Haytham Remawi v Virgin Australia Airlines Pty Ltd T/A Virgin Australia
[2023] FWCFB 141
•21 AUGUST 2023
| [2023] FWCFB 141 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Haytham Remawi
v
Virgin Australia Airlines Pty Ltd T/A Virgin Australia
(C2023/3613)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT EASTON COMMISSIONER MATHESON | MELBOURNE, 21 AUGUST 2023 |
Appeal against decision [2023] FWC 1501 of Commissioner McKinnon at Sydney on 23 June 2023 in matter number U2022/11839 – permission to appeal refused.
Mr Haytham Remawi has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Commissioner McKinnon issued on 23 June 2023, for which permission to appeal is required. The matter concerned an application for an unfair dismissal remedy against Virgin Australia Airlines Pty Ltd (Virgin Australia) pursuant to s 394 of the Act.
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Relevant background
Immediately prior to his dismissal, Mr Remawi was employed in the Pit Crew at Sydney Airport. On 3 September 2022, there was a safety incident involving Mr Remawi and another Pit Crew operator, Mr Rene Tomacruz. Mr Remawi was stood down on full pay on 19 September 2022 pending an investigation into his conduct. The letter of allegations sent to Mr Remawi set out four allegations of misconduct against him:
(1)On 3 September 2022, Mr Remawi deliberately drove into a blind spot of another team member who was completing driving duties in an attempt to create a reportable safety incident.
(2)During the period from 11 June 2021 to 21 July 2022, Mr Remawi deliberately reported multiple false and/or unjustifiable complaints about team members’ conduct.
(3)While talking to Mr Huss Hage Obeid on 22 August 2022, Mr Remawi stated that he was going to resign from the business however had decided to stay and “toy” with the business.
(4)Mr Remawi sent multiple unwelcome and unsolicited Facebook messages to a female team member and continued to send friend requests after she requested that he stop.
Virgin Australia determined that the allegations against Mr Remawi had mostly been sustained and it asked Mr Remawi to show cause as to why his employment should not be terminated.
Mr Remawi was dismissed on 8 December 2022. Virgin Australia provided Mr Remawi with five reasons for the dismissal, each related to his conduct. The reasons were (1) deliberately driving in an unsafe manner, (2) deliberately reporting multiple trivial, false or unwarranted reports about the conduct of other staff members, (3) stating that he was planning on resigning from the business but had decided to stay and toy with the business, (4) repeatedly sending unwelcome and unsolicited Facebook messages to a female team member, and (5) dishonesty.
Mr Remawi lodged his application for an unfair dismissal remedy on 14 December 2022.
Decision under appeal
After setting out relevant background matters, the Commissioner individually considered each of the five reasons for Mr Remawi’s dismissal. In doing so, the Commissioner set out the witness evidence, made a series of factual findings and concluded that each of the five reasons was a valid reason for Mr Remawi’s dismissal.[2] The Commissioner concluded that “both separately and together,”[3] these were sound, defensible and well-founded reasons for Mr Remawi’s dismissal for the purposes of s 387(a) of the Act. In reaching this conclusion, the Commissioner made an adverse credit finding against Mr Remawi to the effect that he was not a reliable witness and where documentary evidence was available in connection with a contested matter, it generally either contradicted or did not support Mr Remawi’s version of events. By contrast, the Commissioner found no reason not to believe the evidence given by Virgin Australia’s witnesses.[4]
The Commissioner proceeded by considering the matters in paragraphs (b) to (g) of s 387 and made findings in respect of each. As to s 387(b), the Commissioner found that Mr Remawi was notified of the reasons upon which Virgin Australia proposed to terminate his employment.[5] In relation to s 387(c), the Commissioner was satisfied there was an opportunity for Mr Remawi to respond to the reasons given for his dismissal, both in writing and orally, before any decision was made by Virgin Australia.[6] With respect to s 387(d), the Commissioner found that there was no unreasonable refusal to allow Mr Remawi to have a support person assist in discussions about the dismissal.[7] The factor in s 387(e) was not a relevant consideration,[8] and the Commissioner concluded that Virgin Australia deployed its human resources and specialist expertise in connection with Mr Remawi’s dismissal, which was procedurally fair, for the purposes of s 387(f) and (g).[9] In relation to s 387(h), the Commissioner considered a range of matters including Mr Remawi’s age and unemployment status, Mr Remawi’s contentions as to cultural differences, Mr Remawi’s good employment history and positive working relationship with certain employees, and elements of Mr Remawi’s evidentiary material which did not withstand scrutiny.[10] In addition, the Commissioner set out a list of 30 matters which post-date the termination of Mr Remawi’s employment, which the Commissioner regarded as reinforcing her concerns about the reliability of Mr Remawi’s evidence at the hearing.[11]
The Commissioner then concluded:[12]
“There was a valid reason for the dismissal of Mr Remawi arising from his increasingly inappropriate conduct over the period from June 2021 to September 2022, and his subsequent lack of honesty when responding to the allegations made against him. The process undertaken by Virgin Australia to deal with those allegations was a fair one. Mr Remawi had appropriate support and a meaningful opportunity to respond.
I accept that the dismissal had serious consequences for Mr Remawi, most notably a loss of income in the context of his status as primary provider for his family. However, I am not satisfied that the dismissal was harsh, or that it was otherwise unjust or unreasonable. In the circumstances, dismissal was a proportionate response to the wilful, inexplicable, and repeated conduct of Mr Remawi which made his continuing employment untenable.
Mr Remawi has not been unfairly dismissed.”
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission.
By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the Act. This appeal is one to which s 400 of the Act applies. The test under s 400 is “a stringent one.”[13]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[14] The public interest is not satisfied simply by the identification of error,[15] or a preference for a different result.[16] 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...”[17]
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.[18] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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.[19]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[20]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[21]
“"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
(citations omitted)
For there to be legal error, it would need to be shown that the Commissioner acted on a wrong principle, took into account irrelevant matters, mistook facts,[22] or that the outcome unreasonable or plainly unjust.[23] It is not enough that a different member or an appellant body might have reached a different conclusion.
Grounds of appeal
In his Form F7 Notice of Appeal, Mr Remawi raises five grounds of appeal, which are set out, in full, as follows:
“(1)For a complex investigation report although it is about quality not quantity, with total 2100 pages from the Digital Court Book 2 – applicant materials and 602 pages Digital Court Book 2 Respondent’s Materials. This brings the total evidence to 2,702 pages. There are three days (27, 28 and 29 March 2023) of hearing which includes 18 witnesses from Virgin Australia (Just 2 witness the applicant did not request them not to attend because their case already active with the Police and the District Court) and an extra Witness Virgin Australia was asked to attend.
(2)After almost 3 months from the hearing The Report of Commissioner McKinnon is only 39 pages, which clearly many of the applicant statement were not included nor evidence to the report. At the same time the witness statement which support the applicant position of defence were not mentioned such as Mr. Rene Tomacruz when he stated that Mr. Remawi did not cross his path at the same time some the origin of some statement were not said by the applicant not known.
(3)Since 29 March 2023, Commissioner McKinnon investigation report information is out of date. Dr Abdul Kader statements in Commissioner McKinnon investigation report is falsified, false, vexatious to the Court while knowing them to be false against Mr. Haytham M Remawi as annexure. Already the Health Care Complaints Commission released a statement.
(4)The report discussed many challenging behaviour of Virgin Australia staff against the applicant and therefore, due to the shortness of the report, its look like Commissioner McKinnon investigation supports such challenging behaviour, although the applicant worked in many places and never saw such challenging behaviour which is huge risk to aviation safety and security despite the Personal Protective Equipment is a Standard Safety Equipment.
(5)There is a huge issue with Assessment and analysis of evidence against each allegation, with findings given the amount of the resources available such as court book and 3 days of hearing.”
In his Appeal Book, Mr Remawi provides a detailed response to various findings made by the Commissioner in the decision. The Appeal Book sets out five specific matters under the heading “reason for the appeal.” While not specifically advanced by Mr Remawi as appeal grounds, we proceed on the basis that these matters are issues which pertain to appeal ground (5) above and number them accordingly as follows:[24]
(5a)“There was a huge lack of evidence to support the orders and the decision,” specifically that Mr Remawi “had made the changes” to medical certificates produced by Dr El Mohsen.
(5b)Mr Remawi “did not have an opportunity to address certain information,” specifically that Mr Remawi was not offloading the aircraft at the time of the 3 September 2022 incident.
(5c)“The decision demonstrates bias against Mr Remawi.” The examples given by Mr Remawi (a) re-states the issue of Mr Tomacruz’s evidence raised by appeal ground (2) above, (b) provides that evidence was given by female team member “AD” that she did not inform Mr Remawi to stop messaging her on Facebook, and (c) contends that during cross examination, Mr Obeid confirmed that Mr Remawi did not make the statement attributed to Mr Remawi by allegation three.
(5d)“The Commissioner failed to deal with all of the matters in dispute.” The example given is that the decision did not fairly address the issue of AD sending Mr Paul Daly screenshots of Facebook communications that were sent to her by Mr Remawi, nor does it address that no witnesses “denied the appellant report” in allegation two, which has not been investigated.
(5e) There were privacy issues related to the Australian Federal Police reports, which were confidential and have now been published.
In addition, Mr Remawi has filed an outline of submissions with attachments, which raise a range of diverse material which we summarise as follows (adopting the numbering system in Mr Remawi’s outline of submissions, with Annexure A being the decision under appeal):[25]
Annexure B A notice of an order issued by the District Court of NSW dated 14 July 2023 which post-dates the Commissioner’s decision.[26]
Annexure C Emails passing between Mr Remawi and Virgin Australia in which Mr Remawi contends that incorrect recipients were copied by Virgin Australia which was not mentioned in the decision.[27]
Annexure D A copy of the statement of Manar Farouk Hassan, being Mr Remawi’s wife, dated 10 January 2022 which the decision did not address.[28]
Annexure E Correspondence from Virgin Australia to the Office of the Australian Privacy Commissioner which is said to be relevant to [167] of the decision which did not address a series of questions that Mr Remawi has about the evidence of “AD.”[29]
Annexure F Interlocutory decisions made by the Commissioner which refused to grant a series of Form F52 applications made by Mr Remawi, and declined to accept documents relating to an apprehended violence order which were filed after the dates for filing materials had passed.[30]
Annexure G A Medicare history statement dated 29 March 2023, which was not before the Commission at first instance.[31]
Annexure H A table setting out Mr Remawi’s response to the decision by paragraph.[32]
Annexure IThe outcome of an NSW Health Care Complaints Commission assessment of a complaint by Mr Remawi about Austral Medical Centre and two attending practitioners.[33]
Annexure JA “notice of filing” an affidavit and other material in relation to proceedings in the Federal Circuit and Family Court of Australia between Mr Remawi and Inthink.com.au.[34]
Annexure K Correspondence from Virgin Australia’s lawyers to Mr Remawi and documents pertaining to proceedings commenced by Mr Remawi against Virgin Australia in the Federal Circuit and Family Court of Australia.[35]
Annexure L An email from Facebook to Mr Remawi.[36]
Annexure M A list of submitted job applications made by Mr Remawi with Virgin Australia which contradicts a finding in the decision pertaining to the Ramp Duty Leader’s feedback of Mr Remawi.[37]
Annexure N A statement of service and related correspondence regarding Mr Remawi by Inthink.com.au.[38]
Annexure O An order of the Commission dated 13 March 2023 for the production of Safety Reports by Virgin Australia, which were not addressed in the decision.[39]
Annexure P Transcript of the proceedings before the Commissioner dated 27 March, 28 March and 29 March 2023.[40]
Mr Remawi submits that it is in the public interest for the Commission to grant permission to appeal because “public safety is critical.”[41]
Consideration
We have considered the grounds advanced by Mr Remawi in support of his application. We are not satisfied that it would in the public interest to grant permission to appeal.
Appeal grounds (1), (2) and (4) variously challenge the length of the decision being “only 39 pages,” despite the extensive evidence and three days of hearing. There is no apparent public interest in granting permission to appeal in relation to a triviality such as the decision’s length. Further, it is said the “shortness” of the decision is suggestive of the Commissioner supporting “challenging behaviour” taken by Virgin Australia against Mr Remawi. The basis for this contention is not explained and therefore cannot give rise to an arguable contention of error.
To the extent that appeal ground (2) purports to draw a connection between the length of the decision and the omission of certain evidence given by Mr Tomacruz, such contention does not appear to be sustainable. Significantly, we have not been taken to a specific paragraph of Mr Tomacruz’s witness statement that was “not mentioned” in the decision, nor is any fatal omission apparent. Nevertheless, we discern from appeal ground (2) that the issue concerns the question of whether Mr Tomacruz gave evidence that “Mr Remawi did not cross his path” during the incident on 3 September 2022.
The decision records Mr Tomacruz’s evidence that Mr Remawi “changed direction between the time [Mr Tomacruz] had checked to make sure the path was clear and when he stopped after realising something was wrong.”[42] This is entirely consistent with Mr Tomacruz’s witness statement, which further provides that “I immediately stopped and saw [Mr Remawi] and his tug and three barrows sitting in my path.”[43] There is no record of Mr Tomacruz giving evidence that “Mr Remawi did not cross his path,” as contended by Mr Remawi. The Commissioner preferred the evidence of Mr Tomacruz, and other witnesses, over that of Mr Remawi and found that Mr Remawi changed his direction of travel and drove into the path of Mr Tomacruz’s tug.[44] No arguable case of appealable error is apparent in this respect.
Appeal ground (3) is linked to the document marked Annexure I at [20] above. The relevant correspondence relied upon by Mr Remawi in support of his contention that the decision is “out of date” post-dates the proceedings at first instance. To the extent that Mr Remawi seeks to tender the 5 May 2023 NSW Heath Care Complaints Commission assessment as fresh evidence in the appeal, we decline to accept it. We are not satisfied that the letter of assessment discloses any issue of relevance such that there is a high degree of probability that it would lead to a different decision.[45]
We have considered appeal ground (5) together with the matters set out at (5a) to (5e). By ground (5a), Mr Remawi contends that there is no evidence to support that he had made changes to various medical certificates produced in support of the application. However, the Commissioner did not expressly find that Mr Remawi had made changes. Rather, the decision at [214] simply conducts a comparison between the medical certificates produced by Dr El Mohsen and the content produced by Mr Remawi to the Commission, noting only that (a) “apparent alterations to the original medical certificates” had been highlighted in the decision, and (b) that Mr Remawi’s evidence “did not withstand scrutiny.” No arguable case of appealable error is disclosed.
It is said by appeal ground (5b) that Mr Remawi did not have the opportunity to address the proposition that he was not offloading the aircraft at the time of the 3 September 2022 incident. We observe that there is no finding in the decision that Mr Remawi was offloading the aircraft at the time of the incident. Rather, the decision identifies at [41] that there are three key facts in dispute in relation to the incident, including the timing of the incident – that is, “whether it was before or after offloading the aircraft.” The Commissioner finds at [47] that “the incident occurred after the aircraft had been offloaded, which explains why Mr Remawi was pulling 3 full baggage barrows at the time.” The Commissioner did not make a finding as to who conducted the offloading. Against this observation, to the extent that Mr Remawi relies upon [42] of the decision in in support of this contention, no arguable case of appealable error arises from the Commissioner’s summary of the evidence in circumstances where the matter was not directly relevant to the issues to be determined.
Mr Remawi contends by appeal ground (5c) that the decision demonstrates bias against him, which we have taken to be an allegation that the Commissioner demonstrated bias. In general, we observe that there was no application at first instance for the Commissioner to recuse herself on the grounds of apprehended or actual bias. Further, it is an inherent component of a decision maker’s role that findings of fact be made in relation to matters in contest in the application. Mr Remawi contends that in preferring the evidence of other witnesses on this issue, the Commissioner demonstrated bias against him. Absent Mr Remawi identifying with some specificity why the findings made against him demonstrate bias, the contention does not give rise to an arguable case of appealable error, noting that there appears to be a basis for all of the Commissioner’s factual findings. In support, Mr Remawi instead identifies three issues concerning the evidentiary considerations and factual findings of the Commissioner, which we will address briefly, noting our observations above.
We have earlier considered the contention regarding the first example, being Mr Tomacruz’s evidence (see [24]-[25] above) and find that no arguable case of appealable error arises from the contention.
The second example given by Mr Remawi, being that the co-worker referred to in the decision as AD did not inform him to stop messaging her on Facebook, is contrary to the evidence extracted at [160] of the decision. The evidence comprises of a message sent by AD to Mr Remawi on 30 August 2022 which states, “I would appreciate if you don’t contact me anymore as I feel its quite uncomfortable with all the messages.” The Commissioner observed at [142], when summarising the incident, that Mr Remawi sent unwelcome and unsolicited Facebook messages including after AD had asked Mr Remawi to stop on 30 August 2022. Against the apparent contrary evidence identified in the decision, we do not consider that this example gives rise to an arguable case of appealable error.
The third example given by Mr Remawi is that during cross-examination, Mr Obeid said that Mr Remawi did not state that he had decided to stay and “toy” with the business, being the contention arising by allegation three. We have not been taken to a specific part of the transcript in which Mr Obeid said this, and nor have we identified any aspect of Mr Obeid’s oral evidence that resiled from the evidence in his witness statement that Mr Remawi said, “I’m going to toy with or play with the company.”[46] We further observe, to the extent it is relevant, that the Commissioner explained the basis for accepting the evidence of Mr Obeid over that of Mr Remawi at [139] of the decision. Against these observations, we do not consider that this example gives rise to an arguable case of appealable error.
By appeal ground (5d), it is contended that the Commissioner failed to deal with all the matters in dispute. The first example provided by Mr Remawi is that the Commissioner did not “fairly address” the issue of AD sending Mr Daly screenshots of Facebook communications sent to her by Mr Remawi. This is because Mr Remawi contends that there was no evidence of any screenshots to support the allegation that Mr Remawi sent a further Facebook friend request to AD on 14 September 2022.[47]
Both the letter of allegations sent by Virgin Australia to Mr Remawi on 19 September 2022 and the show cause letter dated 7 November 2022 specifies that the most recent friend request was sent by Mr Remawi to AD at 8:00am on 14 September 2022.[48] Mr Remawi contends that this is inaccurate, as the last such request was on 5 September 2022.[49] This issue was dealt with in the proceedings before the Commissioner, with Virgin Australia conceding that there was likely an error identifying 14 September 2022 instead of 5 September 2022.[50]
While the Commissioner’s summary of the evidence at [165] of the decision states that Mr Remawi sent another friend request to AD on 14 September 2022, this reflects Mr Daly’s evidence and not the evidentiary considerations or factual findings of the Commissioner. As the analysis at [171]-[181] of the decision bears out, the Commissioner did not make a factual finding about whether the last friend request was sent on 5 September or 14 September 2022. The date was tangential, at best, to the issues requiring determination. We observe that it is not alleged by this appeal ground that there is any relevant connection between the erroneous date and the Commissioner’s reasoning in relation to allegation four. We do not consider that an arguable case of appealable error arises.
The second example Mr Remawi provides by ground (5d) is that the decision does not address that “no witnesses denied Mr Remawi’s report concerning allegation two.” The nature of this contention is not clear. We discern[51] that Mr Remawi’s concerns are focused upon Virgin Australia’s alleged failure to investigate or provide “feedback” or an “outcome” in relation to the reports made by Mr Remawi that were the subject of Virgin Australia’s finding that Mr Remawi made multiple trivial, false and unwarranted reports about the conduct of other team members. Any alleged failings by Virgin Australia to take action or do other things discloses no arguable case of appealable error with respect to the matters addressed by the Commissioner in the decision.
Appeal ground (5e) contends that there were privacy issues related to Australian Federal Police reports which were published in the decision. Mr Remawi did not connect this matter to the Commissioner’s decision, nor does it appear relate to the decision. Accordingly, the ground discloses no arguable case of appealable error.
Having regard to our analysis at [27] to [37] above, there is no arguable basis for Mr Remawi’s contention at appeal ground (5) that there is a “huge issue” with the assessment and analysis of evidence in the decision. We observe that the allegation is, of itself, so broad and unspecified so as to direct us to any matter which may disclose an arguable case of appealable error.
We turn now to consider the balance of the material annexed to Mr Remawi’s outline of submissions and summarised at [20] of this decision (noting that Annexure I is separately addressed at [26] above).
(a)The material marked Annexure B, Annexure E, Annexure G, Annexure J and Annexure K were not before the Commission during the first instance proceedings. To the extent that Mr Remawi seeks to rely upon these documents as fresh evidence in the appeal, the application is declined. We do not consider that the District Court notice of order at Annexure B, the correspondence from the Office of the Australian Privacy Commissioner at Annexure E, the Medicare history statement at Annexure G, the documents filed by Mr Remawi in the Federal Circuit and Family Court of Australia in relation to legal proceedings commenced against Inthink Pty Ltd, or the response filed by Virgin Australia with the Federal Circuit and Family Court of Australia discloses any issue of relevance such that there is a high degree of probability that it would lead to a different decision.[52]
(b)Mr Remawi’s concerns in Annexure C regarding incorrect recipients copied to emails sent to him by Virgin Australia was addressed in Mr Daly’s witness statement. The issue did not require determination in the decision. In any event, Mr Remawi does not draw a connection between Virgin Australia’s email errors and any aspect of the decision. As such, no arguable case of appealable error is disclosed.
(c)No arguable case of appealable error is disclosed by Mr Remawi’s contention that the statement produced by his wife, Manar Farouk Hassan, was not addressed in the decision. The statement does not provide direct evidence about any of the matters requiring determination by the Commissioner.
(d)With respect to the Commissioner’s interlocutory decisions the subject of Annexure F, Mr Remawi fails to draw attention to any matter which connects the refusal to exercise procedural discretions to an error in the substantive decision. No arguable case of appealable error arises.
(e)Annexure H comprises of a table in which Mr Remawi sets out his response to the decision by paragraph. To the extent that this table raises matters not otherwise dealt with in this decision, we do not consider that the issues rise to the level of demonstrating any arguable case of error in the decision, but rather record Mr Remawi’s disagreement with it.
(f)The material marked Annexure L comprises of an email from Facebook to Mr Remawi. Mr Remawi’s contention is that “there is no evidence provided that the appellant suspended Ms Lillian Khan account.” Annexure L does not raise any identifiable issue capable of supporting an arguable case of appealable error.
(g)Mr Remawi does not draw a cogent connection between the material marked Annexure M and Annexure N and the decision. Absent such a connection, we do not consider this material discloses any arguable case of appealable error.
(h)No arguable case of appealable error arises from the contention that the Commissioner did not address in the decision the order for production issued on 20 March 2023, or the specific safety reports produced by Virgin Australia in accordance with the order. In any event, Mr Remawi does not identify how the omission of these matters from the decision bears upon any aspect of the decision, or gives rise to any potential appealable error.
(i)The transcript of proceedings at first instance (Annexure P) has been considered, where appropriate, in this decision.
The balance of the matters raised by Mr Remawi in his Appeal Book and Outline of Submissions not otherwise addressed in this decision concern a range of side issues, record Mr Remawi’s disagreement with the evidence given, or may otherwise be characterised as statements of dissatisfaction and disagreement with the findings of the Commissioner (as opposed to stated grounds of appeal or claims of appealable error). There is no basis to conclude that these issues demonstrate an arguable case of appealable error. We specifically note Mr Remawi’s contention that Mr Tomacruz stated in his oral evidence[53] that Mr Remawi did not drive in an unsafe manner.[54] Mr Remawi’s contention is an incomplete and inaccurate representation of Mr Tomacruz’s evidence and does not disclose an arguable case of appealable error in the decision.
Conclusion and disposition
We are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that a reasonably arguable case has been advanced that the decision was attended by appealable error.
We have considered whether the appeal attracts the public interest and we are not satisfied, for the purposes of s 400 of the Act, that (a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind, (b) the appeal raises issues of importance and/or general application, (c) the decision manifests an injustice, or the result is counter intuitive, or (d) the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters. It follows that we must refuse permission to appeal.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
H M J Remawi on his own behalf.
P Zielinski, of Counsel, for the respondent.
Hearing details:
2023.
Sydney (via Microsoft Teams):
August 8.
[1] [2023] FWC 1501
[2] Decision at [48], [131], [141], [180] and [184]
[3] Decision at [186]
[4] Decision at [187]
[5] Decision at [189]
[6] Decision at [201]
[7] Decision at [202]
[8] Decision at [203]
[9] Decision at [204]
[10] Decision at [205]-[216]
[11] Decision at [217]-[219]
[12] Decision at [220]-[222]
[13] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[14] 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 at [44] – [46]
[15] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]
[16] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[17] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[18] Wan v AIRC (2001) 116 FCR 481 at [30]
[19] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[20] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29]
[21] [2000] HCA 47; 203 CLR 194 at [19]
[22] And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a “significant error of fact”: s 400(2) of the Act
[23] House v The King (1936) 55 CLR 499 at 505
[24] Appeal Book at 1-2
[25] Outline of submissions on the issue of permission to appeal, in particular p.1-4
[26] Ibid at p.1, Annexure B
[27] Ibid at p.1, Annexure C
[28] Ibid at p.1, Annexure D
[29] Ibid at p.1, Annexure E
[30] Ibid at p.1, Annexure F
[31] Ibid at p.1, Annexure G
[32] Ibid at p.1, Annexure H
[33] Ibid at p.1, Annexure I
[34] Ibid at p.1, Annexure J
[35] Ibid at p.1, Annexure K
[36] Ibid at p.1, Annexure L
[37] Ibid at p.1, Annexure M
[38] Ibid at p.1, Annexure N
[39] Ibid at p.1, Annexure O
[40] Ibid at p.1, Annexure P
[41] Notice of appeal at 3.1
[42] Decision at [43]
[43] Witness statement of Rene Tomacruz dated 21 February 2023 at [13]
[44] Decision at [47]
[45] Akins v National Australia Bank [1994] 34 NSWLR 155 at 160
[46] Witness statement of Mr Huss Hage Obeid dated 20 February 2023 at [31]
[47] Appeal Book 19 at [156]-[165]
[48] Annexure PD4 and annexure PD11 to the witness statement of Mr Paul Daly dated 28 February 2023
[49] Transcript at [7808]
[50] Transcript at [7907]
[51] Appeal Book 8-15 at [40]-[124]
[52] Akins v National Australia Bank [1994] 34 NSWLR 155 at 160
[53] Transcript at [5350]
[54] Appeal Book 7 at [31]
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