Janice Shone v Compac Marketing (Australia) Pty Ltd T/A Compac Marketing Australia
[2014] FWCFB 1041
•20 FEBRUARY 2014
[2014] FWCFB 1041 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Compac Marketing (Australia) Pty Ltd T/A Compac Marketing Australia
(C2013/1706)
VICE PRESIDENT WATSON | SYDNEY, 20 FEBRUARY 2014 |
Appeal against decision [2013] FWC 7662 of Deputy President McCarthy at Perth on 7 October 2013 in matter number U2013/9092 - Permission to appeal - whether grounds of appeal do not attract the public interest - Permission to appeal denied - Fair Work Act 2009 ss 400, 604.
Introduction
[1] This decision concerns an application for permission to appeal against the decision of Deputy President McCarthy handed down on 7 October 2013 1. His Honour’s decision dismissed an unfair dismissal application under the Fair Work Act 2009 (the Act) made by Janice Tammy Shone in relation to the termination of her employment by Compac Marketing (Australia) Pty Ltd (Compac) in April 2013.
[2] At the hearing of the application for permission to appeal Ms Shone appeared on her own behalf. Mr P Mullally, of Workclaims Australia appeared, with permission, for Compac.
Background
[3] The Conclusions of the Deputy President are reflected in the following extract from his Honour’s decision:
“Conclusions
[36] The Applicant was dismissed for reason that the Respondent had a lack of faith and confidence in her.
[37] The catalyst for the Directors concerns about the Applicant appears to be the lack of trust and confidence in the Applicant being able to keep payments to suppliers under control. That was then exacerbated by the Directors becoming aware that payments were being made to a company part owned by the Applicant and her husband. The payments were purportedly for the duties of the Applicant being performed by her husband under a contract by their company for the Respondent. The duties would otherwise have been performed by her. The Respondent through that period also paid the Applicant her normal salary. The problem emanates from a lack of proper process within the Respondents operations. There were also fundamental flaws in the establishment of such a relationship and a lack of understanding and clarity of what it entailed. The Respondent disputes any such arrangement was ever established. However the Respondent displayed carelessness by not caring who did the work and how it was paid for.
[38] However, there are a range of other issues that I have canvassed above that I find that there was conduct that did occur to sustain a view that the Respondents had grounds to have lost trust and confidence in the Applicant. The reasons they provided in the letter of termination contain some flaws, however, the Applicant’s actions and responsibilities for the payroll were applied in such a way to gouge benefits from the company. She had a responsibility to maintain an audit trail and authorities for payments made. Little supporting documentation could be provided. It is clear from the evidence and my assessment and findings above that there were overwhelming grounds supporting a view being formed by the Respondents that they could no longer have confidence in her. In her position the Applicant had an obligation to act in good faith in the best interests of the company, to ensure thorough fulsome disclosure where there was a conflict of interest or even a potential for the appearance of a conflict of interest. She also had obligations to act with due care and diligence. I consider that the Applicant had little understanding of these obligations or if she did she did not properly apply them.
[39] I find that the conduct of the Applicant occurred and was such that the Respondents lost confidence in her. There was thus a valid reason for dismissal.
[40] The Applicant was notified of the reasons for her dismissal but only when the decision had been taken to notify her. I find that she was therefore not notified, but in the circumstances of the nature of the assertions against her and the overwhelming evidence, the Respondent eventually provided to establish that they could not have faith and confidence in her.
[41] Similarly, the Applicant was not given an opportunity to respond but for the previous paragraph I give little weight to this criteria. Section 387(c) of the Fair Work Act 2009 (the FW Act) is not relevant.
[42] I do not consider s.387(e) of the FW Act as being relevant but even if it is, there was no warning for the matters and I find gives rise to a valid reason for dismissal. However, I give little weight to this criteria for reasons outlined above.
[43] The Respondent is a relatively small employer and it is obvious form the evidence that there was little proper procedure. This does weigh in favour of the Applicant for failures of procedure, but I give little weight to this criteria as well. There is no dedicated human resource support.
[44] There are no other relevant matters that I have not considered in relation to the other criteria above. I find the dismissal was not unfair. The application is dismissed.”
[4] Ms Shone advances five grounds of appeal which are detailed in the written outline of submissions filed in the matter.
[5] The first ground is detailed in paragraphs 8-24 of those submissions. It concerns the relevance of the circumstances of the renewal of Ms Shone’s employment contract and an error in the decision regarding the date that new contract was signed.
[6] The second ground, dealt with in paragraphs 25-31 of her submissions, challenges the finding that Ms Shone did not display the competence and responsibilities of a Financial Controller in circumstances where the employer and the Deputy President did not believe that the termination was on account of unsatisfactory work performance.
[7] The third ground, enunciated at paragraphs 32-82 of Ms Shone’s submissions, concerns various alleged failures to give weight to relevant considerations and giving weight to irrelevant considerations concerning the expectations of her employment contract and the practice of being paid out time in lieu of overtime.
[8] The fourth ground of appeal is dealt with in paragraphs 83-101 of Ms Shone’s submissions. It contends that the Deputy President failed to give any weight to the factors contained in s.387 of the Act.
[9] The fifth ground is that the Deputy President did not give proper reasons for failing to have regard to the factors in s.387 of the Act.
[10] Ms Shone contends that it is in the public interest to grant permission to appeal because the Deputy President did not take into account all relevant facts.
[11] Compac contends that the grounds of appeal lack substance and there are no errors such that the public interest is enlivened.
Permission to Appeal
[12] In unfair dismissal matters, permission to appeal can only be granted if the Commission considers that it is in the public interest to do so: s.400 (1) of the Act. The way in which the public interest may be attracted has been described as follows 2:
“... the public interest might be attracted where a matter raises issue 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.
[13] The decision under appeal is a discretionary one. Such a decision can only be challenged on appeal if it is shown that the discretion was not exercised correctly. It is not open to an appeal bench to substitute its view on the matters that fell for determination in the absence of error of an appealable nature in the decision at first instance. We have considered all of the grounds of appeal and the arguments advanced in relation to them.
[14] As to the first ground, we accept that the date of the new contract in the Deputy President’s decision is not correct. However we do not believe that the mistake was of any significance to the conclusions he reached.
[15] In our view the second ground does not have substance. The Deputy President evaluated the evidence of Ms Shone’s conduct in relation to the grounds of termination that Compac had lost faith and confidence in her. While such grounds are more serious than unsatisfactory performance issues, there is a clear overlap between the concepts of unsatisfactory performance and losing faith and confidence. The matters involved financial irregularities that operated to Ms Shone’s financial advantage and arose from accounting practices that were not transparent. It is clear from a full reading of the Deputy President’s decision that he considered all of the evidence and made relevant findings that provided a basis for his conclusion.
[16] The third ground of appeal seeks to challenge findings made by the Deputy President based on various aspects of the evidence, not summarised by his Honour or not considered persuasive by him. This ground seeks to re-argue the factual circumstances based on the evidence led in the matter. It is evident from his Honour’s decision that the circumstances concerned a small employer who entrusted much of the financial matters of the business to Ms Shone. Based on a review of the financial circumstances by its new Business Manager, Mr Grant, it formed the view that previous financial dealings were not sound. There is considerable conflict in the evidence over many of the matters that gave rise to the concerns of Mr Grant and senior management. The Deputy President heard this evidence and evaluated it in making the findings that he made. It has not been demonstrated that his Honour made any errors in the assessment of this evidence or the exercise of his discretion in the matter.
[17] We are also of the view that the fourth and fifth grounds lack substance. The Deputy President did consider each of the factors in s.387 of the Act in the extract from his decision set out above. It has not been shown that his Honour did not exercise the discretion vested in the Commission or that there are any errors in the decision-making process.
[18] For these reasons we are not of the view that the grounds of appeal have substance. Nor do we believe that, individually or collectively, the grounds attract the public interest. We therefore decline to grant permission to appeal and dismiss the application for permission to appeal.
VICE PRESIDENT WATSON
Appearances:
Ms J Shone appeared on her own behalf.
Mr P Mullally on behalf of Compaq Marketing Pty Ltd.
Hearing details:
2014.
Sydney (and VC to Perth).
11 February.
Final written submissions:
Ms Shone, 17 January 2014
1 [2013] FWC 7662.
2 GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343, at [27].
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