Dylan Thomas v Serco Australia Pty Ltd
[2023] FWCFB 95
•22 MAY 2023
| [2023] FWCFB 95 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Dylan Thomas
v
Serco Australia Pty Ltd
(C2023/1918)
| VICE PRESIDENT CATANZARITI | SYDNEY, 22 MAY 2023 |
Appeal against decision [2023] FWC 674 of Deputy President Saunders at Newcastle on 21 March 2023 in matter number U2022/9781 – permission to appeal refused.
Background
Dylan Thomas (Mr Thomas or the Appellant) has lodged a Notice of Appeal, for which permission to appeal is required, against a decision and order made by Deputy President Saunders on 21 March 2023 (Decision).[1] The Respondent to the appeal is his former employer, Serco Australia Pty Limited (Serco or the Respondent).
The Deputy President decided that Mr Thomas had not been unfairly dismissed and dismissed the Appellant’s unfair dismissal application brought under s 394 of the Fair Work Act 2009 (Cth) (FW Act).
On 8 May 2023, this Full Bench conducted a hearing on whether to grant Mr Thomas permission to appeal (PTA Hearing). Mr Thomas was self-represented. In advance of the PTA Hearing we declined to grant Serco permission to be represented. The Respondent was represented by its National Industrial Relations Manager.
The decision under appeal
Serco operates correctional facilities including Australia’s largest such facility (the Clarence Correctional Centre) near Grafton, New South Wales. Mr Thomas was employed at the facility as a Correctional Case Officer – Dog Handler until summarily dismissed on 15 September 2022. Mr Thomas commenced unfair dismissal proceedings alleging a “systematic cover up by all levels of Serco management”.
The Deputy President heard the application over five days, by video conference. In advance of the hearing, the Deputy President made orders, at the request of Mr Thomas, that certain officers of Serco appear.[2] In addition to Mr Thomas, six officers of Serco gave evidence (four as a consequence of the orders made).
As the Deputy President noted concisely at the outset of his decision, the case concerned “one man fighting for his dog” (referred to as GDP Tauvey).
After observing that Mr Thomas was eligible to make the claim, and in the absence of jurisdictional issues, the Deputy President then dealt with whether the dismissal was harsh, unjust or unreasonable. The Deputy President did so by sequentially referencing each of the considerations in s 387 of the FW Act.
This approach to decision-making was orthodox. Factual disputes emerged on the evidence. The Deputy President dealt with those in the body of relevant parts of the decision. This too was an orthodox approach.
The Deputy President found that Serco had a valid reason to dismiss at [45] of the Decision. Of the eleven allegations initially advanced against Mr Thomas, Serco pressed four in its closing submissions:
· allegations 6 and 8 – inappropriate conversations evidencing an intention to cause Serco harm and reputational damage;
· allegation 7 – causing serious risk to Serco’s reputation; and
· a new allegation advanced during the first instance hearing – secretly recording a ‘fact-finding’ meeting with Mr du Preez.
The Deputy President found each of these allegations made out and collectively a valid reason for dismissal.
On procedural fairness, the Deputy President found at [47] to [48] that Mr Thomas was notified of the valid reasons for dismissal other than the secret recording (which could not have been notified as knowledge of it did not exist until the hearing) and at [64] that Mr Thomas was provided an opportunity to respond. At [88] he characterised Serco’s investigation and overall conduct as “reasonable managerial decisions”.
The Deputy President then dealt with five other matters at [69] to [86]: that Mr Thomas had seven years of service; Mr Thomas’s contention of a cover-up after he called for footage of the injury to GPD Tauvey; Mr Thomas’s personal and economic circumstances; that Mr Thomas had not demonstrated remorse; and that Mr Thomas was summarily dismissed rather than dismissed on notice.
The Deputy President concluded:
“[88] Considered in isolation, I would not regard the comments made by Mr Thomas during the escort on 8 March 2022 as being sufficiently serious to warrant his summary dismissal. However, when those matters are considered along with Mr Thomas’s refusal to co-operate during Mr du Preez’s fact-finding investigation into what happened on 8 March 2022 and Mr Thomas’s secret recording of his meeting with Mr du Preez on 13 May 2022, I consider that Mr Thomas’s overall conduct was of such a grave nature as to be repugnant to the employment relationship. His conduct demonstrated that he had no trust and confidence in Serco and he could not be trusted to conduct himself in an appropriate manner in circumstances where he disagreed with reasonable managerial decisions made by Serco. In short, Mr Thomas’s conduct was incompatible with the employment in which he had been engaged by Serco. His conduct warranted his summary dismissal.
…
[89] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Serco’s dismissal of Mr Thomas was not harsh, unjust or unreasonable in all the circumstances.
[90] Serco had valid reasons for Mr Thomas’s dismissal and it afforded procedural fairness to him prior to making a decision to bring his employment to an end. The gravity of Mr Thomas’s conduct outweighs the matters I have identified above as supporting his contention that his dismissal was harsh, unjust and unreasonable.”
Given this, the Deputy President dismissed the application.
Grounds of appeal & submissions
The Notice of Appeal raises multiple criticisms of the Deputy President’s decision and of Serco across six numbered paragraphs and a further fifty-three numbered paragraphs.
Although not expressed in this manner, for the purposes of examining all aspects of the appeal raised by Mr Thomas, it is convenient to group his objections into three categories:
1.That the Deputy President wrongly admitted evidence from Serco;
2.That the Deputy President made wrong findings of fact in part because of his reliance on Serco’s evidence that should not have been admitted; and
3.That the Deputy President colluded with Serco and its representative to admit evidence and use it to dismiss the application.
Submissions by the Appellant
At the PTA Hearing, Mr Thomas submitted that it is in the public interest to set aside a decision based on fabricated and false evidence.
Mr Thomas also submitted that it is in the public interest to set aside a decision tainted by alleged collusion between the Deputy President and the Respondent, and which has created an unjust outcome for he and GPD Tauvey.
Submissions by the Respondent
At the PTA Hearing, Serco submitted that the grounds of appeal are baseless, that the decision does not enliven the public interest and that the appeal should be dismissed.
Principles on appeal
An appeal under s 604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal, and an appeal may only be made with permission of the Commission.
Section 400(2) of the FW 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. As the Deputy President’s decision was made under Part 3-2 of the FW Act (Unfair Dismissals), the Commission must not grant permission unless it considers it in the public interest to do so.[4]
Further, to the extent an appeal against a decision made under Part 3-2 of the FW Act (Unfair Dismissals) concerns a question of fact, the appeal can only be made on the ground that the decision involved a significant error of fact.[5]
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 a Full Bench of the Commission identified some of the considerations that may attract the public interest: [9]
“... 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...”
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.[10] 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
Before dealing with the specific issues raised by Mr Thomas, we make three general observations about the Decision. Firstly, the Deputy President, correctly in our view, concluded that a finding of valid reason weighed against a finding of unfairness. Secondly, the Deputy President, also correctly in our view, concluded that the finding of procedural fairness having been afforded weighed against a finding of unfairness. Thirdly, the Decision dealt with all relevant issues and was arrived at by reference to the relevant considerations required by the FW Act.
We now deal with the specific issues raised by Mr Thomas in the Notice of Appeal and at the PTA Hearing in order to assess whether permission to appeal should be granted.
Evidence wrongly admitted
The Appellant submits that the Deputy President wrongly admitted evidence from Serco because the evidence was false and fabricated. We do not agree.
There is no doubt that Mr Thomas takes issues with large portions of the evidence of witnesses from Serco including (but not limited to) that from Mr Hulett, Ms Johnston, Mr Sparrey and Mr du Preez.
The Deputy President made findings as to credit on evidence contested and tested by Mr Thomas (for example, concerning Ms Johnston at [27], Mr du Preez at [39] and Mr Sparrey at [75]). Those findings informed subsequent findings of fact. We see no basis for disturbing those findings. It is the province of first-instance decision makers to make findings of credit and the findings made appear to have been reasonably available. This the Deputy President did and was best placed to do so.
Much of the objection raised by Mr Thomas to the evidence relied upon is based around his hypothesis that a cover-up occurred as to what had caused the injury to GPD Tauvey such that the evidence was falsified and tainted.
The Deputy President’s decision deals extensively with the issue of alleged cover-up including at [71] to [82]. The Deputy President concluded:
“[81] I reject the allegations made by Mr Thomas that various Serco employees colluded, including Mr Hulett, Mr Sparrey, Mr Voss, to:
· ensure that Mr Thomas was not able to view the earlier CCTV footage and find out what caused the injury to GPD Tauvey’s tail; and/or
· get rid of Mr Thomas from the dog squad and terminate his employment.
[82] Mr Thomas’s care and concern for GPD Tauvey, and all other dogs in his care, is not in dispute. The extent of his feelings for GPD Tauvey led Mr Thomas to disagree in strong terms with the steps taken by Serco management to investigate the cause of the injury to GPD Tauvey. Mr Thomas would not let the issue go and became obsessive about it. This is what ultimately led to the sequence of events which resulted in the termination of Mr Thomas’s employment.”
We see no error in this finding. The evidence the Deputy President relied upon was assessed in an orthodox manner. The evidence was produced both on Serco’s initiative and, in part, consequent on the Deputy President granting (in part) the application by Mr Thomas that certain officers of Serco appear at the hearing.
The Deputy President drew reasonably open conclusions as to the reasonableness of disputed evidence and no error is evident in the Deputy President having viewed available CCTV footage or making the findings he did concerning that footage. The findings at [79] of the Decision that earlier footage was not produced as it was written over was consistent with Serco’s usual practice concerning the retention of past footage was also reasonably open. Nor was there error in the Deputy President taking into account a relevant veterinary report concerning the injury and treatment of GPD Tauvey.
The hearing was extensive, occupied five days, of which four days were taken receiving and testing evidence. We conclude that the evidence relied upon by the Deputy President was relevant, was produced in an orthodox manner and his findings as to its reliability and probative value were reasonably open.
There is no apparent error disclosed by reference to the evidence relied upon or admitted by the Deputy President.
Incorrect findings of fact
The submission by Mr Thomas that the Deputy President made incorrect findings of fact in large part is advanced because of the earlier submission that the Deputy President relied on fabricated and unreliable evidence. We have not found that contention to be sustainable.
That being so, it is not apparent by reference either to the evidence objected to by Mr Thomas or the nature of the findings of the Deputy President drawn from evidence before him, that the findings made concerning the injury to GPD Tauvey or of the investigation by Serco into that injury or into the Appellant’s conduct were not reasonably open. We consider that they were reasonably open.
Mr Thomas also contends that there was no evidence for the Deputy President to make a finding that Mr Thomas “had to sell his house near Grafton” in consequence of being dismissed. The position put at PN3100 of the first-instance transcript provided a basis for such an observation though we agree that the evidence before the Deputy President on this issue was scant such that this reference in the Decision is better characterised as a background observation rather than a finding of fact. However characterised, it was not a significant finding of fact when considering the Decision as a whole, nor did it materially impact the conclusion.
There is no apparent error in the Deputy President’s findings let alone a significant error of fact as would be required to sustain an appeal under Part 3-2 of the FW Act.
Collusion with Respondent
The assertion that the Deputy President colluded with Serco and its representative can be disposed of in short order.
This first assertion, for which no evidence exists, is based on the Appellant’s view that the admission of evidence from Serco that was then relied upon to ground the Deputy President’s decision was collusive conduct. It is patently clear from a fair reading of the Decision that the Deputy President relied upon all material before him and not exclusively the evidence from Serco. Further, as we have not found that the evidence admitted nor the evidence relied upon was either incorrectly admitted or inappropriately relied upon, this allegation falls away.
The related assertion by the Appellant that the Deputy President colluded with the representative of the Respondent is equally vacuous. This contention is based on the proposition that the Deputy President improperly invited the solicitor representing Serco to take instructions before presenting final submissions on which of the allegations made against Mr Thomas that the Respondent was intending to press. The transcript of proceedings clearly shows that the Deputy President did so because he put Serco on notice of a provisional view that the evidence he had received did not appear to sustain a number of the allegations, and that it may be unfair to Mr Thomas for unproven allegations to continue to be pressed.
In drawing this to the attention of Serco’s representative, the Deputy President was acting quite properly in raising an issue of concern about the case being presented by one of the parties. Given that Serco carried, as correctly pointed out by the Deputy President, the evidentiary onus to establish the serious misconduct it alleged, there was nothing improper or unorthodox in raising this issue in open court and inviting the Respondent to take instructions before putting its closing submission.
Conclusion
The appeal raises no issue that enlivens the public interest. The decision was reasonably open to the Deputy President and arrived at by an orthodox process of decision making.
Mr Thomas clearly disagrees vehemently with the decision of the Deputy President concerning his dismissal by Serco. However, none of the grounds on which the appeal is advanced have apparent merit individually or collectively. There is no public interest in hearing and determining a meritless appeal. Nor is there any public interest in giving succour to an allegation of collusion by a Member with a party without any evidence being advanced that could objectively sustain such a proposition.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr D Thomas, on his own behalf.
Mr C Graham, of and on behalf of Serco Australia Pty Ltd.
Hearing details:
2023.
Microsoft Teams (video)
8 May.
[1] [2023] FWC 674
[2] [2023] FWC 386
[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne J
[4] Section 400(1)
[5] Section 400(2)
[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 (2011) 192 FCR 78 at [44] – [46]
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 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]
[9] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[10] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
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