David Jeffery Hyder v JBS Australia Pty Limited
[2022] FWCFB 186
•21 OCTOBER 2022
| [2022] FWCFB 186 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
David Jeffery Hyder
v
JBS Australia Pty Limited
(C2022/5378)
| VICE PRESIDENT CATANZARITI | Canberra, 21 OCTOBER 2022 |
Appeal against decision [2022] FWC 1795 of Deputy President Lake at Brisbane on 11 July 2022 in matter number C2022/2554 – permission to appeal refused.
Mr David Jeffery Hyder (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] (the Decision) of Deputy President Lake (Deputy President) issued on 11 July 2022. The Decision concerns an application lodged by the Appellant under s.365 of the Act, alleging contraventions of Part 3-1 of the Act associated with his alleged dismissal by JBS Australia Pty Limited (the Respondent).
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed written submissions and made further oral submissions at the hearing on 6 September 2022.
For the reasons that follow, permission to appeal is refused.
The Decision under appeal
The Appellant commenced employment with JBS Australia Pty Limited (the Respondent) on 27 January 2022. On 1 April 2022, the Appellant resigned but contended that he was forced to do so. The Decision dealt with the Respondent’s jurisdictional objection that the Appellant was not dismissed within the meaning of s.386 of the Act.
In the Decision the Deputy President set out the relevant tests under s.386 to determine whether a person has been ‘dismissed’. The Deputy President then set out aspects of the evidence regarding the Appellant’s employment with the Respondent. This included evidence that the Appellant had disclosed to his manager, Ms Richards, that he was managing personal issues together with details of paid and unpaid leave and various flexibilities afforded to him. The Decision also detailed evidence about an informal meeting involving the Appellant, Ms Richards and Mr Goodwin, Senior People & Culture Business Partner, on 15 March 2022. The Appellant claimed that having disclosed the extent of the difficult personal issues he was managing at this meeting, it became the Respondent’s intent to end his employment. The Decision sets out examples of what the Appellant claimed were mistakes being manufactured including deleting emails that had been sent to him, sending emails pretending to be him, hiding folders, feeding him incorrect or incomplete information, and manufacturing situations to create a perception of poor performance and priority setting.[2]
The Decision sets out the details of the Appellant’s resignation. On 1 April 2022, following a text message exchange and telephone call with his manager, the Appellant resigned by email sent at 8.38am. The Respondent offered him until 12.00pm that day to reconsider his decision. At around 2.00pm in the afternoon, having received no response from the Appellant and having made an unsuccessful attempt to telephone him, the Respondent sent him an email confirming that his resignation would be processed, and his employment would cease effective immediately.
After considering the evidence, the Deputy President found that while the Appellant emphatically believed that his work performance had been sabotaged, “the Respondent’s witnesses provided cogent and balanced recollections as to the [Appellant’s] performance, his errors, and the efforts they had gone to provide time off and support to the [Appellant] in his no doubt difficult situation. The Respondent had had discussions with the [Appellant] to assist in his performance and understand his personal situation. However, the [Appellant] offered his resignation freely and was asked to reconsider by the Respondent. There was no evidence that the [Appellant] had no option, rather the [Appellant] had options and he elected to resign.”[3]
The Deputy President concluded that he was not satisfied that the Respondent’s actions left the Appellant no option but to resign and that the “Respondent’s actions preceding the resignation did not leave resignation as the only option nor the desirable option for the Respondent.”[4]
The Deputy President found that there was no dismissal pursuant to s.386(1)(b) of the Act and dismissed the application.
Principles of Appeal
An appeal under s.604 of 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. An appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] The public interest is not satisfied simply by the identification of error,[7] or a preference for a different result.[8] In GlaxoSmithKline Australia Pty Ltd v Makin[9] 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.”[10]
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.[11] 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. [12]
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.[13] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of Appeal
The Appellant advances the following four grounds of appeal in his Notice of Appeal.
1.The primary decision maker acted upon a wrong principle.
2.The primary decision maker had been guided by irrelevant factors.
3.The primary decision maker had mistaken the facts.
4.The primary decision maker had failed to take some material consideration into account.
The Appellant contends that the appeal is in the public interest in order to see justice delivered and to hold corporations, such as the Respondent, accountable for their actions and to ensure that workplaces are safe and victims of domestic violence are supported and not discriminated against by their employers.
At the hearing, the Respondent submitted that permission to appeal should be refused as the appeal is not in the public interest and does not raise any issues of importance or general application.
Consideration
We have carefully reviewed all the material that was before the Deputy President.
The grounds of appeal advanced by the Appellant can be summarised in the following way. The Appellant claims that the Deputy President wrongly accepted that the Respondent supported the Appellant throughout the entirety of his employment when this was not the case. The Appellant contends that some actions were wrongly characterised as the Respondent having been ‘supportive’ towards him and that in any event, the Respondent changed its behaviour towards him from 15 March 2022 onwards. From this date until his employment ended on 1 April, the Appellant submits that the Respondent acted to bring about the end of his employment either by performance management or resignation.[14] He contends that the Respondent did so by sabotaging his work performance and that his work was deliberately manipulated to manufacture a perception of poor performance.[15]
The Appellant also submits that any ‘supportive’ behaviour by the Respondent was either no more than his legal entitlements or was in the Respondent’s own interests. Arising from this error, the Deputy President is said to have wrongly disbelieved the Appellant’s version of events and failed to fairly consider his supporting evidence. The Appellant submits that because the Respondent’s witnesses gave conflicting and false statements his version of events is more plausible.
The Appellant points to several matters to demonstrate his claims and to assert that the Deputy President should have preferred his version of events over the Respondent’s. The very difficult financial and personal situation he faced meant that the Appellant could not afford to lose his job. The Appellant submits that it was therefore not believable that he would have deliberately refused to perform work allocated to him and been ‘short’ and ‘punchy’ with other members of staff. Instead, it reflected the Appellant feeling so fearful and unsafe that he felt there was no other option but to resign. Further, that it was not credible that the Respondent had truly been supportive towards him, because if that were so the Appellant would not have felt the need to hide the reason for his absence on 23-24 March and decide not to take other time off that he needed, for fear of retribution. The Appellant also claimed that the Respondent’s evidence that he was given a chance to reconsider his decision to resign was not credible given Ms Richard’s evidence that she was fearful for her personal safety. More broadly, the Appellant submits that because of inconsistencies in the Respondent’s witness evidence, his evidence which included detailed contemporaneous notes, should have been given more weight by the Deputy President.
Much of the Appellant’s appeal is based on his claim that the Respondent’s witness evidence should not have been preferred over his own evidence. We have considered these submissions and find that the findings made by the Deputy President were reasonably open to him. The Deputy President’s findings were primarily based on his assessment of the evidence regarding what occurred in relation to the Appellant’s termination of employment. We note the Deputy President had the benefit of seeing and hearing the witnesses give their evidence in its entirety. The Deputy President accepted Ms Richards, Mr Goodwin and Ms Ravikumar’s evidence, who each expressly denied altering, creating or deleting emails, files or messages on the Appellant’s computer and were not aware of any other employee doing so. We do not find any error in the Deputy President accepting their evidence, namely that they were supportive of the Appellant, and that the discussions with him were for the purpose of assisting in his performance of the role and to understand his personal situation and not efforts to force him to resign.
We are also not persuaded by the Appellant’s submission that inconsistencies in the evidence given by the Respondent’s witnesses demonstrates that their evidence was false and lacking credibility. The Appellant points to Ms Richards’ evidence, specially that she failed to recall that she had spoken to the Appellant about his performance. However, Ms Richards was not challenged about this evidence and no cogent basis has been put forward to substantiate the claim that this evidence was false. The Appellant also alleged inconsistency in Ms Richards’ and Mr Goodwin’s record of their meeting with the Appellant on 15 March 2022. Whilst we accept there are some differences in their respective accounts of a meeting that lasted approximately 45 minutes, these differences are not significant and do not go to any issue in dispute. Further, we note that it is not unusual for witnesses’ recollections of a meeting to differ in some respects. Similarly, we do not consider it significant that Mr Goodwin failed to specifically respond to the Appellant’s claim that he had not provided him with information about how to access the Employee Assistance Program, given it is not a significant issue and Mr Goodwin was not challenged about this.
On a fair reading of the Decision, the Deputy President did not find that the Appellant’s account of matters such as missing emails, third party access to his emails and removal of folders and other claims were necessarily fictitious and made-up. Rather, he determined that there was no evidence that there had been conduct by the Respondent which was designed to bring about the Appellant’s resignation. In other words, the Deputy President found there was no nefarious conduct orchestrated and carried out by the Respondent to sabotage the Appellant’s work performance and success in the role. We find no error in the Deputy President’s approach, nor his assessment of the evidence before him.
Following the Appellant’s emailed resignation early in the morning of 1 April 2022, the Respondent offered him an opportunity to reconsider his decision. In the afternoon, having received no response, the Respondent emailed the Appellant confirming that his resignation would be processed and his employment cease, effective immediately. We find no error in the Deputy President’s conclusion, which was clearly open to him on the evidence, that the Appellant voluntarily resigned and was not dismissed.
Public Interest
We are not satisfied that an arguable case of appealable error has been established. We are further not satisfied that the Deputy President acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect his decision, mistook certain facts or failed to take into account material considerations.
We are not satisfied that granting permission to appeal is in the public interest. The Appellant’s clear dissatisfaction with the Decision does not mean, and we do not consider, that the Decision manifests an injustice, or that the result is counter intuitive having regard to the circumstances. The Decision is the result of the orthodox application of legal principles to the facts and there is no diversity of decisions in similar cases that would make it in the public interest to provide appellate guidance.
Conclusion
For the above reasons, we are not satisfied that it is in the public interest to grant permission to appeal. Accordingly, Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr D Hyder, Appellant.
Ms B Sakrzewski-Hetherington, for the Respondent.
Hearing details:
2022.
Sydney (by video):
September 6.
<PR746782>
[1] David Jeffery Hyder v JBS Australia Pty Limited [2022] FWC 1795 (the Decision).
[2] Decision at [41].
[3] Ibid at [60].
[4] Ibid at [61].
[5] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
[6] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[8] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[9] [2010] FWAFB 5343.
[10] Ibid at [27];
[11] Wan v AIRC (2001) 116 FCR 481 at [30].
[12] 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].
[13] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[14] Transcript PN77.
[15] Transcript PN96.
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