Dr nor Masri Bin Sahri v Edith Cowan University
[2022] FWCFB 106
•17 JUNE 2022
| [2022] FWCFB 106 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dr Nor Masri Bin Sahri
v
Edith Cowan University
(C2022/1461)
| VICE PRESIDENT CATANZARITI | SYDNEY, 17 JUNE 2022 |
Appeal against decision [2022] FWC 247 of Deputy President Binet at Perth on 8 February 2022 in matter number U2021/5730 – permission to appeal refused.
Background
Dr Nor Masri Bin Sahri (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a Decision[1] of Deputy President Binet issued on 8 February 2022 (Decision). The Decision dealt with an application made by the Appellant for an unfair dismissal remedy, made under s.394 of the Act.
The Appellant alleged that he had been unfairly dismissed from his employment with Edith Cowan University (the Respondent or ECU) and sought reinstatement. The Appellant was engaged as a Cyber Security CRC Post-Doctoral Researcher on a 3 year fixed term contract and this occurred in light of a funding agreement to support specific research tasks at the Cyber Security Cooperative Research Centre (CSCRC), which is hosted at the Respondent’s campus.
The dismissal of the Appellant occurred in the context of a decision of a funding body to seek to terminate the relevant funding agreement (Theme Agreement). That decision was in turn said by the funding body to be related to concerns about the quality and academic integrity of a (then) recent presentation delivered by the Appellant.
On 22 June 2021, the Appellant met with the Respondent. At the meeting, the Respondent gave the Appellant a letter informing him that CSCRC had decided to terminate the funding agreement specific to the research which he had been employed to perform. The Appellant was informed that because of the termination of the Theme Agreement, funding of his research would cease and, given the absence of an alternative role to which he could be deployed, his employment with the Respondent would be terminated effective immediately. Upon the termination of his employment, the Appellant was paid six months salary and provided with some other benefits.
In the Decision, the Deputy President was satisfied that the Appellant was protected from unfair dismissal and that the dismissal was unfair. The Deputy President found that an order for reinstatement was inappropriate. It is this finding, and matters relating to that outcome, that are the focus of this appeal. The Deputy President also found that compensation was not appropriate in the context of a joint position on that issue between the parties and the payments that had already been made upon dismissal.
This matter was listed for permission to appeal and the merits of the appeal. On 15 March 2022, directions were issued for the filing of material by both parties. The Appellant and Respondent filed written submissions in accordance with the Directions. The matter was heard on 29 April 2022 and the parties were externally represented, with permission where required.
For the reasons that follow, permission to appeal is refused and the appeal is dismissed.
The Decision Under Appeal
In the Decision, the Deputy President set out the general factual context for the dismissal including findings to the following effect.
The relationship between the CSCRC and the Respondent is documented in the Participants Agreement. The Respondent and Cyber Security Research Centre Limited agreed that the CSCRC would fund the engagement by the Respondent of post-doctoral research fellows to perform specified research tasks (or themes) for CSCRC, pursuant to contracts between the Respondent and the Cyber Research Centre Limited. These contracts were described as ‘Theme Agreement – Post Doctoral Employment Agreements’ (Theme Agreement).
On 11 April 2019, the Appellant was offered employment with the Respondent in the role of ‘Cyber Security CRC Post-Doctoral Researcher’ on a three-year fixed term contract. The Appellant was eligible to work in Australia by virtue of a section 484 visa obtained for him by the Respondent.
On 8 June 2021, the Chief Executive Officer of CSCRC wrote to the Respondent requesting the termination of the Theme Agreement pursuant to clause 14(b) of the Theme Agreement, due to concerns about the quality and academic integrity of a recent presentation delivered by the Appellant.
On 11 June 2021, the Respondent prepared a memorandum seeking approval to terminate the Appellant’s employment on the grounds that CSCRC had exercised a contractual right to terminate the Theme Agreement resulting in the funding for the Appellant’s employment being withdrawn and there being no other alternative position to which the Appellant could be redeployed.
The Appellant and the Respondent met on 22 June 2021 during which the termination was communicated.
On 30 June 2021, the Appellant met again with the Respondent. The Appellant asserted that during this meeting, he was told for the first time that the termination of the research funding was in response to an alleged breach by him of a publication policy. The Appellant also asserted that he was not: provided with a copy of the policy; informed of the alleged breach; or given an opportunity to respond to the alleged breach. The Appellant denied breaching his employment contract with the Respondent.
Due to his visa status and because of the termination of his employment, the Appellant had to leave Australia. The Respondent paid all the expenses involved in the Appellant and his family’s return to Malaysia.
After addressing all the relevant jurisdictional issues, the Deputy President considered each of the matters specified in s.387 of the Act and was satisfied that the Appellant’s dismissal was harsh and unjust and unreasonable. As a result, the Deputy President found that the Appellant’s dismissal was unfair.
In respect of the existence of a valid reason for dismissal related to the person’s capacity or conduct (s.387(a) of the Act) the Deputy President approached the issue in 2 ways. Firstly, that in the context of the loss of funding, the Appellant’s position ceased and no roles existed to which he could be redeployed.[2] This approach also involved a finding to the effect that the Appellant was employed to work exclusively for a particular funded role.[3] On that basis, the Deputy President speculated that the reason for dismissal was unrelated to the Appellant’s capacity or conduct. This, it was held, was not a (relevant) valid reason.
Secondly, the Deputy President characterised, in effect in the alternative, the dismissal as his capacity to perform the inherent duties of his employment given the withdrawal of the funding associated with his alleged performance.[4] That is, the loss of the funding associated with the funding bodies decision meant that there were no duties that the Appellant could perform. This was found to constitute a valid reason for dismissal based upon findings made about the impact of the funding decision and the absence of alternative roles for the Appellant.[5]
The Deputy President then considered the other considerations provided by s.387 of the Act, largely but not exclusively, in the context of the existence of a valid reason. Under s.387(h), the Deputy President considered the professional and personal impact of the termination upon the Appellant and other factors including the ‘failure’ to provide any response to the CSCRC during the consultation period contemplated in the Theme Agreement where a party wishes to end the funding, the absence of attempts to engage the Appellant on the allegations or to dissuade the CSCRC from its position.
Turning to the issue of remedy, the Appellant sought an order for reinstatement with continuity of service and compensation for the remuneration lost between the date of his dismissal and reinstatement. The Deputy President considered s.390 which sets out the circumstances in which an order for reinstatement or compensation may be made.
The Respondent submitted that reinstatement would be inappropriate because:
1.The CSCRC made a decision to terminate the Theme Agreement consistent with its terms, being the unlimited contractual right for the CSCRC to terminate the Theme Agreement and remove the Appellant from their workplace, meaning that the Appellant is incapable of performing the role.
2.The position which the Appellant was employed to undertake no longer exists and the Respondent does not have available funding nor need to re-create the position.
3.There are no other positions available with the Respondent that would be considered as suitable alternative employment.
4.The Appellant does not currently hold a visa or any other legal document or instrument which enables him to work in Australia.
The Deputy President considered the Respondent’s evidence that no available alternative positions existed into which the Appellant could be redeployed and that the Appellant did not identify any suitable alternative roles which existed prior to his dismissal or since that date. Further, she found that there was no evidence that the Appellant holds the necessary visas to work in Australia.[6]
The Deputy President found that an order for the reinstatement of the Appellant was inappropriate. As set out earlier, the Deputy President also found that an order for compensation would be inappropriate.
Principles of Appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error,[8] or a preference for a different result.[9] In GlaxoSmithKline Australia Pty Ltd v Makin 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 issue 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, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Appeal Grounds and Submissions
The Appellant raised three grounds of appeal:
Ground 1
Ground 1 alleges that the Deputy President erred in fact and in law when she found there was a valid reason for the Appellant’s dismissal.
The Appellant submits that the Deputy President initially found the valid reason for dismissal to be that there were no alternative positions for the Appellant to be redeployed to, however later in the Decision she considered the reason for dismissal to be “his capacity to perform the inherent duties of his employment.”[12] The Appellant submits that the finding in relation to the Appellant’s capacity to perform his duties is a significant error of fact because:
· There was no evidence before the Commission regarding any defect in his capacity;
· The Respondent did not refer to capacity in his termination letter or base that as a reason for his dismissal;
· The Deputy President already found that the reason for the Appellant’s dismissal was that there were no other suitable roles for him to be redeployed to; and
· There is “internal conflict” in the Deputy President’s reasoning regarding a valid reason within the meaning of s.387(a) of the Act.[13]
The Appellant submits that this ground is significant because the Deputy President’s finding in relation to valid reason for dismissal is foundational to whether the Appellant could be reinstated.
Ground 2
Ground 2 alleges that the Deputy President erred in fact and in law when she found that Clause 14 of the Theme Agreement entitled the CSCRC to unilaterally terminate the Theme Agreement without consultation with the Respondent. The Appellant submits that this finding constitutes a significant error of fact.
Further, the Appellant submits there was no evidence for the Deputy President to find that the parties understood the intent of the clause, as the Respondent did not give evidence on this matter. They allege that this constitutes a significant error of fact.
The Appellant submits that the Deputy President quoted selectively from the letter of 8 June 2021 and that this constitutes a significant error of law and fact.
The Appellant submits that this ground is similarly significant because it is foundational to the Deputy President’s finding that the Appellant could not be reinstated.
Ground 3
Ground 3 alleges the Deputy President erred in law, by not ordering the reinstatement of the Appellant with back pay and an order for continuity of service pursuant to s.390 of the Act. Further, the Appellant asserts that the Deputy President made a House v King[14] error when she found that it was inappropriate for the Appellant to be reinstated. They rely on the following reasons to show this:
1.the Deputy President erred with respect to her finding of valid reason;
2.the Deputy President erred when she found that the Theme Agreement could be terminated unilaterally;
3.there was no reliable evidence as to the positions available for the Appellant;
4.the Deputy President erred by not considering the financial mechanism (an immunity for the Respondent) in Clause 14(b);
5.there was no consideration given to the fact that the Respondent was a stakeholder in CDCRC;
6.the Deputy President went beyond the scope of the evidence by making her own enquiries into whether the Appellant could obtain a visa to work in Australia.
Consideration
The primary issue on appeal is whether the Deputy President erred in not ordering reinstatement. This brings into the focus the finding that there was no alternative position into which the Appellant could be reinstated. The Appellant makes no challenge to the finding under s.387 of the Act that the dismissal was unfair. The only challenges the Appellant makes is to basis of the finding made in relation to the existence of a valid reason and the appropriateness of the Appellant’s reinstatement under s.390 of the Act.
Although the appeal grounds are related, the reinstatement issue is the primary matter in contest on appeal and we will deal with Ground 3 first.
Ground 3
Section 390 of the Act sets out the circumstances in which an order for reinstatement or compensation may be made. Relevantly, subsection 390(3)(a) states:
“The FWC must not order the payment of compensation to the person unless the FWC is satisfied that reinstatement of the person is inappropriate.”
Section 391(1) of the Act relevantly provides as follows:
“391 Remedy—reinstatement etc.
Reinstatement
(1)An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a)reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b)appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
.. …”
Reinstatement under s.391(1)(a) of the Act involves the reappointment to the position in which the applicant was employed immediately before the dismissal. Reinstatement under s.391(1)(b) of the Act involves the reappointment to another position with the employer on terms that are no less favourable than those on which the applicant was employed immediately before the dismissal.
The Deputy President found, in effect, that the Appellant’s position was directly connected to the Theme Agreement. The evidence, including the advertisement leading to the job offer and the broader context for the employment, supported that finding. This is so despite the fact that there was no express link to the continuing funding as a condition of the continuation of the employment contract. The position was offered and applied in the context of the relevant funding agreement. It follows that the loss of the funding meant that the position of the Appellant was no longer required and was not available.
To the extent that the Appellant contended that the Respondent could have continued to employ him for the balance of the fixed term contract and rely upon the indemnity of the Theme Agreement, even if this was how that provision applied, this would not have meant that the position in which the Appellant had been employed continued. This was not the reality of the situation and the Deputy President findings to that end were open on the evidence. We also observe that the fact that the dismissal occurred in the context of the various provisions of the Theme Agreement and the fixed term employment contract were some of the grounds upon which the Deputy President found that the termination was unfair.
In determining whether reinstatement was appropriate in all the circumstances, the Deputy President considered the Respondent’s evidence that no alternative position existed. The Respondent put evidence from Ms Hancy (Senior Employment Relations Advisor) before the Deputy President, indicating that Ms Hancy had met with Professor Valli (Director ECU Security Institute) who confirmed that there were no suitable positions to transfer the Appellant into and also provided a list of available positions at ECU from 8–20 June 2021, which showed there were no positions available in the School of Science or in the University that were suitable for the Appellant.[15] The Appellant did not object to, or challenge Ms Hancy’s evidence in cross-examination, and did not seek to identify any suitable alternative roles which existed prior to his dismissal or since that date that he could be redeployed to.
The finding that no suitable (alternative) position existed for the Appellant to be reinstated to was open to the Deputy President on the evidence before her. The Deputy President’s subsequent conclusion that reinstatement is inappropriate in these circumstances was similarly open to her and does not give rise to any appealable error. We therefore reject Ground 3.
Although findings made about the question of whether the Appellant could obtain a visa, and similarly the potential issues stemming from Western Australia’s border restrictions, were problematic, they are not relevant given the earlier finding. Accordingly, we consider it unnecessary to deal with the challenge on those issues.
Grounds 1 and 2
The Respondent submits that Grounds 1 and 2 are irrelevant. Given the finding of unfairness is not challenged by either party, we will consider Grounds 1 and 2 to the extent that they relate to the question of reinstatement.
Ground 1 alleges that the Deputy President erred in fact and in law when she found there was a valid reason for the Appellant’s dismissal. Ground 2 alleges that the Deputy President erred in fact and in law when she found that Clause 14 of the Theme Agreement entitled the CSCRC to unilaterally terminate the Theme Agreement without consultation with the Respondent. The Appellant submits that these grounds are relevant to reinstatement because if such findings are infected with error, it would therefore effect reinstatement as a remedy.
We have set out the substance of the Deputy President’s findings earlier. Despite the (alternative) finding that there was a valid reason for dismissal, the Deputy President relied upon findings that the Respondent did not seek to engage the funding body about whether the funding should cease as part of her findings that the dismissal was unfair. In the end result, the fact that the funding had ceased in practice was not seriously in dispute and in that light, it is not necessary to further consider the precise operation of the Theme Agreement in that respect. That is, the findings associated with the existence of a valid reason and this aspect were not critical to ultimate decision given the basis upon which the dismissal was ultimately found to be unfair. For reasons set out earlier, these findings also did not lead to the wrong approach to reinstatement as contended by the Appellant.
We observe that the Deputy President’s approach to compensation was made in the context of a position advanced by the Appellant, and confirmed on appeal,[16] that no compensation was being sought in the alternative to reinstatement. Although the payment by the employer of 6 months wages upon termination would not have prevented a compensation order by virtue of the cap in s.392(5) of the Act, that payment would have been relevant, and it was appropriate for the Deputy President to rely upon positions advanced by a competently represented party in proceedings before her.
Public Interest
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error that would lead to a different outcome. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
·There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
·The appeal raises issues of importance and/or general application;
·The Decision at first instance manifests an injustice, or the result is counter intuitive; or
·The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
We are not satisfied that it would be in the public interest to grant permission to appeal, and nor are we satisfied that we should otherwise exercise our discretion to grant permission.
Permission to appeal is refused.
The appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr P Mullally, for the Appellant.
Mr S Andrews, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
29 April.
[1] [2022] FWC 247.
[2] Decision at [96].
[3] Decision at [95] by analogy with labour hire arrangements.
[4] Decision at [97].
[5] Decision at [98] to [100].
[6] Decision at [137] to [140].
[7] 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].
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[9] 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 (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].
[10] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[11] Wan v AIRC (2001) 116 FCR 481 at [30].
[12] Decision [96]-[97].
[13] Appellant’s submissions, [15.1]-[15.4].
[14] (1936) 55 CLR 499.
[15] Appeal Book, Witness Statement of Susan Hancy dated 8 September 2021, page 154.
[16] Appeal transcript PN70.
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