Jeb Hendricks v Catholic Education Western Australia (CEWA)
[2023] FWCFB 142
•22 AUGUST 2023
| [2023] FWCFB 142 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Jeb Hendricks
v
Catholic Education Western Australia (CEWA)
(C2023/4202)
(C2022/7224)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 22 AUGUST 2023 |
Appeal against decision [2023] FWC 1553 of Deputy President Binet at Perth on 27 June 2023 in matter number U2022/8740; appeal against decision [2022] FWC 2702 of Commissioner Williams at Perth on 12 October 2022 in U2022/832
Mr Jeb Hendricks has lodged two appeals, for which permission to appeal is required, with respect to his employment, and its termination, with Catholic Education Western Australia (CEWA).
CEWA oversees the operation of 163 Catholic schools and colleges in Western Australia, including Irene McCormack Catholic College (College) where Mr Hendricks was relevantly engaged from 1 January 2019 as Head of Mathematics, and from 1 January 2022 until the termination of his employment, as a teacher.
The following outlines the context to the appeals presently before us.
Context
On 2 September 2021, CEWA advised Mr Hendricks that it declined to offer him a third term in the role of Head of Mathematics. Mr Hendricks was advised that his employment would continue but from 1 January 2022, he would be employed in the role of teacher.
On 17 January 2022, Mr Hendricks made an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). In this application, being given the Commission matter number U2022/832, Mr Hendricks alleged that he had been unfairly dismissed by reason of his demotion from the role of Head of Mathematics.
On 12 October 2022, Commissioner Williams issued a decision[1] (first decision) in which it was determined that Mr Hendricks’ demotion from the role of Head of Mathematics was not harsh, unjust or unreasonable. The first decision was accompanied by an order dismissing the application.[2]
Mr Hendricks lodged an appeal in relation to the first decision on 31 October 2022 (first appeal).
Two days after the hearing before Commissioner Williams, Mr Hendricks’ employment was terminated by CEWA on 5 August 2022 after an incident involving a student. Mr Hendricks filed an application for an unfair dismissal remedy in relation to the termination of his employment. That application, being given the Commission matter number U2022/8740, was allocated to Deputy President Binet for determination.
As a consequence of these events, it was determined by an earlier Full Bench that the first appeal should be held in abeyance pending the outcome of the unfair dismissal proceedings before the Deputy President.
By a decision[3] and order[4] issued on 27 June 2023, the Deputy President dismissed Mr Hendricks’ unfair dismissal application (second decision). Mr Hendricks lodged an appeal in relation to the second decision on 18 July 2023 (second appeal).
Before this Full Bench, the first appeal and the second appeal were jointly listed for permission to appeal only. For the reasons that follow, permission to appeal is refused in relation to both applications C2022/7224 and C2023/4202.
Principles – permission to appeal
There is no right to appeal, and an appeal may only be made with the permission of the Commission.
Section 400 of the Act applies to the two appeals before us. 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.”
The test under s 400 of the Act is “a stringent one.”[5] 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:[7]
“… 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 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 the appeal grounds to consider whether they raise an arguable case of appealable error.
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.[11]
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:[12]
“"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,[13] or is manifestly wrong.[14] It is not enough that a different member or an appellant body might have reached a different conclusion.
The first decision
On 2 September 2021, CEWA advised Mr Hendricks that it declined to offer him a third term in the role of Head of Mathematics. Mr Hendricks was advised that his employment would continue but from 1 January 2022, he would be employed in the role of teacher.
In his application, Mr Hendricks alleged that he had been unfairly dismissed by reason of his demotion from the role of Head of Mathematics.
The Commissioner approached his consideration of the application by first making a factual finding concerning a document titled Contract Agreement Head of Mathematics[15] which was entered into between the parties in September 2018 upon Mr Hendricks’ acceptance of the Head of Mathematics role, and its relationship with The Roman Catholic Archbishop of Perth Teachers Enterprise Bargaining Agreement 2015 (Agreement), registered by the Western Australian Industrial Relations Commission.[16] The Commissioner found as follows:[17]
“The Agreement is silent on a review of the continuation of an appointment to a promotional position such as the Head of Mathematics as is included in the Contract Agreement Head of Mathematics.
It is not apparent that a review of the continuation of appointment to a promotional position is covered at all by clause 22 Appraisals of the Agreement.”
The Commissioner relevantly proceeded by considering Mr Hendricks’ conduct on 14 May 2021 wherein Mr Hendricks sent an email an email to parents of College students regarding the College’s decision to schedule two National Assessment Program – Literacy and Numeracy (NAPLAN) tests on one day. Mr Hendricks held strong views against proceeding with two tests on a single day and expressed them by email to the Deputy Principal, Mr Billingsley, the College’s NAPLAN co-ordinator, Ms Debbie White, the College’s Principal, Mr Marshall, and CEWA’s Mr Aldous, on 13 May 2021. Mr Hendricks also held discussions with Mr Billingsley and Mr Marshall to discuss this issue on 14 May 2021.[18]
It was not in dispute that after Mr Hendricks spoke with Mr Billingsley, Mr Hendricks sent an email to parents which set out Mr Hendricks’ view that the NAPLAN schedule proposed by the College “will likely negatively impact the overall Year 7 & 9 outcomes” for reasons associated with cognitive fatigue, and Mr Hendricks had attempted “without success” to communicate his concerns “to the appropriate individuals.” Mr Hendricks stated that he considered that he had done what he could to look out for the best interests of the children, and recommended that any parents holding concerns use CEWA’s dispute and complaints resolution process.[19]
The Commissioner found that Mr Hendricks had been directed not to email parents regarding his concerns:[20]
“…I find that on Friday morning, 14 May 2021, in phone conversation, Mr Billingsley expressly told the applicant not to email parents regarding his concerns about the scheduling of the numeracy NAPLAN test and separately in find the applicant told Mr Marshall that he was going to email parents regarding his concerns on this issue but then ended the phone call before Mr Marshall could respond.”
The Commissioner proceeded by considering the review undertaken by CEWA in relation to Mr Hendricks’ performance as the Head of Mathematics. The outcome of this review was that Mr Marshall determined not to renew Mr Hendricks’ position in this role. This was communicated to Mr Hendricks by letter dated 2 September 2021.[21] The Commissioner concluded that the concerns set out in the 2 September 2021 letter were “sound and defensible” and gave rise to a valid reason for the dismissal for the purposes of s 387(a) of the Act.[22] The Commissioner further concluded that Mr Hendricks’ conduct in deliberately disobeying a lawful and reasonable direction not to email parents regarding the NAPLAN test schedule also gave rise to a valid reason for Mr Hendricks’ demotion.[23]
The Commissioner proceeded by considering the other factors under s 387 of the Act, relevantly concluding that Mr Hendricks was not notified of the reason for his demotion until after the decision had been made, CEWA did not give Mr Hendricks an opportunity to respond to the reasons for which he was demoted before the decision was made, and CEWA did not warn Mr Hendricks about his unsatisfactory performance. [24]
The Commissioner concluded that such matters would usually be viewed as serious procedural deficiencies,[25] but in the circumstances of Mr Hendricks’ demotion, Mr Hendricks was given the opportunity to challenge his demotion pursuant to an internal review process[26] and when all of the matters were considered “overall,” Mr Hendricks’ demotion was not an unfair dismissal.[27]
Grounds of appeal – the first appeal
By his Notice of Appeal, Mr Hendricks raises 95 grounds of appeal under the heading “errors and clarification in facts,” although one of the grounds concerns “contradictions to precedent” and another simply seeks permission to appeal on the basis of the errors identified.[28] It is noted that these grounds comprise of allegations of error and submissions and are, on occasion, repetitious and overlap. The grounds may be summarised and grouped as follows.
Mr Hendricks alleges errors of fact in the Commissioner’s decision. Mr Hendricks was not first employed in 2017 and he did not hold the position of Head of Mathematics from September 2018, but rather started his role on 1 January 2019.[29]
Mr Hendricks alleges that the Commissioner’s reasoning that CEWA, which is a large employer with dedicated in-house human resources expertise, failed to follow procedures because it was not aware the demotion amounted to a dismissal is erroneous, as ignorance of the law is no reason not to follow it.[30]
Mr Hendricks alleges that the Agreement applied to his demotion from the Head of Mathematics to the role of teacher, and the Agreement was not complied with resulting in an unfair process which had substantial negative effects on Mr Hendricks.[31]
Mr Hendricks alleges that there are errors in the following evidence:
(a) The review of Mr Hendricks’ performance consisted of four reviewers, which contradicts the letter provided to Mr Hendricks which identified that there would be three reviewers.[32]
(b) The evidence of Ms White, Mr Billingsley, Mr Marshall and “the executive” of the College was untrue, biased or not objective, presented in the wrong context or with the wrong perspective, not supported by evidence, disagreed to by Mr Hendricks, in conflict with the preferable evidence of Mr Hendricks, in conflict with Mr Hendricks’ other obligations, reflective of issues on the part of the person giving evidence, and Mr Hendricks’ evidence was not presented in the right context.[33]
Mr Hendricks alleges that the Commissioner made the following errors in his consideration of the evidence and factual findings:
(a) The Commissioner overlooked the evidence that Mr Billingsley took certain communications personally which were not addressed to him.[34]
(b) The Commissioner made an error in finding that Mr Billingsley advised Mr Hendricks by telephone on the morning of 14 May 2023 not to email parents regarding two NAPLAN tests being scheduled on a single day.[35]
(c) The Commissioner made an error in finding that Mr Hendricks told Mr Marshall that he was going to email parents regarding his concerns in relation to the NAPLAN tests and hung up before Mr Marshall could respond.[36]
(d) The Commissioner erroneously referred to “deficiencies” in Mr Hendricks’ performance, “poor performance” and “inappropriate behaviour” being identified in the 2020 and 2021 reviews, as there were no such issues in the reports.[37]
(e) The Commissioner found that Mr Hendricks gave no weight to the unfavourable parts of the review, which was contrary to Mr Hendricks’ evidence that he had requested additional information in order to better understand the feedback.[38]
(f) The Commissioner’s finding that the relationship between Mr Hendricks and the executive was “fatally damaged” assumes Mr Hendrick was at fault.[39]
(g) The Commissioner’s finding that it was unsurprising that the Executive’s criticism of Mr Hendricks, and those in the review, were similar should be understood against the context that Mr White and Mr Billingsley were two of the 18 staff members who contributed to the review.[40]
(h) The Commissioner’s finding that the direction of Mr Billingsley to Mr Hendricks to not notify parents regarding the rescheduling of the NAPLAN tests was a “self-evidently lawful and reasonable direction” was incorrect because of Mr Hendricks’ professional and ethical obligations.[41]
(i) The Commissioner’s finding that Mr Hendricks’ action in sending the email to the parents of the students undertaking the NAPLAN tests, on the day of the test, was ill considered because it could not have changed when the test was held in mere conjecture, and Mr Marshall had more than two hours to reschedule the test.[42]
(j) The Commissioner found that Mr Hendricks lost 9.3% of his base hourly rate and other entitlements as a consequence of the demotion, whereas Mr Hendricks contends that the remuneration loss was at 11%. Similarly, it is alleged that the Commissioner’s finding that Mr Hendricks’ demotion had limited negative consequences on him was incorrect, particularly given the Commissioner found Mr Hendricks’ demotion involved a significant reduction in his remuneration.[43] However, if the limited negative consequences is a reference to the “serious procedural deficiencies” found by the Commissioner, then the comment is conjecture and not actually correct.[44]
(k) The decision gave great weight to the allegations of misconduct when Mr Hendricks emailed the parents of students regarding the scheduling of NAPLAN tests against the direction of Mr Billingsley, but two issues contradict this: firstly, the original letter detailing allegations of serious misconduct and Mr Hendricks’ response do not show that Mr Billingsley advised Mr Hendricks not to email the parents and only to call Mr Marshall, and secondly, the direction is not lawful and reasonable, given Mr Hendricks’ other obligations.[45]
Mr Hendricks alleges that the “extraordinary weight” the Commissioner gave to the NAPLAN scheduling issue, despite this issue having “no direct bearing on the demotion,” was an error.[46]
Mr Hendricks alleges the following errors in the Commissioner’s conclusion with respect to whether there was a valid reason for the dismissal:
(a) The Commissioner’s conclusion that the reason for the dismissal was not capricious or fanciful, was incorrect and based on false testimony and errors of fact.[47]
(b) The Commissioner finding that deliberately disobeying Mr Billingsley’s direction to not email the parents of the students regarding the scheduling of NAPLAN tests represents a valid reason for the dismissal ignores that other teachers collaborated with Mr Hendricks in writing the email, and sets a dangerous precedent.[48]
(c) Mr Marshall’s motivation to dismiss Mr Hendricks undermines the valid reason for the dismissal.[49]
Mr Hendricks alleges the following other matters constitute allegations of error in the first decision:
(a) An error concerning CEWA’s response to the operational issues concerning Mr Hendricks, which is alleged to be an error because CEWA and the College were at fault for a major regulatory breach providing Mr Hendricks with a natural right to communicate that fact to the appropriate people.[50]
(b) The Commissioner’s reference to an incident where it was alleged Mr Hendricks discriminated against an African student as an example of Mr Hendricks’ inappropriate behaviour, was a matter already concluded.[51]
(c) The Commissioner referring to Mr Hendricks’ “viewpoint and extreme opinions,” which appears to be the only link between the 2020 and 2021 reviews, is unable to be addressed because Mr Hendricks does not know to what this comment refers.[52]
(d) CEWA did not warn Mr Hendricks regarding his poor performance that may result in dismissal, so the dismissal was harsh, unjust or unreasonable.[53]
(e) CEWA’s warnings for misconduct involved a lack of procedural fairness.[54]
Mr Hendricks’ contentions relevant to the allegation of errors of law concern the following:
(a) CEWA was granted permission to have legal representation at the hearing despite Mr Hendricks’ objection.[55]
(b) CEWA’s counsel objected to one of Mr Hendricks’ questions during the cross examination of Mr Billingsley.[56]
With respect to the public interest, Mr Hendricks contends, in summary, that (a) the public trust placed in school systems and employees requires a thorough review of professional ethics and priorities as they apply within this application, (b) the Commissioner’s interpretation of the Agreement is an error that could affect future applications concerning the Agreement or similar agreements, and (c) the first decision contradicts prior precedent and requires correction.[57]
Consideration – the first appeal
In the first decision, the Commissioner dealt with the relevant issues of fact, considered all the matters required to be taken into account under s 387 of the Act, and reached a conclusion based on the findings he had made. We are not persuaded that the grounds of appeal give rise to an arguable contention of appealable error. The basis for reaching this conclusion is explained briefly as follows.
With respect to the ground identified at [30] above, it is accepted that Mr Hendricks commenced his role as Head of Mathematics on 1 January 2019. The discrepancy arising from the Commissioner’s reference to Mr Hendricks’ start date is not a significant error of fact, as required by s 400(2) of the Act. In our view, no “respectable argument” could be made that this error materially bears upon the Commissioner’s consideration of the criteria under s 387 of the Act or the outcome of the decision.[58]
As to the error alleged at [31] above, the Commissioner found that CEWA is a large employer and does have in-house human resource management expertise. This relevant finding is not challenged. On this basis, no arguable case of appealable error arises from this ground.
However, we accept the proposition advanced by Mr Hendricks that ignorance of the law is no reason not to follow it. To this end, the statement in the first decision that the procedural deficiencies arose because CEWA did not recognise the demotion to be a dismissal within the meaning of s 386 of the Act is not a relevant matter with respect to the considerations in s 387(f) and (g) of the Act.
In relation to the grounds identified at [32] above, Mr Hendricks alleges error with the Commissioner’s finding that while the Agreement applied to Mr Hendricks’ employment,[59] the terms of the Agreement did not apply to Mr Hendricks’ demotion from the role of Head of Mathematics. Mr Hendricks relies upon the definition of “teacher” in clause 5 of the Agreement, and the terms of clause 22 “Appraisal” in support of his position that the Commissioner incorrectly dismissed the application of the Agreement.[60]
The focus of Mr Hendricks’ contention is upon the fact that areas of CEWA’s concern were not documented in writing at the beginning of the review processes, and he was not provided with an opportunity by CEWA to address such concerns.[61] These concerns relate to questions of whether CEWA acted in a procedurally fair manner. For the purposes of considering Mr Hendricks’ application for permission to appeal, even if we take Mr Hendricks’ argument as to the application of the Agreement at its highest, no arguable contention of appealable error arises because the Commissioner determined – against CEWA and for Mr Hendricks – that:
(a) Mr Hendricks was not notified of the reason for his demotion until after the decision had been made;[62]
(b) CEWA did not give Mr Hendricks an opportunity to respond to the reasons for which he was demoted before the decision was made;[63] and
(c) CEWA did not warn Mr Hendricks about his unsatisfactory performance.[64]
Irrespective of whether specific terms of the Agreement had application, the Commissioner made findings in favour of Mr Hendricks’ position that he was not afforded procedural fairness by CEWA with respect to the matters of concern. The Commissioner weighed these procedural deficiencies as part of his overall consideration of the matters in s 387 of the Act and came to a conclusion he considered to be appropriate in the circumstances.[65] Absent a reason to do so, it is not for an appellate body to interfere in this weighing exercise. We do not consider Mr Hendricks has advanced any arguable case of error in the weighing of these matters.
With respect to the grounds identified at [33] above concerning errors in the evidence, the allegations are not appropriately directed to the Commissioner’s reasoning in the first decision. Rather, the allegations are directed towards the evidence as set out in the first decision. Whether or not Mr Hendricks agrees with this evidence does not give rise to an arguable case of appealable error. It is observed that it is not alleged that the Commissioner erred in relying on this evidence or set it out in some materially defective manner. At is highest, some grounds allege that the Commissioner understood certain statements in the wrong context or from the wrong perspective. In any event, there is no alleged connection between the errors in these statements and the Commissioner’s reasoning in the first decision. We do not consider that an arguable case of appealable error arises.
With respect to the grounds identified at [34] concerning errors in the consideration of the evidence and factual findings, we refer to the statement of principle set out at [17] above. The allegations are not addressed to any failure of the kind which would compel an appellate body to consider interfering with the findings of a first instance decision maker. We observe that the allegations may be characterised as dissatisfaction and disagreement with the findings of the Commissioner. No arguable case of appealable error arises.
In relation to the ground at [35] above concerning the weight attributed to the NAPLAN scheduling issue which is said to have no direct bearing on the demotion, three observations may be made. Firstly, the issue was relevant to CEWA’s decision to demote Mr Hendricks due to his alleged “zealous approach” and his relationship with the leadership team at the College. The Commissioner was compelled to deal with the issue. Secondly, the Commissioner found there to be two valid reasons for the dismissal, one concerning Mr Hendricks’ performance and conduct of which the NAPLAN scheduling issue formed a part, and another related to part of the NAPLAN scheduling issue itself. The issue is therefore not wholly an issue of weight, and it is not clear on what basis Mr Hendricks challenges the issue. Thirdly, insofar as matters of weight may arise, it is not apparent how this gives rise to an arguable error. There is no more than an implication that Mr Hendricks disagrees with the Commissioner’s considerations as to weight, which is not a matter with which an appellate body will typically interfere. Following these observations, no arguable case of appealable error arises.
We turn now to address the ground identified at [36] above concerning the Commissioner’s conclusion as to whether there was a valid reason for the dismissal. The allegation at [36](a) expresses disagreement with the Commissioner’s conclusion and does not relevantly direct our attention to any error. The allegations at [36](b) and (c) concern matters that are ancillary to the question of whether there was a valid reason for the dismissal and we cannot discern how they materially bear upon the Commissioner’s conclusions as to Mr Hendricks’ conduct. Accordingly, no arguable case of appealable error arises.
The grounds identified at [37] above cannot be addressed as they do not relevantly constitute allegations of error in the first decision.
With respect to the procedural issues raised identified at [38] above, there is no suggestion that the granting of legal representation to the respondent denied Mr Henricks the realistic opportunity of a successful result in the substantive application before the Commissioner. Nor do we consider, having regard to our perusal of the transcript in the proceedings at first instance,[66] that Mr Hendricks suffered any real disadvantage on account of CEWA’s counsel objecting to one of Mr Hendricks’ questions during cross examination.
Conclusion and disposition – the first appeal
As set out earlier, s 400(1) provides that permission to appeal must not be granted unless it is in the public interest to do so. We are not persuaded that the public interest is attracted here. Specifically, we are not satisfied 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 first appeal raises issues of importance and/or general application, (c) the first 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 the first decision and related order pursuant to matter C2022/7244 is refused.
Grounds of appeal – the second appeal
The second appeal concerns the decision and order of Deputy President Binet. By way of the second Notice of Appeal, Mr Hendricks relies upon 108 appeal “grounds” under the heading “grounds for appeal.” These matters are said to concern alleged errors of fact and law. As these matters appear to comprise of a combination of appeal grounds and submissions, we have sought to summarise those aspects which we understand constitute Mr Hendricks’ grounds of appeal as follows:
(a) The Deputy President dismissed the witness statement of Mr Summers.[67]
(b) The Deputy President made an observation about the extensive material filed by Mr Hendricks.[68]
(c) The Deputy President understates the findings of SCSA and misrepresents the egregious nature of the non-compliance by the College.[69]
(d) The Deputy President relies upon invalid assumptions in her observations of the first decision.[70]
(e) The Deputy President relies upon incorrect facts in the evidence of CEWA’s witnesses.[71]
(f) The Deputy President misrepresents the facts regarding Mr Hendrick’s election to proceed without a support person present.[72]
(g) The College had no legitimate grounds to force Mr Hendricks’ exit from school grounds after a decision was made to stand him down pending an investigation into his conduct.[73]
(h) Paragraphs [95], [97] and [102] of the second decision are incomplete or irrelevant and paragraphs [104] and [107] provide little probative value.[74]
(i) The Deputy President made factual findings unsupported by evidence or devoid of context.[75]
(j) CEWA’s investigation was biased and procedurally unfair.[76]
(k) CEWA’s concerns regarding the email Mr Hendricks sent to parents on 2 November 2022 regarding his departure from the College was not supported by evidence of any complaints by parents.[77]
(l) The Deputy President misapplied the decision in Sidhoum v Minister for Education[78] in considering whether the relevant conduct occurred.[79]
(m) The Deputy President draws on CEWA’s evidence and submissions more frequently than Mr Hendricks’ evidence and submissions, demonstrating a lack of balance and fairness in analysing the facts.[80]
(n) The Deputy President’s conclusion that Mr Hendricks’ ongoing employment is unsustainable is disagreed.[81]
(o) The second decision provides an invalid interpretation and understanding of confidentiality.[82]
With respect to the public interest, Mr Hendricks contends, in summary, that (a) the public trust placed in school systems and employees requires a thorough review of professional ethics and priorities as they apply within this application, (b) the second decision contains assertions that are contradicted by fact or misunderstood when presented without appropriate context, and (c) the second decision contradicts prior precedent and requires correction. Further, Mr Hendricks contends that the public interest requires a series of eight questions be answered, directed towards ensuring clarity between what amounts to a reasonable professional/ethical judgement against an error in judgement, misconduct or serious misconduct.[83]
Consideration – the second appeal
At the outset, we observe that the matters identified by Mr Hendricks in the second Notice of Appeal as constituting his grounds of appeal may be described as a series of responsive submissions to various passages of the second decision. Regardless, we have engaged with the grounds to the extent possible to consider whether they raise an arguable case of appealable error. For the reasons that follow, we find that they do not.
The specific errors said to arise by reason of the matters at [55](a), (b), (c) and (d) are not made clear. In any case, there is no apparent basis for the contention that the Deputy President was dismissive of Mr Summers’ evidence. Further, the Deputy President’s observations as to the findings in the first decision do not bear upon the result in the second decision. No arguable case of appealable error arises from these grounds.
Mr Hendricks challenges the Deputy President’s reliance upon the evidence of CEWA’s witnesses. However, it is apparent from a review of the decision that the matters identified to be of concern under [55](e), (g) and (h) arise from the Deputy President’s background summary of the evidence before the Commission. The matters include, inter alia, tangential issues such as (a) the number of students in the group being 120 in number as identified by CEWA’s witness, or between 80 and 90 as alleged by Mr Hendricks, and (b) summaries of evidence that Mr Hendricks contends are incomplete, irrelevant or of little probative value. Mr Hendricks fails to properly connect these mattes in the summary of the evidence to the Deputy President’s reasons. No arguable case of appealable error arises.
The contention that the Deputy President misrepresented the facts regarding Mr Hendrick’s election to proceed without a support person present,[84] or otherwise reached an erroneous conclusion at [212] in relation to this matter (see [55](f)) does not appear to have any substance. On his own submission, Mr Hendricks “mistakenly agreed to proceed” with the meeting without a support person. No arguable case of appealable error arises.
Mr Hendricks contends that the Deputy President made factual findings unsupported by evidence or devoid of context (see [55](i)). At least three of these contentions relate to the Deputy President’s background summary of the evidence and we repeat our observations at [59]. No arguable case of appealable error arises.
Mr Hendricks also purports to challenge every paragraph between [162] and [183] of the second decision. These paragraphs constitute the Deputy President’s findings of fact about whether the incident between Mr Hendricks and a student of the College occurred, being the issue which ultimately resulted in Mr Hendricks’ dismissal.
We do not consider it reasonably arguable that the Deputy President made factual findings that are “highly dubious,”[85] “most likely untrue,”[86] or based on “inferences.”[87] Our consideration of the second decision and the materials discloses that the Deputy President’s findings reflect the state of the evidence before her and in any event, these contentions are speculative at best. Further, far from drawing a conclusion “bereft of any intellectual rigour,”[88] Mr Hendricks accepts in the second Notice of Appeal that he did not call any witnesses during the internal investigation into his conduct, precisely as the Deputy President concluded. In addition, Mr Hendricks’ contention that the Deputy President made a “highly prejudicial and inaccurate” misstatement that she either “made up” or “incorrectly referenced” does not appear to be accurate. The findings at [173] of the second decision appear to be consistent with the witness statement of Mr Collins and as stated by the Deputy President.[89]
Mr Hendricks disagrees with the Deputy President’s findings at [191]-[194] of the second decision, which informed the conclusion that there were valid reasons for the dismissal. However, Mr Hendricks’ contention that the error lies in the Deputy President’s “lack of understanding,” or “lack of empathy” does not give rise to an arguable contention of appealable error. Nor are we persuaded by the contention that the second decision provides an “invalid interpretation and understanding of confidentiality.”[90] The Deputy President’s conclusion that Mr Hendrick’s parent communication fell within the scope of the confidentiality restriction appears to be available on the evidence and no arguable contention of error, or broader application concerning principles of confidentiality, arises.
While Mr Hendricks contends that CEWA’s investigation was biased and procedurally unfair (see [55](j) above),[91] Mr Hendricks’ challenges to the Deputy President’s background summary of the evidence is not reasonably arguable for the reasons set out at [59]. To the extent that Mr Hendricks purports to challenge the finding at [206] of the second decision that the investigation was thorough and detailed, we observe that this paragraph refers to the investigation report, which the Deputy President found was detailed for the reasons set out in in that paragraph. Mr Hendrick’s further allegation that the investigation report established no facts[92] discloses no arguable error with respect to the matters addressed in the second decision.
No issue of legal principle is raised by the second appeal. We do not consider it to be arguable that the Deputy President misapplied the decision in Sidhoum v Minister for Education, as contended at [55](l) above.[93] Fundamentally, Sidhoum was an action in tort for negligence within the scope of the Civil Liability Act 2002 (WA). While not a wholly irrelevant decision, the issue with which the Deputy President was concerned was whether the dismissal was harsh, unjust or unreasonable within the meaning of the Act. In circumstances where the Deputy President was not bound to apply Sidhoum in any particular way, and where Mr Hendricks has failed to clearly explain how the Deputy President should have applied Sidhoum, we consider there to be no arguable case of the error in the manner identified by Mr Hendricks.
Mr Hendricks’ disagreement with the matters set out at [55](k) are not reasonably arguable for the reasons set out at [59], that is, because the matters concern summaries of the evidence set out in the background to the second decision. Further, [55](m) appears to be a complaint that the Deputy President drew more frequently upon CEWA’s submissions and evidence than from Mr Hendricks.[94] Leaving aside the fact that the number of the respondent’s witnesses exceeded those of Mr Hendricks, the issue is primarily one of weight, and does not give rise to a basis for the grant of permission to appeal. The ground set out at [55](n) challenges the Deputy President’s conclusion that Mr Hendricks’ ongoing employment is unsustainable. There is no aspect of this finding that discloses an arguable error. The contention goes no further than asserting that a different conclusion should have been reached.
Conclusion and disposition – the second appeal
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 second decision was attended by appealable error.
We have considered whether the second 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 second appeal raises issues of importance and/or general application, (c) the second decision manifests an injustice, or the result is counter intuitive, or (d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters. It follows that we must refuse permission to appeal.
Permission to appeal the second decision and related order pursuant to matter C2022/4202 is refused.
DEPUTY PRESIDENT
Appearances:
Mr. J. Hendricks on his own behalf
Ms F. Stanton, of Counsel, for the respondent
Hearing details:
2023.
Sydney (by video via Microsoft Teams):
August 8.
[1] [2022] FWC 2702
[2] PR746610
[3] [2023] FWC 1553
[4] PR736646
[5] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[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] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [27]; (2010) 197 IR 266
[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] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29]
[12] [2000] HCA 47; 203 CLR 194 at [19]
[13] 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:” see s 400(2) of the Act
[14] House v The King (1936) 55 CLR 499 at 505
[15] [2022] FWC 2702 (first decision) at [14]-[19]
[16] 2016 WAIRC 00812
[17] First decision at [18]-[19]
[18] First decision at [57]-[58], [71]-[88], [101]-[105]
[19] Ibid at [60]
[20] Ibid at [124]
[21] Ibid [135]-[144]
[22] Ibid at [227]-[228]
[23] Ibid [231]
[24] First decision at [232]-[233]
[25] First decision at [236]
[26] First decision at [242]-[243]
[27] First decision at [245] and [247]-[248]
[28] Notice of Appeal C2022/7224 (first Notice of Appeal) at 2.1
[29] First Notice of Appeal at 2.1 [1] and [86]
[30] Ibid at [84]
[31] Ibid at [2]-[12], [70], [85] and [91]-[92]
[32] Ibid at [10]
[33] Ibid at [14]-[17], [22]-[31], [33]-[46] and [55]-[70]
[34] Ibid at [13]
[35] Ibid at [48]-[52]
[36] Ibid at [53]-[54]
[37] Ibid at [72]-[73]
[38] Ibid at [77]
[39] Ibid at [78]
[40] Ibid at [79]
[41] Ibid at [81]
[42] Ibid at [82]
[43] Ibid at [89]
[44] Ibid at [90]
[45] Ibid at [93]
[46] Ibid at [21]
[47] Ibid at [80]
[48] Ibid at [83]
[49] Ibid at [71]
[50] Ibid at [18]-[20]
[51] Ibid at [75]
[52] Ibid at [87]-[88]
[53] Ibid at [94b.]
[54] Ibid at [94c.]
[55] Ibid at [94a.]
[56] Ibid
[57] First Notice of Appeal, 3
[58] Gregory v Qantas Airways Ltd [2016] FCAFC 7 at [77]
[59] First decision at [12]
[60] Appeal Book C2022/7224 8-12 at [20]-[44] and further at 39-52
[61] Ibid 12 at [42]
[62] First decision at [232]
[63] First decision at [233]
[64] First decision at [235]
[65] First decision at [244] and [245]-[248]
[66] Transcript of proceedings dated 3 August 2022 at [843]-[898]
[67] Notice of Appeal C2023/4202 (second Notice of Appeal) 2 at [1]-[8], [60] and [61]
[68] Ibid at [9]-[10]
[69] Ibid at [12]-[16]
[70] Ibid at [11], [17]-[20]
[71] Ibid at [21]-[26] and [103]-[104]
[72] Ibid at [27]-[31] and [102]
[73] Ibid at [32]-[35]
[74] Ibid at [37]-[41]
[75] Ibid at [42]-[48], [54]-[59], [62], [68]-[79], [89]-[92] and [98]
[76] Ibid at [49]-[53] and [101]
[77] Ibid at [53]
[78] [2022] WADC 35
[79] Second Notice of Appeal at [64]-[67] and [80]-[88]
[80] Ibid at [99]-[100]
[81] [105]-[107]
[82] Ibid at [38]-[39]; Appeal Book C2023/4202 12 at [51]-[55]
[83] Second Notice of Appeal at 3.1
[84] Appeal Book C2023/4202 5 at [14], 13 at [56]-[58]
[85] Second Notice of Appeal at [57]
[86] Ibid at [59]
[87] Ibid at [70]
[88] Ibid at [63]
[89] Witness statement of Peter Collins dated 17 November 2022 at [5.7]
[90] See also Appeal Book C2023/4202 6 at [29]-[22], 15 at [64]
[91] Appeal Book C2023/4202 7-8 at [23]-[28], 10-11 at [40]-[46], 14 at [62c, d and e]
[92] Appeal Book C2023/4202 11 at [47]-[50]
[93] Appeal Book C2023/4202 4 at [6]-[7], 8-9 at [29]-[34]
[94] Appeal Book C2023/4202 13 at [59]
Printed by authority of the Commonwealth Government Printer
<PR765426>
0
14
0