Diaz v Anzpac Services (Australia) Pty Limited - [2016] FWCFB 7204

[2016] FWCFB 7204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Guillermo (William) Diaz
v
Anzpac Services (Australia) Pty Limited
(C2016/5140)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER CIRKOVIC

SYDNEY, 21 OCTOBER 2016

Permission to appeal against decision [2016] FWC 5305 of Senior Deputy President Hamberger at Sydney on 10 August 2016 in U2016/2078.

Introduction and background

[1] Mr Guillermo Diaz has applied for permission to appeal and appealed a decision of Senior Deputy President Hamberger issued on 10 August 2016 1 (Decision). In the Decision, the Senior Deputy President found that Mr Diaz’s dismissal by Anzpac Services (Australia) Pty Limited (Anzpac) was not unfair, and dismissed his application for an unfair dismissal remedy. The crux of the Decision was that the Senior Deputy President found, for the purpose of s.387(a) of the Fair Work Act 2009 (FW Act), that Mr Diaz’s conduct in yelling and arguing with a fellow employee constituted a valid reason for dismissal having regard to the fact that Mr Diaz had been warned about similar behaviour in the workplace on a number of previous occasions. Mr Diaz, represented by his union, the Australian Manufacturing Workers Union (AMWU), contends that the Senior Deputy President erred in principle by taking into account the earlier warnings under s.387(a), and this raised an issue of importance and general application which justified the grant of permission to appeal in the public interest.

[2] The factual background is uncontroversial. As described in Mr Diaz’s own submissions in support of his application for permission to appeal, he had before his dismissal been employed by Anzpac for 24 years and over that period “he had been warned (formally and informally) on multiple occasions for losing his temper and shouting at colleagues”. The most recent of these warnings was in 2012. The incidents which caused Mr Diaz’s dismissal occurred on 30 and 31 March 2016. There was no challenge to the findings of fact made in the Decision about this incident, which were as follows (footnotes omitted):

“[8] On 30 March, Ms Murphy was operating the Alpina (a gluing machine designed to glue cartons into folded shapes). Mr Diaz was working as Ms Murphy’s offsider, feeding the machine. Ms Murphy started the machine at 30,000 units per hour and increased speed gradually to about 62,000 units per hour. Shortly after this, Mr Diaz started waving his arm and yelling at her. Ms Murphy stopped the machine and went to talk to Mr Diaz. Because of the noise and the distance involved, Mr Diaz had had to raise his voice to attract Ms Murphy’s attention. However he did not lower his voice when she went to talk to him. Instead Mr Diaz continued to yell at her:

‘Turn the machine down! You’re going too fast!’

[9] Mr Diaz was standing around a foot from Ms Murphy while he was saying this. He also waved his arms in Ms Murphy’s face. They then had an argument about the speed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCFB 7204
Decision Date: 21 OCTOBER 2016

CaseChat Overview and Summary

The applicant, Diaz, sought leave to appeal a decision made by the Fair Work Commission, with the respondent, Anzpac Services (Australia) Pty Limited, opposing the application. The dispute centred on the interpretation and application of the Fair Work Act 2009, particularly in relation to the applicant's termination of employment and the subsequent proceedings for unfair dismissal. The case was heard in the Full Bench of the Federal Court of Australia.

The central legal issue in the appeal was whether the Full Bench of the Federal Court should grant permission to appeal the decision of the Senior Deputy President. The crux of the appeal was the interpretation of the evidence presented regarding the applicant's termination and whether the Commission's findings were legally sound and supported by the evidence. The applicant argued that there were errors in the interpretation and application of the law that warranted a review by a higher court.

The Full Bench of the Federal Court found that while the applicant's submissions had some merit, they did not establish a compelling case for permission to appeal. The Court held that the findings of the Commission were reasonably open on the evidence and that there was no significant error in the interpretation of the law that would warrant an appeal. The Court noted that the applicant had not demonstrated a compelling case for the appeal to be permitted. Consequently, the application for leave to appeal was dismissed.

No further orders were made by the Court in relation to the application. The decision of the Fair Work Commission remained upheld, and the applicant's attempt to appeal the decision was unsuccessful.

Orders