James Chol v Vivesco Pty Ltd T/A Vivesco Landscape Services
[2024] FWCFB 335
•12 AUGUST 2024
| [2024] FWCFB 335 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
James Chol
v
Vivesco Pty Ltd T/A Vivesco Landscape Services
(C2024/3419)
| VICE PRESIDENT GIBIAN | SYDNEY, 12 AUGUST 2024 |
Appeal against decision [2024] FWC 1220 of Deputy President Colman at Melbourne on 9 May 2024 in matter number U2024/2162 – Factual findings made at first instance based on having observed witnesses give evidence – No basis to interfere with factual findings – Deputy President appropriately weighed s 387 considerations – No issue of general importance or principle raised – Permission to Appeal refused.
Introduction
Mr James Chol has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission is required, from a decision[1] made by Deputy President Colman on 9 May 2024 (the Decision) in which the Deputy President found the Mr Chol’s dismissal on 9 February 2024 was not harsh, unjust or unreasonable and dismissed his application for an unfair dismissal remedy. At a hearing before us on 8 July 2024, both parties sought to rely entirely on their written submissions and made no oral submissions. For the reasons outlined below, we have decided to refuse permission to appeal.
Background
From October 2022 until 9 February 2024, Mr Chol was employed by a landscape and gardening business, Vivesco Pty Ltd T/A Vivesco Landscape Services (Vivesco). He was dismissed for breaching Vivesco’s policy on workplace harassment and bullying. At the hearing before the Deputy President, Mr Chol contended that the Manager of Vivesco, Mr Tim Sutcliffe, treated him unfairly by rostering him on the largest, most physically intensive and deliberately understaffed work sites. Mr Chol led evidence to the effect that he was terminated as a result of him expressing his concerns regarding this unfair workplace treatment. For its part, Vivesco led evidence that it had received various complaints against Mr Chol and argued that Mr Chol was dismissed as a result of the cumulative effect of multiple breaches of Vivesco’s workplace bullying and intimidation policy and its Code of Conduct.
Decision under appeal
The Deputy President noted that s 387(a) of the Act requires the Commission to consider whether there was a valid reason for dismissal, not whether the reason relied upon by Vivesco was a valid reason. The Deputy President concluded that there was a valid reason based on Mr Chol’s treatment of a fellow employee, Mr Tom Case, on 19 December 2023. The Deputy President stated that he was comfortably satisfied, on the balance of probabilities and applying the Briginshaw standard, that Mr Chol exhibited anger and swore at Mr Case in a threatening manner, shouting that he was a ‘fat exploiter of foreigners’ and calling him, without any basis, a liar. The Deputy President found that this conduct contravened Vivesco’s workplace bullying and intimidation policy and Code of Conduct and further, that it was entirely unacceptable for Mr Chol to ‘fat shame’ a coworker. The Deputy President concluded the outburst was a valid reason for dismissal, constituting serious misconduct warranting summary dismissal.[2]
This incident pre-dated Mr Chol’s termination by approximately 8 weeks and also gave rise to consideration of when a valid reason loses its window of ‘currency’. The Deputy President opined that it would be wrong to adopt too narrow an approach to this window, thereby punishing employer leniency and encouraging hasty dismissals. The Deputy President was satisfied that “the window remained open” in the matter before him because the incident was one of several incidents involving inappropriate conduct towards other employees.[3] While agreeing with Mr Chol that many of the complaints made against him lacked detail and were not substantiated by any evidence, the Deputy President was nonetheless satisfied some of the claims were substantiated, including:
a)A text message sent by Mr Chol to another Vivesco employee, Mr Jeff Long, in December 2023, which the Deputy President determined was sarcastic and belittling; and
b)An interaction between Mr Chol and Mr Long in February 2024, during which the applicant called Mr Long a narcissist, which the Deputy President determined was offensive and abusive.
Although the Deputy President held that these two incidents did not rise to the same level of seriousness as the conduct of Mr Chol on 19 December 2023, he concluded that they constituted inappropriate conduct contrary to Vivesco’s policies. The Deputy President also determined that Mr Sutcliffe’s concern that Mr Chol’s conduct was adversely affecting the welfare of other employees was well founded, and that this too constituted a valid reason for dismissal. The Deputy President was not persuaded that Mr Chol’s complaints about his working conditions contributed to Mr Sutcliffe’s decision to dismiss him and nor was the Deputy President persuaded that Mr Sutcliffe had deliberately rostered work in a manner that was unfavourable manner to Mr Chol in order to force his resignation.
The Deputy President then turned to ss 387(b) and (c) of the Act and determined that Mr Chol was not notified of the reason for dismissal until after he was dismissed nor was he afforded an opportunity to respond to the allegations against him. The Deputy President’s overall assessment was that the procedural deficiencies were outweighed by the valid reasons, and particularly, the gravity of the misconduct on 19 December 2023.
In relation to ss 387(d)-(g), the Deputy President found there was no unreasonable refusal by Vivesco to allow Mr Chol to have a support person because no such request or discussions had occurred, the dismissal did not relate to poor performance and that Vivesco had 18 employees but no in-house human resource management, although it did seek external advice.
As to s 387(h), the Deputy President noted that Mr Chol received payment in lieu of his notice period and that Mr Sutcliffe was genuinely concerned about the safety and wellbeing of Vivesco’s other staff and its obligation to provide a safe working environment. While determining that the termination process was deficient and that Vivesco’s concerns ought to have been put to Mr Chol, the Deputy President nonetheless opined that it would have been unlikely that Mr Chol would have corrected his behaviour, even if there had been the opportunity to do so, because Mr Chol stated at the hearing that he did not consider there was anything wrong with his behaviour.[4] Having outlined and weighed his various findings in relation to the criteria in s 387 of the Act, the Deputy President concluded that the dismissal was not harsh, unjust or unreasonable, and therefore was not unfair.
Appeal Grounds and Submissions
We discern from the grounds of appeal outlined in the Form F7 and the content of his Outline of Submissions that Mr Chol contends the Decision involved significant errors of fact; the Deputy President failed to take material considerations into account; Vivesco had an unfair advantage, the outcome was unjust and the Deputy President was biased; and that the Deputy President erred in determining that the procedural deficiencies of Vivesco were outweighed by the reasons for his dismissal.
The public interest grounds for the grant of permission to appeal asserted by Mr Chol appear to be that he was the subject of worker exploitation, a covert form of wage theft and workplace discrimination and his case has broader implications for vulnerable employees.
Applicable appeal principles
An appeal under s 604 of the 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.[5] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the 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.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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]
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]
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] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error. Here of course, we have had the benefit of receiving arguments both as to permission to appeal and the merits of the appeal.
Consideration
We firstly observe that most of the asserted factual errors about which Mr Chol complains are directed at the Deputy President’s summary of the evidence, as opposed to his findings. Mr Chol otherwise contests findings of the Deputy President which were based on the testimony of Mr Sutcliffe and Mr Case. In Fox v Percy[11] Gleeson CJ, Gummow and Kirby JJ said:
“[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.”[12] (footnotes omitted)
In Robinson Helicopter v McDermott (Robinson Helicopter),[13] the High Court, citing Fox v Percy, said:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”[14] (footnotes omitted)
These principles have consistently been applied to appeals in the Commission. On appeal, the factual findings made by a member at first instance should generally stand, unless it can be shown that the member has failed to use the advantage of the hearing of the evidence or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was “glaringly improbable”.[15] An appeal to a Full Bench exists for the correction of error. It is not a hearing de novo. There are natural limitations that apply to the hearing of an appeal by a Full Bench and the member at first instance is usually in a better position than the appeal bench to make findings of fact.[16]
The requirement that factual findings made at first instance be set aside only where they are “glaringly improbable” is applicable where the findings are likely to have been influenced by the decision-maker having directly seen and heard the evidence being given. In Lee v Lee,[17] Bell, Gageler, Nettle and Edelman JJ explained:
“Appellate restraint with respect to interference with a trial judge's findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’. …”[18]
This is such a case. The Deputy President’s findings were made with the benefit of having seen Mr Sutcliffe, Mr Case and Mr Chol give evidence. Mr Chol did not dispute having had the particular interactions with Mr Case and Mr Long. While he characterised the nature of his interactions with them differently, Mr Chol has not persuaded us that the Deputy President’s factual findings based on evidence from Mr Sutcliffe and Mr Case are affected by any of the deficiencies identified in Fox v Percy, Robinson Helicopter and Lee v Lee. We are satisfied that the Deputy President’s findings in relation to Mr Sutcliffe and Mr Case were open to him.
Firstly, we do not consider the Deputy President’s acceptance of Mr Sutcliffe’s testimony was erroneous. The Deputy President’s conclusion that Mr Sutcliffe had a “well founded” concern that Mr Chol was adversely affecting the welfare of other employees was partly based on the evidence of Mr Case, whom the Deputy President concluded was a credible witness who gave clear and detailed evidence, with no motive to “invent a malicious lie about what Mr Chol said to him” on 19 December 2023.[19] The conclusion was also based on the Deputy President’s finding that Mr Chol engaged in offensive and abusive conduct towards Mr Long, with the Deputy President having noted that the contents of the report of Mr Long were not disputed.
Similarly, we have not been persuaded by Mr Chol’s contention that the outcome was unjust because his dismissal had resulted from his pushing back against “coercive and discriminatory practices”, including by making a complaint to the Fair Work Ombudsman. The Deputy President took note of Mr Chol’s employment history, his workload grievances and his concerns about the rostering but accepted Mr Sutcliffe’s evidence to the contrary and, in particular, was satisfied that Mr Sutcliffe was not looking for a reason to dismiss Mr Chol. We have not been persuaded the Deputy President erred in reaching these conclusions.
Further, we discern no error in relation to the Deputy President’s conclusions that Mr Chol’s allegation of racist behaviour was both unsubstantiated and unrelated to the question of whether his dismissal was unfair. We also consider the undeveloped assertions made by Mr Chol that the Deputy President was biased and that Vivesco had an unfair advantage to be without basis.
Mr Chol’s most substantive ground of appeal is that Deputy President erred in determining that the procedural deficiencies of Vivesco were outweighed by the valid reasons for his dismissal. While the essence of Mr Chol’s contention is that the Deputy President ought to have assigned greater weight to the procedural deficiencies, in Restaurant and Catering Association of Victoria,[20] the Full Bench held:
“It is not sufficient to demonstrate appellable error to contend that the first instance decision-maker failed to give a particular matter “sufficient weight” or failed to have “proper regard” to it unless this amounted in substance to a failure to exercise the discretion conferred on the court or tribunal. In the High Court decision in Gronow v Gronow Aickin J (with whom Mason and Wilson JJ agreed) said:
‘It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellant court to substitute its own discretion for that of the trial judge. As Kitto J said in Lovell v Lovell at p 533:
‘The proposition that the appeal court will consider whether ‘no sufficient weight’ has been given relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it come clearly to the conclusion for that reason that the discretion has been exercised wrongfully.’
It is clear that test will not be satisfied merely by reason that the appellant court, considering the matter de novo, would itself have arrived at a different result.’”[21]
(references omitted)
The Decision clearly outlines the Deputy President’s finding that the procedural deficiencies were significant matters weighing in favour of a conclusion that Mr Chol’s dismissal was unfair, and that the Deputy President then gave proper consideration to the exercise of his discretion, in concluding:
“In this case, Mr Chol was notified of the reason for dismissal only after he was dismissed. He was not afforded any opportunity to respond to the allegations against him. These are significant matters that weigh in favour of a conclusion that the dismissal was unfair. Mr Sutcliffe should have raised the employee allegations and his own concerns about Mr Chol’s conduct directly with him and asked Mr Chol for his side of the story. However in my overall assessment these procedural deficiencies are outweighed by the valid reasons, and in particular the gravity of Mr Chol’s misconduct on 19 December 2023. Further, I find that the failure of the company to put to Mr Chol the allegations concerning his treatment of Mr Case and Mr Long did not lead the company to reach incorrect factual conclusions about these events.”[22]
In these circumstances, we are not persuaded the Deputy President erred. As was determined by the Full Bench in Lei Xu v Pacific HVAC Engineering Pty Ltd:
“Appealable error in the exercise of a discretion may not be demonstrated by a contention that a matter that was properly considered ought to have been assigned greater weight than it was by the first-instance decision-maker.”[23]
We consider the Deputy President undertook his determinative role in an orthodox manner, making findings in relation to each matter specified in s 387 of the Act and then fulfilling his obligation to consider and give due weight to each when determining whether the Mr Chol’s dismissal was harsh, unjust or unreasonable.[24] Section 387 required the Deputy President to take into account each of the matters listed in the section in the sense that each of the matters must be subject of active intellectual engagement and given “proper, genuine and realistic consideration”.[25] The Deputy President did so. We consider the Deputy President’s finding that the dismissal was not unfair was within his discretion, notwithstanding the procedural deficiencies.
We do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds are reasonably arguable. No injustice or counter intuitive result is manifest. The Deputy President’s findings and conclusion were open to him on the evidence.
Conclusion
An appeal exists for the correction of error. While Mr Chol is aggrieved by the Decision, he seeks to re-argue, through this appeal, matters which the Deputy President appropriately considered and weighed, in search of a different result. Mr Chol has failed to advance any matter disclosing appealable error in the Decision. Absent any identified appealable error, Mr Chol’s public interest arguments do not persuade us that it is in the public interest for permission to appeal to be granted. The Decision is one confined to its particular facts and we do not consider that the appeal raises any issue of potentially wider application. As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Order
We order that permission to appeal is refused.
VICE PRESIDENT
Appearances:
J Chol, Appellant.
T Sutcliffe, Manager of the Respondent.
Hearing details:
Melbourne:
2024.
8 July.
[1] [2024] FWC 1220.
[2] Ibid at [17].
[3] Ibid at [18].
[4] Ibid [21].
[5] This is so because on appeal FWC has the 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
[6] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[7] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[8] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[9] 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] FCAFC 54, 192 FCR 78, 207 IR 177; 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] [2003] HCA 22; 214 CLR 118
[12] Ibid at [23]
[13] [2016] HCA 22; 331 ALR 550
[14] Ibid at [43]
[15] See Blagojevic v AGL Macquarie Pty Ltd[2018] FWCFB 4174 at [48] and the decisions at footnote 45 and Australian Education Union v Bendigo Kangan Institute of TAFE[2021] FWCFB 2152 at [38].
[16] Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 2152 at [38]
[17] [2019] HCA; 266 CLR 129.
[18] Ibid at [55]
[19] [2024] FWC 1220 at [15].
[20] [2014] FWCFB 1996, 243 IR 132.
[21] Ibid at [57] – [58].
[22] Ibid at [20].
[23] [2018] FWCFB 1270 at [21].
[24] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[25] He v Minister for Immigration and Border Protection [2017] FCAFC 206, 255 FCR 41 at [52]-[53]; Re Aged Care Award 2010[2024] FWCFB 150 at [14].
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