David Armstrong v Taxation Management Services Pty Ltd ATF TMS
[2015] FWCFB 6789
•6 OCTOBER 2015
| [2015] FWCFB 6789 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Taxation Management Services Pty Ltd ATF TMS
(C2015/5234)
VICE PRESIDENT WATSON | MELBOURNE, 6 OCTOBER 2015 |
Appeal against decision [[2015] FWC 4879] of Commissioner Riordan at Sydney on 6 August 2015 in matter number U2014/1566 – Permission to appeal – Whether grounds of appeal attract the public interest – Permission to appeal granted – Fair Work Act 2009 - ss. 394, 400, and 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Commissioner Riordan handed down on 6 August 2015. The decision of the Commissioner concerned an unfair dismissal application made by David Armstrong on 2 May 2014 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Taxation Management Services Pty Ltd ATF TMS (TMS)
[2] At the hearing of the appeal matter on 30 September 2015, Mr D. Armstrong appeared on his own behalf and Mr J. Hoff appeared for TMS.
Background
[3] Mr Armstrong was employed by TMS as an accountant in October 2011. He was allegedly dismissed on 11 March 2014 with an extended notice period and then summarily dismissed on 11 April 2014. This was due to a view formed by Mr Hoff, owner and principal of TMS, that Mr Armstrong was trying to disadvantage TMS. Mr Hoff also held a strong opinion that Mr Armstrong was responsible for the TMS office being broken into on the evening of 9 April 2014.
[4] The Commissioner correctly determined that TMS is a Small Business and that the dismissal could not be considered to be unfair if it was consistent with the Small Business Fair Dismissal Code: s.385 of the Act. The decision of the Commissioner dealt with the issue of whether the summary dismissal was consistent with the Small Business Fair Dismissal Code on the basis that if it was found that TMS had acted in accordance with the Code, then other issues in relation to the alleged March dismissal became irrelevant. The Code states the following in relation to Summary Dismissal:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
[5] The Commissioner’s conclusions are expressed in the following passage from his decision:
“[27] … The question is whether Mr Hoff believed that Mr Armstrong’s conduct was serious enough to justify his summary dismissal and whether he had reasonable grounds in coming to that conclusion.
[28] After taking into account all of the submissions and volumes of evidence submitted by the parties at the reasoning of the Full Bench in Pinawin v Domingo, I find that Mr Hoff did have reasonable grounds for reaching the conclusion to summarily dismiss Mr Armstrong in accordance with the Small Business Fair Dismissal Code. It is peculiar in the extreme that a thief would break into an office, steal only items that were linked to a recently dismissed and suspended employee, log on to a computer using the login details and password of the recently dismissed employee and steal unspecified information from the computer system, then leave without taking any good or chattel of any monetary value.
[29] Mr Armstrong’s application for an unfair dismissal remedy is dismissed. Having found that Mr Armstrong’s summary dismissal was in accordance with the Act, it is not necessary for me to deal with the issue of the alleged dismissal on 11 March 2014.”
Grounds of Appeal
[6] Mr Armstrong submits that permission to appeal should be granted as the Commissioner’s decision contains significant errors of fact that arise from the disclosure of new evidence. He contends that the Commissioner based his decision on Mr Hoff’s evidence that a relevant client billing sheet/file was no longer in existence and that it was this missing document that was the catalyst for the breakdown of the relationship between Mr Armstrong and TMS. Mr Armstrong asserted that this client billing sheet/file has now been found and was provided to the client’s new advisor by Mr Hoff in correspondence since the hearing of the matter. He submits that if this information was available to the Commissioner at the time a different conclusion would have been reached.
[7] Mr Armstrong also submits that Mr Hoff made other misrepresentations to the Commission regarding password restrictions and access through the TMS office front door in his evidence to the Commission. Mr Armstrong submits that the effect of these errors is that his contention that there was no actual break-in at or theft from, the business premises should have been accepted.
Permission to Appeal
[8] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss. 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[9] 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’ 1. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’
[10] The test for determining the public interest has been described as follows: 2
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[11] It is also important to note that the decision under appeal is of a discretionary nature. Usually such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge 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, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 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.”
Conclusion
[12] This is a very unusual case. Mr Hoff contends that he had a reasonable basis for believing that Mr Armstrong broke into his office and stole certain documentation. Mr Armstrong denies doing so and now wishes to bring evidence that suggests that no break-in occurred. The case requires a careful consideration of all of the evidence. However, some evidence, which could be highly relevant to the findings of fact necessary to determine the matter, was not put to the Commissioner because it was not then known or available to Mr Armstrong.
[13] The Act establishes a lesser test for establishing fairness for small business summary dismissals compared to summary dismissals in larger businesses. Nevertheless, it is consistent with the proper application of that test that it is exercised with the benefit of all available evidence. We make no criticism of the Commissioner’s conclusions based on the evidence before him. However we consider that an injustice may occur if an opportunity to call and test all currently available evidence is not provided. We have therefore decided to grant permission to appeal and enable the appeal to proceed with the benefit of additional evidence. The appeal will be determined after hearing that evidence and considering it in conjunction with the evidence led before the Commissioner. We will admit further evidence of the nature foreshadowed by Mr Armstrong together with any further evidence in reply by Mr Hoff.
[14] Directions will be issued for the filing of additional witness statements and documentation in advance of the hearing of the appeal.
VICE PRESIDENT
Appearances:
Mr D. Armstrong on his own behalf.
Mr J. Hoff for TMS.
Hearing details:
2015.
Melbourne – Video and Telephone Link to Perth.
30 September.
Final written submissions:
Mr D. Armstrong on 16 September 2015.
TMS on 29 September 2015.
1 (2011) 192 FCR 78 at paragraph 43.
2 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
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