Go to Court Franchising Pty Ltd T/A Go to Court Lawyers v Paul Lewis
[2017] FWCFB 6330
•6 DECEMBER 2017
| [2017] FWCFB 6330 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 400 – Permission to Appeal
Go To Court Franchising Pty Ltd T/A Go To Court Lawyers
v
Paul Lewis
(C2017/6250)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 6 DECEMBER 2017 |
Appeal against order PR597245 of Commissioner Hunt at Brisbane on 31 October 2017 in matter number U2017/3171 – alleged errors of fact and law – public interest not enlivened – permission to appeal denied.
[1] On 14 November 2017, Go To Court Franchising Pty Ltd trading as Go To Court Lawyers (Appellant) lodged a Notice of Appeal in the Fair Work Commission (Commission), for which permission is necessary, against a Decision1 (Decision) and order2 (Order) of Commissioner Hunt in which the Commissioner dealt with an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).
[2] The Commissioner determined that the dismissal of Mr Paul Lewis (Respondent) by the Appellant on 9 March 2017 was harsh, unjust and unreasonable. The Respondent did not seek reinstatement and the Commissioner determined that an order for reinstatement was not appropriate.3 The Commissioner determined that an order for compensation was appropriate and in lieu of an order for reinstatement, ordered the Appellant to pay to the Respondent compensation in the amount of $15,068.08, less appropriate taxation, plus superannuation at the rate of 9.5% on this amount into Mr Lewis’ superannuation fund. The Commissioner ordered that these amounts be payable within 14 days of the date of the Decision.4
[3] The matter concerned the dismissal of a lawyer by a firm of lawyers. Prior to his dismissal, Mr Lewis had been employed by the Appellant for approximately 12 months as a Senior Associate and Senior Civil Supervisor responsible for the firm’s management of civil matters in Queensland, New South Wales and Victoria. He was dismissed for reasons said to relate to his conduct and capacity in the management of legal matters.
[4] The appeal is made under section 604 of the Act. The appeal concerns the primary finding that the dismissal was harsh, unjust and unreasonable. The Appellant contends that the case concerned the standards of conduct and performance which a legal firm could and should be entitled to reasonably expect of its lawyers. It says that the Decision compromised that principle. The appeal does not directly call into question the terms or calculation of the compensation order.
[5] On 20 November 2017, at the request of the Appellant, the Commission stayed the operation of the compensation order pending the hearing and determination of the appeal.5 The stay was granted on the condition that the sum ordered be placed into a separate interest bearing account and not be used except in accordance with the determination of the appeal.
[6] The threshold issue which requires consideration in respect of the Notice of Appeal is whether permission to appeal should be granted. This decision concerns that matter.
[7] Prior to the hearing of the application for permission to appeal, we refused the Appellant’s request to be granted permission to be represented under section 596 of the Act. We did not consider that the Notice of Appeal raised particular issues of complexity. We took into account that the Appellant is a firm of lawyers and had been represented at first instance and in proceedings for the stay by its Managing Partner who is a legal practitioner. In proceedings before the Commissioner and in the stay proceedings permission to be represented had also been refused. We also took into account the issue of fairness between the parties, noting that Mr Lewis was representing himself.
The Commissioner’s Decision
[8] The Commissioner heard the matter on 5 and 6 July 2017. She received extensive evidence and submissions orally and in writing from both the Appellant and the Respondent. The evidence concerned not just material the Appellant said supported its decision to dismiss but also evidence it said came to its knowledge after the Decision to dismiss but which it claimed, individually and cumulatively, constituted a valid reason for dismissal.
[9] The Commissioner delivered a detailed Decision of some 76 pages on 31 October 2017. She found there was no valid reason for dismissal having regard to the capacity or conduct of Mr Lewis6. She also found that Mr Lewis was not given an opportunity to respond to concerns the Appellant held concerning his capacity or conduct7 and that he had not been warned in relation to unsatisfactory performance except for time billing8. For these reasons she found the dismissal to be harsh, unjust and unreasonable9.
[10] In relation to remedy, the Commissioner concluded that reinstatement was inappropriate10 but a compensation order would be made. She found that Mr Lewis had been employed for a relatively short period of time and that his employment would not have been likely to have continued for an extended period11. She concluded it would have continued for at least the next twelve weeks12. The compensation ordered was twelve weeks less two weeks paid in lieu of notice, less $1,855.00 which Mr Lewis earned during this period13. No compensation was payable for losses attributable to the vicissitudes of life, nor for shock or distress14. The compensation order was not reduced on account of any alleged misconduct15. There was no evidence of the effect of a compensation order on the viability of the employer’s enterprise16.
Permission to appeal principles
[11] An appeal under section 604 of the 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.17 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[12] Section 400 of the Act applies to this appeal. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[13] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under section 400 of the Act as “a stringent one”.18 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.19 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 issues 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”20
[14] 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.21 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.22
The Appeal
[15] In support of its appeal, the Appellant submits that it is in the public interest for us to grant permission for the following reasons:
1. The Commissioner erroneously applied established legal principles (Attachment B to Notice of Appeal); and
2. The Commissioner made significant errors of fact (Attachment A to Notice of Appeal).
[16] For the sake of convenience, the significant errors of fact asserted can be grouped into three categories:
1. The Commissioner did not assess whether the evidence in a collective sense established a basis for finding a valid reason for dismissal. It is asserted that she only considered evidence singularly;
2. The Commissioner misapplied the evidence in that she either failed to make findings the Appellant asserts should have been made, or made findings with which the Appellant disagrees; and
3. The Commissioner wrongly assessed the evidence on the basis of whether misconduct had occurred rather than considering issues of capacity.
[17] The alleged errors of law concern alleged misapplication of legal principles concerning the treatment of evidence discovered after dismissal; the weight to be given to evidence of the lack of opportunity to respond if it would not have altered the outcome; and the consequences of the employer relying on evidence discovered following a dismissal which was not put to an employee for response. The Appellant also asserts that the Commissioner misapplied a rule permitting a decision maker to draw an adverse inference against a party for not calling a person to give evidence. The Appellant says these matters are relevant to the public interest.
Public Interest Considerations
[18] We now consider whether the appeal enlivens the public interest.
Does the appeal raise a matter of importance or general application?
[19] The Appellant asserts that certain principles of law have been misapplied. It does not seek to disturb those legal principles or establish new principles. Rather it seeks to rely on established principle. The appeal does not raise a legal question of importance or general application.
[20] The Appellant contends that significant errors of fact have been made. No doubt the resolution of those factual matters is important to the parties to this matter. However they are of specific application to those parties and not of general application to proceedings before the Commission or to the interests of employees, employers or the operation or objects of the Act.
Is guidance from an appellate body required on the legal principles?
[21] The legal principles relevant to the determination of the matter were identified by the Commissioner. Those principles were drawn from the authority of courts exercising a supervisory role or full benches of the Commission exercising an appellate jurisdiction. They are settled principles. They do not emerge from a diversity of earlier Decisions that remain unresolved. There is no basis on which this appellate body considers it necessary or expedient to revisit those principles or provide general guidance on them.
Does the Decision manifest an injustice or is it counter intuitive?
[22] A primary issue agitated in seeking permission to appeal was the contention by the Appellant that the Commissioner erred in considering whether each item of evidence of alleged misconduct constituted a valid reason for dismissal rather than considering the evidence as a whole and making a cumulative assessment. The Appellant says that was a significant error of fact within the meaning of section 400(2) of the Act, and had the effect of producing an unsafe and unjust result.
[23] It is true that the Commissioner’s approach was to “deal with each separately to assist in the determination as to whether there was a valid reason for the dismissal”23 and that she then proceeded to do that with relevant findings on each separate matter at [252] (re time records), [260] (re threat of litigation), [289] (re Hart), [311] (re Smith), [326] (re Jones), [327] (re Ralph), [334] (re Frost), [338] (re letters of demand) and [348] (re email to Mr Stevens).
[24] It is neither unjust nor counter intuitive for a Member to consider whether a finding of particular conduct can be made on the evidence and whether that conduct constituted a valid reason for dismissal. That is a not merely a relevant and permissible consideration under section 386(a) of the Act but a regularly encountered task. It is unremarkable.
[25] It is correct, as the Appellant submits, that the Commissioner made a number of findings when considering individual matters that were critical of the competence and capacity of the Respondent.24 This does not however mean that either individually or cumulatively those findings necessarily support a conclusion that a valid reason for dismissal existed. We do not consider that the Commissioner failed to consider the evidence as a whole, including those findings. Where the evidence of particular conduct (including alleged misconduct) is detailed around a specific subject matter it is not unsurprising that the Commissioner would give that specific attention. It is also to be noted that the Commissioner says that her specific consideration of individual matters is undertaken to “assist in the determination” of whether a valid reason for dismissal existed. “Assisting in determination” does not mean that a determination has been made without reference to individual matters as a whole. When considering the Decision as a whole it is apparent that the Commissioner took into account the evidence both individually and cumulatively. This was expressed by the Commissioner at [414] as follows:
“I have earlier determined that none of the matters relied upon by the Respondent for the dismissal constitute a valid reason for the dismissal, either singularly or cumulatively.”
[26] We are satisfied that this is what the Commissioner did and that this approach was neither counter intuitive nor unjust.
[27] The Appellant also says that the Commissioner focussed on whether the Respondent committed acts of misconduct rather than whether he failed to meet appropriate standards of capacity or competence.
[28] This submission sits at odds with the Decision. On multiple occasions in the Decision the Commissioner makes findings concerning capacity and competence, for example Smith matter at [309] and [311]; Jones matter at [324]; Long matter at [328] and [332]; and Hart matter at [264] and [281]-[282].
[29] In any event, the distinction the Appellant advances between capacity and conduct is not an absolute one. In many instances, including some of the findings in this matter, a lack of capacity on the part of an employee manifests itself as unacceptable conduct. Where that occurs, dealing with conduct and capacity as interchangeable designations does not evidence error.
[30] The Decision indicates, specifically, that it is based on all of the Commissioner’s findings and having regard to all of the material before her.25 Those findings included findings concerning both conduct and capacity. This approach is neither counter intuitive nor unjust.
Are the legal principles misapplied or disharmonious?
[31] The Appellant contends that certain legal principles have been misapplied in a manner that is disharmonious with decisions that have applied them correctly.
[32] The Appellant alleges misapplication of the principle in Shepherd v Felt and Textiles of Australia Ltd 26 (Shepherd). It relies on the authority of the High Court of Australia in Shepherd to advance the proposition that termination of employment is for a valid reason even where evidence to support that reason was not known to the employer at the time of termination and has only emerged since dismissal.27
[33] The Appellant refers to the considerable evidence it brought before the Commissioner concerning the work Mr Lewis did on four files, the Smith, Hart, Ralph and Long matters, amongst others. The Appellant says that the employer’s knowledge of alleged sub-standard performance or conduct concerning these matters only emerged after dismissal. Consistent with the principle in Shepherd, it sought to rely on that evidence to establish a valid reason for dismissal.
[34] The Commissioner found that the reason for dismissal was the content of an email sent by Mr Lewis to Mr Stevens on the evening of 8 March 201728. She found that email did not constitute a valid reason for dismissal29.
[35] The Commissioner then proceeded to consider the extensive evidence concerning post-dismissal material that came to the knowledge of the employer. The Decision indicates that the Commissioner dealt with each of these matters, amongst others at some length: Hart at [264]-[289]; Smith at [290]-[312]; Ralph at [327] and Long at [328]-[330]. The Commissioner concluded at [349]:
“I have had regard for all the material put by both parties, and in particular, the substantial number of matters GTC lawyers raised following Mr Lewis’ dismissal. I have not referred to all of the matters raised by GTC Lawyers, but I have had regard to them. I have determined that none of the other matters constitute a valid reason for the dismissal.”
[36] We are not satisfied there was any misapplication of the principle by the Commissioner. In the Decision, the Commissioner expressly made reference to Shepherd, noting that the additional evidence would be “considered and assessed against the criteria in section 387 of the Act”30. This is the correct approach. Post dismissal evidence, if relevant, does not stand alone. It is required to be tested against the relevant statutory criteria. This is what the Commissioner did.
[37] The Appellant says that the Commissioner erred in concluding that “there is also a systemic problem with the Respondent’s actions of trawling through every matter Mr Lewis had been involved in to try and find something it could pin on him”31. Whatever the basis for this observation, it did not preclude the Commissioner from assessing the post-dismissal material on its merit and determining whether it established a valid reason for dismissal under section 387(a) of the Act. Nor did it preclude her from concluding, as she did, that an investigation was being conducted into Mr Lewis’ conduct and capacity at the time of dismissal and that this formed a relevant consideration to her finding that he would not have continued in employment for an extended period of time had he not been dismissed on 9 March 201732.
[38] The Appellant also alleges misapplication of the principle in Siriwardana v Dissanayake Busways Blacktown Pty Ltd 33(Siriwardana). It says that the Commissioner erred in failing to properly apply the principle in Siriwardana to the effect that a failure to provide procedural fairness to an employee does not, of itself, render a dismissal harsh, unjust or unreasonable.
[39] We do not agree. In her Decision, the Commissioner properly deals with procedural fairness issues including whether Mr Lewis was notified of a valid reason (at [350]-[360]); whether Mr Lewis was given an opportunity to respond (at [361]-[366]; whether there was an unreasonable refusal to allow a support person (at [367]-[368]) and whether Mr Lewis had prior warnings concerning unsatisfactory performance (at [369]-[372]). Each of these factors are not just relevant to the principle in Siriwardana but required by the Act to be taken into account. There is no evidence that the Commissioner gave them undue weight. She concluded:
“I do not accept that the seriousness of Mr Lewis’ alleged misconduct outweighs any procedural faults of the respondent, nor do the professional faults mask what would have been the ultimate outcome of termination.”34
[40] This is a finding that was open on the evidence and which is harmonious with legal principle and the proper application of her statutory function.
[41] The Appellant also alleges misapplication of the principle in ASP Group (Placements) Pty Ltd v O’Loughlin 35. It says that the Commissioner erred in concluding that if an employer has failed to provide an opportunity to respond to post dismissal evidence, then the employer “will have to wear that in the consideration of section 386(c)”.36
[42] A reading of the Decision as a whole does not reveal a disproportionate impact in the Commissioner’s findings concerning the failure to provide an opportunity to respond, either with respect to pre-dismissal knowledge or post-dismissal evidence. The failure by the Appellant to provide Mr Lewis an opportunity to respond to the concerns and criticisms emerging from its post-dismissal evidence was a relevant matter the Commissioner was entitled to take into account in considering the operation of section 386(c). This is what the Commissioner did. Doing so is consistent with the proper application of the principle.
[43] The Appellant also alleges misapplication of the principle in Jones v Dunkel 37. Itsays that the Commissioner misapplied the rule in Jones v Dunkel in drawing an adverse inference against the employer for not calling evidence from its Chief Executive Officer Mr James Stevens who made the decision to dismiss. The Appellant says that an adverse inference, if drawn, did not permit the Commissioner to conclude that Mr Stevens may have been cross examined on options available to the firm other than dismissal and on how long Mr Lewis may have otherwise continued in employment.
[44] The Commissioner deals with this issue at [384]-[390] of the Decision. The Jones v Dunkel principle permits an adverse inference to be drawn for specific purposes consistent with the inference. It does not substitute for findings of fact. It is a discretionary matter and even where there is evidence to support an adverse inference there is no obligation on the decision maker to draw that inference.
[45] While the Commissioner has speculated, unnecessarily in our view, on what Mr Stevens may or may not have given evidence about, a close examination of paragraphs [389] and [390] of the Decision does not reveal that the Commissioner made findings or impermissible findings on those matters. In these circumstances, the principle had not been misapplied.
Conclusion
[46] In arriving at our decision we have considered the following factors:
(a) whether there is a diversity of decisions at first instance so that guidance from an appellate body is required; or
(b) whether the appeal raises issues of importance or general application; or
(c) whether the Decision manifests an injustice, or the result is counter intuitive; or
(d) whether the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[47] We are not persuaded that these factors are established either in their own right or when considered in combination. We have also considered whether the appeal raises other factors beyond those stated above that could be said to enliven the public interest. None were put to us by the Appellant and we find no others.
[48] It follows that it is not in the public interest to grant permission to appeal. Permission is denied. The stay order of 20 November 2017 is set aside. Consequently, the compensation order made by the Commissioner operates. Consistent with the terms of the stay order, the interest earned on monies that had been placed into a separate account is to be applied in whole for the beneficial use of the Respondent to this appeal.
DEPUTY PRESIDENT
Appearances:
M. Makela for the Appellant
P. Lewis on his own behalf
Hearing details:
2017.
Melbourne, Sydney and Brisbane; by Video-link.
28 November.
1 [2017] FWC 4023
2 PR597245
3 [2017] FWC 4023 at [405]
4 Ibid at [442] – [443]
5 [2017] FWC 6114 per Deputy President Anderson
6 Ibid at [252], [349], [398]
7 Ibid at [366], [400]
8 Ibid at [372], [401]
9 Ibid at [402]
10 Ibid at [405]
11 Ibid at [413]
12 Ibid at [415]
13 Ibid at [442]
14 Ibid at [443], [444], [438]
15 Ibid at [437]
16 Ibid at [410]
17 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
18 (2011) 192 FCR 78; 207 IR 177 at [43]
19 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; 207 IR 177 at [44] -[46]
20 [2010] FWAFB 5343; (2010) 197 IR 266 at [27]
21 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]
22 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; (2014) 241 IR 177 at [28]
23 Ibid at [235]
24 For example, Smith matter at [307-309] and [310]; Jones matter at [313], [316] – [317] and [324]; and Hart matter at [264] – [266], [278] – [282]
25 Ibid at [402]
26 (1931) 45 CLR 359
27 Ibid per Starke J at 373
28 [2017] FWC 4023 at [360]
29 Ibid at [252] and [348]
30 Ibid at [235]
31 Ibid at [334]
32 Ibid at [413]
33 [2011] FWAFB 6487
34 [2017] FWC 4023 at [382]
35 [2011] FWAFB 5230
36 [2017] FWC 4023 at [362]
37 (1959) 101 CLR 298
Printed by authority of the Commonwealth Government Printer
<Price code C, PR598200>
1