Gippsland Waste Services Pty Ltd v Irene Meadley

[2013] FWC 3090

[2013] FWC 3090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Gippsland Waste Services Pty Ltd
v
Irene Meadley
(C2013/4065)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 MAY 2013

Appeal against decision [[2013] FWC 1034] of Commissioner Ryan at Melbourne on 4 April 2013 in matter number U2012/9311 - application for stay order.

[1] Ms Irene Meadley was summarily dismissed from her employment as a weighbridge operator with Gippsland Waste Services Pty Ltd (Employer) on 24 July 2012 on the grounds of “gross misconduct” 1. An application for an unfair dismissal remedy, lodged by Ms Meadley on 2 August 2012, was heard and determined by Commissioner Ryan. The Commissioner concluded that the termination of Ms Meadley’s employment was “harsh, unjust and unreasonable”2 and that Ms Meadley should be reinstated with maintenance of employment continuity and restoration of remuneration lost by Ms Meadley because of the dismissal.3

[2] On 24 April 2013 the Employer lodged a notice of appeal against the decision of Commissioner Ryan (Appellant). The Appellant also seeks an order that the operation of that decision be stayed. The Appellant’s stay application was heard by me on 7 May 2013 at which time I declined to make a stay order and dismissed the application. These are my reasons for doing so.

Principles applying to the making of an order staying the operation of a decision

[3] A person aggrieved by a decision made by a single member of the Commission may only appeal a decision with the permission of the Commission. 4 Unlike appeals against decisions made under other provisions of the Fair Work Act 2009 (Act), permission to appeal a decision related to an unfair dismissal remedy will only be granted if the Commission considers it to be in the public interest to do so.5 If an error of fact is said to have been made by the first instance decision-maker in an unfair dismissal remedy related decision, an appeal will only be available if that error of fact is a significant error of fact.6 More generally, other errors said to have been made by a first instance decision-maker must be of a kind identified in House v King.7

[4] The principles that are to be applied in considering whether to grant a stay order should, in my view, be applied against the statutory constraints on appeals of this kind noted above. Moreover, this tribunal and its predecessor have approached applications for a stay on the basis that, unless otherwise established, there is a presumption that the order or decision that is subject to appeal has been regularly made. 8

[5] It is now well established that in deciding whether to exercise a discretion to grant a stay order, the Commission must first be satisfied that there is an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the merits of the appeal, and that the balance of convenience favours the granting of a stay order. 9 The Appellant accepted this to be the case.10

The grounds of appeal

[6] The Appellant’s grounds of appeal may be broadly and conveniently summarised as follows:

(a) First it is said that the Commissioner made a significant error of fact in finding that the Appellant was a medium sized employer which employed 135 persons over several sites. 11 This finding was contrary to the evidence and led the Commissioner to wrongly apply the matters to which he was required to have regard in ss.387(f) and (g). The eroneous finding affected the Commissioner’s view of the manner in which Ms Meadley was dealt with by her employer and the dismissal of Ms Meadley from employment.12

(b) Secondly the Appellant argues that the Commissioner acted upon a wrong principle in concluding that Ms Meadley was entitled to refuse to attend a meeting to discuss allegations of bullying that had been made against her. The direction to attend the meeting was a reasonable and lawful direction and the Commissioner’s conclusion to the contrary led the Commissioner to erroneously conclude that the Appellant did not have a valid reason for the termination of Ms Meadley’s employment. 13

(c) Thirdly the Appellant says the Commissioner should not have undertaken an examination of the allegations of bullying made against Ms Meadley. Instead, the Commissioner should have enquired whether, at the time of Ms Meadley’s dismissal, the Appellant believed on reasonable grounds that the allegations of bullying were more likely than not to be substantiated. Consequently, so it is argued, in taking into account the outcome of the Commissioner’s examination of the bullying allegations, the Commissioner fell into error by taking into account irrelevant considerations and acted on a wrong principle. 14

(d) Next it is argued, the Commissioner conducted the hearing in a highly interventional or inquisitorial manner. Implicit in this ground is a criticism that the Commissioner did not conduct a fair hearing. Further, the Appellant submits that the inquisitorial questioning from the Commissioner resulted in extraneous and irrelevant matters being taken into account. 15

(e) Finally, the Appellant argues that the Commissioner failed to give sufficient weight to the practical and on-going impossibility of the employee being reinstated to the workplace. Consequently the Commissioner fell into error in concluding that reinstatement was not inappropriate and in ordering the reinstatement of Ms Meadley. 16

[7] As to the question of whether it is in the public interest to grant permission to appeal, the Appellant submits that the appeal raises a number of important issues, including whether:

• as a ‘smaller’ employer, the Appellant should be held to fair dismissal standards that would apply to a medium sized employer that employs “130 odd employees”;



• an employee is entitled to receive written allegations of misconduct before being reasonably required to attend a meeting with an employer to discuss the allegations;



• an employer is required to take the further step of giving an employee another opportunity to answer allegations or attend a meeting once the employee has refused to attend a meeting at the direction of the employer;



• it is appropriate to reinstate an employee when there is an appreciable risk of victimisation and bullying of other employees by the reinstated employee; and



• the level of intervention by the Commissioner during the hearing was appropriate. 17

Arguable case with some reasonable prospect of success

[1] With the exception of one matter, I am not satisfied that the Appellant has made out an arguable case that the appeal as notified and outlined during the stay application hearing has some reasonable prospect of success of obtaining permission to appeal or on the merits of the appeal. I will deal briefly with each ground of appeal as summarised above.

Significant error of fact

[2] The Appellant points to a “significant error of fact” identified at [90] of the decision. There, the Commissioner states that the Appellant “is a medium sized employer employing as it does 135 employees ...”. In fact the Appellant only employed 35 employees at the time of Ms Meadley’s dismissal. In my view, the reference to “135 employees” is likely to be no more than a typographical error. Elsewhere in the decision it is clear that the Commissioner was aware that the Appellant employed “35” and not “135” employees at the time of Ms Meadley’s dismissal. 18 The Commissioner’s conclusion at [90] of his decision19 that the Appellant is a “medium sized employer” should not be read so narrowly as to be confined only to the erroneous reference to “135 employees”. The Commissioner’s conclusion that the Appellant is a “medium sized employer” must be read in context and having regard to the decision as a whole.

[3] The Commissioner relied upon the Appellant’s concession that it was not a “small business employer”. 20 The Commissioner’s description of the Appellant as a “medium sized employer” is apt to differentiate the Appellant from a “small business employer”, indicating that more rigour might be required in effecting a fair dismissal than that which is set out in the Small Business Code. Further the Commissioner noted that the Appellant had a workplace bullying policy in place, which is indicative of its capacity to promulgate and apply workplace policies dealing with the dismissal of employees.21

[4] Furthermore, the Commissioner took into account the absence of human resources management expertise but concluded that the process adopted by the Appellant in dealing with the allegations against Ms Meadley was flawed. 22 When read in the context of the decision as a whole, it is difficult to characterise the Commissioner’s erroneous finding at [90] as a significant error of fact that has some reasonable prospects of establishing that the decision should be set aside. As is apparent from this and the preceeding paragraph, the Commissioner’s conclusion that the Appellant is a “medium sized employer” seems to have stronger foundations than a mere incorrect reference to the number of employees in the Appellant’s employment.

Conduct of the hearing

[5] The Appellant has criticised the Commissioner’s conduct of the hearing in two respects. First it was argued that the Commissioner was wrong to conduct his own bullying investigation and should instead have merely considered whether the employer had reasonable grounds to conclude, on the balance of probabilities, that the bullying allegations had been substantiated. It is difficult, at this interlocutory stage, to see the merit in this argument.

[6] It seems unusual for the Appellant to criticise the Commissioner for reaching his own conclusion about the bullying allegations since it was the Appellant, which led evidence from some of the employees who had made the allegations, presumably in an effort to persuade the Commissioner that the allegations had some foundation. It was the Appellant that seems to have put in issue, whether bullying conduct was engaged in by Ms Meadley. It called two employees to give evidence about the bullying. 23 It seems plain that, when the conduct of an employee towards another employee or other employees forms part of the “valid reason” relied upon by the Appellant, the Commissioner was entitled to form a view about whether the conduct, as described and characterised by the Appellant, occurred. Further, the Commissioner indicated that, he intended to determine for himself whether bullying occurred.24 A submission to the contrary by the Appellant does not seem to have been put to the Commissioner at first instance.

[7] In reaching his conclusion that the termination of Ms Meadley’s employment was harsh, unjust or unreasonable, the Commissioner was required to take into account “whether there was a valid reason for the dismissal”. 25 It seems to me, the effect of the Appellant’s argument to be advanced on appeal, is that the Commissioner should only have taken into account whether the Appellant had reasonable grounds to conclude on the balance of probabilities that it had a valid reason to terminate Ms Meadley’s employment. On the basis of the arguments advanced at the stay application hearing, this ground has limited prospects of success. I note that the Appellant does not challenge that actual finding made by the Commissioner that Ms Meadley did not engage in bullying conduct.

[8] The second limb of attack by the Appellant on the Commissioner’s decision and conduct of the hearing criticises his intervention and his inquisitorial style adopted during the hearing. This by implication suggests an unfair hearing. Expressly, it is suggested that the Commissioner pursued and took into account irrelevant considerations. As a general observation, a party’s interest is best served by raising such concerns during the hearing at first instance. The Commissioner indicated to the Appellant that this is how he was conducting the hearing. 26 The Appellant did not seem to take issue with this. A failure to do so will not, in and of itself found a basis to reject such an argument on appeal if error of the kind referred to in House v King27 or actual unfairness is shown to have resulted from the conduct.

[9] It would, in my opinion, be wrong for parties appearing before the Commission to assume that an adversarial style of hearing, with limited questioning or involvement from the Commission member presiding, will be adopted by the Commission in cases of this kind. Such a passive approach runs counter to the scheme of the Act and is not necessarily productive of a fair hearing, particularly where one or both parties are not represented. The Act proceeds on the basis that parties will represent themselves, or be represented by lay advocates from registered organisations. Obtaining permission to be represented by a legal practitioner or paid agent is circumscribed by the Act. 28 The absence of representation in many cases necessarily leads to greater involvement in the conduct of the hearing by the presiding member, perhaps by asking more probing questions of the parties.

[10] Furthermore, the default position under the Act for dealing with applications of this kind is to conduct a determinative conference in private, rather than a hearing. 29 The fact that this approach as set out in the Act may require the presiding member to adopt a more inquisitorial approach was recognised in the Explanatory Memorandum to the Fair Work Bill 2008.30 Additionally, the Commission has a wide discretion as to the manner in which it will inform itself31, including by conducting inquiries32, and may inform itself in such manner as it considers appropriate.33 The Commission is not bound by the rules of evidence or procedure in relation to a matter.34 The Commission must of course comply with the rules of natural justice in the conduct of a hearing or determinative conference, however when account is taken of the statutory scheme discussed above, I am not persuaded, at this interlocutory stage, that this ground of appeal has anything other than limited prospects of success.

Reinstatement

[11] The Appellant submits that the Commissioner should not have ordered the reinstatement of Ms Meadley principally because there had been an irretrievable or irreparable breakdown in the employment relationship and because there was an appreciable risk of victimisation and bullying of employees of the Appellant by Ms Meadley if she were to return to work with the Appellant. The breakdown in the relationship alleged seems to have occurred because the Appellant believed that Ms Meadley had engaged in workplace bullying. The Commissioner found that she had not. As noted earlier this finding does not appear to be challenged on appeal. In the circumstances it is unsurprising that the Commissioner did not accept that the employment relationship was irreparably damaged. Likewise it is unremarkable that the Commissioner did not take into account any “appreciable risk” of bullying or victimisation. At this interlocutory stage I am not persuaded that this aspect of the appeal has some reasonable prospect of success.

Valid reason - refusal to attend meeting

[12] I am persuaded that the Appellant has, both as to permission to appeal and the substantive merits, made out an arguable case, with some reasonable prospect of success that the Commissioner fell into error in not concluding that the Appellant had a valid reason for dismissing Ms Meadley because of her refusal to attend a meeting to discuss the allegations. It is arguable that the Appellant was not required to inform Ms Meadley of the substance of the particulars of the allegations against her before she attended a meeting with her employer to discuss the allegations. It is arguable that the requirement to attend was a reasonable and lawful direction and that it is no answer for Ms Meadley to say that she required the particulars of the allegations (whether in writing or otherwise) to be provided to her or anyone else before she would attend a meeting as directed. It is arguable that it is in the public interest that permission to appeal should be granted, because it will require an examination of the scope of an employee’s obligations to co-operate with his or her employer during such an investigation and the scope of an employer’s obligations during an investigation into an employee’s conduct.

Balance of convenience

[13] The Appellant advanced three arguments in support of its contention that the balance of convenience favours the granting of a stay order. First it was submitted that a stay order is necessary because Ms Meadley’s reinstatement posed an unacceptable risk of Ms Meadley engaging in victimisation and bullying of existing employees of the Appellant. The Appellant did not offer any evidence in support of this submission in the form of statements from other employees or from the employer attesting to the conduct of a risk assessment or the basis of any concern. Moreover, as the primary finding of the Commissioner that Ms Meadley did not engage in bullying conduct is not challenged on appeal, it is difficult, without more, to accept that the risk is real. In any event the Appellant, like any employer, is under a duty and in a position to take steps to eliminate or minimise the risk.

[14] Secondly, it was submitted that I should take into account the size of the Appellant. The Appellant says it is small organisation. It is very difficult for it to accommodate a reinstatement. Reinstatement is particularly inconvenient because, if it is successful on appeal, the Appellant may encounter difficulties associated with undoing the reinstatement and recovering moneys paid as wages to Ms Meadley. As I have indicated earlier in these reasons, this tribunal and its predecessor have approached applications for a stay on the basis that, unless otherwise established, there is a presumption that the order or decision that is subject to appeal has been regularly made. 35 Ms Meadley is entitled to the benefit of the order for reinstatement. The arguments to be advanced on appeal are not so strong as to persuade me that this potential inconvenience should be avoided by the granting of a stay order.

[15] Finally, it was submitted that the Appellant will encounter difficulties associated with a requirement to reorganise shifts of existing employees so as to accommodate the reinstatement. For the reasons expressed in the preceding paragraph I am not persuaded by this argument.

[16] In applications of this kind the stronger the arguable case the less reliance need be placed on exceptionally strong balance of convenience grounds in order to warrant the grant of a stay order. Conversely the weaker the arguable case, the stronger must be the balance of convenience. Taking into account my earlier assessment of the Appellant’s arguable case submissions and the weaker nature of the matters advanced as balance of convenience considerations I have concluded that the balance of convenience does not favour the grant of a stay order.

Conclusion

[17] The application for an order staying the operation of the decision of Commission Ryan is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Ritchie and T. Page on behalf of Gippsland Waste Services Pty Ltd.

J. Hooper for I. Meadley.

Hearing details:

2013.

Melbourne:

May 7.

 1   See Letter dated 24 July 2012 advising Ms Meadley of the termination of her employment, AB p 328

 2   Decision of Commissioner Ryan 4 April 2013 [2013] FWC 1034 at [94], AB 16

 3   [2013] FWC 1034 at [103]-[106], AB 19; See also Decision of Commissioner Ryan 2 May 2013 [2013] FWC 276

 4   Section 604(1)

 5   Section 400(1)

 6   Section 400(2)

 7 (1936) 55 CLR 488; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008 at [2320] to the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the application of House v King to appeals in the AIRC, and the intention expressed in the EM to maintaining this jurisprudence in relation to FWA appeals.

 8   See for example Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) at [6]

 9   Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) and applied in this tribunal see for example Boom Logistics Limited v Bell and Mackay, [2013] FWC 1017 per Boulton J, GM Holden Ltd v Symonds, [2013] FWC 332 per Smith DP, Vondoo Hair v Crockett, [2012] FWA 9553 per Watson SDP, Vita Property Group Pty Ltd v Clayworth, [2012] FWA 6547 per Drake SDP, DesignInc (Sydney) Pty Limited v Xu, [2012] FWA 1088 per Watson SDP and Suncorp Staff Pty Limited v Brewer, [2012] FWA 823 per Boulton J

 10   Transcript PN21- PN28

 11   Notice of Appeal [2.1] - [2.2]; [2013] FWC 1034 at [90], AB 15

 12   Notice of Appeal [2.2]; Transcript PN108

 13   Notice of Appeal [2.3] - [2.8]; Transcript PN112 - PN116

 14   Notice of Appeal [2.9] -[2.11]; Transcript PN117 - PN127

 15   Notice of Appeal [2.12]; Transcript PN128 - PN138

 16   Notice of Appeal [2.13] - [2.16]; Transcript PN139

 17   Notice of Appeal [3.1]; Transcript PN 141 - PN 143

 18   [2013] FWC 1034 at [11], AB 2

 19   AB 15

 20   [2013] FWC 1034 at [11], AB 2

 21   [2013] FWC 1034 at [90], AB 15

 22   [2013] FWC 1034 at [90] - [91], AB 2

 23   See statement of Philip Wright, AB 335 and statement of Evelyn Parsons, AB 336

 24   Transcript PN2606, AB 244

 25   Section 387(a)

 26   Transcript PN2206 - PN2608, AB 244.

 27 (1936) 55 CLR 488

 28   Section 396

 29   Sections 397 - 399

 30   See Illustrative Example following [1593] at p 235

 31   Section 590(1)

 32   Section 590(2)

 33   Section 590(1)

 34   Section 591

 35   See for example Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) at [6]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR536967>