Gold Tiger Logistics Qld Pty Ltd v Audrey Campbell
[2024] FWC 1204
•8 MAY 2024
| [2024] FWC 1204 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Gold Tiger Logistics Qld Pty Ltd
v
Audrey Campbell
(C2024/2636)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 8 MAY 2024 |
Application to stay decisions and order PR7737759 of Commissioner Durham at Brisbane on 9 April 2024 and 19 April 2024 in matter number U2023/8739. Application for a stay refused.
Gold Tiger Logistics Qld Pty Ltd (Gold Tiger) has lodged an appeal, for which permission is required, against two decisions on 9 April 2024[1] and 19 April 2024[2] and order of Commissioner Durham on 19 April 2024[3] relating to Ms Campbell’s unfair dismissal application.
In her Decisions the Commissioner found that the Ms Campbell had been unfairly dismissed, reinstatement was inappropriate, and made the following order in lieu of compensation:
A. GOLD TIGER LOGISTICS QLD Pty Ltd pay to Ms Audrey Campbell the amount of $32,000.02 gross taxed according to law. The payment is to be made no later than 21
days from the date of this Order.
B. This Order comes into effect on 19 April 2024.
In its notice of appeal Golden Tiger seeks a stay of the operation of the Commissioner’s decision and order pursuant to s 606 of the FW Act pending the hearing and determination of the appeal. Ms Campbell opposes the grant of a stay.
Principles
The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill.[4] Paragraph [5] of that decision states:
[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.
Also relevant to this matter, as it is an appeal from a decision made under Part 3-2 of the FW Act, is s. 400, which reads:
400 Appeal rights
(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.
These sections require an appellant to establish that the first instance decision both “involved a significant error of fact” (s 400(2)) and that it is in the public interest to grant leave to appeal (ss 400(1) and 604(2)).
Consideration
The Commissioner’s first decision dealt with three issues; whether Ms Campbell had been dismissed, whether the dismissal was unfair, and whether reinstatement was appropriate. Her decision on these issues was that Ms Campbell had been dismissed, the dismissal was unfair, and reinstatement was inappropriate. The first two issues required a careful assessment of contested facts. Those facts went in part to a heated discussion in the workplace on 28 August 2023.
The appeal grounds seek to challenge a number of factual findings. Where errors of fact are asserted s 400(2) applies. Consequently, my consideration of whether there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merit of the appeal involves the question of whether it is arguable that the factual errors asserted involved significant errors of fact. This requires first a consideration of whether it is arguable the error is present and then whether it is arguable that the error was significant.
In submissions in support of the stay application Mr Sandroussi, the manager of Gold Tiger’s legal department clarified that the grounds 1, 2, 3, and 6 relate to the finding made by the Commissioner at [46] that Ms Campbell was misheard by one her colleagues during a heated discussion on 28 August 2023 when they said she said, “I quit”. The Commissioner found that the words used were “this is shit”. Mr Sandroussi submitted that this was raised for the first time at the hearing as Ms Campbell had not relied upon the fact that she was misheard in the earlier investigation conducted by the employer. This is said to be unjust, contrary to principle and an irrelevant fact. It is also said to be a significant error because the employer’s decision was to accept those words as a resignation.
In the proceedings three of the four employees present during the heated discussion gave evidence. Ms Campbell denied she said, “I quit”. Another witness was found to give contradictory evidence on the topic. The third witness was adamant the words were said. The matter of what was said was contested and a finding was necessary. The finding was available, and I can see no arguable error in the finding made. Further the Commissioner considered other evidence, being Ms Campbell’s conduct following the contested discussion that was inconsistent with having resigned. The Commissioner ultimately found at [55] that she preferred Ms Campbell’s evidence that at no stage did she resign.
I can see no arguable case with some reasonable prospects of success that the finding was unjust or unreasonable. The matter was canvassed during the hearing and Gold Tiger had an opportunity to address it. There was noting contrary to principle in the argument being received even though it was not raised during the employer’s investigation. It is well recognised that the Commission decides matters on the evidence before it rather than on evidence before the employer at the time of the decision to dismiss. The evidence was also clearly relevant.
The Commissioner also found in the alternative, at [60], that if Ms Campbell did say she quit during the heated discussion then the words did not constitute a resignation. Given this finding, even if it were arguable that there was an error in the finding at [46] that tainted the finding at [55], the alternative finding at [60] rendered that error insignificant. I find no arguable case with some reasonable prospects of success of error in grounds 1, 2, 3 and 6 of the grounds of appeal.
Grounds 4, 5, 7 and 8 were said to relate to the circumstances of the fourth person involved in the heated discussion on 28 August 2023, Ms Parker. Ms Parker did not provide a witness statement and did not appear as a witness. The Commissioner dealt with Ms Parker’s failure to give evidence at [18] and [19]. Gold Tiger’s submissions were that the Commissioner failed to take material considerations into account when she found that Ms Parker could have given evidence by at least providing a written statement. The material considerations that are said to have not been taken into account were the fact Ms Parker was intimidated by a text message sent from Ms Campbell’s partner and so refused to give evidence of any kind and Ms Parker had provided an email to the employer setting out her version of the discussion. It was also submitted before me that the email should have been taken into account. Taken at its highest and accepting that the email may have been taken into account, and I have some doubt that it could, or if it had if it should be given any weight, this submission does not give rise to a serious mistake of fact. The finding in relation to what was said may well have still been available. In any event, any evidence from Ms Parker in relation to the discussion would not have changed the ultimate finding that there was no resignation, especially given the alternative finding at [60] that if the words “I quit” were used they did not amount to a resignation.
Gold Tiger also submitted that ground 5 contemplated two other material considerations that were not taken into account. The first was that the company reliance on a breach of policy by Ms Campbell for entering into a heated discussion and the second that contrary to Ms Campbell’s suggestion Gold Tiger did not use the incident as an opportunity to downsize and cut costs. The first of these matters was expressly taken into account at [70] and [71]. The second was referred to at [17]. The Commissioner made no finding that the dismissal was unfair based on Ms Campbell’s suggesting that Gold Tiger had dismissed her to reduce costs. The matter was not a material consideration that would have changed the outcome. I see no arguable error with some reasonable prospects of success arising from these matters.
Ground 6 goes to the calculation of compensation. Gold Tiger asserts that the in the decision dealing with compensation the Commissioner failed to take into account the fact that Ms Campbell was to reach retirement age on 1 June 2024. The Commissioner referred to Ms Campbell’s retirement date at [2], [16], [19] and [21] of the compensation decision. It was taken into account in assessing the quantum of compensation for the purposes of s. 392 of the Act in determining that Ms Campbell could be expected to stay in employment until that date and in calculating how much Ms Campbell would have earned had she remained in employment. It was also considered as a factor in Ms Campbell’s ability to mitigate her loss. The ground cannot be made out. Ms Campbell’s impending retirement was taken into account.
After considering the grounds of appeal and the submissions made, I can see no arguable case with some reasonable prospects of success of error in the Commissioner’s decisions. In those circumstances there is no need to consider the balance of convenience.
The application for a stay order is refused.
DEPUTY PRESIDENT
[1] [2024] FWC 913.
[2] [2024] FWC 1041.
[3] PR7737759.
[4] [2000] AIRC 785.
Printed by authority of the Commonwealth Government Printer
<PR774662>
0
0