter that would rarely, of itself, justify a conclusion that reinstatement is inappropriate.[71] This is because it will often, if not “typically” be the case that an applicant’s position will be replaced prior to the determination of any remedy in an unfair dismissal application. The remedial purpose of the legislation would be undermined if this were a determinative reason for concluding that an order for reinstatement is not appropriate.[72]
The fact that an applicant’s position is no longer vacant at the time an unfair dismissal application is arbitrated does not, without more, bear so significantly upon the assessment of the appropriateness of reinstatement so as to require its express consideration in a statement of reasons. In our view, for such a requirement to arise the evidence or associated submissions must go further and demonstrate why the replacement of the role bears upon a particular case for reinstatement – that is, with reference to the appropriateness of such an order.
Mr Kinsella’s evidence was that because the TRR role at the Chatswood hub had been replaced, the only available TRR position would be at least a two-hour drive from the Chatswood hub. The submission said to have been overlooked by the Deputy President was in full as follows:
“Further, Mr Kinsella explained that the Applicant’s role has in any event been replaced, and there are no similar jobs available within the Respondent’s business within two hours of the hub the Applicant was previously based out of.”[73]
We accept that the Deputy President simply extracted this submission in the decision and did not otherwise expressly deal with it. However, the submission is no more than a recitation of the evidence. Club Assist, by its closing submissions, did not attempt to explain how the role replacement and the distance to the nearest similar role weighed upon the appropriateness of reinstatement. The submission merely brought the evidence to the Deputy President’s attention but did not seek that the Deputy President resolve any particular contention in respect of it.
Mr Kinsella does not give evidence that reinstating Mr Yap would (a) require Club Assist to terminate another employee’s employment, or (b) have an adverse impact on operations, or (c) cost the company in any way, or (d) otherwise give rise to a matter pertaining to the appropriateness of reinstatement. Rather, the factual context in which the statement was made supports the inference that the Deputy President considered the evidence to be of such little weight that it did not require express consideration in his reasons.
Mr Kinsella’s evidence was that there was a TRR role available into which Mr Yap could be reinstated, and that there are around six such roles in the North Eastern Sydney region.[74] Mr Kinsella did not otherwise dispute Mr Yap’s evidence as to the various hubs and the number of TRR employees working in them.[75] Regardless of the veracity of Mr Yap’s evidence in this respect, it is apparent that the respondent operates a number of hubs in the Sydney Metro region.
Pursuant to Mr Yap’s contract of employment, the location of Mr Yap’s work was the Sydney Metro region:[76]
“Your locality of work will be Sydney Metro. Within this locality, your designated start and finish point will be outlined on your rosters. Your rosters will be posted at least two (2) weeks in advance.…”
The contract does not otherwise refer to Mr Yap being employed to work as a TRR at the Chatswood hub only. It follows that Mr Kinsella’s evidence does not directly bear upon the appropriateness of Mr Yap’s reinstatement to “to the position in which he was employed immediately before his dismissal, namely TRR roadside patrol officer.”[77]
At its highest, Mr Kinsella’s evidence might be said to give rise to an inference that Mr Yap or Club Assist would be inconvenienced if Mr Yap were reinstated, as it would require some movement of employees on Club Assist’s part or more commuting time by Mr Yap. This would be a matter internal to Club Assist’s operations and its arrangements with Mr Yap, and Club Assist does not submit that its operations would be impacted by a reinstatement order. Further, the making of any inference would be a matter for the Deputy President in the exercise of his fact-finding function. This is because no relevant argument was put to him in the submissions and the evidence alone does not establish an inference which a rational decision maker would be expected to have made.
We observe that Mr Yap, by his closing submissions in reply at first instance, made a short submission noting that the evidence of Mr Kinsella that the role had been replaced was irrelevant because “[t]here is no evidence that the position no longer exists or has been made redundant.”[78] The Deputy President extracted this submission. That this submission was before the Deputy President supports the inference that Deputy President did not regard the role being replaced to be sufficiently relevant, such that it was immaterial for him to deal with it further.[79]
We therefore accept Mr Yap’s submission that it is sufficiently clear, on a fair reading of the decision, that the Deputy President considered that the role replacement evidence was outweighed by countervailing factors and in particular, the matters addressed at [77] of the decision.
We dismiss appeal grounds 1(a) and 2.
Appeal ground 1(b)
By appeal ground 1(b), Club Assist contends that the Deputy President failed to consider, or otherwise gave manifestly inadequate weight to the evidence that Mr Yap had commenced working another full-time job as a vehicle delivery coordinator.
The contention is framed on the proposition that Mr Yap having obtained alternative employment is a relevant post-dismissal circumstance that should be taken into account.[80]
In support of the contention, Club Assist relies on the Full Bench decision in Seitz v Ironbay Pty Ltd (t/a City Beach IGA) (Seitz),[81] which reasoned that, in assessing whether reinstatement is an appropriate remedy, “it is obviously relevant as to whether the dismissed employee has obtained alternative employment.”[82] The context of this proposition is important. In Seitz, the applicant sought only monetary compensation as a remedy for his unfair dismissal. Notwithstanding the applicant’s desired remedy, the decision-maker at first instance found that reinstatement was appropriate and ordered the applicant be reinstated without backpay. The applicant appealed the order. The Full Bench considered that the first instance decision-maker, amongst other things, failed to take into account that the applicant had obtained alternative employment. The Full Bench continued:[83]
“…Where that new employment is satisfactory to the employee, it will be no remedy at all to reinstate the employee to the pre-dismissal employment to which the employee, for well-founded reasons, has no desire to return. It may be accepted that the fact that an applicant employee does not seek the remedy of reinstatement does not, by itself, necessarily make the grant of reinstatement as a remedy inappropriate. The primacy of the remedy of reinstatement in the sense discussed in Nguyen requires consideration of the appropriateness of reinstatement whether the applicant seeks it or not. However the matters identified above which the Deputy President failed to take into account all strongly tend to demonstrate that reinstatement in this case was inappropriate.”
The factual context of the present appeal is entirely different. Mr Yap did not contend that reinstatement was inappropriate as he had obtained alternative, preferable employment such that it would be “no remedy at all” to order accordingly. Conversely, Mr Yap sought reinstatement since making his unfair dismissal application, identified a significant reduction to his wages in his alternative employment,[84] and gave evidence of the personal reasons underpinning his desire to return to work at Club Assist, including his friendships and job satisfaction.[85]
Importantly, no submissions were put to the Deputy President by Club Assist addressing how Mr Yap’s alternative employment should weigh upon the assessment of whether reinstatement was appropriate. Regardless of whether it could be contended by an employer that an employee having obtained alternative employment should weigh against them when seeking reinstatement,[86] that contention was never put to the Deputy President.
Club Assist’s contention is that the evidence existed and the Deputy President’s failure to expressly address it in his reasons led him into error. As noted above at [43], not every post-dismissal fact will bear upon the broad discretionary assessment of whether reinstatement is appropriate to such a degree that it requires express consideration in a decision-maker’s reasons to avoid the decision being attended by error. Certainly, it is not clear how and why the matter is so relevant to the assessment of remedy in the particular circumstances of Mr Yap’s application that it warrants express consideration in the decision.
On appeal, Club Assist submits that the passage in Seitz establishes a test which considers whether the alternative employment is “satisfactory” to the employee, and not whether the employee “preferred” one job over another.[87] We consider there to be no practical difference between whether alternative employment is satisfactory to the employee and whether it is preferable to the employee. In any event, the alternative employment is, for the reasons at [59], not satisfactory to Mr Yap.
We consider that the Deputy President afforded the fact that Mr Yap obtained alternative employment no weight in his assessment of whether reinstatement was appropriate. In the circumstances, we consider that it was open to him to do so.
We dismiss appeal ground 1(b).
Appeal ground 1(c)
Appeal ground 1(c) concerns the evidence of the statements made by Mr Yap as recorded on Mr Ashton’s notations on CAPP meeting and KPI catch-up sheets. Club Assist contends that the Deputy President failed to take into account or give sufficient weight to the statements made by Mr Yap and the effect of the statements on the relationship of trust and confidence. By its written submissions, Club Assist also contends that the Deputy President erred in the exercise of his discretion by giving disproportionate weight to the absence of formal counselling in relation to Mr Yap’s statements in circumstances where Mr Yap had received informal counselling.[88]
Club Assist’s submissions in support of this contention may be summarised as follows:[89]
(a) The Deputy President found that as Mr Yap was not (formally) counselled or warned about the statements, and as they were not mentioned in the termination show cause letter or the termination letter, they did not render reinstatement inappropriate;
(b) this finding was an irrelevant consideration and given disproportionate weight in circumstances where:
a. in making the decision to dismiss Mr Yap, Club Assist took into account and considered it to be of particular concern that he had shown repeated disrespect to his manager;
b. Club Assist was deeply troubled by the attitude displayed by Mr Yap during his employment, such that it considered the trust and confidence between the parties was broken beyond repair; and
c. there was evidence before the Deputy President that Mr Yap had in fact been informally counselled in respect of his attitude, including by Club Assist’s Senior Support Manager who had asked him to “have some respect” for his manager and refrain from making such comments;
(c) the Deputy President did not consider the evidence of informal counselling; and
(d) the Deputy President considered that the absence of formal warnings was of such significance that it caused him to depart from a preliminary view expressed at the commencement of the hearing that it appeared the parties had ongoing animosity.
The passage of concern in the decision is as follows:
“[77](a) …Whilst I am prepared to find that the Applicant did make the statements attributed to him in Mr Ashton’s notations on CAPP meeting and KPI catch-up sheets, such statements have been regularly made by the Applicant on an on-going basis since July 2020. None of the statements have resulted in the Applicant being counselled or warned, and they were not mentioned in the Show Cause Letter or the Termination Letter. I therefore do not consider that these statements are such that they, in and of themselves, make reinstatement inappropriate, or give rise to any clear conclusion that the employment relationship is no longer viable. Further, nearly all of the statements (of concern to the Respondent) were made to or towards Mr Ashton (who no longer works at the Respondent).”
We accept that the Deputy President’s characterisation of the evidence as it relates to Mr Yap not being counselled about the statements is erroneous. As submitted by Club Assist, there was evidence of some informal counselling. That evidence was recorded in the following email from Mr Mark Richards, Senior Service Support Manager at Club Assist:[90]
“As discussed, I have spoken to Yen Yap a few moments ago and he does not want to pursue this matter any further as advised by his informant to which he could not state.
I have advised him to refrain from any text messages or emails as per below where is requesting a payout as such.
I have advised him to have some respect for his manager and follow the process be it 1 on 1’s or any assistance Mat Asht0on [sic] may offer to improve his performance.
He replied it’s a free country and if I want to stop him saying that I can put it in writing and send it to his union.
I said I will not be doing such thing and that’s a matter he will need to take up with his union.
I have reminded him record of this conversation will be placed in his personal file.”
We do not consider that this was an error of significance such that it would found the grant of permission to appeal. This is so because the evidence of the “counselling” is indirect. The evidence establishes only that a conversation between senior management and Mr Yap had occurred and that in that conversation Mr Yap was advised to refrain from sending messages of the kind and to have respect for his manager. Mr Yap was not warned of the consequences of the statements or in respect of his conduct more generally. Indeed, there is no direct evidence of any warnings or counselling in relation to the statements, such that the error is one of characterisation and is not wholly incorrect or significant.
Further, the Deputy President’s process of reasoning as it pertained to the relationship between the parties, and the appropriateness of reinstatement more generally, does not entirely turn upon the absence of formal counselling in relation to the statements.
As Club Assist concedes, the Deputy President accepted that Mr Yap made the statements at [77](a) of the decision.[91] The Deputy President’s consideration as to the appropriateness of reinstatement was therefore made against the effect of Mr Yap’s comments. Importantly, after accepting that Mr Yap had made the statements, the Deputy President engaged in a process of reasoning to assist in attributing weight to those statements in his consideration of whether reinstatement was inappropriate, with specific consideration of the relationship between the parties. Further to the reasoning with respect the absence of any evidence of Mr Yap being counselled, which we have accepted was an incorrect characterisation of the evidence, the Deputy President reasoned that the statements:[92]
(a) had not resulted in Mr Yap being warned about his conduct;
(b) were not mentioned in the show cause letter or the termination letter; and
(c) were nearly all made to or towards Mr Ashton (who no longer works for Club Assist).
The Deputy President concluded that the statements “in and of themselves” did not make reinstatement inappropriate, or “give rise to any clear conclusion that the employment relationship is no longer viable.” It is apparent that the Deputy President considered that the statements were a relevant matter in his assessment of the appropriateness of reinstatement and the relationship between the parties but did not find the statements to be determinative of these issues. In our view, the Deputy President has provided a rational basis for so concluding.
Relevantly, the Deputy President turned to consider other matters, which are in summary as follows:[93]
(a) Mr Kinsella gave the bulk of the evidence in relation to the breakdown in trust and confidence, and Mr Yap would not be working directly with Mr Kinsella;
(b) Mr Ashton has left Club Assist and there is no evidence that the newly appointed manager harbours resentment towards Mr Yap;
(c) there is no evidence Mr Yap’s performance issues caused Club Assist to fail to meet its contractual obligations;
(d) while Mr Yap failed to meet four KPI’s, he met or exceeded a number of others;
(e) each of Club Assist’s TRR patrol officers failed to meet their battery conversion KPI’s between July 2020 and August 2021;
(f) another of the KPI’s Mr Yap failed is not universally applicable to all TRR patrol officers;
(g) Mr Kinsella’s evidence was largely hearsay and so the weight afforded to it was limited, and he was not aware of any complaints about Mr Yap or his work; and
(h) the Deputy President accepted that if reinstated Mr Yap would do his best for Club Assist and its customers.
The Deputy President concluded:
“[77](g) …For the reasons set out in (a) to (f) above, I consider that a sufficient level of trust and confidence can be restored between the parties to make their relationship viable and productive going forward if the Applicant is reinstated.”
The reasoning process engaged in by the Deputy President reveals that the Deputy President considered that the statements, or the effect of the statements, to be a matter which should be taken into account but the material led to the conclusion that reinstatement was appropriate. The issue is therefore one of weight and, in the circumstances, we do not consider that there is a basis for an appeal bench to interfere.
We consider that the Deputy President did not fail to consider, or give inadequate weight, to the effect of the statements on the relationship of trust and confidence. Further, the error identified with respect to the informal counselling given to Mr Yap in relation to his conduct does not establish any error in the process of reasoning adopted by the Deputy President with respect to the relationship between the parties, or otherwise amount to a significant error of fact justifying permission to appeal.
For the reasons stated, appeal ground 1(c) is rejected.
Appeal ground 3
Appeal ground 3 seeks to raise an error of the second type of House v R earlier identified, namely where the outcome is unreasonable or plainly unjust even if no specific error in the reasoning process is discoverable.
In King v Catholic Education Office Diocese of Parramatta,[94] the Full Bench said in relation to the second category of House v R error:[95]
“…It is only where the outcome is demonstrated to be wholly outside the range of outcomes reasonably available to the first instance decision-maker that the “manifest injustice” ground of error will allow an appeal to be upheldwithout specific error being identified. In the unfair dismissal context, if not generally, this will only occur in rare cases.”
Similarly, as discussed at [34]-[37] of this decision, the question of whether reinstatement is appropriate necessarily involves a broad discretionary judgment. It follows that the freedom afforded to a decision maker in considering whether reinstatement is appropriate is substantial.
The matters raised by Club Assist, set out above at [27](3), in totality or individually, do not reveal any error in the exercise of the Deputy President’s discretion so as to take it outside the range of outcomes reasonably available. Each matter is one which was considered by the Deputy President. In light of the considerations in this decision, we consider that the Deputy President afforded weight to those matters in a manner consistent with the jurisdiction conferred upon him and reached a conclusion as to the appropriateness of reinstatement. Even if we considered that a different decision should have been reached, this alone would not be sufficient to justify interference with the Deputy President’s decision as it pertains to remedy.
The specific contention in Club Assist’s written submissions is that the Deputy President reached an illogical outcome, or a result that is unreasonable or plainly unjust. Club Assist stresses the importance of reasons in circumstances where a conditional right of appeal exists.[96] Club Assist’s substantive reasoning as it pertains to ground 3, however, merely makes reference to the other parts of its submissions and the particulars of ground 3 in its notice of appeal. Club Assist does not articulate why the Deputy President’s decision with respect to remedy is illogical or otherwise. We therefore do not consider it necessary to respond to the ground with any greater specificity than we have above.
Club Assist raises an ancillary point that the Deputy President departed from a “preliminary view” as to the ongoing animosity between the parties that he had expressed at the commencement of the hearing.[97] This is entirely irrelevant to this ground and is misleading.
At the commencement of the hearing, the Deputy President asked Mr Yap’s representative “[is] there any appetite at all for a discussion about settlement?”[98] The representatives agreed to have a quick, private discussion regarding settlement. The Deputy President also enquired whether Club Assist’s representative had considered the objections raised by Mr Yap to Club Assist’s evidence.[99] Club Assist’s representative confirmed that there had been little opportunity to review the objections, and would address them at the right time.[100] The Deputy President responded, stating in relation to the settlement discussion as follows:
“…maybe in those discussions, if the matter can’t resolve, that there could be just a quick discussion as to how objections are to be dealt with; whether they are simply to be noted and then left to me for questions of weight, et cetera. Or whether that approach is taken and then there’s some particular areas that either side just can’t live with, or whether we want to go through them effectively one by one or in groups.”[101]
(underlining added)
The Deputy President then confirmed that he had reviewed the materials filed for the hearing, and made some very preliminary observations about the matters raised by the materials in the context of these objections, including that there was “apparent animosity that’s been ongoing and appears that it will be ongoing in the future.”[102] It is readily apparent that the Deputy President was seeking the views of the parties on how best to deal with the objections. The “apparent animosity” between the parties was one matter that was the subject of objections concerning the evidence which sought to establish that fact. Further, significant parts of Club Assist’s case were made on the basis of Mr Yap’s purported animosity.[103]
To suggest that the Deputy President expressed a preliminary view on the relationship of trust and confidence between the parties being tainted by ongoing animosity, in our view, paints an incomplete picture. Rather, the Deputy President made reference to a matter contained in the materials in the course of inviting views as to the appropriate manner of dealing with objections to the evidence. In any event, the Deputy President was undoubtedly entitled to express a preliminary view on the untested evidence at the start of the hearing if he considered there to be some concern with the manner in which the objections were to be dealt with.
Accordingly appeal ground 3 is also rejected.
Conclusion and disposition
As earlier stated, s.400(1) of the Act dictates that we must not grant permission to appeal unless we consider that it is in the public interest to do so. We are not persuaded that any of the matters raised by Club Assist as justifying the grant of permission to appeal enliven the public interest. We are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision manifests an injustice, or that the result is counterintuitive or unjust. The legal principles applied are not disharmonious with other authorities concerning ss.390 and 391 of the Act.
For the reasons stated and having regard to the conclusions reached, we are not satisfied that it is in the public interest to grant permission to appeal. Accordingly, permission to appeal is refused.
It follows that the order made pursuant to the stay[104] is set aside.
VICE PRESIDENT
Appearances:
Ms T Duthie for the Appellant
Mr O Fagir for the Respondent
Hearing details:
6 September 2022, by Microsoft Teams
[1] Yen Yap v Club Assist Pty Ltd[2022] FWC 520
[2] PR743594
[3] Appeal Book 138
[4] [2022] FWC 1976
[5] PR744262
[6] Appeal Book 140 at [6(a)]; 392 at [5]
[7] Appeal Book 141 at [6(e)]; 211 at [6]; 300 at [9]
[8] Appeal Book 140-141 at [6(b) and (e)]
[9] Appeal Book 140 at [6(b)]; 393 at [9]; 300 at [5]
[10] Appeal Book 299 at [1]-[2]
[11] Appeal Book 140 at [6(c)]; 211 at [4]; 300 at [5]; 392 at [6]
[12] Appeal Book 141 at [6(g)]; 211 at [8]; 223 at [20]; 393 at [15]
[13] Appeal Book 141 at [6(h)-(i)]; 302 at [19]; 311-312; 402 at [79]
[14] Appeal Book 313
[15] Appeal Book 141-142 at [6(j)]; 403 at [81]
[16] Appeal Book 403 at [83]
[17] Appeal Book 403 at [81]; 403 at [81]; 511 at [32]
[18] Appeal Book 392 at [1]
[19] Appeal Book 403 at [84]
[20] Appeal Book 142 at [6(k)]; 304 at [26]; 323; 405 at [92]
[21] Appeal Book 406-409 at [95], [96], [97], [98], [99], [100], [102], [103], [104], [105] and [106]
[22] Appeal Book 142 at [6(l)]; 325-326; 410 at [113]
[23] Appeal Book 327-329; 414 at [120]
[24] Appeal Book 389; 414 at [123]; 502; 572
[25] Appeal Book 142-142 at [6(o)]; 304 at [29]; 330; 391, 415 at [125]; 504
[26] Appeal Book 140 at [6]
[27] Appeal Book 143 at [8]
[28] Appeal Book 191 at [38]-[39]
[29] Appeal Book 192 at [42]
[30] Appeal Book 196 at [53]
[31] Appeal Book 197 at [54]
[32] Appeal Book 197 at [57]
[33] Appeal Book 198 at [61]
[34] Appeal Book 198 at [62]-[63]; 258-259 at [56]-[59]
[35] Appeal Book 198 at [62]-[63]; 270 at [75]-[79]
[36] Appeal Book 198-200 at [64]
[37] [2014] FWCFB 7198
[38] Appeal Book 200 at [66] citing Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 at [35]
[39] Appeal Book 200-201 at [67]; see also 415-416 at [127]-[132]
[40] Appeal Book 201 at [67]; 415-416 at [127]-[128] and [131]
[41] Appeal Book 201 at [67]; 415-516 at [129] and [132]
[42] Appeal Book 201 at [67]; 415-516 at [130]
[43] Appeal Book 201-202 at [68]; see also 76-77 at [479]-[485]
[44] Appeal Book 201-202 at [68]; 76 at [479]
[45] Appeal Book 203 at [69]
[46] Appeal Book 203 at [70]
[47] Appeal Book 203-204 at [72]; see also 270 at [75]-[79]
[48] Appeal Book 352 at [1]
[49] Appeal Book 204 at [73]; see also 258 at [56]
[50] Appeal Book 205-206 at [74]; see also 288-289 at [61]-[66]
[51] Appeal Book 206 at [75]
[52] Appeal Book 206-207 at [76]
[53] Appeal Book 207-208 at [77]
[54] Notice of appeal at [2]
[55] Notice of appeal at [3]
[56] 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] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[57] See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]
[58] (2011) 192 FCR 78 at [43]
[59] 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]
[60] [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[61] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[62] 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]
[63] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194, 99 IR 309 at [19]; Michael Hatwell v Esso Australia Pty Ltd[2019] FWCFB 2895 at [24]
[64] Regional Express Holdings Limited trading as REX Airlines v Richards[2010] FWAFB 8753 at [23]-[24]; Colson v Barwon Health[2014] FWCFB 1949 at [30]-[31]; Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198 at [10] and [35]
[65] House v R (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ
[66] Ibid
[67] (2012) 207 FCR 277; 226 IR 214
[68] Ibid at [41]; Ross Kennedy v Qantas Ground Services Pty Ltd[2020] FWCFB 394 at [23]; Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178.
[69] Michael Hatwell v Esso Australia Pty Ltd t/a Esso[2019] FWCFB 2895 at [24]
[70] Appellant’s submissions on appeal at [6]
[71] Ibid at [11]
[72] Smith v Moore Paragon Australia Ltd [2004] AIRC 57 at [15]
[73] Appeal Book 270 at [79]
[74] Appeal Book 393 at [15]
[75] Appeal Book 300 at [9]
[76] Appeal Book 374
[77] Appeal Book 138
[78] Appeal Book 289 at [64]
[79] The Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd[2016] FWCFB 1151 at [34]
[80] Appellant’s submissions at [17]
[81] [2018] FWCFB 1341, (2018) 274 IR 303
[82] Ibid at [24]
[83] Ibid
[84] Appeal Book 309 at [54]
[85] Appeal Book 310 at [56]
[86] Cf Appellant’s submissions at [19]
[87] Appellant's submissions at [18]
[88] Appellant’s submissions at [30] and [32]
[89] Appellant’s submissions at [30]-[32]
[90] Appeal Book 480
[91] Appellant’s submissions at [29]
[92] Appeal Book 207 at [77](a)
[93] Appeal Book 207-208 at [77](a)-(f)
[94] [2014] FWCFB 2194
[95] Ibid at [41]
[96] Appellant’s submissions at [35]
[97] Appellant’s submissions at [37]
[98] Appeal Book 33 at [5]
[99] Appeal Book 33 at [10]; cf Appeal Book 553-554; NB, objections similarly raised by the applicant, Appeal Book 555
[100] Appal Book 33 at [11]
[101] Appeal Book 33-34 at [12]
[102] Appeal Book 34 at [12]
[103] Appeal Book 270 at [71] an [76]
[104] PR744262
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