David Hill v Pilbara Iron Company (Services) Pty Ltd
[2023] FWCFB 140
•18 AUGUST 2023
| [2023] FWCFB 140 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
David Hill
v
Pilbara Iron Company (Services) Pty Ltd
(C2023/2570)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 18 AUGUST 2023 |
Appeal against decision [2023] FWC 794 of Deputy President Beaumont at Perth on 20 April 2023 in matter number C2022/7836.
Introduction
Mr David Hill (appellant) has filed an appeal, for which permission is required, against a decision of Deputy President Beaumont dated 20 April 2023.[1] The decision under appeal concerns a jurisdictional objection made by Pilbara Iron Company (Services) Pty Ltd (respondent) in respect of the appellant’s application made pursuant to s 365 of the Fair Work Act 2009 (Cth) (FW Act), in which he alleges that he was dismissed from his employment with the respondent in contravention of Part 3-1 of the FW Act.
At first instance, the respondent contended that the application was not validly made because the appellant resigned from his employment and therefore had not been dismissed within the meaning of s 386 of the FW Act. In her decision, the Deputy President accepted that contention and, in conjunction with her decision, issued an order[2] by which she dismissed the originating application.
Factual background
Although many of the facts relating to the termination of the Appellant’s employment, particularly in the months immediately prior to that event, were contested at the hearing at first instance, much of the relevant background to the original dispute is conveniently summarised in the decision under appeal.
The appellant was engaged by the respondent as a mobile plant operator in 2013.[3] At the relevant time he worked on the Mesa A mine site at the respondent’s Robe River Operations in Pannawonica, Western Australia.[4] From August 2022, the appellant was absent from work on personal leave having suffered from a heart condition.
The appellant’s evidence was that his cardiologist, Dr Liu, and his general practitioner had cleared him to return to work from 28 September 2022. However, the respondent’s occupational physician, Dr Sim, had certified that the appellant was not fit to work until 28 October 2022. It was not in dispute that, on that date, the appellant was to undergo a further medical procedure connected with his heart condition.
By late October 2022, the appellant had come to the view that the respondent was not going to facilitate his return to work. His leave entitlements had been exhausted by this time.
On 7 November 2022,[5] the appellant’s lawyer sent a letter to the respondent indicating that the appellant was resigning his employment (resignation letter). The resignation letter was dated 27 October 2022. After setting out the background on behalf of the appellant, the resignation letter relevantly stated: ‘… In the circumstances our client has no alternative but to resign from his employment. This amounts to constructive dismissal.’[6]
Decision under appeal
At the outset of her decision the Deputy President correctly observed that, where there is a dispute about whether a person has been dismissed in respect of an application under s 365, the Commission is obliged to determine that question before exercising any powers under s 368 of the FW Act. She described the discrete issue for determination as being whether the Appellant was dismissed from his employment within the meaning of s 386(1)(a) and/or (b) of the FW Act.[7]
After noting the central importance of the operation of s 386, the Deputy President began her analysis by summarising the relevant principles deriving from the case law, including the Full Bench decision in Bupa Aged Care Australia Pty Ltd v Tavassoli[8] (Bupa). She noted that the appellant had sought to rely on both limbs of s 386(1) but that subsection (b) was the one which had been ‘predominately addressed by the parties’.[9]
The Deputy President then went on to make a number of key findings that led to her ultimate conclusion that the appellant had not been dismissed but had resigned voluntarily. Amongst those findings, the Deputy President concluded that, as a general proposition, where the Commission had to assess the competing evidence of the appellant and the respondent’s two witnesses, Phillip Norris and Iesha Simons, she preferred the latter because of the clarity of their accounts and ‘contemporaneous direct evidence that supports their narratives’.[10]
The Deputy President concluded that the respondent was entitled to rely on the report prepared by Dr Sim (Sim Report) as ‘the most contemporaneous medical assessment’ and that such a reliance was ‘a sensibly held position’ given that the appellant remained symptomatic. The Deputy President accepted that the respondent was not preventing the appellant from ever returning to work, but rather that the immediate medical priority was the completion of an ablation procedure scheduled for 28 October 2022.[11]
The Deputy President specifically rejected[12] the appellant’s assertion that the respondent was resisting his return to work and was not responsive to his efforts to return. She found that it was unreasonable for the appellant to conclude on 27 October 2022 that he had no capacity to earn an income or that he had been forced to resign when he had been in recent contact with the respondent and that all indications were that a return to work on a different site would be facilitated once his medical procedure was completed on 28 October 2022.
The Deputy President accepted the respondent’s evidence, through Ms Simons, that the respondent had communicated with the appellant in the weeks leading up to the termination of his employment and had advised him that the respondent was unable to approve his return to work until after the medical procedure on 28 October 2022, a position that the Deputy President also concluded was ‘a reasonable stance to adopt’.[13] She accepted the respondent’s evidence, through Mr Norris, that he had consulted with another mine site operated by the respondent and secured the appellant a position there.[14]
The Deputy President found that although the appellant had initially expressed concerns about the respondent’s handling of health and safety issues in the workplace, including COVID-19, the evidence established that the respondent was in fact receptive to these concerns, and the appellant ultimately admitted this in any event.[15] She reached a similar conclusion in relation to the points the appellant advanced about the respondent’s response to the concerns that he had raised about his mental health and the impact that a return to a previous worksite would have upon him.
The Deputy President rejected the appellant’s reliance on a psychologist’s report dated 19 October 2021 (the BSS Report) as supporting the view that the appellant could not return to work without abandoning the pursuit of any previous breaches of the appellant’s workplace rights. The Deputy President pointed out that the terms of the BSS Report contained no such conclusions.[16] Similarly, the Deputy President rejected the appellant’s reliance on any comments by Dr Sim in September 2022 to the effect that the respondent was likely to ‘medically separate him’ from his employment.[17]
The Deputy President considered the terms of the resignation letter and the appellant’s evidence about the circumstances in which that letter was sent. The Deputy President noted that in the appellant’s first witness statement he said that he had instructed his lawyer to send the resignation on 7 November 2022. However, following an order for production of documents it became apparent that the appellant had received a job offer from another employer on 28 October 2022. In the appellant’s second witness statement he said he had in fact instructed his lawyer to send his resignation on 27 October 2022, the day before he became aware of the new job offer.[18] Ultimately, the Deputy President concluded that this change of position by the Appellant did little to reinforce the Appellant’s credibility as a witness.[19]
On the basis of these findings, the Deputy President concluded that the appellant had not been dismissed by the respondent but had rather resigned. Although the appellant had advanced various shortcomings on the part of the respondent which, the appellant maintained, had left him with no choice but to resign, the Deputy President was not satisfied that these matters had ‘negated all choice’ for the appellant.[20] Nor was the Deputy President able to conclude that the appellant had resigned in the ‘heat of the moment’[21] such that the resignation could not be regarded as voluntary on the part of the appellant.
Grounds of appeal and submissions
The appellant advanced seven grounds of appeal. It is unnecessary to reproduce those grounds in full. For the most part, the substance of the grounds of appeal are difficult to comprehend. The grounds deal variously with alleged errors relating to what can be referred to as denials of procedural fairness (Grounds 1 and 3), a failure to have regard to relevant considerations (Grounds 2 and 5), a failure to have regard to (unparticularised) contradictions in the evidence (Ground 4), an unjustified preference by the Deputy President for the respondent’s evidence as to certain matters over that of the appellant (Ground 6) and an erroneous finding in relation to a medical report relied upon by the Respondent (Ground 7).
The appellant also provided a written outline of submissions in the appeal. Those submissions traverse a range of issues, many of which bear little, if any, relation to the grounds of appeal.
The appellant contended that the Deputy President erred in preferring one medical report over others and asserted that the Sim Report she relied upon contained errors. The appellant’s submissions challenged the ultimate conclusion that the appellant had resigned voluntarily by restating the appellant’s evidence as to the alleged ‘course of conduct’ engaged in by the respondent that, he asserted, had forced his resignation. Further, the submissions referred to an alleged denial of natural justice constituted by the Deputy President’s refusal to allow evidence, including a psychologist’s report from 2014, as to the appellant’s negative experience at the respondent’s sites which was said to have influenced his decision to resign. The appellant contended that the Deputy President erred by making findings as to his credibility and by concluding that his illness was not work-related. The submissions made reference to what were said to be various representative errors which had ultimately prejudiced the appellant in the conduct of the matter at first instance.
The Respondent submitted that the Appellant had failed to demonstrate any appealable error on the part of the Deputy President. The Respondent said that to the extent the Appellant had alleged some denial of procedural fairness, he had failed to demonstrate that any practical injustice had flowed from that denial in order for relief to be warranted on appeal. The Respondent said that the Appellant had failed to discharge the onus of establishing that permission to appeal should be granted and urged that permission be refused.
Principles on appeal
Appeals under s 604 of the FW Act can only proceed with the Commission’s permission. Where an appellant is able to demonstrate an arguable case of appealable error, the Commission has a broad discretion in determining whether or not permission to appeal should be granted. However, the Commission is required to grant permission where it is in the public interest to do so.[22] Irrespective of the nature of the decision under appeal, the Full Bench is only able to exercise its powers where it identifies some error on the part of the primary decision-maker.[23]
A Full Bench of the Commission[24] has recently restated the principles relating to the public interest test for permission to appeal:
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. 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.
Consideration
In this matter, the appellant’s principal contention below is that he was forced to resign by the Respondent because of the Respondent’s failure to allow him to return to work by 28 October 2022, notwithstanding the medical evidence supporting the view that he was able to do so. The issue of ‘forced resignation’ for the purposes of s 386(1)(b) was dealt with in the decision of the Full Bench in Bupa at [47]:
A resignation that is ‘forced’ by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probabl[e] result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in [s 386(1)(a)], the requisite employer conduct is the essential element.
We consider that the Deputy President’s conclusion that the respondent’s conduct did not meet this description was plainly correct. As the evidence plainly demonstrated, the respondent had not foreclosed the possibility of the appellant ever returning to work, had done no more than require the appellant to remain away from work at least until he underwent the further medical procedure on 28 October 2022, and had secured a position for the appellant on a different mine site upon his ultimate return to work.[25] We agree with the Deputy President that the respondent’s conduct did not disclose an effort to prevent the appellant’s return to work but was rather, particularly in light of the Sim Report, a ‘reasonable stance to adopt’ in the circumstances.
The Deputy President was also right to take into account the circumstances immediately surrounding the appellant’s instructions to his lawyer concerning the sending of the resignation letter. These circumstances were plainly relevant to determining whether the appellant’s resignation was forced or voluntarily given, and were also relevant to the appellant’s credibility.
The Deputy President’s view that the appellant’s evidence concerning the circumstances of the resignation letter lacked credibility was reinforced at the hearing before us. In the course of the hearing, the appellant submitted that the incident which ‘forced’ his resignation was his conversation with Mr Norris on 27 October 2022, during which he was given an indication that he would be returning to work at the Mesa J mine, a site where he alleged he had previously experienced bullying behaviour. The appellant asserted that he had considered that prospect as being one which would be detrimental to his mental health and inconsistent with his ongoing employment. He said he felt at that point he had no option but to resign.
The appellant then submitted that he instructed his lawyer to issue the letter of resignation on 28 October 2022. When queried further about this, given that this was the day of the scheduled medical procedure, the appellant changed his position and indicated that he had in fact instructed his lawyer to do so on 27 October 2022, before he had the critical conversation with Mr Norris. When it was pointed out to him that this was inconsistent with his position that it was the conversation with Mr Norris that forced him to resign, the appellant changed his version of events again and said that the instruction to his lawyer came after the conversation with Mr Norris. This shifting account, in combination with the fact that the appellant had received a job offer from another employer on 28 October 2022 and that the resignation letter was not sent until 7 November 2022, renders implausible the appellant’s contention that he was dismissed, by way of forced resignation, on 27 October 2022.
For completeness, whilst it appears not to have been seriously contended at first instance that the appellant was dismissed on the employer’s initiative within the meaning of that expression in s 386(1)(a) of the FW Act, the Deputy President nonetheless also considered and rejected the notion that the Appellant had resigned ‘in the heat of the moment’ as discussed in Bupa. In our view that was the correct conclusion.
We are satisfied that the Deputy President also appreciated the need to assess the circumstances surrounding the termination objectively. In Bupa the Full Bench cited the decision of the Federal Court in Koutalis v Pollett[26] where Rares J observed:
The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. …
In our view, there is no objective basis on which it is possible to conclude that the respondent engaged in conduct with the intention of bringing the employment to an end, or to conclude that the termination of the appellant’s employment was the probable result of the respondent’s conduct because the employee had no effective or real choice but to resign. That is consistent with the view expressed by the Deputy President at paragraph [95] of her decision.
There is no arguable case of appealable error in the Deputy President’s decision and no other public interest or discretionary basis upon which permission to appeal should be granted.
Conclusion
We order that permission to appeal is refused.
PRESIDENT
Appearances:
D Hill, applicant, on his own behalf.
J McLean, of counsel, for the respondent.
Hearing details:
2023.
Sydney by video link using Microsoft Teams:
17 July.
[1] [2023] FWC 794.
[2] PR761155.
[3] [2023] FWC 794 at [1].
[4] Ibid at [6].
[5] See Appellant’s outline of submissions at [42].
[6] [2023] FWC 794 at [1]; Appeal Book at 219.
[7] [2023] FWC 794 at [4].
[8] [2017] FWCFB 3941, 271 IR 245, cited in [2023] FWC 794 at [64] and [65].
[9] [2023] FWC 794 at [69].
[10] Ibid at [70].
[11] Ibid at [76].
[12] Ibid at [77].
[13] Ibid at [79] and [81].
[14] Ibid at [94].
[15] Ibid at [83].
[16] Ibid at [85].
[17] Ibid at [86].
[18] Ibid at [89]-[90].
[19] Ibid at [95].
[20] Ibid at [92].
[21] Ibid at [93].
[22] Fair Work Act 2009 (Cth) s 604(2).
[23] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194.
[24] Cole v The Commissioner for Public Employment, Office Commission Public Employment[2023] FWCFB 35 at [19].
[25] [2023] FWC 794 at [94].
[26] [2015] FCA 1165 at [43].
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