Croker Constructions v Mr Troy Jarvis
[2016] FWCFB 4077
•14 JULY 2016
| [2016] FWCFB 4077 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Troy Jarvis
(C2016/3701)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 14 JULY 2016 |
Appeal against decision [[2016] FWC 2377] of Deputy President Gooley at Melbourne on 19 April 2016 in matter number U2015/11964.
Introduction
[1] Croker Constructions (Croker) applies for permission to appeal a Decision of Deputy President Gooley issued on 19 April 2016 1 (the Decision). In that Decision the Deputy President determined an application made by Mr Troy Jarvis for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), found that Mr Jarvis was unfairly dismissed and ordered Croker to pay Mr Jarvis an amount of compensation in lieu of reinstatement.
[2] On 18 May 2016, the Decision and Order of Deputy President Gooley was stayed on the basis that Croker undertake to pay all the money under the Order into an interest bearing account until determination of the appeal or further order of the Commission. 2
Grounds in support of permission to appeal
[3] Croker submits that it is in the public interest that permission to appeal be granted because the Decision manifests an injustice, is counter-intuitive and raises important questions about employee dishonesty. Further, Croker submits that the Deputy President erred in the decision making process, has made errors of fact and has not taken into account some material consideration. Croker submitted that the Deputy President acted upon wrong principles and did not consider relevant precedent or authority relied upon by Croker during the process leading to Mr Jarvis’ dismissal.
[4] Croker also submits that permission to appeal should be granted as the appeal raises issues of importance and general application and that the legal principles appear disharmonious when compared with recent decisions dealing with similar matters. Croker submits that the Decision is not in the public’s best interests.
[5] Croker submitted that the Deputy President made significant errors of fact by:
- Finding that Mr Jarvis had not been able to gain other employment;
- Finding that there was no valid reason for the dismissal but also making a finding that Mr Jarvis had engaged in misconduct and that that misconduct contributed to the dismissal;
- Failing to take into account a first and final warning given to Mr Jarvis;
- Failing to “appreciate” that Mr Jarvis’ dismissal was based on a loss of trust and confidence;
- Failing to take into account the “fundamental principles and leading authorities” relied upon by Croker in deciding to dismiss Mr Jarvis;
- Failing to find that Mr Jarvis’ behaviour was dishonest and that he intended to use the information he gained from his dishonesty to cause harm to Croker’s business; and
- Failing to weigh up all the factors in s.387 in totality and not exercising “proper discretion”.
[6] Important questions are said to arise on the application of the concepts of the balance of probability, the use of first and final warnings, dishonesty in the workplace, wilful and deliberate behaviour of employees and the breakdown of trust between an employer and employee. Croker submits that the exercise of the discretion in an application for unfair dismissal does not allow a Commissioner to put themselves in the shoes of the employer and decide whether they would have done the same thing.
The Decision
[7] Mr Jarvis was dismissed for dishonesty, which Croker considered to be serious misconduct, and for breaching company policies. The facts are as set out in the Decision. Mr Jarvis had a discussion on site with the general manager of a labour hire company about safety issues involving labour hire employees, during which he stated that his position was site supervisor. Mr Jarvis later made contact with that person seeking to continue the discussion. The general manager complained to Croker alleging that Mr Jarvis had lied to her and misrepresented his position. In the hearing before the Deputy President Croker submitted that Mr Jarvis had:
“..wilfully and deliberately attempted to procure confidential information from a third party to which he was not entitled…in a corrupt and deceptive manner.”
[8] The Deputy President’s findings in respect of valid reason may be summarised as follows:
- Mr Jarvis did misrepresent to the general manager of the labour hire company that he was a supervisor and as a result of the misrepresentation the general manager discussed private matters with Mr Jarvis;
- Mr Jarvis was put in charge on site when the supervisor was absent but this did not entitle him to discuss these matters with the general manager;
- Mr Jarvis did try and arrange a further meeting with the general manager outside of the workplace to continue the discussion;
- Mr Jarvis spoke to the general manager because of his concerns regarding health and safety;
- Croker’s submissions regarding Mr Jarvis’ alleged malicious intent in gathering the information, and that Mr Jarvis was a difficult and disgruntled employee obsessed with and obstructive when it came to safety, were not supported on the evidence;
- There was no evidence that Mr Jarvis asked questions aimed to elicit confidential information.
[9] The Deputy President accepted that it was inappropriate for Mr Jarvis to have approached a client of his employer to discuss his concerns regarding safety, and that the appropriate course would have been for Mr Jarvis to raise those concerns with more senior managers of Croker or the relevant Workplace Health and Safety authority. The Deputy President was satisfied that some of the conduct occurred, but was not satisfied that that conduct warranted Mr Jarvis’ dismissal. Relevantly the Deputy President said at [42]:
“...I accept [Mr Jarvis’] sworn evidence that he was put in charge when his supervisor left site. I accept that this did not make him a supervisor and did not entitle him to represent to [the general manager of the labour hire company] that he was a supervisor. However, I am not satisfied he did this for personal gain with any intention to harm Croker. He acted out of his misguided belief about his responsibilities when left without supervision on site. I am satisfied that his conduct warranted a warning. I am not satisfied that making that representation was sufficient to justify dismissal. I am therefore not satisfied that there was a valid reason for his dismissal.”
[10] The Deputy President considered the fact that Mr Jarvis had been previously issued with a warning in relation to a previous incident, but found that that warning was about unrelated conduct and did not impact upon her Decision. Relevantly, the Deputy President also found that although Mr Jarvis was a casual employee, he was a regular and systematic casual employee and, but for the incident in question, he would have remained in employment with Croker.
Consideration
[11] This appeal is one to which s.400 of the FW Act applies. 3 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.”
[12] 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”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 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.” 6
[13] 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. 7 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.8
Conclusion
[14] At first instance, Croker bore the onus of establishing that there was a valid reason for the dismissal that related to Mr Jarvis’ capacity or conduct. In this matter it was Mr Jarvis’ conduct that was in issue. The case run at first instance by Croker was that Mr Jarvis had deliberately misrepresented himself as a Supervisor to the general manager of the labour hire company in order to dishonestly obtain confidential or sensitive information from her in a “corrupt and deceptive manner”. The case further proceeded on the submission that Mr Jarvis was a disruptive and disgruntled employee with an obsessive approach to safety.
[15] The Deputy President’s findings make it clear that Croker did not make out its case in relation to Mr Jarvis’ motivation for his conduct. Although the Deputy President found that Mr Croker misrepresented himself as a Supervisor, the Deputy President was not satisfied on the evidence before her that he did so with any malicious or corrupt intent, or that he was disruptive, disgruntled or obsessive about safety.
[16] Croker has not taken this Full Bench to any specific errors said to have been made by the Deputy President in making those findings. We are not satisfied that the Deputy President made any error. The findings made by the Deputy President were open to her on the evidence. We are also not satisfied that it is in the public interest to grant permission to appeal on the basis that the Decision does not raise considerations of the kind identified in GlaxoSmithKline Australia.
[17] Permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms. Beeson for the Appellant.
Mr. Fogliani for the Respondent.
Hearing details:
2016.
Melbourne to Perth (by video)
15 June.
Final written submissions:
Respondent, 15 June 2016.
1 [2016] FWC 2377.
2 PR580456.
3 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].
4 (2011) 192 FCR 78 at [43].
5 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].
6 [2010] FWAFB 5343 at [27], 197 IR 266.
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 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 288, 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].
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