John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station
[2019] FWCFB 7726
•26 NOVEMBER 2019
| [2019] FWCFB 7726 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
John Cole
v
Roy Hill Station Pty Ltd T/A Roy Hill Station
(C2019/5770)
VICE PRESIDENT HATCHER | SYDNEY, 26 NOVEMBER 2019 |
Appeal against decision [2019] FWC 5358 of Deputy President Beaumont at Perth on 30 August 2019 in matter number U2018/10397.
Introduction and background
[1] John Cole has applied for permission to appeal against a decision issued by Deputy President Beaumont on 30 August 2019 1 (Decision) in which Mr Cole’s application for an unfair dismissal remedy against his former employer, Roy Hill Station Pty Ltd (Roy Hill), was dismissed. Mr Cole contends in his notice of appeal that the hearing of his application was attended by procedural unfairness, that the Decision contains a number of errors of fact, and that permission to appeal should be granted in the public interest.
[2] The background to this matter may be stated briefly. Roy Hill operates a cattle station in a remote location in the Pilbara region of Western Australia. The station is operated by two brothers, Murray and Ramon Kennedy, who are advanced in years and lack knowledge of business administration and information technology. Both are directors of Roy Hill, but because Ramon Kennedy is under full-time care, Murray Kennedy is the one who remains active in the management of the business.
[3] In about March 2015, Roy Hill employed Mr Cole to act as an administrative assistant to the Kennedy brothers. He worked remotely in Perth, and his duties included dealing with correspondence (including email correspondence), managing Roy Hill’s finances and bookkeeping using accounting software, dealing with clients and suppliers, arranging payment of invoices and general administration. For this purpose, Mr Cole had access to Roy Hill’s bank accounts. In May 2015 he was appointed as a director of Roy Hill.
[4] By mid-2018, concerns had arisen about Mr Cole’s conduct and performance, and the relationship between him and Roy Hill effectively broke down. He was removed as a director of Roy Hill on 9 August 2018. There were then a number of issues concerning sick leave taken by Mr Cole, access to computers and attendance to the administration of Roy Hill whilst Mr Cole was on leave, and a lack of communication and cooperation on the part of Mr Cole. Mr Murray Kennedy formed the view that Mr Cole had committed serious misconduct in a number of respects and would not in any event return to work. Roy Hill sent a letter to Mr Cole on 21 September 2018 informing him that his employment was terminated. It is not in dispute that Roy Hill was at the time of the dismissal a “small business employer” within the meaning of s 23 of the Fair Work Act 2009 (FW Act).
The Decision
[5] In the Decision, the Deputy President (consistent with s 396 of the FW Act) found that Mr Cole was a person protected from unfair dismissal, had lodged his application within the time prescribed by s 394(2), and his dismissal was not a case of genuine redundancy. The Deputy President also rejected an argument advanced by Roy Hill that Mr Cole had not been dismissed but had rather abandoned his employment. The Deputy President then considered (in accordance with s 396(c)) whether Mr Cole’s dismissal was consistent with the Small Business Fair Dismissal Code (Code) given that Roy Hill is, as earlier stated, a small business employer. The Deputy President considered in this context a number of issues concerning Mr Coles’ conduct which had emerged prior to his dismissal, including:
• Mr Cole paying to himself in November 2017 an amount of annual leave to which he was not entitled;
• the incurrence of about $1.7 million in legal fees by Mr Cole on behalf of Roy Hill without Mr Cole informing Murray Kennedy about this or explaining its justification;
• Mr Cole’s failure to pay insurance premiums which were due for the property and a number of its assets and items of equipment, notwithstanding that he had been directed to do so;
• Mr Cole’s refusal to provide another employee access to the bank accounts and computer system despite being directed to do so; and
• his refusal to provide access to the computer system when he went on sick leave in August 2018.
[6] The Deputy President stated that she was satisfied that before issuing the letter of termination dated 21 September 2018, Murray Kennedy had conducted a reasonable investigation into the conduct matters identified above, that he (and by imputation Roy Hill) held a belief that the conduct was sufficiently serious to justify immediate dismissal, and that there was a reasonable basis for this belief given that the conduct consisted of a deliberate flouting of instructions. Accordingly the Deputy President determined that the dismissal was consistent with the Code, and dismissed Mr Cole’s application. 2
Appeal grounds and submissions
[7] Mr Cole’s appeal grounds, as earlier stated, raise a number of alleged errors of fact and instances of alleged denial of procedural fairness. His submissions expanded upon this in a way not necessarily constrained by the appeal grounds. The errors of fact alleged include that:
• the Decision misrepresented his personal decision to work from home, which had been approved by Roy Hill;
• he was not the only person to have access to Roy Hill’s finances, and the Kennedys could perform financial transactions at any time;
• in relation to the insurance issue, he had been in communication with Murray Kennedy about the insurance issues and it had been agreed “to pay all the insurances at once”, and he had assurance from the brokers that coverage would continue if the premiums were not paid on their due date;
• in relation to the annual leave issue, he had paid himself leave consistent with his normal weekly remuneration, and it was not clear what instrument applied to his employment given that the term of his initial contract of employment had expired; and
• he had taken sick leave in August 2018 because of the way Murray Kennedy had been treating him.
[8] The procedural issues raised by Mr Cole included that:
• he had to confirm the subject of an email due to not being copied in as required by the Deputy President’s chambers;
• he was told to stop sending electronic copies of evidence;
• he was twice given an unreasonably short timeframe to comply with directions;
• he had to request confirmation of the receipt of crucial video evidence that was only confirmed received after his enquiry into its delivery to the Deputy President’s chambers;
• the bulk of his evidence was not admitted into evidence; and
• his request for the issue of an order for production of documents from Roy Hill’s insurer was not allowed.
[9] Mr Cole contended that the grant of permission to appeal would be in the public interest because the manner in which his case was handled by the Deputy President would discourage persons who were not in a financial position to be represented from seeking unfair dismissal remedies.
Consideration
[10] 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.3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[11] 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.
[12] 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.4 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.” 5
[13] 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.6 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.7
[14] 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. 8 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[15] We do not consider that the grant of permission to appeal in this matter would be in public interest, for the following reasons. First, the contentions of factual error are not reasonably arguable, nor do they relate to matters of relevant significance as required by s 400(2). The contentions are raised by reference to identified paragraphs in the Decision, but generally speaking do not actually specify any finding of fact relevant to the Deputy President’s overall determination that is said to be incorrect; rather Mr Cole identifies various paragraphs as being “misleading”, implying certain things which Mr Cole disagrees with or not dealing with matters which Mr Cole regards as relevant. We are not satisfied that there is a reasonably arguable contention advanced that the Deputy President made any finding of fact of significance to her determination of the matter which was not supported by the evidence. In effect, Mr Cole does no more than argue for the decision he would have preferred to have been made.
[16] Additionally, insofar as Mr Cole contends that the Deputy President erred in connection with the issues concerning his conduct which we have earlier identified, those contentions are misconceived because they proceed on the basis that the Deputy President was determining whether he had actually engaged in misconduct in the instances alleged. As earlier stated, it was not in dispute that Roy Hill was a small business employer at the time of the dismissal, and in that respect the question which the Deputy President had to determine prior to dealing with the merits of Mr Cole’s application was whether the dismissal was consistent with the Code. The applicable part of the Code was: “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”. In determining whether this part of the Code was complied with, it was necessary for the Deputy President to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer had carried out a reasonable investigation into the matter was relevant to the second element. 9 It was not necessary for the Deputy President to be satisfied that the serious misconduct which was the basis for the dismissal actually occurred in order for the dismissal not to be unfair.10
[17] For example, in relation to the failure to pay the insurance premiums, Mr Cole raised matters intended to demonstrate that his conduct was reasonable when considered in the context of the surrounding circumstances and did not amount to misconduct justifying dismissal. However, it was not factually in dispute that Murray Kennedy instructed Mr Cole to pay the premiums on the insurances for Roy Hill’s property and business assets (notwithstanding any concerns Mr Cole may have raised about this) and that Mr Cole did not comply with this instruction. The evidence plainly demonstrates that as a result Mr Kennedy formed a genuine and reasonably-founded belief that Mr Cole had disobeyed a proper employment direction concerning a significant matter, and had thereby engaged in serious misconduct. That was sufficient, as the Deputy President found with respect to this and the other conduct matters, to constitute compliance with the Code. Mr Cole’s contentions of error simply do not engage with the issue of compliance with the Code.
[18] Insofar as the procedural matters are concerned, a number of these appear to concern trivialities. In relation to the production of documents, Mr Cole sought three orders for production, of which the Deputy President granted one and refused two. The Deputy President’s reasons for this decision are separately set out in an email to the parties dated 2 July 2019, and no arguable contention of error is demonstrated in this respect. Insofar as Mr Coles complains about his evidence not being admitted and unreasonable timeframes, these complaints appear to arise from the following circumstances:
(1) The directions timetable established by the Deputy President required, among other things, that Mr Cole file his evidence and submissions in reply by 18 July 2019 for a hearing that was listed to commence on 24 July 2019.
(2) On 18 July 2019 Mr Cole sent a very large volume of material electronically to the Deputy President’s chambers by way of numerous attachments to 22 separate emails. For example, one email alone had 50 documents attached to it.
(3) Because of the volume of this material, the Deputy President directed that it be provided to the Commission in hard copy form, tabbed, labelled and indexed, by 4.00pm on 19 July 2019.
(4) After Mr Cole complained about the shortness of this timeframe, the Deputy President extended the deadline to 12.00pm on 22 July 2019.
(5) When Mr Cole filed the hardcopy version in accordance with this deadline, it included numerous documents that had not originally been part of the material filed and served electronically on 18 July 2019 in accordance with the original directions timetable.
(6) By email of the same day, Roy Hill objected to this. Consequently the Deputy President ruled that the only documents which would be received into evidence were those which were filed and served electronically in accordance with the directions timetable on 18 July 2019.
(7) The following day, Mr Cole sent an email to the Deputy President’s chambers stating that not all of his submission had been sent on 18 July 2019 at the point when he was stopped from sending material electronically. The Deputy President’s chambers replied that he had not been stopped from sending material electronically, only to provide hard copy documents of the material which he had sent.
[19] We do not regard the above circumstances as giving rise to any arguable contention of appealable error. The Deputy President simply made a number of discretionary case management rulings which were reasonably available given the impending commencement of the hearing. We are not satisfied that any procedural unfairness was visited on Mr Cole, nor are we satisfied that the Deputy President’s rulings resulted in any document materially relevant to the issue of compliance with the Code being excluded.
[20] We consider that in the Decision the Deputy President dealt with the issue of compliance with the Code in an orthodox manner consistent with established principle. The result reached was both available on the evidence before her and one with which we agree. The Decision is based on the particular facts pertaining to Mr Cole’s application and does not raise any matter of law or principle or any issue of broader application. There is no basis to conclude, as Mr Cole contends, that the Decision will discourage applications for unfair dismissal remedies by self-represented litigants. Such applications have continued to be made since the Decision was issued in normal volumes.
[21] Because we are not satisfied, for the above reasons, 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).
VICE PRESIDENT
Appearances:
J Cole on his own behalf.
C Meighan on behalf of Roy Hill Station
Hearing details:
2019.
Sydney:
11 November.
Printed by authority of the Commonwealth Government Printer
<PR714197>
1 [2019] FWC 5358
2 Ibid at [94]-[97]
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 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]
5 [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
6 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
7 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]
8 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
9 JeremyRyman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264, 268 IR 1 at [41]
10 Ibid at [39]
0
9
0