Greg Chapman v Sepos Truck Trust T/A JS Transport
[2021] FWCFB 6049
•18 NOVEMBER 2021
| [2021] FWCFB 6049 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Greg Chapman
v
Sepos Truck Trust T/A JS Transport
(C2021/6127)
VICE PRESIDENT CATANZARITI | SYDNEY, 18 NOVEMBER 2021 |
Appeal against decision [2021] FWC 5173 of Commissioner Hunt at Brisbane on 20 August 2021 in matter number U2020/14495 – permission to appeal refused.
[1] Mr Greg Chapman (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against a decision 1 (the Decision) and order2 (the Order) of Commissioner Hunt (the Commissioner) issued on 20 August 2021. The Decision dealt with an application for an unfair dismissal remedy made by the Appellant under s 394 of the Act.
[2] Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. Notwithstanding this, the Respondent filed written submissions and the Appellant filed submissions in reply. We have considered all of the material filed by the parties.
[3] Prior to the listed hearing date, the Appellant confirmed he was content to have the matter determined on the papers. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on the basis of written submissions only.
[4] For the reasons that follow, permission to appeal is refused.
The Decision under appeal
[5] As will shortly become clear, the Appellant has appealed the Decision on very narrow bases. Accordingly, we will not outline the Decision, which is itself lengthy and thorough, in great detail.
[6] In short, the Appellant’s dismissal arose out of an incident which occurred on 7 October 2020 in which it was alleged that the Appellant said words to the effect of, “Fuck me dead cunt” in an aggressive manner to a colleague. The Appellant has at all times denied this allegation.
[7] By way of brief background, the Appellant was employed by the Respondent as a truck driver. The Respondent provides services to its client, Ingham’s. The Respondent’s employees drive trucks transporting feed to Ingham’s. The Appellant worked in this role until his dismissal.
[8] The Commissioner commenced her decision by outlining the evidence before her. The Commissioner heard evidence from a number of individuals. Relevant to this appeal is the evidence given by Mr Andrew Barker, Production Shift Manager at Ingham’s, Ms Katherine Croxford, Intake Operator at Ingham’s and Mr Dustin Flood, Maintenance Fitter at Ingham’s.
[9] The Commissioner summarised the Appellant’s evidence regarding the events of 7 October 2020 as follows: 3
“On 7 October 2020, at about 2:37pm, I arrived at the Ingham’s Hemmant feedlot.
I parked at a stop zone, waiting for the weigh bridge to clear for about 10 minutes.
At about 2:47pm, I drove my truck onto the weighbridge.
I’d been sitting on the weighbridge for a couple of minutes when I observed two people (one male and one female) walking to the side of my truck.
The two people kneeled next to the rear axle; this is about 40 meters from the truck’s cab.
I was not sure what they were doing, I tried to look using the mirrors on the truck, but they were observed by distance.
I opened the cab door and stood on the top of the truck’s cab steps to get a better view.
I watched the two people working for about 20 second (sic), unsure what they were doing, however, formed the view that they were not damaging or interfering with the truck.
Once I was happy that they were not doing anything damaging, I got back into the cab.
After I closed the door to the cab, the female worker walked along the side of the truck, I believe she was inspecting the vehicle. She and I did not speak or have any contact.
After a couple more minutes, I went into the nearby weighbridge station.
About a minute later, the female worker also came into the station, we then had a conversation:
a. She said: “Hey did you just say something rude to me? Were you rude to me?”;
b. I said: “No, wasn’t me sorry, don’t know what you are talking about”.
I found this conversation to be very unusual, the woman was aggressive in how she spoke to me.
She appeared to be satisfied with my answer. No one else approached me or asked me anything.
I left the weighbridge station feeling upset, I walked back to my truck.
I then drove the truck around the corner.
At no time on 7 [October] 2020, was I rude to the female worker or the male worker, nor did I make the comments as alleged.”
[10] The female employee referred to in the Appellant’s evidence is Ms Croxford. The Commissioner dealt with Ms Croxford’s evidence at [159] – [166] of the decision. In summary, Ms Croxford’s evidence is as follows:
• On the afternoon of 7 October 2020, Ms Croxford was standing at the Hemmant Weighbridge with her colleague Mr Flood.
• The Appellant drove his truck onto the weighbridge which Ms Croxford was standing next to.
• The Appellant opened his door, exited the cab and came down onto the bridge and yelled “fuck me dead cunt” at Ms Croxford in a very loud and aggressive way. At this time, the Appellant stood approximately 5 metres away from Ms Croxford. Ms Croxford felt very threatened by the Appellant’s aggressive facial expressions, tone and his body language.
• Ms Croxford followed the Appellant into the weighbridge office and asked if he had sworn at her. The Appellant denied doing so, saying words to the effect of “it wasn’t me, I didn’t say anything.”
[11] It should be noted that prior to giving oral evidence, Ms Croxford was shown video footage of the incident. After being shown this footage, Ms Croxford in giving evidence-in-chief, sought to correct her written statement. Ms Croxford’s written evidence stated that the Appellant followed her into the weighbridge office but after having seen the video footage, Ms Croxford corrected her evidence to say that she followed the Appellant into the weighbridge evidence.
[12] The Commissioner also outlined in detail the evidence given by Ms Croxford in cross-examination on the day of the hearing, as well as her answers to questions posed by the Commissioner.
[13] The Commissioner then considered the evidence of Mr Flood. Mr Flood gave evidence that he was near the weighbridge when the alleged incident between Ms Croxford and the Appellant occurred. Mr Flood’s evidence is that he was wearing earbuds at the time the incident took place as he was utilising a masonry drill. Mr Flood gave evidence that at one point, he looked up from his work and saw the Appellant open his door, exit the truck, standing on the top step. Mr Flood had previously made a contemporaneous statement at the time of the incident. The Commissioner sought to have that statement shown to her. It reads as follows:
“Driver Report
Today after the truck hit the weigh bridge Kat was out explaining the damage when Greg called through and pulled straight onto the bridge. Straight after pulling up, I heard Greg yell out in quite an [sic] forceful aggressive manner but didn’t quite catch what he was going on about. Steve Barnes was standing by hearing the entire things and said did you just hear what he said, but I didn’t. straight [sic] after Kat called me over and asked did I witness what was said and was quite shocked. The truck wasn’t held up for more than two minutes and processed as soon as the damage was explained.”
[14] The references to Kat and Greg in the above statement are references to Ms Croxford and the Appellant respectively. Mr Flood’s evidence in cross-examination was also outlined by the Commissioner.
[15] The Commissioner then turned to the evidence of Mr Barker who is Ms Croxford’s manager. As will shortly be seen, the Appellant’s grounds of appeal and submissions do not seek to impugn the evidence given by Mr Barker. As such, there is no need to outline the Commissioner’s detailed analysis of his evidence in this decision.
[16] After considering all of the witness evidence before her, video footage of the incident and the submissions of both parties, the Commissioner considered whether or not the Appellant’s dismissal was unfair.
[17] The Commissioner was satisfied that the Appellant engaged in misconduct towards Ms Croxford 4 and accordingly, she was satisfied that there was a valid reason for the Appellant’s dismissal.5
[18] The Commissioner then considered all of the criteria set out in ss 387 (b) – (h) of the Act and concluded that the Appellant’s dismissal was not harsh, unjust or unreasonable and therefore it was not unfair. 6 Accordingly, the Appellant’s application for an unfair dismissal remedy was dismissed.
Principles of Appeal
[19] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the 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.
[20] The public interest test in s 400(1) is not satisfied simply by the identification of error or a preference for a different result. 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 7
[21] 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. 8 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[22] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9 However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
The grounds of appeal and the Appellant’s submissions
[23] The Appellant’s grounds of appeal are brief. In the Form F7 Notice of Appeal, the Appellant’s grounds of appeal are as follows:
“1. Apprehended bias Commissioner Hunt knew one of the Respondents Andrew Barker.
2. Statements evidence and video all conflicting.”
[24] The Appellant’s submissions are also similarly brief. They are as follows:
“1. Commissioner Hunt should have stepped down when realising she knew Andrew Barker who is the manager of the complainant Croxford it certainly is in the public’s interest to have confidence in the system should they find themselves in similar circumstances and receive a fair hearing.
2. The complainant Croxford was coached prior to giving evidence and shown video from the truck without permission then changed her statement.
3. Witness Flood did not make a statement until after the first day of the hearing which was backdated to appear the statement was made in October 2020.”
The Respondent’s submissions
[25] As aforementioned, the Respondent filed written submissions. The Respondent contends that no conflict of interest arose from Commissioner Hunt’s casual social connection with Mr Barker. The Respondent further contends that this relationship was brought to the attention of the parties by email on 8 February 2021 and that on 10 February 2021, the Appellant’s lawyers confirmed by email that the Appellant had no objection to the Commissioner hearing the matter.
[26] The Respondent contends that the Decision does not disclose that Ms Croxford was coached in her evidence or that any injustice arises from her being shown video footage prior to giving evidence. The Respondent further contends that the Commissioner dealt with this issue properly in the Decision at [94] and [95].
[27] The Respondent contends that the Appellant’s contention regarding Mr Flood is misconceived and without merit. It is the Respondent’s contention that during the hearing, the Commissioner called for production of a contemporaneous note made by Mr Flood at the time the relevant events occurred, and that the Appellant has misconceived what had occurred at the hearing.
[28] The Respondent further submits that the Appellant has not identified a significant error of fact in the Decision and that it is not in the public interest for permission to appeal to be granted. The Respondent also submits that the Appellant brought the appeal vexatiously or without reasonable cause and/or it should have been reasonably apparent to the Appellant that the appeal had no reasonable prospect of success. Accordingly, the Respondent submits that the Appellant should pay the Respondent’s costs of and incidental to the appeal.
Appellant’s submissions in reply
[29] The Appellant made brief submissions in reply:
“1. I was totally unaware of Cooper/Green sending an email not opposing Commissioner Hunt hearing the case it was done without my knowledge I verbally instructed Cameron Niven to oppose Commissioner Hunt hearing the case.”
[30] Cooper Green Lawyers was the law firm representing the Appellant at first instance and Cameron Niven was the solicitor representing the Appellant at first instance.
Consideration
[31] The Appellant’s first ground of appeal, that the Commissioner should have recused herself from hearing the matter because she knew Mr Barker is not a properly formed ground of appeal. It does not point to any error in the Decision. As the Respondent correctly submits, the Commissioner had disclosed her casual, social relationship with Mr Barker to the parties by email on 8 February 2021. We will extract the relevant parts of that email, sent by the Commissioner’s chambers, below:
“The Commissioner also notes the witness statement of Mr Andrew Barker, Production Shift Manager at Inghams.
The Commissioner discloses that she has met Mr Barker on approximately 2-3 occasions in a social setting over the last four years, and is a “friend” on a social media platform. The Commissioner does not consider that there are any grounds pursuant to s.640 of the Fair Work Act (2009) to recuse herself.
If any party wishes to address the Commissioner on this issue they should advise by 4:00pm AEST Wednesday, 10 February 2021, copying in the other party.”
(Original emphasis).
[32] On 10 February 2021, Cooper Green Lawyers, the Appellant’s representative in the matter at first instance, replied by email. Relevantly, they advised “In relation to Commissioner Hunts previous contact with Mr Barker, our client has no concerns.”
[33] On appeal, the Appellant submits that Cooper Green has apparently sent this correspondence contrary to his instructions. It is odd that the Appellant is only now raising this on appeal when he had ample time to press that the Commissioner recuse herself. If, as the Appellant submits, his legal representatives acted in contravention of his instructions this is a matter that he should have raised with them at the relevant time. It is not appropriate to raise it now on appeal. Accordingly, we reject ground 1 of the appeal.
[34] Regarding the Appellant’s submission that Ms Croxford was coached in giving her evidence, we find that this is a baseless assertion. There is nothing in the Decision to suggest that Ms Croxford’s evidence was coached and besides making this assertion, the Appellant provides nothing to support his claim. Regarding the Appellant’s submission that Ms Croxford was allowed to see video footage of the incident and subsequently changed her evidence, the Commissioner has engaged with these issues at [94] – [95] of the Decision and has clearly taken them into account when weighing up the evidence before her. We find no error in the Commissioner’s approach to the evidence and it was open to her to prefer certain aspects of Ms Croxford’s evidence over that of the Appellant or other witnesses.
[35] The Appellant’s assertion that Mr Flood did not make a witness statement until after the first day of the hearing which was then backdated to appear to have been made in October 2020 is completely misconceived. We have had the benefit of reviewing the transcript of the proceedings at first instance and the events transpired exactly as they were recorded in the Decision and as the Respondent submits on appeal. The Commissioner sought to have Mr Flood’s contemporaneous statement admitted into evidence and this was done so on the second day of the hearing, with the statement marked Exhibit 8. Accordingly, we reject the Appellant’s submission.
Costs
[36] As outlined above, the Respondent has, in their written submissions, sought for costs to be awarded. Submissions in a permission to appeal matter are not the appropriate mechanism through which to seek costs in the Commission. If the Respondent wishes to seek costs after this matter is resolved it may do so through a separate costs application. We would note that matters that are listed for permission to appeal only place no obligation upon the Respondent to make written submissions or even attend at the hearing of the matter. Any costs the Respondent has incurred to answer this appeal were done so of their own volition.
Public Interest
[37] On his Form F7 Notice of Appeal, in answer to why it is in the public interest to grant the appeal, the Appellant has simply written “1 Apprehended Bias”. Furthermore, in his written submissions outlined above, the Appellant has asserted that “it certainly is in the public’s interest to have confidence in the system should they find themselves in similar circumstances and receive a fair hearing.”
[38] We have considered whether it is in the public interest to grant permission to appeal and we are not satisfied that, for the purposes of s 400(1) that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The Decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[39] Furthermore, we are not satisfied that the Appellant’s submissions identify an error made by the Commissioner that would justify the grant of permission to appeal in the public interest or otherwise.
Conclusion
[40] For the above reasons, permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Respondent’s written submissions dated 1 November 2021.
Appellant’s submissions in reply dated 8 November 2021.
Printed by authority of the Commonwealth Government Printer
<PR735909>
1 Chapman v Sepos Truck Trust T/A J&S Transport [2021] FWC 5173.
2 PR733051.
3 Decision at [13].
4 Decision at [271].
5 Decision at [276].
6 Decision at [300].
7 (2010) 197 IR 266 at [27].
8 Wan v AIRC (2001) 116 FCR 481 at [30].
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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