Cuong Pham v Midway Metals Pty Ltd
[2018] FWCFB 7099
•3 december 2018
| [2018] FWCFB 7099 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Cuong Pham
v
Midway Metals Pty Ltd
(C2018/5468)
| VICE PRESIDENT HATCHER COMMISSIONER McKENNA |
|
Appeal against decision [2018] FWC 5723 of Deputy President Binet at Perth on 11 September 2018 in matter number U2018/3326.
Introduction and background
Mr Pham has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Binet on 11 September 2018[1] (Decision). The Decision concerned an application by Mr Pham for an unfair dismissal remedy in respect of his dismissal by Midway Metals Pty Ltd (Midway) effective from 12 March 2018. In the Decision, the Deputy President found that Mr Pham’s dismissal from his employer was not unfair and dismissed his application. Mr Pham contends in his notice of appeal that “The decision was flaw [sic] & full of errors or judgement. Crucial facts were ignored and failed to be considered”.
The factual background to the matter may briefly be explained. Mr Pham commenced employment as a driver and storeperson with Midway on 23 January 2013. During the course of his employment Mr Pham was issued with a series of oral and written warnings concerning his performance and conduct at work. The written warnings related to various issues including repeated instances of aggressive and abusive behaviour and failing to comply with reasonable and lawful instructions. The dismissal arose out of an incident which occurred on 2 February 2018, in which Mr Pham was said to have engaged in an argument with his supervisor and refused to comply with simple work instructions. The dismissal followed an investigation of the incident in question and a meeting with Mr Pham on 5 February 2018 to discuss various allegations against him. He was dismissed on five weeks’ notice, but he absented himself from work on the ground of illness during the entirety of the notice period.
The Decision
In the Decision the Deputy President, after setting out the facts of the matter, dealt with each of the matters she was required to consider under s 387 of the Fair Work Act 2009 (FW Act). In relation to s 387(a) the Deputy President found that Midway had relied upon seven written warnings issued to Mr Pham, that two of the warnings were not contested by Mr Pham and that the conduct which formed the basis of the other five was denied, that Mr Pham did not provide an adequate excuse for his conduct, and that she was satisfied that the pattern of Mr Pham’s behaviour formed a valid reason for his dismissal. In relation to s 387(b) and (c), the Deputy President considered that Mr Pham had been afforded procedural fairness except that, in relation to the conduct which occurred on 2 February 2018, she was not satisfied that he had been notified that this was a reason for his dismissal. In relation to s 387(h), the Deputy President considered a range of matters including allegations of differential treatment of employees engaging in comparable conduct and Mr Pham’s age, family responsibilities, language skills and future employment prospects. The Deputy President concluded that the dismissal was not harsh, unjust or unreasonable in the circumstances and in doing so found that Mr Pham had, over a lengthy period of time, demonstrated an unwillingness to comply with the lawful and reasonable instructions of his employer and had persistently provided unreasonably argumentative responses when counselled by his employer, leaving Midway with little choice other than to dismiss him.
Appeal grounds and submissions
Apart from what we have set out in the first paragraph of this decision, Mr Pham’s notice of appeal did not specify any appeal grounds. Rather, Mr Pham annexed to his notice of appeal, by way of explanation of his grounds of appeal, a long letter he had sent to a Mr Paul Batty dated 22 February 2018 - before his dismissal took effect and before he filed his unfair dismissal remedy application. This sets out in detail Mr Pham’s version of various of the events which led up to his dismissal. Mr Pham also annexed to his notice of appeal an annotated (with asterisks) copy of the Decision and a nine-page document which, among other things, referenced the asterisked text of the Decision and evidence that had been before the Commissioner. The appeal notice states that permission to appeal would be in the public interest because, in summary, Mr Pham was targeted for taking a stand and refusing to bow to pressure and accept unwarranted allegations, and that it was a clear case of workplace bullying which required attention to stop workers becoming victims like Mr Pham.
In his written outline of submissions concerning permission to appeal, Mr Pham identified a number of findings and statements in the Decision, and made various comments, objections, and/or assertions about what were said to be the true facts in response to each. This was repetitive of the matters set out in the nine-page document annexed to his notice of appeal. At the hearing of his application for permission to appeal, Mr Pham declined to make any oral submission in support of his application.
Consideration
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.[2] 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 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) 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.[3] 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.”[4]
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.[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]
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.[7]
We are not satisfied that the grant of permission to appeal would be in the public interest in this case. Making all allowances for the fact that he is a self-represented litigant, we cannot identify that Mr Pham has raised any arguable contention of appealable error. Insofar as his submissions might be understood as contending that the Deputy President made errors of fact, none of those errors relate to any issue of significance in his case (as required by s 400(2)), nor did Mr Pham identify any evidence before the Deputy President which might reasonably have supported an alternative finding of fact. No basis is identified for Mr Pham’s assertions that he was “targeted” or the subject of bullying.
We have earlier summarised the Deputy President’s Decision. It dealt with the matter in an orthodox way and in accordance with the requirements of s 387 of the FW Act. As the Deputy President recorded, the underlying facts were for the most part not in dispute. The conclusions that the Deputy President reached concerning the matters required to be considered under s 387 on the basis of those facts were, we consider, not only reasonably open to her but were entirely unsurprising. The same can be said for her overall conclusion concerning the fairness of the dismissal.
The matter turned entirely on its own facts. The appeal does not raise any issue of novelty, importance or general application.
As set out earlier, s 400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to grant permission to appeal. Accordingly permission to appeal must be refused.
VICE PRESIDENT
Appearances:
S. Pham on his own behalf.
S. Stewart on behalf of Midway Metals Pty Ltd.
Hearing details:
2018.
Sydney/Brisbane/Perth:
14 November.
<PR702456>
[1] [2018] FWC 5723
[2] 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
[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 [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]
[4] [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[5] Wan v AIRC (2001) 116 FCR 481 at [30]
[6] 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, 241 IR 177 at [28]
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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