Formway Group Ltd v Mr Corey Batrachenko
[2013] FWCFB 9829
•18 DECEMBER 2013
[2013] FWCFB 9829 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Corey Batrachenko
(C2013/6023)
VICE PRESIDENT WATSON | SYDNEY, 18 DECEMBER 2013 |
Appeal against decision [2013 FWC 5739] of Deputy President Asbury at Brisbane on 27 August 2013 in matter number U2013/9684 - permission to appeal - public interest - Notice ofreason for dismissal and opportunity to respond - Fair Work Act 2009 ss.387, 400, 604.
Introduction
[1] This decision relates to an application for permission to appeal against the decision of Deputy President Asbury handed down on 27 August 2013 in an unfair dismissal application by Corey Batrachenko arising from the termination of his employment by Formway Group Ltd (Formway).
[2] The Deputy President found that although there was a valid reason for the dismissal it was unreasonable, because it was decided on inferences that could not reasonably have been drawn from the material before Formway, and without proper consideration of all relevant matters. The Deputy President ordered payment of an amount of four weeks’ wages as compensation to Mr Batrachenko. At the hearing of this appeal, Mr J Dwyer of counsel appeared for Formway and Ms K Inglis appeared for Mr Batrachenko. In order to be successful in appealing the decision of the Deputy President, Formway first needs to establish that it is in the public interest to grant permission to appeal 1 and secondly demonstrate error justifying allowing the appeal, having regard to the fact that the decision under appeal is of a discretionary nature.
The Decision under Appeal
[3] The decision is a lengthy and complex one which contains a detailed summary and analysis of the facts in the matter. The complexity of the circumstances is highlighted by the consideration of the reasons for termination.
[4] Mr Batrachenko was dismissed for misconduct. One reason, relied on by Formway at the time of the dismissal, related to admitted conduct by Mr Batrachenko of engaging in a practice of claiming overtime payment for Saturday work for a whole shift of eight hours after completing 20 jobs and leaving after those jobs were completed prior to the end of the shift. This practice was termed the “job and knock arrangement” in the evidence before the Deputy President. Mr Batrachenko contended that this arrangement was agreed to and authorised by his supervisor, but the Deputy President did not accept this was the case.
[5] The second reason relied on by Formway only came to light in the proceedings before the Deputy President. It concerned a practice of banking jobs on a Friday before they were scheduled to be performed on overtime on the following day. The Deputy President relevantly dealt with Formway’s reliance on this additional post-dismissal new matter at [83] of the decision. At [115], she concluded:
“[115] In these circumstances I am unable to be reasonably satisfied Mr Batrachenko did engage in the practice of banking jobs and that this was a valid reason for the dismissal. I am however of the view that had this matter been put to Mr Batrachenko during the show cause process, a response such as the one he gave in his evidence in this hearing, would have resulted in a finding that this matter was a valid reason for his dismissal.”
[6] For present purposes, it is sufficient to note the Deputy President found that there was at least one valid reason for the termination of Mr Batrachenko’s employment, namely, the overstatement of hours claimed as overtime in the job and knock arrangements, but he was not notified of the reason for his dismissal and consequently was not given an opportunity to respond to the reason for the dismissal. For these and other reasons relating the way in which the matter was dealt with by Formway, the Deputy President found that the termination of his employment was unfair.
[7] The conclusions of the Deputy President in relation to notification of the reason for dismissal and an opportunity to respond to the reasons are expressed in the following extracts from her decision:
“Was Batrachenko notified of the reason for his dismissal?
[116] Notification to a person facing dismissal of the reason for the dismissal, is fundamentally linked to the principles of natural justice and procedural fairness encapsulated within the considerations in s.387. Notification of the reason for dismissal underpins the ability of a person whose job is at risk, to respond to allegations and to attempt to convince the employer that the reasons are not a basis for dismissal. An employee cannot properly defend allegations or have a proper opportunity to convince the employer that the allegations do not constitute a reason for dismissal in circumstances where the employee is not properly notified of the allegations.
[117] In the present case, I am not satisfied that Mr Batrachenko was notified of the reason for his dismissal. Before requesting Mr Batrachenko to show cause why he should not be dismissed in relation to the overstatement of hours, Mr Linney conducted an analysis of time sheets and Tough Book records for all employees who had worked Saturday overtime for the same period as Mr Batrachenko. There is no evidence that Mr Linney put any comparative information to Mr Batrachenko at the meeting. This is notwithstanding the fact that Mr Batrachenko’s defence was that other employees had engaged in the same conduct and that it had been sanctioned by Mr Napper.
[118] Mr Batrachenko had no notice of the allegation that he had banked jobs. Evidence about this matter was apparent from the Tough Book records and I do not accept the explanation provided by Mr Linney for his failure to note that evidence when he was conducting an audit of Mr Batrachenko’s Tough Book records and time sheets. Mr Linney was conducting an audit in circumstances where he was looking for evidence of irregularity on the part of Mr Batrachenko in relation to hours of work. The irregularity is obvious from the Tough Book records and Mr Linney should have noticed it and put allegations about the matter to Mr Batrachenko.
[119] As a result of Mr Linney overlooking this matter, Mr Batrachenko was not notified of an allegation that has now been found to be a valid reason for his dismissal, in circumstances where it should reasonably have been expected that a manager in Mr Linney’s position would have noted this matter.
Was Batrachenko given an opportunity to respond to the reason for his dismissal?
[120] Because Mr Batrachenko was not notified of the reasons for dismissal, he was not given an opportunity to respond to those reasons. Instead of having an opportunity to defend against the allegations that he had banked jobs, prior to his dismissal, Mr Batrachenko was confronted with allegations at the end of a lengthy hearing, brought to the attention of Mr Linney by two employees who were probably disgruntled at having to attend the Commission to give evidence in these proceedings.
[121] Notwithstanding the fact that Mr Batrachenko was unable to provide a satisfactory explanation in his evidence in these proceedings about why information about jobs scheduled for Saturday were opened on the preceding Friday, he should have had an opportunity to provide such an explanation before he was dismissed. That opportunity was denied to him in circumstances where the information upon which the allegation was based should have been reasonably apparent to Mr Linney before he dismissed Mr Batrachenko.”
[8] Before turning to the grounds of appeal, we observe that as to the comments in [118] above, the issue concerning banking of jobs did not come to light until evidence was adduced in the proceedings below. Even if it were accepted the employee who reviewed the records concerned knew of or should have noticed irregularities, there was no evidence that Formway did have that knowledge. As a result, that subsequent allegation could not have been put by Formway to Mr Batrachenko.
Grounds of Appeal
[9] There are essentially three grounds of appeal. Each relates to the above aspects of the decision. The first ground relates to an alleged mistake of fact in stating at [117] that Mr Batrachenko had relied on others engaging in the practice as part of his defence. The second ground is that the Deputy President erred in finding that the failure of the employer to provide comparative data of other employees led to the conclusion that Mr Batrachenko was not notified of the reason for his dismissal and was therefore given no opportunity to respond to that reason. The third ground relates to the legal principles and the approach to the second reason for dismissal that came to light during the proceedings.
[10] The appeal grounds relate to the process adopted by Formway in coming to a conclusion to terminate Mr Batrachenko’s employment. The adoption of a fair process is especially relevant in misconduct cases such as the present. Notifying the employee of the reason/s for the employer’s concerns which may result in disciplinary action including dismissal is ordinarily a necessary precursor to providing the employee with an opportunity to respond to the reason/s, and for the employer to take into account representations by the employee in determining whether to terminate employment.
[11] A Full Bench of the Australian Industrial Relations Commission in Abdel-Karim Osman v Toyota Motor Corporation Australia Ltd 2described the obligation to provide an opportunity to respond to the reason for dismissal as requiring the employer to take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. It adopted comments of Wilcox CJ in Gibson v Bosmac Pty Limited,3 approved by Northrop J in Selvachandran,4 where Wilcox CJ said (at p7):
“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particularly formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”
[12] In this case, after Mr Batrachenko admitted to engaging in the job and knock arrangement on 21 February 2012, Formway wrote to him on 23 August 2012, advising him that it regarded this conduct as serious misconduct that had led to a financial gain of $5,724. The delay in writing in this regard was attributable to proceedings concerning another employee. It asked him to attend a meeting scheduled for 28 August 2012 to show cause why he should not be dismissed from his employment. Mr Batrachenko attended the meeting with his union organiser and tabled a letter responding to the allegations. His employment was terminated at the conclusion of that meeting.
[13] In our view, this process adopted by Formway clearly satisfied the description of notifying Mr Batrachenko of the reasons for the dismissal and providing him with an opportunity to respond. Further, we do not accept that this conclusion should be any different because comparative information concerning other employees was not provided. The allegation concerned Mr Batrachenko’s admitted conduct and provided him with a fair opportunity to advance reasons why it should not be viewed as serious misconduct or should not otherwise lead to the termination of his employment. The letter to him gave clear notice of the precise nature of Formway’s concern. In our view, the disciplinary process provided a proper opportunity to Mr Batrachenko to respond to that concern. Indeed Mr Batrachenko, in his written and oral representations, made use of that opportunity. We are therefore of the view that the Deputy President was in error in deciding otherwise and this was a significant error of fact.
[14] In our view, this error of fact and the mistaken application, contrary to principle, of the criteria in s.387(b) and (c) of the Fair Work Act2009 are sufficient to conclude that the discretion vested in the Deputy President miscarried, without traversing the other matters the subject of the appeal. We are of the view that this ground of appeal has substance and should be upheld. As the ultimate conclusion about the fairness of the dismissal appeared to depend to a large extent on the conclusions reached in relation to these criteria we consider that the errors likely had a significant impact on the ultimate result in favour of Mr Batrachenko. If the provisions were properly applied there could well have been a different result because instead of the process being regarded as defective, it should have been regarded as being in conformity with the statutory considerations. It is therefore necessary that the discretion on Mr Batrachenko’s application is re-exercised in the light of our conclusions.
[15] We are of the view that it is in the public interest to grant permission to appeal because the decision manifests an injustice, the approach applied is disharmonious with other cases, the statutory provisions have not been properly applied and the proper application of these criteria is important to many other unfair dismissal applications where alleged misconduct is involved.
Conclusion
[16] For the above reasons, we grant permission to appeal, allow the appeal and quash the decision of the Deputy President. We remit the matter to Deputy President Asbury to determine the outcome of Mr Batrachenko’s unfair dismissal application based on the findings of fact already made by the Deputy President as modified by our conclusions in this appeal.
VICE PRESIDENT WATSON
Appearances:
Mr J Dwyer of counsel and Mr J Mathews on behalf of Formway.
Ms K Inglis and Mr M Wright on behalf of Mr Batrachenko.
Hearing details:
2013
Brisbane
December
3.
1 Fair Work Act 2009, s400.
2 PR910409
3 (1995) 60 IR 1
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
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