David Bevis v Dust Collection Services Pty Ltd
[2021] FWCFB 4150
•14 JULY 2021
| [2021] FWCFB 4150 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
David Bevis
v
Dust Collection Services Pty Ltd
(C2021/3195)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 JULY 2021 |
Appeal against decision [2021] FWC 2813 of Commissioner Simpson at Brisbane on 20 May 2021 in matter number U2020/12080 - permission to appeal refused.
Introduction
[1] Mr David Bevis (the Appellant) has applied for permission to appeal, and has appealed, against a decision 1 made by Commissioner Simpson (the Commissioner) on 17 July 2020 (the Decision) which concerned a dispute about whether he had been dismissed within the meaning of s 386(1) of the Fair Work Act 2009 (the Act).
[2] The background, broadly stated, is that the Appellant submitted his resignation with four weeks’ notice during a meeting on 4 August 2020 with Mr Ryan Forbes and Mr Frank Kaark, the Production Manager and Owner respectively, of Dust Collection Services Pty Ltd (the Respondent). Seventeen days later, on 21 August 2020, the Appellant sought to retract his resignation but his retraction was not accepted. The Respondent objected to the Appellant’s application for an unfair dismissal remedy and having conducted a hearing on 10 March 2021, the Commissioner was satisfied the Appellant’s resignation was voluntary and that there was no dismissal. The Commissioner therefore dismissed the Appellant’s unfair dismissal application.
[3] The appeal was listed for a hearing via telephone on 5 July 2021 concerning the issue of permission to appeal.
[4] Directions made on 8 June 2021 required the Appellant to lodge submissions with the Commission addressing the requirements for permission to appeal. In particular, the directions required the Appellant to address by 5.00pm on 28 June 2021 why he says it is in the public interest to grant permission to appeal, and if the appeal was on a question of fact, what was the significant error of fact involved in the Decision.
[5] The Directions also outlined that the Appellant was required to lodge with the Commission and serve appeal books in accordance with rules 52 and 56(3) of the Fair Work Commission Rules 2013, which provide:
“52 Appeals
As soon as practicable after an appellant lodges an appeal book with the Commission under subrule 56(3), the appellant must serve a copy of the appeal book upon each other party to the matter from which the appeal is brought.
…
56 Appeals
…
(3) The appellant must, within 7 calendar days after lodging the notice of appeal, lodge the following with the Commission:
(a) 3 copies of the notice of appeal;
(b) 3 copies of a paginated appeal book containing:
(i) any order made by the Commission to which the appeal relates; and
(ii) the statement of the reasons for the decision being appealed against; and
(iii) the transcript of the evidence and argument in the matter from which the appeal is brought, or the relevant extract from the transcript; and
(iv) each document that was an exhibit or written submission in the matter from which the appeal is brought that relates to the grounds of appeal set out in the notice of appeal.
Note: Rule 52 requires the appellant to serve a copy of the appeal book upon each party to the matter from which the appeal is brought.”
[6] On 29 June 2021, email correspondence was sent to the nominated email address of the Appellant attaching and referring to the directions, noting neither an appeal book nor an outline of submissions had been filed and seeking advice as to whether the Appellant intended to file this material with the Commission.
[7] When there was no response, further email correspondence was sent to the Appellant in which his failure to respond was noted. The Appellant was also advised that the matter was proceeding for hearing on 5 July 2021 at 2pm by telephone and he was required to file an appeal book and an outline of submissions. The Appellant was requested to advise if he was intending to continue with this appeal by 5pm on 2 July 2021, failing which his appeal may be dismissed.
[8] At 8.46am on 2 July 2021, the Appellant emailed the Commission, stating:
“I have been uncontactable for the last week. I am intending to continue with the appeal.
I was hoping to have Workcover / Mathew Goedecke full review back by now which has not happen [sic]. Mathew has contacted all who where involved and was a large part of my Appeal book. If it wasn’t for DCS workers false statement which Ryan Forbes and Frank Kraak got them to write “Under duress”. This information should have been completed by Workcover when they investigated it the first time.”
[9] Later that day, the Commission emailed the parties confirming the matter would be proceeding, as listed, at 2pm on 5 July 2021 via Microsoft Teams. The required telephone number, conference ID and Microsoft Teams link were outlined in the email.
[10] At the hearing on 5 July 2021, the parties’ oral submissions were high level and brief.
The Decision
[11] In the Decision, the Commissioner outlined relevant provisions of the Act and gave an overview of the respective positions of the parties. In summary, the Commissioner noted:
• The Appellant alleged that he was forced to resign on 4 August 2020 as a result of the Respondent’s failure to address workplace health and safety (WH&S) complaints he had made, and that he was bullied and harassed into resigning as a result of his complaints;
• The Respondent submitted that from the commencement of the Appellant’s employment, the Respondent had raised several concerns with the Appellant with respect to his behaviour and treatment of other staff members;
• The Respondent submitted this culminated in a formal written warning being issued on 31 July 2020, and a meeting taking place on 4 August 2020 setting out the difficulties workshop employees were experiencing with the Appellant and abusive and threatening language used by the Appellant against Mr Forbes;
• The Appellant did not dispute that he resigned at the meeting on 4 August 2020, however he maintained that he was forced to do so;
• The Respondent argued that while the Appellant had alleged that he was forced to resign from his employment due to its conduct, and had provided a lengthy statement setting out the concerns he had raised with respect to the Respondent’s operations, the statement was not sufficient to discharge the onus of demonstrating his employment was terminated; and
• The Respondent submitted that the Appellant had to demonstrate that its behaviour was intended to bring the employment to an end or had the probable result of doing so.
[12] The Commissioner considered the evidence and submissions of both parties by reference to a number of particular projects, incidents and topics raised by the Appellant. 2 In particular, the Commissioner considered the evidence given in relation to the circumstances of the resignation of the Appellant and his later attempt to retract it and the accompanying submissions on this issue made by the parties.
[13] The Commissioner then outlined what he considered was the approach to considering whether an employee has been dismissed, citing various decisions of the Commission and its predecessor bodies 3 and the submissions of the parties, before outlining his findings. We note the following findings made by the Commissioner:
• The fact that the Appellant requested his job back 17 days after he resigned is wholly inconsistent with his claim that he was forced to resign by the actions of the Respondent;
• The evidence indicated the Appellant raised few of the concerns that were the subject of his evidence before he was terminated, with many agitated after his termination and as part of this unfair dismissal application;
• Given the significant period of time between the Appellant’s resignation and his attempt to retract his resignation 17 days later, it cannot be said the resignation was in the heat of the moment;
• The Appellant’s claim that his reason for seeking to retract his resignation was that he required the income to support his family does not support a conclusion that he had no choice but to resign and tends more to support the conclusion that he made a voluntary decision to resign on 4 August 2020 and made a further voluntary decision to seek to retract his resignation on 21 August 2020;
• There was no evidence that Workplace Health and Safety Queensland (WHSQ) held serious concerns about the Respondent following its audit;
• The Appellant’s bullying allegations contained some inconsistency; and
• The Appellant was aggrieved about a number of different things at the time he decided to resign, including his disagreement with the substance of the reasons for his first and final warning, his perception that he had falsely been accused of stealing, his perception that Mr Forbes had being bullying him over a period of time and his view that the Respondent’s workplace health and safety practices were unsafe.
[14] The Commissioner then stated that the threshold required to bring the matter within the meaning of dismissed as set out in s 386(1)(b) of the Act, requires a finding after objective analysis that the Respondent’s conduct gave the Appellant no reasonable choice but to resign. The Commissioner made an observation that while the Appellant genuinely held the view that the Respondent’s workplace health and safety practices were unsafe, his opinion did not objectively make it so and found the evidence of an audit of the Respondent, conducted by WHSQ in response to issues raised by the Appellant, did not support the gravity of the Appellant’s claims made against the Respondent and that there was no other evidence to support his allegations.
[15] Ultimately, the Commissioner determined the Appellant:
“… had alternative steps he could have taken as referred to above, including making a complaint to WH&S Qld, or refusing to perform a particular task that he believed was unsafe. As already stated, his decision to seek to retract his resignation 17 days afterwards, and the evidence that he continued to report for work during his notice period up to 21 August does not support an objective conclusion that the Respondent’s conduct in respect to safety issues gave Mr Bevis no reasonable choice but to resign.” 4
[16] The Commissioner concluded the Appellant’s resignation was voluntary, there was no dismissal within the meaning of s 386(1) of the Act and there was therefore no jurisdiction to deal with the Appellant’s application.
Applicable appeal principles
[17] In considering the merits of the appeal, it is relevant to observe that an appeal under s 604 of the the 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. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[18] This appeal is one to which s 400 of the 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.
[19] 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.6 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.” 7
[20] 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
[21] 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. 10 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
[22] The appeal grounds outlined by the Appellant in the Form F7 were as follows:
1) He was on a work capacity certificate at the time of the hearing and presented the case very poorly because he was stressed, had anxiety and was on a cocktail of medication. Further, he has found things difficult to face and coping with the stress had become overwhelming at the time of the hearing;
2) Workcover is reviewing his case after the Review unit found grounds to review his case with vital evidence which was not, but is now being requested by Workcover;
3) A former employee of the Respondent who worked in its office at the time of his dismissal and harassment and has inside knowledge of what happened, has now left the Respondent; and
4) The Respondent had various workers lie to Workcover, ‘unfair dismissal’, WPH&S and WHSQ and they should have been cross-examined by him.
[23] At the hearing before us, the Appellant submitted:
• He did not get the opportunity to adduce evidence from employees of the Respondent;
• He did not submit the “right information” at the time of the hearing before the Commissioner;
• On his doctor’s certificate alone, he should be permitted to revisit everything because he was not mentally well at the hearing before the Commissioner; and
• He could not afford a lawyer at the hearing before the Commissioner.
[24] The Appellant addressed why it is in the public interest for the Commission to grant him permission to appeal in the Form F7, as follows:
“Staff at DCS where [sic] under duress to lies in statements, to work cover, Unfair dismissal, WHSQ and WPH&S which put me and other DCS staff in danger of mental health issue, serious injury, or even death this is in the public interest to find the truth. I was told story about DCS unfair dismissals by other staff and WPH&S cover ups.”
[25] The essence of the first ground of appeal is that it would be unjust to allow the Decision to stand because the Appellant was mentally incapacitated at the time of the hearing before the Commissioner and unable to properly present his case. As to this, we observe:
• On 3 March 2021, the Respondent made application pursuant to s 399A of the Act to have the Appellant’s unfair dismissal application dismissal on the basis that the Appellant had unreasonably failed to attend hearings listed on 17 and 25 February 2021 and had unreasonably failed to comply with directions of the Commission;
• This appears to have prompted the Appellant to file further material with the Commission on the day before the hearing before the Commissioner, including a ‘work capacity certificate’ from Dr Muhammad Salam and submissions regarding his health;
• The certificate from Dr Salam appears to be dated 25 February 2021 and to have related to an examination conducted on 3 September 2020, at which time it was concluded the Appellant was suffering from work related stress/anxiety;
• The certificate also outlined that the Appellant required treatment from 12 February 2021 until 19 March 2021 and was to be reviewed again on 12 March 2021;
• The treatment prescribed appears to have been “rest from workplace and counselling with psychologist”; and
• On 9 March 2021, the Appellant also appeared to rely upon the following opinion of Ms Carly Leverington, Health Psychologist, dated 30 September 2020:
“David’s symptoms of depression, anxiety and stress has varied greatly over the course of treatment due to the ongoing legal processes involving Unfair Dismissal and Workplace Health and Safety. Our focus in recent sessions has been on building David’s skills to better manage difficult thoughts and feelings through this challenging time.”
[26] Further, we have been able to ascertain from a review of the audio recording of the hearing before the Commissioner on 10 March 2021:
• That when the Appellant disclosed at the start of the day that he was “under” a medical certificate, the Commissioner confirmed his understanding, based on a discussion between his Associate and the Appellant on 9 March 2021, that the Appellant was nonetheless content to proceed with the hearing;
• The Commissioner stressed that the Appellant’s health “came first” and that should the Appellant at any point feel his health was compromised, he was to say so; and
• That when the Commissioner outlined again that his understanding was that the Appellant wanted to proceed with the hearing and have the matter heard that day, he received positive confirmation from the Appellant.
[27] Having regard to all these matters, we are not persuaded based on the medical evidence that has been produced that the Appellant lacked the capacity to present his case at the hearing before the Commissioner. Further, there is no basis to conclude that the Appellant was forced to go through with the hearing. To the contrary, we are satisfied that the Commissioner made it clear to the Appellant that his health came first and he was to alert the Commissioner if he felt his health was at any stage compromised. Further, it is apparent it was the desire of the Appellant to proceed with the hearing on 10 March 2021 and no application for an adjournment was made.
[28] As to the second ground of appeal, it neither asserts nor discloses error on the part of the Commissioner.
[29] Grounds three and four are related and are essentially a complaint by the Appellant that he was denied the opportunity to adduce evidence from his former colleagues. This complaint has no basis. The Appellant was not prevented from calling his former colleagues as witnesses and nor was he prevented from seeking orders that they attend and give evidence, in the event they were reluctant to attend voluntarily. The Decision records in great detail the multiple allegations made by the Appellant in the presentation of his case and the consideration given to them by the Commissioner.
[30] The submission the Appellant made that he was unable to afford legal representation has no basis as a ground of appeal.
[31] The Commissioner determined that the Appellant was not dismissed within the meaning of s 386 (1) of the Act. On the material before us, we do not consider that this conclusion was unreasonable, manifests any injustice, was counter-intuitive or raises any issue of principle or general application.
[32] We are not satisfied that any of the Appellant’s submissions identify an error made by the Commissioner that would justify the grant of permission to appeal in the public interest or otherwise. Accordingly, permission to appeal must be refused in accordance with s 400(1) of the Act.
VICE PRESIDENT
Appearances:
Mr D Bevis on his own behalf.
Mr F Kraak for the Respondent.
Hearing details:
2021.
Sydney (via Telephone).
5 July.
Printed by authority of the Commonwealth Government Printer
<PR731702>
1 [2021] FWC 2813.
2 Decision [24]-[149].
3 Ibid [151]-[155].
4 Ibid [176].
5 This is so because on appeal FWC has the 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
6 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
7 [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
8 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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