Cornwall v Electus Distribution Pty Ltd T/A Jaycar Electronics
[2015] FWCFB 2568
•17 APRIL 2015
| [2015] FWCFB 2568 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Electus Distribution Pty Ltd T/A Jaycar Electronics
(C2015/2147)
VICE PRESIDENT CATANZARITI | SYDNEY, 17 APRIL 2015 |
Appeal against decision [2015] FWC 1266 of Commissioner Cloghan at Perth on 12 March 2015 in matter number U2014/6143 - no appealable error - public interest not enlivened - permission to appeal refused.
[1] Mr John Alfred Cornwall (the Appellant) was dismissed from his employment with Electus Distribution Pty Ltd T/A Jaycar Electronics (the Respondent) on 11 March 2014 and 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 12 March 2015, Commissioner Cloghan issued a decision in relation to the Appellant’s application. 1 In that decision, the Commissioner found that the Appellant’s dismissal was not unfair pursuant to s.387 of the FW Act, 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 Fair Work Commission (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, 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] The factual matrix of this matter involves the Appellant being dismissed in circumstances where the Respondent found that the Appellant’s performance standards were below the Respondent’s standards. Having issued multiple warnings and engaged in performance counselling with him in the 12 months preceding his dismissal, the Appellant was informed in a meeting on 11 March 2014 that his employment was terminated and the reason for that decision. He received a letter on the following day which confirmed the reasons for his dismissal. The Appellant made a number of allegations in response, including that he was bullied, refused leave, overworked, suffered from depression and that management was not aware of the circumstances leading to his underperformance when making the decision to terminate his employment.
[7] In the decision under appeal, the Commissioner found that there was a valid reason for the Appellant’s dismissal and made the following findings in relation to his unsatisfactory performance and the Respondent’s process:
“[58] I find that the Employer assessed Mr Cornwall’s performance shortcomings sufficient to warrant formal action. In the 12 months leading up to Mr Cornwall’s dismissal, this was the subject to two formal warnings and a final written warning. I find that Mr Cornwall was sufficiently advised of his shortcomings and the Employer worked with him to improve the situation. I am satisfied that the Applicant understood what was required, his performance was subject to review and that if his performance did not improve, it would lead to further disciplinary action.
[59] In short, I find the Employer’s procedure fair and transparent.”
[8] Importantly, the Commissioner went on to say:
“[63] During Mr Cornwall’s period of employment, he submitted that he suffered from adverse mental health outcomes, staff difficulties and general workplace pressures including the inability to take annual leave and excess hours. The Employer was aware of some of these matters
[64] The totality of the evidence is that the Employer set out the performance issues it had with Mr Cornwall and what it, as an employer, expected. The Employer did not move swiftly from poor performance to termination of employment. The Employer worked with Mr Cornwall from the Second Formal Warning on 8 February 2013 to the FFW on 19 September 2013, and finally, to his dismissal on 12 March 2014. It appears to me that the Employer endeavoured to keep the employment relationship “alive” during a relative long period of over 12 months, and was not “trigger happy”, in choosing to dismiss Mr Cornwall for performance reasons.
[65] The Employer also made its intentions clear if Mr Cornwall did not meet performance expectations, there would be further disciplinary action. After 12 months and opportunities for Mr Cornwall to improve his performance, the Employer came to the conclusion that the issuance of ongoing performance warnings was not a solution and terminated his employment.
[66] Having considered the totality of the criteria in s.387 of the FW Act, the evidence and submissions, Mr Cornwall’s performance was of such a nature, and extent, that the Employer had a sound and defensible reason to terminate his employment.”
[9] On appeal, the Appellant has made a series of allegations in his written submissions against the Respondent that are substantially similar to those outlined in paragraph [6] above.
[10] During oral submissions on appeal, the Appellant made a request to submit additional material that he contended was not available at the time of the matter before the Commissioner which went to the issue of the Appellant suffering from stress. The new material, which was described as time sheets, was available at the time of the hearing before the Commissioner and no acceptable explanation was given as to why it was not then tendered. In any event, the material was not of a nature as would be likely to have affected the rulings made by the Commissioner. It was not apparent that it was material of sufficient relevance to any of the grounds of appeal or of such weight as to warrant it being accepted on appeal. We ruled that we would not allow the tender of this fresh evidence.
[11] In our view, the majority of the Appellant’s appeal submissions are a reiteration of the submissions made at first instance and refer to matters which were clearly considered by the Commissioner at first instance. The balance of the Appellant’s submissions raise issues which do not address the findings of the Commissioner. The appeal process is not intended to provide an avenue for an unsuccessful party to rerun their case simply because he or she is dissatisfied with the outcome of the decision at first instance. At the heart of the Commissioner’s decision were the findings that the Appellant was underperforming, that the Respondent put him on notice of this and that it went through the correct procedures during the 12 months preceding his dismissal. In our view, these findings were open to the Commissioner on the evidence before him. The Appellant has not persuaded us that in making those findings any appealable error can be identified.
[12] On the issue of public interest, the Appellant made the following written submissions:
“1. If there is no precedent to stop the sort of abuse and mistreatment I received then it is about time to set one.
2. To allow any organisations to get away with the fraudulent changes to their records and to work an employee to the point of breakdown should not be condoned.
3. Further the block, by the commission, of my efforts to gather evidence to prove their fraud, was in its self a breach of justice when he instructed the employer to have no further communications with me.”
[13] Grounds 1 and 2 contain unsubstantiated assertions which do not constitute matters which would enliven the public interest. With respect to ground 3, the unparticularised nature of the submission makes it difficult to understand what the Appellant is contending. The ground seems to be an attempt to claim the Appellant was not afforded procedural fairness because the Commissioner somehow frustrated his attempts to gather evidence. If this is the submission the Appellant intended to make, then it is patently wrong. The Commissioner did not block any of the Appellant’s efforts to collect evidence. In fact, his Honour attempted to facilitate the drafting of an agreed statement of facts between the parties through his directions of 13 May 2014, so that the parties were clear on the timeline of events and the matter could proceed efficiently. The Appellant, however, sent a number of hostile emails to the Respondent during this process. Following an email from the Respondent to the Commission indicating that the unprofessional nature of the Appellant’s emails was frustrating the matter, the Respondent was told in an email dated 10 September 2014 7 “not to engage with Mr Cornwall any further”, and to comply with the directions so that the matter could continue smoothly. A series of unfortunate email exchanges between parties to a matter does not constitute a public interest consideration.
[14] We have reviewed all the relevant material before the Commissioner and we are not persuaded an arguable case of appealable error has been demonstrated by the Appellant. 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. Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr J Cornwall in person.
Ms N Mackie and Mr M Sapio for the Respondent.
Hearing details:
Sydney via a video link to Perth and Melbourne;
9 April 2015.
1 [2015] FWC 1266.
2 [2011] FCAFC 54 at paragraph 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44-46.
4 (2010) 197 IR 266 at paragraph 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/as 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].
7 Appeal Book, page 15.
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