Inner West Towing Pty Ltd v David Maynard
[2017] FWCFB 757
•13 FEBRUARY 2017
| [2017] FWCFB 757 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
David Maynard
(C2017/49)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2016] FWC 8582 of Senior Deputy President Drake at Sydney on 14 December 2016 in matter number U2016/2587.
Introduction and background
[1] Inner West Towing Pty Ltd (appellant) has applied for permission to appeal and appealed a decision of Senior Deputy President Drake issued on 14 December 2016 1 (Decision). The Decision concerned an application by Mr David Maynard made under s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of his former employment as a tow truck driver with the appellant. In the Decision, the Senior Deputy President found that the appellant had dismissed Mr Maynard on 11 May 2016, that the dismissal was not consistent with the Small Business Fair Dismissal Code (Code), that there was no valid reason for the dismissal, and that the dismissal was harsh, unjust and unreasonable. In a subsequent decision issued on 25 January 20172 (which was not the subject of this appeal), the Senior Deputy President determined that the appellant should pay Mr Maynard the amount of $8,980.08 as the remedy for the unfair dismissal. In its notice of appeal, the appellant seeks to challenge all the identified aspects of the Decision.
[2] The factual background is as follows. Mr Maynard was employed by the appellant in February 2014. The appellant runs a small tow truck business. There was no dispute that it was a small business employer within the meaning of s.23 of the FW Act. Mr Maynard drove one of the appellant’s tow trucks, and the practice was that he took the truck home each night and parked it there at nights and on weekends. He performed towing jobs as allocated by Mr Francis Tannous, who was the principal of the appellant’s business. When he performed a towing job, Mr Maynard recorded the vehicle details, the pick-up and drop-off addresses and the payment amount and method on a run sheet. He handed in the run sheets and any cash or cheques collected when he went into the appellant’s office during the course of the week. Generally Mr Maynard would give the run sheets directly to Mr Tannous or, if he was not present, leave them in an unlocked drawer in the office. However he would not leave the cash in the drawer for security reasons. Mr Tannous was meant to sign off on each item on the run sheet to confirm the performance of the job and the receipt of the payment, but it appears that in practice Mr Tannous did not always do so.
[3] On 5 May 2016 Mr Maynard performed a job towing a forklift and was paid $220 in cash. Subsequently, in the course of the same day, he went into the office and gave Mr Tannous the run sheets for the two previous days. He did not hand in that day’s run sheet, since he had more work to do that day. Mr Tannous did not sign off on the forklift job at that time. There was a dispute about whether Mr Maynard also handed Mr Tannous the $220 he had received at this time. Mr Maynard’s position at the hearing before the Senior Deputy President was that he handed Mr Tannous the $220, but Mr Tannous’ position was that he did not then or subsequently ever receive the $220.
[4] That same day, Mr Maynard’s union, the Australian Manufacturing Workers’ Union (AMWU), sent a letter on his behalf to Mr Tannous about an issue concerning liability for damage to a vehicle. Upon receiving this letter, Mr Tannous rang Mr Maynard and a conversation ensued. There was a dispute between the parties about what was said in the conversation, but it certainly ended in disagreement about the liability issue.
[5] On 10 May 2016 Mr Tannous reviewed Mr Maynard’s run sheet for 5 May 2016, which by now Mr Maynard had left at the yard in the unlocked drawer. It appears that it was at this time that Mr Tannous formed the belief that he had not received the $220 cash payment for the forklift job performed on 5 May 2016. He rang Mr Maynard and asked him where the money was. Mr Maynard initially said that the job was on account, but when Mr Tannous pointed out that the run sheet identified it as a cash job, Mr Maynard said he that he must have already given it to Mr Tannous, but could not at that moment remember when.
[6] Concerned by Mr Tannous’ allegation that he had not paid in the $220, Mr Maynard contacted his union, the AMWU, about the matter. The following day (11 May 2016) the AMWU sent a letter to Mr Tannous complaining that he had made a false allegation of theft against Maynard, and requested that any future communications about this matter or other matters in dispute be sent via the AMWU. The letter also raised as a possible issue that Mr Maynard had been underpaid, and requested the production of Mr Maynard’s payslips. Mr Tannous responded by ringing Mr Maynard. Mr Tannous admitted to saying to Mr Maynard: “You think you’re a smart cunt. You think the union is going to shut down my investigation. You’re not welcome into the office unless I’m here. You need to drop off the truck every afternoon and pick it up every morning”. Mr Maynard complained to the AMWU about this, and the AMWU sent a further letter to Mr Tannous the same day alleging that he had threatened Mr Maynard. Mr Tannous in turn then sent Mr Maynard a text message which read:
“Dave, I have been contacted by the solicitor who advised me that you told him that I threatened you. I don’t accept that I threatened you at all.
I would like you to bring the truck to the yard and finish up today until we finalise this issue.
The relationship between us is unattainable [sic] based on these and other allegations.
You are required to bring the truck immediately to the yard.”
[7] Mr Maynard regarded this as a dismissal, and did not reply. There were some communications between the parties’ solicitors about the return of the truck. Mr Maynard was not willing to take the truck back to the yard, so he eventually resolved the situation by taking the truck to Eastwood Police Station and leaving the keys and the run sheet with the police.
[8] On 12 May 2016 Mr Tannous sent a further text message to Mr Maynard which stated: “Hi Dave, I would like to meet up to discuss whatever issues there are so it can be finalised. I really want you to come back to work. We have been working well for the past 2.5 years”. Notwithstanding this text, Mr Tannous reported the alleged theft of $220 to the police the same day. To date, the police have not made any contact with Mr Maynard about the matter. Mr Maynard lodged his unfair dismissal remedy application on 1 June 2016.
The Decision
[9] The Senior Deputy President was required to address three matters in the Decision: first, whether Mr Maynard had been dismissed within the meaning of s.386 of the FW Act; second, if there had been a dismissal, whether it was consistent with the Code; and third, if there was a dismissal and it was not consistent with the Code, whether the dismissal was unfair. In relation to the first question, the Senior Deputy President said:
“[13] I am satisfied and find that Mr Maynard was terminated from his employment with the respondent by text message on 11 May 2016. I am persuaded that the text message forwarded by Mr Francis Tannous to Mr Maynard was a termination of employment. Mr Francis Tannous’ use of the word attainable was a mistake. He intended to use the word unsustainable. It is possible that Mr Francis Tannous’ reference to “finalising this issue” may have been meant to indicate that he intended that a conversation should take place before employment could continue but, after considering the evidence of the parties, I reached the opposite conclusion.”
[10] Then, under the heading “Valid reason – s.387(a)” the Senior Deputy President made finding of fact as follows:
- Mr Maynard worked for the respondent as a tow truck driver for 2 ½ years. He drove one of the respondent’s tow trucks home each night and stored it at his house on the weekend. That practice ceased at the instruction of Mr Francis Tannous just before Mr Maynard’s employment ceased. He was assigned tasks throughout the working day by Mr Francis Tannous.
- Mr Maynard recorded the vehicle, the pickup and drop-off address and the payment amount and method on run sheets. He gave the sheets, as well as any cash or cheques collected, to the respondent throughout the week.
- The relevant desk drawer was not locked and workers come in and out of the office.
- The system for signing run sheets and leaving cash payments was not consistent.
- Given the operating system for the collection of run sheets and monies it was not possible for the respondent to reliably conclude that Mr Maynard had failed to provide the $220 which Mr Francis Tannous claimed that Mr Maynard had stolen. Mr Francis Tannous’ conclusion in that regard was not reasonable in all the circumstances.
- I am satisfied that the involvement of the AMWU, acting on behalf of Mr Maynard in relation to industrial entitlement issues, played a part in Mr Francis Tannous’ decision to terminate Mr Maynard. Following correspondence from the AMWU there were acrimonious exchanges between Mr Francis Tannous and Mr Maynard including a conversation wherein Mr Francis Tannous said words to the effect: “You think you are a smart cunt eh? Well you’re not welcome in the yard any more. You’re to pick up the truck every morning and drop it off at the yard when you’re finished”.”
“[14] I have set out my key findings below:
[11] The Senior Deputy President then stated the following conclusions:
“[15] I am satisfied and find that Mr Francis Tannous’ reason for the termination of Mr Maynard was not sound, defensible and well founded. I am not persuaded that Mr Maynard stole any property, including cash payments, from the respondent. I am not satisfied that there was a valid reason for the termination of Mr Maynard’s employment, either summarily or with notice or that the respondent believed on reasonable grounds that Mr Maynard’s conduct was sufficiently serious to justify immediate termination of employment or termination of employment with notice.
[16] Having considered the issues to which my attention is directed by s.387 of the Act I am satisfied that the dismissal of Mr Maynard was harsh, unjust or unreasonable.”
[12] The Senior Deputy President proceeded to determine that Mr Maynard was entitled to a compensation order in respect of his unfair dismissal, but this was quantified only in the latter decision of 25 January 2017.
Appellant’s appeal grounds and submissions
[13] The appellant’s notice of appeal contained 18 grounds for the appeal. In summary, the appellant contended that the Senior Deputy President erred in that she:
- failed to provide adequate reasons for her findings, and failed to disclose her reasoning process;
- failed to determine the jurisdictional issue relating to the Code before considering the merits of the application;
- determined that Mr Maynard had been dismissed as opposed to abandoning his employment;
- allowed Mr Maynard to rely on redacted documents and refused the appellant’s application to obtain unredacted copies of those documents;
- failed to find, in relation to the Code, that the appellant had a belief on reasonable grounds that Mr Maynard’s conduct in stealing money from the appellant justified immediate dismissal;
- found that Mr Maynard was a reliable witness and Mr Tannous was not;
- found that the system of cash payments was not consistent and that it was not possible for the appellant to reliably conclude that Mr Maynard had failed to pay in $220;
- found that the involvement of the AMWU played a part in the appellant’s decision to dismiss Mr Maynard;
- found that the appellant’s reason for terminating Mr Maynard was not sound, defensible or well-founded; and
- refused to accept into evidence the appellant’s financial evidence as to its capacity to meet any compensation order to be made by the Commission.
[14] The appellant submitted that permission to appeal should be granted in the public interest because:
- the requirement to provide reasons was fundamental to the operation of the unfair dismissal provisions and any significant failure to comply with this obligation had been held in Pinawin v Domingo 3to be a significant matter of public interest warranting the grant of permission to appeal;
- the requirement in s.396(c) of the FW Act for the issue of adherence to the Code to be dealt with before any consideration of the merits was a fundamental breakdown in the decision-making process under the FW Act, as was the failure by the Senior Deputy President to explain the conclusion that the appellant did not reasonably hold the belief that Mr Maynard had stolen the $220 from him;
- in relation to the question of whether there was a dismissal, the Senior Deputy President conceded that the text message of 11 May 2016 did not amount to an express termination, but did not otherwise explain how the employment relationship had been concluded in circumstances where the evidence demonstrated that the appellant wished to resolve the issue without bringing the employment relationship to an end; and
- there was a lack of detailed consideration about each factor required to be considered under s.387(a).
Consideration
[15] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[16] This appeal is one to which s.400 of the FW Act applies. 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.
[17] In the Federal Court Full Court decision 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”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. 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.” 7
[18] 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, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
[19] 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. 10
[20] We accept the appellant’s submission that the Senior Deputy President erred in not discretely considering and determining the issue of whether the dismissal which she found had occurred was consistent with the Code before turning to the issue of whether the dismissal was unfair. Section 396 of the FW Act provides:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[21] The command in s.396(c) is clear, but it was not complied with in the Decision. We have earlier set out the relevant parts of the Decision, and it is apparent that the Senior Deputy President’s determination of the Code issue was intermingled with and subsidiary to her consideration of the merits of Mr Maynard’s application.
[22] However it does not follow from that conclusion that permission to appeal should be granted. As earlier stated, the mere demonstration of error does necessarily mean that the grant of permission to appeal would be in the public interest, and that is particularly the case where the error could not have made any difference to the outcome of the matter. In relation to whether the dismissal was consistent with the Code, the Senior Deputy President concluded in substance that there was no reasonable basis for Mr Tannous to hold the belief that Mr Maynard had stolen the $220, and we are not satisfied that the appellant has demonstrated any arguable case of error in respect of this conclusion.
[23] There is a further reason why the dismissal could not have been consistent with the Code. That part of the Code relied upon by the appellant provides: “It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”. There are two issues to be considered in determining whether this part of the Code is satisfied: first, whether the employer held the subjective belief at the time of the dismissal that the employee’s conduct was sufficiently serious to justify immediate dismissal and, second, whether that belief was based on grounds that were, objectively speaking, reasonable. 11 The Senior Deputy President’s finding was to the effect that the second element was not satisfied. Additionally however there could not have been satisfaction that the first element was satisfied, because Mr Tannous (who was presented as the mind of the appellant corporate entity) never gave evidence that as at 11 May 2016 he held the requisite subjective belief that Mr Maynard’s alleged conduct justified immediate dismissal. Mr Tannous’s evidence was in fact to the contrary. He not only denied dismissing Mr Maynard at all, but said in his statement of evidence dated 27 August 2016:
“Other than the fact of the missing money, I wanted the Applicant to continue working for the Respondent as it was difficult to find replacement tow truck drivers. At this stage, I was still prepared to take the Applicant back upon him admitting that he had retained the money and paying it to me”.
[24] In his oral evidence, Mr Tannous was anxious to deny that he was upset about the missing $220 12 or that he had any intention of dismissing Mr Maynard.13 Thus although there is no doubt that Mr Tannous held the view that Mr Maynard had not given him the $220, his own evidence was to the effect that he did not consider that this called for immediate dismissal. As the Senior Deputy President found, the credibility of this evidence was questionable, but the position that remained was that the appellant did not adduce any evidence that it held the necessary subjective belief at the relevant time.
[25] Therefore the way in which the Senior Deputy President dealt with the Code issue in the Decision did not affect the obvious correctness of the conclusion that the dismissal was not consistent with the Code.
[26] In relation to the appellant’s contention that the Senior Deputy President failed to provide adequate reasons, we consider that the Decision makes sufficiently clear the basis upon which she decided the matter and has allowed the appellant a proper opportunity to exercise its appeal rights. As was stated by the Full Bench in Barach v University of New South Wales the obligation to give reasons requires that the essential grounds for reaching the decision be articulated and that material questions of fact and law be addressed in a manner which disclose the steps which led to the result, but does not require that the reasons be lengthy or elaborate or that they deal with every matter of fact and law raised in the proceedings. 14
[27] The appellant’s contention that there was a failure to give reasons particularly focused upon the Senior Deputy President’s conclusion in paragraph [13] of the Decision that Mr Maynard had been dismissed by the appellant on 11 May 2016 and her reference to the unspecified “evidence of the parties” as justifying her conclusion in that respect. It may be accepted that this reference does not make entirely clear what evidence was relied on this connection. However, we are wholly satisfied that the text message of 11 May 2016, following as it did Mr Tannous’ abusive phone call earlier that day, could only be understood as constituting a dismissal. There was no challenge to the Senior Deputy President’s conclusion that the word “attainable” in the text message was to be read as “unsustainable”, and on this basis the text message clearly communicated that Mr Maynard was to surrender the tow truck required to perform his duties and that there was no proper basis to continue the employment relationship.
[28] In relation to the appellant’s complaint that the matters required to be considered under s.387, except for paragraph (a), were not the subject of any explicit discussion in the Decision, the appellant did not identify any relevant contest between the parties about those matters that required resolution. It is difficult to identify any real possibility, in relation to a dismissal sought to be justified by alleged misconduct, that explicit findings in relation to a paragraphs (b)-(h) of s.387 could have made any difference to the outcome once it was found that there was no valid reason for the dismissal.
[29] The other grounds of the appeal raise issues concerning particular findings of fact, findings about the credibility of particular witnesses, and interlocutory procedural rulings which are not of a nature to attract the public interest. We do not consider that the appeal raises any issue of general application or is counter-intuitive or manifests any injustice.
[30] For these reasons, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal must therefore be refused in accordance with s.400(1).
VICE PRESIDENT
Appearances:
C. Tannous solicitor for Inner West Towing Pty Ltd.
L. Saunders from the Australian Manufacturing Workers’ Union for D. Maynard.
Hearing details:
2017.
Sydney:
7 February.
1 [2016] FWC 8582
2 [2017] FWC 569
3 [2012] FWAFB 1359, (2012) 219 IR 128
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 (2011) 192 FCR 78 at [43]
6 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
11 Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359, 219 IR 128 at [29]; Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 at [39]-[40]
12 Transcript 31 August 2016, PNs 1827-1828
13 Transcript 31 August 2016, PNs 2033-2034
14 [2010] FWAFB 3307, 194 IR 259 at [16]
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