Henry Chai v Chubb Fire & Security Pty Ltd T/A Chubb Fire Safety
[2015] FWCFB 3434
•26 MAY 2015
| [2015] FWCFB 3434 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Chubb Fire & Security Pty Ltd T/A Chubb Fire Safety
(C2015/1690)
VICE PRESIDENT CATANZARITI | SYDNEY, 26 MAY 2015 |
Appeal against decision in Transcript of Commissioner Bull at Sydney on 12 February 2015 in matter number U2015/12923 - Permission to appeal - Whether grounds of appeal attract the public interest - Permission to appeal not granted - Fair Work Act 2009 - ss. 394, 400, and 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Commissioner Bull handed down in transcript on 12 February 2015 and subsequently published on 19 February 2015. The decision of the Commissioner concerned an unfair dismissal application made by Henry Chai on 30 September 2014 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Chubb Fire & Security Pty Ltd (Chubb).
[2] At the hearing of the appeal matter on 20 May 2015, Mr Chai appeared on his own behalf and Ms Williams appeared for Chubb.
Background
[3] Mr Chai was employed by Chubb as an electrical service technician in May 2012. His employment was terminated on 24 September 2014, at which time he was working at Sydney University. Mr Chai was dismissed from Chubb on the grounds of safety breaches that occurred in the second half of 2014.
[4] The Commissioner’s conclusions are expressed in the following passage from his decision:
“[23] In determining whether a dismissal is unfair, the Commission must take into account the criteria set out in section 387 of the Act. The first criteria that the Commission must have regard for is whether a valid reason exists in respect to the termination. In respect to whether there is a valid reason for the dismissal relating to the applicant’s conduct, the evidence demonstrated that there had been a failure to complete a risk assessment on two separate occasions. The applicant acknowledged that he had not completed a risk assessment for the task on 19 September 2014. In this respect, there was no dispute that such conduct occurred.
[24] This was conduct that had occurred after a written warning on this specific
requirement had been provided to the applicant on 15 July 2014 and despite the fact that further training in respect to the completion of risk assessments had been provided to the applicant.
[25] I am unable to accept the applicant’s defence, that he had not been trained in
performing risk assessments. This was the very topic that he received a warning about in July 2014 and he was issued the Take-5 notebook prior to that date to complete before each task, but had failed to do so.
[26] Since the applicant’s July 2014, warning, he did not provide any evidence that he requested further training, nor did he provide any evidence that he had made any comment to his supervisors that he was not trained to complete a risk assessment. Such a defence does not appear to have been raised at the meeting on 23 September 2014, if one has regard to the notes taken by Mr Walker. What is recorded is that the applicant acknowledged that he hadn’t completed a risk assessment, but stated he had conducted a visual risk assessment. There was no mention of not having had the appropriate training.
[27] The completion of a risk assessment, on my perusal of the Take-5 handbook is that it is a relatively simple exercise and should not cause the applicant, with his extensive working experience, any difficulty. On this basis, I find that a valid reason for the dismissal, being that the applicant had not completed a risk assessment, existed. However, I do not accept that the wearing of sleeves in a rolled-down state, whether to the elbow or below, is a safety issue of such significance that termination of employment should result.
[28] I also find that a significant reason for the applicant’s termination was the position taken by the respondent’s client, Sydney University. On Mr Walker’s evidence, Sydney University advised the respondent on 19 September 2014, that they did not want the applicant working at the university any more, and this was confirmed in an email on 24 September 2014, the day the applicant was terminated.
[29] However, having found that a valid reason for the dismissal existed, that being that the applicant failed to complete a risk assessment which he was required to under the respondent’s safety procedures, I now turn to the other criteria that I must take into account in assessing whether the termination was unfair.
[30] The applicant was notified of the reasons for his dismissal prior to his termination and he was provided with an opportunity to respond to the allegations. In fact, the applicant’s response led to the dropping of two of the allegations that were made on 22 September 2014, in regard to safety breaches. There appeared to be no refusal by the respondent to allow the applicant to have a support person during any of the dismissal discussions.
[31] The applicant had been warned previously in writing of the need to complete risk assessments. The respondent, Chubb Fire & Security Pty Ltd, is large enough to have provided a proper procedural process in conducting the process leading to the applicant’s termination, and the respondent does not lack any human resource expertise.
[32] I have had regard for the period of employment of the applicant, being just under two and a half years, and to the previous warning regarding risk assessments and training regarding risk assessments that was provided to the applicant, and the fact that within a period of some two months, the same breach of a safety procedure has occurred.
[33] The applicant’s working environment presents serious safety risks as evidenced in the July 2014 investigation regarding the breaches that occurred on that occasion. As such, any risk assessments prior to commencing each task are all the more important to the applicant and to those around him.
[34] I am unable, on the evidence, to find the existence of any mitigating circumstances to conclude that the dismissal was unfair. On the basis of this conclusion, the conclusion that a valid reason existed, I do not find the dismissal to be unfair.
[35] The application is dismissed.”
(References omitted)
Grounds of Appeal
[5] Mr Chai contends that permission to appeal should be granted as Chubb did not file their written submissions with the Commission by the due date and that as a result, he was at an unfair disadvantage at the hearing of his unfair dismissal matter. He also submitted that false statements were made by Chubb at the hearing with regard to his signing and acknowledgement of risk assessment training undertaken and the “Take 5” book, and that the investigation into the September 2014 incident was flawed.
Permission to Appeal
[6] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 400 of the Act which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA 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.”
[7] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 1 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’
[8] The test for determining the public interest has been described as follows: 2
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in this case.”
[9] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 3 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:4
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[10] We have considered the circumstances of this matter and the grounds of appeal advanced by Mr Chai. In our view, Mr Chai has not demonstrated any error in the decision of the Commissioner or any basis on which it might be concluded that it is in the public interest to grant permission to appeal. All relevant circumstances were considered, findings of fact were made based on the evidence led before the Commission and a decision was reached by addressing each of the relevant statutory factors required to be considered in determining whether the termination was harsh, unjust or unreasonable and exercising the discretion conferred upon him.
[11] It will often be the case that a party to an unfair dismissal proceeding believes a different result should have been reached or that certain aspects of the circumstances are not expressed in accordance with the views of that party. However that is an insufficient basis for a successful appeal. That is essentially the case here. While the failure to file material on time was unfortunate, the procedure adopted by the Commissioner did not deny Mr Chai an opportunity to present his case and deal with those matters. The other matters raised concern relatively minor matters of detail and procedure and do not appear to us to bear to any great extent on the ultimate result. For these reasons we are not satisfied that the appeal raises matters that justify permission to appeal on public interest grounds.
Conclusion
[12] For the above reasons the application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr Chai in person.
Ms Williams of Australian Industry Group for Chubb Fire & Security Pty Ltd.
Hearing details:
Sydney
20 May
2015.
Final written submissions:
Mr Henry Chai on 5 May 2015.
1 (2011) 192 FCR 78 at paragraph 43.
2 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Ibid.
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