John Patrick Bracken v OFX (OzForex Limited)
[2023] FWCFB 174
•22 SEPTEMBER 2023
| [2023] FWCFB 174 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
John Patrick Bracken
v
OFX (OzForex Limited)
(C2023/1801)
| VICE PRESIDENT ASBURY | BRISBANE, 22 SEPTEMBER 2023 |
Appeal against decision [2023] FWC 590 of Commissioner P Ryan at Sydney on 10 March 2023 in matter number U2021/4619.
Mr John Bracken (Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision of Commissioner P Ryan issued on 10 March 2023 (second Decision).[1] In the second Decision, the Commissioner found that the Appellant was not unfairly dismissed from his employment with OFX (OzForex Limited) (Respondent).
The appeal was listed for hearing of permission to appeal and the merits of the appeal on 7 June 2023. Directions were issued to the parties on 17 April 2023. The Appellant subsequently filed his submissions on 12 May 2023 and the Respondent on 2 June 2023. The Respondent was granted permission pursuant to s.596 of the FW Act to be represented by a lawyer.
Background
The application of the Appellant for a remedy for unfair dismissal had initially been decided by the Commissioner on 14 April 2022. In that decision,[2] the Commissioner found the Appellant had not been unfairly dismissed with the reasons for decision published confidentially on the same day (together, the first Decision).
The Appellant was dismissed from his employment for failing to comply with the Respondent’s policies and procedures as part of its anti-money laundering and counter-terrorism financing program (AML/CTF Program). The Respondent relied on seven ‘examples’ where the Appellant had failed to follow its policies and procedures.
In the first Decision, the Commissioner found:
“• That the [Appellant] was aware of, and understood the importance of, the Respondent’s policies and procedures and that he had attended or completed regular training;
· The Respondent’s requirement that the [Appellant] comply with those policies and procedures was lawful and reasonable;
· That Examples 1, 3, 4, 5, 6 and 7 identify a failure by the [Appellant] to comply with the Respondent’s policies and procedures, including the AML/CTF Program and the OFX Code of conduct;
· The [Appellant’s] conduct was wilful or deliberate behaviour inconsistent with a continuation of his contract of employment; and
· The Respondent’s reliance on clause 8.2(a) of the [Appellant’s] contract of employment – which deals with misconduct – was open to it based on the risk the [Appellant’s] conduct posed to its business, operations, affairs or reputation.”[3]
Having found a valid reason for dismissal and after consideration of the other factors in s.387 of the FW Act, the Commissioner determined the dismissal not to be harsh, unjust or unreasonable and dismissed the application.[4]
The Appellant appealed the first Decision. A differently constituted Full Bench granted permission to appeal[5] and, on determination of the appeal,[6] concluded:
“[7] It does not appear to us that the Commissioner considered that, apart from Example 6, any of the examples he found to be sustained on the evidence, taken alone, constituted a valid conduct-related reason for dismissal. Certainly, he did not say this. Rather, our impression is that the Commissioner considered that the other examples considered cumulatively constituted a valid reason together with Example 6. This raises the possibility that if Example 6 is vitiated by the significant error of fact conceded by OzForex, then the Commissioner might not have found a valid reason to exist based upon the remaining examples. In a case where the applicant employee was dismissed for misconduct, a lack of satisfaction that there was a valid reason for dismissal will almost inexorably lead to a finding that the dismissal was unfair.
[8] For these reasons, we consider that the decision to dismiss Mr Bracken’s application should be quashed. We further consider that the more convenient course is to remit Mr Bracken’s application to the Commissioner for re-determination rather than to re-determine it ourselves. Mr Bracken’s case involved a significant degree of factual complexity, with the hearing before the Commissioner running for some five days. We consider that the Commissioner, having heard all of the evidence as it unfolded, is in the best position to finalise the matter in an efficient fashion.
[9] The remittal is on a strictly limited basis. Mr Bracken’s unfair dismissal application will be re-determined on the basis of the findings of fact contained in the Commissioner’s reasons except for the erroneous finding in paragraph [110] (and the consequential references to that finding in paragraphs [131]-[135]). Neither party will be entitled to adduce any further evidence, but the parties may make such further submissions as the Commissioner may choose to allow.”
The matter was remitted to Commissioner P Ryan to hear and determine in accordance with the decision of the Full Bench.
The second Decision
In rehearing the application the Commissioner provided the parties with an opportunity to make further oral submissions in relation to the re-determination of the matter. The Appellant and Respondent both took advantage of the opportunity provided.
In the second Decision, the Commissioner provided a summary of the history of the matter. He then summarised the further submissions of the parties. The Commissioner noted that the Appellant’s submissions on how the matter should be re-determined were “intertwined with submissions seeking to challenge” findings in the first Decision which remained undisturbed on appeal.[7]
In respect of the re-determination, the Appellant argued that the ‘punishment did not fit the crime’ and that an employer should be cautious in invoking summary dismissal. As he was not immediately suspended, the Appellant argued his conduct could not constitute serious misconduct justifying dismissal.[8]
The Appellant submitted that “misconduct must involve something more than mere negligence, error of judgment or an innocent mistake”.[9] The Appellant also argued that there were “procedurally unfair actions”, and that the dismissal had a significant impact on his personal circumstances.[10]
The Respondent argued that, given the decision of the Full Bench, the correct approach to the re-determination was to strike out paragraphs [110], [131]-135] and the reference to Example 6 in paragraph [140] of the confidential reasons and then reconsider the matter on the balance of the remaining findings.
The Respondent submitted that the findings at [136]-[139] of the confidential reasons as they related to Examples 1, 3, 4, 5 and 7 provided a firm foundation to find a valid reason for dismissal and that the dismissal was procedurally fair.
The Respondent also submitted that the importance of the regulatory regime under which it worked could not be overstated and that the Appellant failed to comply with the Respondent’s policies and procedures on more than one occasion. The Respondent referred to the finding at paragraph [178] of the confidential reasons that “the [Appellant] has remained steadfast in his view that he has not breached the Respondent’s policies and procedures despite clear evidence to the contrary.”[11]
The Commissioner reconfirmed his preliminary findings from the first Decision that:
· The Appellant was dismissed;
· The application was made within the period required under s.394(2);
· The Appellant was protected from unfair dismissal;
· The Respondent is not a small business employer and therefore, the Small Business Fair Dismissal Code does not apply; and
· The dismissal was not a case of genuine redundancy.[12]
The Commissioner then considered each matter under s.387 of the FW Act in determining if the dismissal was harsh, unjust or unreasonable. He found as follows (footnotes omitted) with respect to valid reason (s.387(a)):
“[33] The factual findings underpinning Examples 1, 3, 4, 5, and 7 were not disturbed on appeal.
[34] I am satisfied that each of those examples constituted a breach of the Respondent’s policies and procedures, including the AML/CTF Program and OFX Code of Conduct.
[35] Furthermore, I am satisfied that:
· The Respondent’s requirement that the Applicant comply with those policies and procedures was lawful and reasonable;
· The [Appellant] was aware of, and understood the importance of, the Respondent’s policies and procedures and that he had attended or completed regular training;
· The [Appellant]’s conduct was wilful or deliberate behaviour inconsistent with a continuation of his contract of employment; and
· The Respondent’s reliance on clause 8.2(a) of the [Appellant’s] contract of employment – which deals with misconduct – was open to it based on the risk the [Appellant’s] conduct posed to its business, operations, affairs or reputation.
[36] I do not accept the [Appellant’s] further submissions that the failure to comply with the Respondent’s policies and procedures were mere errors. As I found in the earlier proceedings:
“…the [Appellant] has remained steadfast in his view that he has not breached the Respondent’s policies and procedures despite clear evidence to the contrary. The [Appellant’s] lack of any acknowledgement of misconduct, remorse or contrition weighs against any finding of unfairness.””
[37] Having regard to the matters set out above, I am satisfied that Examples 1, 3, 4, 5 and 7, considered collectively, constituted a valid reason for dismissal and that summary dismissal was not a disproportionate response to the [Appellant’s] conduct. In arriving at this conclusion, I have had regard to, and adopt, the earlier findings I made at paragraphs [136]-[139] and [178] of the Confidential Reasons.”
With respect to those matters at s.387(b)-(g) of the FW Act, the Commissioner adopted his findings from the first Decision:
· The Appellant was notified of the valid reason (s.387(b));
· The Appellant was given an opportunity to respond (s.387(c));
· The Respondent did not unreasonably refuse to allow the Appellant to have a support person present (s.387(d));
· The dismissal did not relate to unsatisfactory performance (s.387(e));
· That the size of the Respondent’s enterprise was a neutral consideration (s.387(f)); and
· That the Respondent did not lack human resource management specialists and expertise was a neutral consideration (s.387(g)).[13]
In relation to the consideration of any other matters pursuant to s.387(h), the Commissioner took into account the submissions of the Appellant in relation to the effect of the dismissal on his personal circumstances but was “not persuaded that the personal circumstances of the [Appellant] outweigh his conduct in failing to follow the Respondent’s policies and procedures forming part of its AML/CTF Program” particularly having regard to the Commissioner’s finding at paragraph [178] of the confidential reasons.[14]
The Commissioner concluded that the dismissal of the Appellant was not harsh, unjust or unreasonable[15] and therefore he was not satisfied the Appellant was unfairly dismissed.[16]
Grounds of appeal
By his amended notice of appeal,[17] the Appellant said that he was appealing “the entire decision and Orders made by Commissioner P Ryan on both the first and second instances to dismiss the application for remedy in regards to the unfair dismissal case commenced in April 2021 against Ozforex.”
The Appellant appeals on six grounds which can be stated as follows.
Appeal ground 1 states that the Commissioner erred at paragraphs [131] and [141] of the first Decision and at paragraph [37] of the second Decision in finding there was a valid reason for dismissal contrary to the evidence. In particular the Appellant says that:
“• The Commissioner established the Respondent’s allegations against the Appellant in the first instance at [15] on page 9 of the first Appeal Book.
· The Commissioner identifies and describes the Respondent’s policies and procedures in the first instance at [65] – [75] of the Appeal Book.
· The Commissioner failed to fully examine and define the Respondent’s claims identified at [15]. What does the term “adequate” mean and what does it infer? What is the definition of a “breach” of policy/procedure? Are the definitions aligned?
· The Commissioner failed to properly consider [71] – [75]. Both in how it was written and was likely to be interpreted, as well as relating to the [Appellant’s] work performance.
· The Commissioner failed to identify, consider, relate and discuss the email on page 636 of the Appeal Book, sent by Ryan Beddall on the 9/5/2017 in regards to the ‘CAQR Guide’ procedure ([71] – [75]), specifically, the final sentence of his email stating, “You are fine to tell the client this info, instead of requesting it, if you have already verified them by other means.”
· The Commissioner failed to identify, consider, relate and discuss the email on page 648 of the Appeal Book, sent by Ryan Beddall on the 25/1/2017 in regards to the ‘Auto-KYC, Auto-Deal, Auto-EV’, specifically, “…an online KYC note will be present for all auto-EV clients”
· The Commissioner failed to properly consider the [Appellant’s] submission at [138] on page 28.
· [91] – [93] outline the claims by both parties in regards to Example 1.
· The Commissioner’s erroneous findings in regards to example 1 are found at [94].
· The Commissioner has contradicted his own finding in the first dot point of [94].
· The Commissioner failed to consider the [Appellant’s] testimony at PN633 on page 321, PN627 on page 320 and the Respondent’s evidence of the customer account on page 792 in relation to Example 1. If it was considered, the Commissioner failed to give reasons as to why it was not relevant or afforded no weight.
· The Commissioner made further erroneous findings at [100] on page 22, [103] on page 23, [106] on page 24 in regards to the “alleged breaches of policy and procedure” submitted by the Respondent relating to Examples 3, 4 and 5 respectively, that are a result of the same and similar failures made by the Commissioner in Example 1.
· Furthermore, the Commissioner made an erroneous finding at [113] on page 25 in regards to Example 7, based off an inference that was not open to the Commissioner to infer, as there was no evidence submitted that could support such a finding.
· The Commissioner also failed to mention/consider/give reasons for ignoring the guidance provided by the learned Full Bench at [7] on page 904.”
Appeal ground 2 states that the Commissioner was in error in his findings at [139] and [140] of the first Decision and at paragraph [35] of the second Decision that the Appellant’s conduct was “wilful or deliberate behaviour inconsistent with a continuation of his contract of employment”. The Appellant says that this is contrary to the Commissioner’s findings at paragraphs [79]-[82] of the first Decision and is not supported by the evidence.
Appeal ground 3 states that the Commissioner was in error “regarding the Respondent’s entitlement to rely on clause 8.2(a) instead of clause 8.2(b) from [121]…to [129]” of the first Decision and at paragraph [35] of the second Decision.
Further, clause 8 of the contract of employment [at paragraph [122] of the first Decision] is “not in keeping with the statutory obligations placed on [the Respondent] by the Fair Work Regulation 1.07 Meaning of serious misconduct.” The Appellant also states that “the Commission is a Tribunal empowered to perform its functions under the Act and is not constrained by contracts. The statutory protections for employees survive attempts by employers to circumvent those protections by contract provisions and that the statutory obligations on employers override arrangements made by private contract. Furthermore, the Commissioner failed to address the Appellant’s submission at [18] and [19] in the second instance that the Respondent waived the right to summarily dismiss the Appellant as a result of delayed action to stand the Appellant down…”
Appeal ground 4 states that the Commission erred in finding at paragraphs [144] and [163] of the first Decision that the Appellant was notified in explicit terms of the concerns of the Respondent or that the Appellant was afforded procedural fairness. Further, the Appellant says that “was deliberately deceptive and misleading to both him and the Commission, as each of the 4 Witnesses were proved to be not credible. The Commissioner erroneously overlooked/accepted excuses and reasons that were submitted.”
Appeal ground 5 argues that the Commissioner erred in finding at paragraphs [172]-[174] of the first Decision, contrary to the evidence, that the Appellant was not treated inconsistently.
Appeal ground 6 states that the Commissioner “erroneously failed to reconsider the multitude of other relevant matters given that the seriousness of the valid reason was reduced, by way of Example 6 struck out.” The Commissioner failed to address the Appellant’s submissions:
“• the summary dismissal was a disproportionate outcome, not only because “the punishment didn’t fit the crime”;
· the Appellant has 7 years of service as a hardworking and loyal employee;
· the summary dismissal meant that the Appellant lost entitlement to a bonus payment that was due 7 days from dismissal, pay in lieu of notice and accrued long service leave;
· that this happened during the pandemic, so he unable to find employment; and
· as the sole income earner, the dismissal severely impacted his dependants and caused financial distress.”
The public interest
The Appellant says that it is in the public interest to grant permission to appeal as there are substantial and serious errors of fact in the Decision regarding the principles of reasonableness, proportionality, condonation/toleration and procedural fairness. Further, the Appellant says that if the Decision is left to stand it will allow employers to rely on certain clauses within a contract without regard to its obligations.
Principles on appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the FWC considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin,[18] a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[19]
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.[20] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Relevance of the first appeal
The Appellant, in the appeal before us, seeks to appeal both the first Decision of 14 April 2022 and the second Decision of 10 March 2023. The Appellant had already appealed the first Decision. The Full Bench in that appeal granted permission to appeal and, on hearing the merits of the appeal determined to grant the appeal in relation to appeal ground 3 only and remitted the matter for re-determination on limited grounds. The appeal of the first Decision was otherwise not successful, the Full Bench finding that the Appellant’s ground of appeal in which he alleged a denial of procedural fairness was ‘not sufficiently arguable to attract the public interest such as to grant permission to appeal.’[21] The Full Bench also found that the Appellant did not identify what ‘the alleged “significant errors of law, that were not in keeping or consistent with previous interpretations by other Commissioners” were such that no arguable case of error that would attract the public interest is disclosed.’[22]
On deciding to remit the application to the Commissioner for re-determination, the Full Bench said:
“[9] The remittal is on a strictly limited basis. Mr Bracken’s unfair dismissal application will be re-determined on the basis of the findings of fact contained in the Commissioner’s reasons except for the erroneous finding in paragraph [110] (and the consequential references to that finding in paragraphs [131]-[135]). Neither party will be entitled to adduce any further evidence, but the parties may make such further submissions as the Commissioner may choose to allow.” [emphasis added]
The Commissioner re-considered the application for unfair dismissal on the basis of the remittal terms. The Full Bench clearly found no basis in the first appeal to find any error except in relation to Example 6 explained at paragraph [7] of the Appeal Decision. It determined otherwise to not disturb the findings of fact in the first Decision.
The Respondent referred the Full Bench to the decision in Inna Grabovsky v United Protestant Association NSW Ltd (Grabovsky)[23] in support of its submission that, given the decision of the Full Bench in the first appeal, it was not open to the Appellant to attempt to impugn any aspect of the first Decision in the current appeal.
In Grabovsky the Full Bench of the Commission said:
“[26] Cases where an applicant seeks to rerun in the Commission an application, the substance of which has already been heard and determined, fall for consideration under s 587, either on the Commission’s own motion or on application by a party. The Commission must afford an applicant in any matter natural justice, but the content of natural justice depends on the circumstances. The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful and who seek to resubmit them to the Commission. It is unfair for their opponents to be entangled in repetitive litigation. And parties in other matters deserve their turn to be heard.”
We agree with these observations of the Full Bench.
In relation to his application in which he seeks a remedy for unfair dismissal the Appellant has already appealed the first Decision. A remittal for re-determination of a matter on defined and limited grounds by the Full Bench to a Member of the Commission is not a broad invitation to appeal all aspects of the initial decision on appeal from the subsequent decision. With this in mind and acknowledging that the Appellant was not represented in proceedings, we have considered the matters raised in the first Decision but only to the extent necessary and where they directly impinge on matters subject to appeal in the second Decision. We otherwise do not consider it in the public interest to re-visit matters that should properly have been or were canvassed in the first appeal hearing and were resolved by the decision of the Full Bench.
Consideration of grounds of appeal
Appeal ground 1
The first ground of appeal is that the Commissioner erred in finding a valid reason for the dismissal of the Appellant.
We do not accept that each of the points made by the Appellant in his amended notice of appeal in relation to the first Decision are ‘errors’. To the extent the Appellant claims errors these are no more than statements of disagreement by the Appellant with the findings of the Commissioner. For example, the Appellant says “[91]-[93] [of the first Decision] outline the claims of both parties in regards to example 1.” The next point states “The Commissioner’s erroneous findings in regards to example 1 are found at [94]” of the first Decision. The Appellant makes similar statements in relation to findings of the Commission in the first Decision at paragraphs [100], [103], [106] and [113]. Claims by the Appellant of error because he disagrees with the conclusion reached by the Commissioner do not amount to appealable error.
Other points made by the Appellant in relation to alleged errors are no more than restatements of what is in the first Decision (‘The Commissioner establishes the Respondent’s allegations…’). These do not go to the identification of any error in the finding in the second Decision of valid reason for the dismissal.
As to the alleged errors of the Commissioner in failing to consider or discuss certain emails or the Appellant’s submissions (identified at paragraph [138] of the first Decision) the Appellant does not provide any submissions as to how these alleged failings of the Commissioner led to any error in the conclusion of the second Decision.
In any event, we note that the Full Bench, in its remittal of the matter for re-determination, did so on the basis that the findings of fact in the First Decision would stand except for the erroneous finding in paragraph [110]. The Appellant’s attempts to now overturn aspects of the first Decision are misguided. The Appellant had the opportunity to raise these matters when he appealed the first Decision. The Full Bench clearly put a line under the first Decision when it specified a very limited remittal and explicitly stated that the application would be “re-determined of the basis of the findings of fact” (except for that in relation to Example 6) in the first Decision. We do not take this as an invitation to prosecute an appeal against all matters in the first Decision.
As to the second Decision, the only error alleged by the Appellant is that the Commissioner failed to mention/consider/give reasons for ignoring the guidance provided by the Full Bench in the Appeal Decision.
We disagree with this characterisation. The second Decision was predicated on the Full Bench’s remittal of the matter and its direction as to the basis for re-determination. The findings of fact in relation to Examples 1, 3, 4, 5 and 7 were undisturbed on appeal of the first Decision.[24] The Commissioner found in the second Decision that, considered collectively, they provided a valid reason for the dismissal of the Appellant.[25]
The Commissioner’s reconsideration of the unfair dismissal on the basis of the remittal from the Full Bench was in accordance with that remittal. We find no error in the approach adopted by the Commission.
We therefore reject appeal ground 1.
Appeal ground 2
The Appellant asserts erroneous findings (of fact) at paragraphs [139] and [140] of the first Decision and paragraph [35] of the second Decision.
That the Appellant was aware of his obligations in relation to complying with policies and procedures does not detract from the basis of the Commissioner’s findings at paragraph [35] of the second Decision. Further, the findings at paragraph [35] of the Second Decision need to be read in conjunction with paragraphs [33]-[34] which state:
“[33] The factual findings underpinning Examples 1, 3, 4, 5, and 7 were not disturbed on appeal.
[34] I am satisfied that each of those examples constituted a breach of the Respondent’s policies and procedures, including the AML/CTF Program and OFX Code of Conduct.”
It is clear by paragraph [34] of the second Decision that the Commissioner includes the AML/CTF Program and OFX Code of Conduct in the collective ‘policies and procedures’ of the Respondent. At paragraph [35] the Commissioner finds that he is satisfied the requirement for the Appellant to comply with those policies and procedures was lawful and reasonable and that the Appellant was aware of the importance of complying with those policies and procedures, the reference clearly being to the collective policies and procedures specified in paragraph [34]. In this respect the Appellant’s submissions that he did not fail to comply with ‘policy’ as it was his failure to perform his duties in compliance with AML/CTF Program which was deemed ‘inadequate’ arises from a failure to read the reasons of the Commissioner as a whole. We find no error in the approach or findings of the Commission in this regard.
As to the Appellant’s submissions that the Commissioner failed to take into account the evidence of Mr Judge at first instance at PN1217-PN1220 of transcript in the first hearing, it is difficult to see how this evidence, had it been scrutinised in the second Decision, would have affected the findings of the Commission as expressed at paragraph [35] of the Second Decision.
This ground of appeal does not disclose appealable error and it is therefore not accepted.
Appeal ground 3
By appeal ground 3 the Appellant claims that the Commissioner was in error at paragraphs [121] – [129] of the first Decision and at paragraph [35] of the Second Decision in concluding that it was open to the Respondent to rely on clause 8.2(a) of the Appellant’s employment contract. Beyond a claim that the definition of serious misconduct in the Appellant’s contract at clause 8.2(a) is not consistent with that contained in the Fair Work Regulations 2009 the Appellant does not articulate how this – if it is true and this is not addressed beyond assertion – affected the decision of the Commissioner. Further, a review of the submissions made by the Appellant at the hearing on remittal of the application does not show that the Appellant raised this issue before the Commission.
We note that the question of inconsistency of the Appellant’s contract with the Fair Work Regulations 2009 was a matter agitated in the hearing of the Appellant’s first appeal. It was not considered a matter warranting the grant of permission to appeal and we see no reason to determine otherwise.
As to the Appellant’s submissions in this appeal that the Respondent was “obligated to inform him of performance issues and allow him an opportunity to rectify the issues…” in accordance with clause 8.2(b) of his contract, this was addressed by the Commissioner at paragraphs [125]-[127] of the first Decision. The Appellant does not provide any basis, beyond assertion, on which it could be concluded that the Commissioner was wrong in his approach. A desire for a different outcome is not enough to demonstrate an error in the reasoning or findings of the Commissioner.
The Appellant also submits that the Commissioner failed to consider his submissions in the re-determination hearing as set out in paragraphs [18]-[19] of the second Decision.
We consider the Commissioner did adequately deal with these submissions of the Appellant. The Commissioner noted in the Appellant’s submissions that the ‘punishment did not fit the crime,’ his reliance on the decisions in John v Star City[26] and Wong v Taitung Australia Pty Ltd[27] in support of that submission and that the misconduct had to involve something more than “mere negligence, error of judgement or innocent mistake”. At paragraph [36] of the second Decision the Commissioner considered and dismissed the submissions of the Appellant in this regard. He found the Appellant’s failures not to be ‘mere errors’ and restated his finding from the first decision as to the Appellant’s view that he was not in breach of policies and procedures. The Commissioner also found that the lack of acknowledgement, remorse or contrition weighed against a finding of unfairness.
We find no error in the Commissioner’s consideration in relation to the matters raised by appeal ground 3 and therefore reject this ground of appeal.
Appeal ground 4
Appeal ground 4 is in relation to findings in the first Decision that the Appellant was notified of the valid reasons for his dismissal (at paragraphs [142]-[144]) and that he was given an opportunity to respond (at paragraphs [145]-[163]). These are matters that go solely to findings in the first Decision. To the extent the Appellant agitated them in the first Appeal we do not consider they warrant reconsideration in this appeal. To the extent he did not the time for such agitation has passed.
In submissions before us the Appellant made a range of unsupported assertions as to the Respondent engaging in ‘deliberately deceptive and misleading’ conduct during the dismissal process but does not indicate where such conduct by the Respondent is made out in the evidence before the Commission. Nor does the Appellant indicate where or how it is shown that four of the Respondent’s witnesses were not credible in the evidence given. Assertions of this kind do not establish error on the part of the Commissioner in his decision. The appeal in this respect is therefore rejected.
Appeal ground 5
In his submissions in relation to this appeal the Appellant submits the Commissioner was in error, at paragraph [174] of the first Decision, that the Appellant was not treated inconsistently. The Appellant does not point to any evidence of other employees in circumstances the same as or similar to his who was not dismissed for such breaches.
This ground of appeal is also in relation to the first Decision only and was a matter raised in the first appeal decision. The Full Bench did not consider that it disclosed any appealable error and we see no basis to demur from that view.
Appeal ground 6
Appeal ground 6 asserts that the Commissioner was in error in failing to properly take into account ‘the multitude of other matters’ which the Appellant submits are relevant considerations in determining if the dismissal was harsh, unjust or unreasonable in circumstances where the ‘seriousness’ of the valid reason was reduced by the Appeal decision. In particular the Appellant says the Commissioner failed to properly take into account that the punishment was disproportionate and did not fit the crime because there was no crime and the impact of the dismissal given the Appellant’s personal circumstances.
These submissions of the Appellant are predicated on a notion that the ‘seriousness’ of the valid reason for his dismissal was an arithmetic exercise and the seriousness is therefore reduced by the omission of Example 6. We do not agree with this characterisation of the finding of a valid reason for dismissal and there is no basis to embark on such an arithmetical exercise taking into account the reasoning in the second Decision. That there were not as many examples of misconduct considered in determining if there was a valid reason for dismissal in the second Decision does not necessarily reduce the seriousness of the misconduct engaged in by the Appellant and the Commissioner does not find so. Further, this was not subject to any submissions before the Commission in the hearing on re-determination.
The first Decision makes clear that the Commissioner took into account the Appellant’s personal circumstances and, in the second Decision, the Commissioner again carefully considered those circumstances but was not persuaded they outweighed the seriousness of the Appellant’s conduct.
The Appellant’s contention that the Commissioner did not consider whether the punishment fitted the crime but, in any event, maintained before us ‘there was no crime’, does no more than reinforce the Commissioner’s finding, in both the first Decision and the second Decision, that the Appellant “has remained steadfast in his view that he has not breached the Respondent’s policies and procedures despite clear contrary evidence.”[28] We can only concur with the Commissioner’s conclusion that the Appellant’s “lack of any acknowledgement of misconduct, remorse or contrition weighs against any finding of unfairness.”[29]
The Commissioner gave due consideration as to whether the punishment fitted the crime and to other matters raised by the Appellant – this is apparent at paragraph [41] of the second Decision. The Commissioner also accepted the reduced number of Examples. Taking into account all of the relevant matters, including those under s.387(h) of the FW Act, the Commissioner was not persuaded that the dismissal was harsh, unjust or unreasonable.
We find no appealable error in the Commissioner’s decision and, therefore, reject this ground of appeal.
Permission to appeal
For the reasons given in this decision we do not consider it is in the public interest to grant permission to appeal.
In relation to the second Decision, we do not consider that the appeal raises issues of general application, that there is a diversity of decisions, that the second Decision manifests an injustice, or that the second Decision is counterintuitive. Further, the Appellant, to the extent he says he has identified errors of fact, has not identified any significant error of fact that would warrant appeal.
In making the second Decision the Commissioner considered all matters under s.387 of the FW Act that he was required to consider, taking into account the guidance of the Full Bench in the first Appeal, and determined that the Appellant was not unfairly dismissed. The Commissioner approached the task before him in an orthodox manner adopting, where appropriate, findings from the first Decision and guidance from the first Appeal and making fresh findings as required.
We consider that it is reasonable that the decision in the first Appeal be taken as to have finalised consideration of matters in relation to the first Decision. The error identified through the first Appeal has been dealt with in the second Decision. There are no matters raised by the Appellant in relation to the second Decision that suggest any aspect of the first Decision is in such error that it, too, requires re-consideration. To the extent we did review material from the first Decision we do not consider that the Appellant has identified any significant error of fact that would warrant the grant of permission to appeal. For the reasons given we do not consider that permission to appeal should be granted to the extent the Appellant seeks to do so in relation to the first Decision.
The public interest is not attracted in this case.
Conclusion
For the reasons set out above, we order as follows:
A. Permission to appeal is refused
B. The appeal is dismissed.
VICE PRESIDENT
Appearances:
J Bracken, Appellant.
D Stewart of Counsel, S Berry of Hillard and Berry Solicitors and L Fagan for the Respondent.
Hearing details:
2023.
Melbourne–Brisbane (by video link):
June 7.
[1] [2023] FWC 590.
[2] [2022] FWC 879.
[3] Bracken v OFX (OzForex Limited) confidential reasons, [140] reproduced in Bracken v OFX (OzForex Limited)[2023] FWC 590 at [4].
[4] [2022] FWC 879 at [14].
[5] [2022] FWCFB 95.
[6] [2022] FWCFB 172.
[7] [2023] FWC 590 at [17].
[8] [2023] FWC 590 at [18].
[9] [2023] FWC 590 at [19].
[10] [2023] FWC 590 at [20].
[11] [2023] FWC 590 at [24].
[12] [2023] FWC 590 at [26].
[13] [2023] FWC 590 at [38]-[39].
[14] [2023] FWC 590 at [40]-[41].
[15] [2023] FWC 590 at [43].
[16] [2023] FWC 590 at [45].
[17] Dated 13 April 2023.
[18] (2010) 197 IR 266.
[19] (2010) 197 IR 266 at [27].
[20] Wan v AIRC (2001) 116 FCR 481 at [30].
[21] [2022] FWCFB 95 at [6].
[22] [2022] FWCFB 95 at [7].
[23] [2019] FWCFB 1964.
[24] [2023] FWC 590, [33].
[25] [2023] FWC 590, [37].
[26] [2014] FWC 543.
[27] [2016] FWC 7982.
[28] [2023] FWC 590 at [36].
[29] [2023] FWC 590 at [36].
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