Damien O'Connor v Crown Equipment Pty Ltd
[2016] FWCFB 7205
•21 OCTOBER 2016
| [2016] FWCFB 7205 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Crown Equipment Pty Ltd
(C2016/5329)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 5719 of Commissioner Booth at Brisbane on 19 August 2016 in matter number U2015/13212.
Introduction
[1] On 7 September 2016 Mr Damien O’Connor lodged a notice of appeal in which he applied for permission to appeal and appealed under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Commissioner Booth issued on 19 August 2016 1 (Decision). In that Decision the Commissioner dismissed an unfair dismissal remedy application lodged by Mr O’Connor pursuant to s.394 of the FW Act on the basis that the dismissal was not harsh, unjust or unreasonable. A separate order was issued giving effect to the Decision2 (Order).
[2] At the hearing before the Full Bench, Mr O’Connor appeared on his own behalf. Mr Peter Holmes appeared for Crown Equipment Pty Ltd (Crown).
[3] Crown dismissed Mr O’Connor for misconduct, in particular due to an exchange between Mr O’Connor and Crown’s Townsville Manager, Mr Linnane on 16 September 2015, and in the face of an earlier written warning issued in July 2015 for inappropriate aggressive conduct.
[4] In determining if Mr O’Connor had been unfairly dismissed the Commissioner considered each of the requirements of s.387 of the FW Act to decide if the dismissal was harsh, unjust and unreasonable. In considering if there was a valid reason for the dismissal the Commissioner found (footnotes omitted):
“[83] The task of this Commission is not to judge whether the first warning was valid, but whether the decision to dismiss was valid…
[84] To determine a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, based on the evidence before it.
[85] As noted above the parties’ competing view of relevant matters are diametrically opposed, and in order to form the required view the Commission must assess the evidence of each party and which view is to be preferred.
[86] In regard to the first warning, it should be noted that there was no capacity in this matter to decide the truth or otherwise of the allegations of aggressive conduct put to Mr O’Connor in the first warning meeting. What is relevant is whether it was reasonable for Crown to rely on the first written warning. It is undisputed that the warning was issued to Mr O’Connor and that it related to aggressive and inappropriate conduct towards other employees, and it was not withdrawn.
[87] However, as Mr O’Connor placed some emphasis on his objections to the first written warning, I note that the evidence clearly reveals that Mr O’Connor was given notice by Crown that it was investigating the two competing complaints, and that it had concerns about his conduct arising from that investigation. The substance of the allegations was put to Mr O’Connor orally, and he had an opportunity to respond. He chose not to respond to the substance except to deny the allegations and to comment adversely about the process used and an apparent preference for the word of others against his. He asked for but was not given documentation of Mr Grogan’s investigation.
…
[90] I am satisfied that the matters of concern were put to Mr O’Connor and while it is an employee’s choice not to respond, that does not make the process unfair. In this matter, relevant information about his conduct was clearly conveyed to him in a way that Mr O’Connor understood or should have understood. Having provided no adequate, or any, response it was reasonable for Crown to issue the warning and later to take it into account.
[91] Further support that Mr O'Connor understood the case against him is demonstrated by his own letter of rejection of the complaint dated 6 July 2016.
[92] As to the second incident relied on by Crown on 16 September, there are also competing versions of the interaction between Mr Linnane and Mr O’Connor.
…
[101] In my view, on whether Mr O’Connor was aggressive or Mr Linnane was aggressive, the evidence of Mr Linnane is preferred. His oral evidence was consistent with the contemporaneous complaint made.
…
[108] I therefore find on the balance of probabilities that Mr O’Connor was aggressive and argumentative with Mr Linnane in the car park. Further, such aggressive and argumentative behaviour is not acceptable in the workplace.
[109] Mr O’Connor’s case is that this incident was not one of the reasons for his dismissal. He asserted that he was dismissed because of his request for family friendly roster arrangements and his earlier, and still unresolved, back injury. If that is the case, it may be that his dismissal was not for a valid reason.
[110] There is no issue that the request for a family friendly roster was made, or that the back injury happened and affected his work. However having raised the prospect that the dismissal was in fact a result of these two factors, Mr O’Connor had to demonstrate the causal link was at least plausible. There is nothing in the evidence that leads to such a conclusion.
…
[112] I am satisfied the evidence shows that the car park conduct in fact occurred as alleged by Crown, and that the conduct (in the face of the earlier warning) was the reason for the dismissal. The roster request and the injury were not, on the evidence, the reason for Crown’s decision.
…
[116] When the allegations of misconduct were put to the applicant at the meeting on 29 September it was the combination of the allegations of aggressive and inappropriate conduct andthe lack of insight and the response from the applicant that led to the conclusion that termination was appropriate in all the circumstances.
[117] I consider this approach from the company appropriate. I therefore conclude that the company had a valid reason to terminate the applicant.”
[5] In considering the process undertaken and the opportunity for Mr O’Connor to respond to the reason for dismissal the Commissioner found:
“[118] Mr O’Connor submitted that he was told the purpose of the meeting was ‘unbecoming conduct’ and that he did not know the purpose of the meeting. However in a letter to Mr Linnane concerning the meeting, while headed allegations/accusations of ‘unbecoming conduct’ he also acknowledges as follows ‘you made a number of serious allegations accusations against me’.
[119] In my view this part of the letter from Mr O'Connor favours a conclusion that Mr O’Connor knew purpose of the meeting: it was to be a discussion about (at least) “unbecoming conduct” the basis of which was serious allegations against him and in particular his conduct on 16 September 2015. Mr O’Connor admits so much in the undated submissions to the Commission signed by his father on his behalf at paragraphs 6 to 8.
…
[123] In my view Crown did provide a reasonable opportunity to respond to the reasons identified for the possible termination during the termination meeting.
…
[130] While the time given for response during the 29 September meeting was limited, I have concluded in all the circumstances it was adequate and that Mr O’Connor was given sufficient opportunity to respond about his conduct. His refusal to participate in discussions unless material was reduced to writing or he was permitted to record the meeting cannot be grounds for him to object to the process.”
[6] The Commissioner went on to consider each of the other matters specified in s.387. In relation to s.387(h) the Commissioner took into account Mr O’Connor’s length of service, the personal and economic consequences of the dismissal, his ongoing injuries and family responsibilities, and weighed these factors against the misconduct she found had occurred and the effect of the misconduct on the working environment. Further, the Commissioner considered a number of issues raised by Mr O’Connor as to what he described as Crown’s “bad faith” and the apparent animosity between Mr O’Connor and Crown including his submission that Crown’s actual motivation was his WorkCover claim and family responsibilities. The Commissioner found there was no evidence to support these propositions. Her ultimate conclusion, as earlier stated, was that she was not satisfied that the dismissal was harsh, unjust or unreasonable 3.
[7] Mr O’Connor’s notice of appeal and submissions, although lengthily expressed, alleged five grounds for appeal, namely that Commissioner Booth erred in:
(1) Making significant errors of fact that did not reflect the evidence before her;
(2) Ignoring evidence relevant to the matter;
(3) Misunderstanding the evidence before her;
(4) Incorrect exercise of her discretion contradicted by the facts and lack of facts and particulars; and
(5) Ignored material considerations.
[8] In support of his application, Mr O’Connor made lengthy submissions that the grant of permission to appeal was in the public interest. In summary Mr O’Connor submitted that the Decision:
- Not only adversely affected him and his daughters, “but has the potential to adversely affect each and every member of the Australian workforce and their families which essentially makes up the entire Australian public”;
- Creates the potential to set “negative precedents… adversely affecting employees by denying natural justice and a reasonable opportunity to respond”;
- Creates the potential where “it could be the norm for the car-park to become the arena for future rogue employers to carry out thuggish clandestine disciplinary meetings”; and
- Has the potential to set precedent that adversely affects a large group of people, erodes the elements and safety nets of enterprise bargaining agreements and modern awards, strips away the rights of those workers and their families with family care responsibilities and allows employers to circumvent their responsibilities to employees injured in the workplace.
Consideration
[9] 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[10] 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.
[11] 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”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. 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.” 7
[12] 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. 8 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.9
[13] In this case we do not consider that the appeal grounds which Mr O’Connor wishes to agitate are sufficiently arguable to sustain the grant of permission to appeal in the public interest. We consider that the Commissioner determined the application before her in accordance with the statutory test of whether the dismissal was harsh, unjust or unreasonable, and in doing so had regard to all the matters she was required to take into account under s.387 of the FW Act.
[14] Although Mr O’Connor was able to identify a small number of factual errors in the Decision, they were all errors about peripheral matters which could not have had any bearing on the outcome of the matter. There was no appealable error identified in relation to the critical issue of fact, namely Mr O’Connor’s behaviour towards Mr Linnane in the carpark on 16 September 2015. That is, to the extent that the appeal was based on questions of fact, it was not made on the basis of any identifiable significant error of fact as required by s.400(2).
[15] Having considered all the evidence before her the Commissioner preferred the evidence of Crown and found that on the balance of probabilities the conduct had occurred. The conduct on the part of Mr O’Connor which the Commissioner found had occurred and which formed the reason for the termination of his employment by Crown was reasonably capable of being assessed as constituting a valid reason for his dismissal for the purposes of s.387(a). The gravity of Mr O’Connor’s aggressive and argumentative behaviour in the workplace was necessarily elevated because it occurred in the face of a previous written warning in respect of such behaviour, and this was properly taken into account by the Commissioner. Mr O’Connor’s conduct did not become excusable merely because it occurred in the context of his pursuit of a more family-friendly work roster. We therefore do not consider that Mr O’Connor has demonstrated any arguable case of error in respect of the approach taken by the Commissioner under s.387(a).
[16] As stated earlier, the Commissioner in her consideration under s.387(h) weighed Mr O’Connor’s conduct against the length of his service with Crown, took into account the economic and personal consequences for Mr O’Connor of the dismissal, and his submission that the dismissal was motivated by his WorkCover claim and/or his family responsibilities. The Commissioner’s ultimate conclusion, was that she was not satisfied that the dismissal was harsh, unjust or unreasonable 10. We do not consider that this conclusion was unreasonable or manifested any injustice.
[17] There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest. We are not satisfied that Mr O’Connor has demonstrated any error on the part of the Commissioner in determining that his unfair dismissal remedy application be dismissed.
[18] Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
D. O’Connor on his own behalf.
P. Holmes for Crown Equipment Pty Ltd.
Hearing details:
2016.
Melbourne:
10 October.
1 [2016] FWC 5719
2 PR584287
3 Decision at [144]
4 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
5 (2011) 192 FCR 78 at [43]
6 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]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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]
10 Decision at [144]
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