John Patrick Bracken v OzForex Limited
[2022] FWCFB 172
•12 SEPTEMBER 2022
| [2022] FWCFB 172 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
John Patrick Bracken
v
OzForex Limited
(C2022/2777)
| VICE PRESIDENT HATCHER | SYDNEY, 12 SEPTEMBER 2022 |
Appeal against decision [2022] FWC 879 of Commissioner P Ryan at Sydney on 14 April 2022 in matter number U2021/4619.
This decision concerns an appeal filed by Mr John Bracken against a decision of Commissioner P Ryan made on 14 April 2022[1] to dismiss Mr Bracken’s application for an unfair dismissal remedy against OzForex Limited (OzForex). The Commissioner’s reasons for his decision (reasons) were published separately on the same day for reasons of confidentiality.
The appeal was initially listed for hearing on 7 June 2022 in relation to whether an extension of time to file the appeal should be granted (as the appeal was lodged one calendar day beyond the 21-day time period prescribed by rule 56(2)(a) of the Fair Work Commission Rules 2013) and whether permission to appeal should be granted. In a decision issued on 9 June 2022,[2] we granted an extension of time, granted permission to appeal in respect of Mr Bracken’s third ground of appeal (which alleged a significant error of fact in the Commissioner’s reasons), and refused permission to appeal with respect to Mr Bracken’s other two appeal grounds. In relation to the appeal ground for which we granted permission, we said:
“[8] As to his third appeal ground, Mr Bracken at the hearing contended that the conclusion in paragraph [135] of the Commissioner’s reasons that he had committed ‘a substantial and wilful breach of the Respondent’s policies and procedures’ as to a specific matter ‘justifying the termination of his employment’ was based on a significant error of fact, namely that there was no policy or procedure about that specific matter in existence (as he had contended below, which contention is recorded at paragraph [108]). It was this contention to which OzForex responded in its further note filed on 7 June 2022. Having regard to Mr Bracken’s submissions and the content of OzForex’s note, we consider that it is at least reasonably arguable that the reasons were the subject of an error of fact as contended by Mr Bracken. Further, we consider that it is also reasonably arguable that any such error was significant in nature for the purpose of s 400(2) of the FW Act having regard to the apparent weight placed on the conclusion in paragraph [135] in the Commissioner’s consideration under s 387(a) of the FW Act as to whether there was a valid reason for the dismissal.
. . .
[10] In respect of the third appeal ground, we consider for the reasons stated in paragraph [8] above that it would be in the public interest to grant permission to appeal, since it raises the possibility that the decision manifests an injustice insofar as it is based on a finding that there was a valid reason for Mr Bracken’s dismissal.”
The parties were directed to file further written submissions in respect of the third appeal ground, and the matter was the subject of a further hearing before us on 23 August 2022. In its submissions, OzForex properly conceded that the Commissioner had made the error of fact alleged by Mr Bracken, in that it:
·confirmed that there was no written policy or procedure in evidence containing a requirement of the nature which the Commissioner found Mr Bracken had breached;
·accepted that it did not run a case below to the effect that the relevant requirement was to be implied or inferred by custom and practice;
·accepted that it does not have specific or direct evidence that Mr Bracken was expressly told about the relevant requirement so as to establish that he had been given a direction in this regard;
·accepted that Mr Bracken did contend that his conduct was, in the relevant respect, not in breach of any laws or policies; and
·accepted that the Commissioner placed real importance on this purported breach as a basis alone for the summary dismissal of Mr Bracken in paragraphs [109], [110] and [132]-[135] of his reasons.
OzForex submitted, however, that the error did not matter because the relevant conduct on the part of Mr Bracken contravened the requirements of his employment in other respects, and other conduct on his part which the Commissioner found to have occurred was sufficient to establish valid reasons for his dismissal.
On the basis of OzForex’s concessions, we find that the Commissioner’s decision was founded on reasons which contained a significant error of fact concerning the question, arising under s 387(a) of the Fair Work Act 2009 (Cth), as to whether there was a valid reason for Mr Bracken’s dismissal relating to his conduct. We are not in a position to conclude that this error could not have made any difference to the outcome. In his consideration of the valid reason question, the Commissioner identified seven “examples” of misconduct relied upon by OzForex. The conduct constituting the alleged “breach” the subject of the significant error of fact was referred to as “Example 6”. In respect of Example 6, the Commissioner found in paragraph [110] of his reasons that the relevant conduct on the part of Mr Bracken “…was a serious breach of the Respondent’s policies and procedures”. Then, in paragraph [131] of his reasons under the heading “Conclusion and Findings as [to] Valid Reason”, the Commissioner found that, in each of the examples other than Example 2, Mr Bracken had breached OzForex’s policies and procedures. In the following paragraph, the Commissioner said “Most remarkably, this is illustrated by Example 6…” and went on to explain in that paragraph and paragraphs [133]-[134] why he considered the conduct in this example was in breach of OzForex’s policies. The Commissioner then found in paragraph [135]:
“[135] The Applicant’s conduct in relation to Example 6 alone was a substantial and wilful breach of the Respondent’s policies and procedures, justifying the termination of his employment.”
The Commissioner then referred to some other aspects of Mr Bracken’s conduct, and concluded:
“[139] When viewed in the context of the Applicant’s awareness of the importance of the Respondent’s policies and procedures and the regulatory framework in which it operates, the Applicant’s conduct demonstrated a flagrant disregard to compliance with those policies and procedures.
[140] In conclusion I find:
·That Applicant 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 Applicant comply with those policies and and procedures was lawful and reasonable;
·That Examples 1, 3, 4, 5, 6 and 7 identify a failure by the Applicant to comply with the Respondent’s policies and procedures …;
·The Applicant’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 Applicant’s contract of employment was open to it based on the risk the Applicant’s conduct posed to its business, operations, affairs or reputation.
[141] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct.”
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.
For these reasons, we consider that the Commissioner’s 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.
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.
We order as follows:
(1) The appeal is upheld.
(2)The decision of Commissioner P Ryan of 14 April 2022 ([2022] FWC 879) is quashed.
(3)The application in matter U2021/4619 is remitted to Commissioner P Ryan for re-determination in accordance with the above reasons for decision.
VICE PRESIDENT
Appearances:
J Bracken, the appellant, in person, with M Morkos.
D Stewart of counsel, for the respondent.
Hearing details:
2022.
Sydney via Microsoft Teams:
23 August.
[1] [2022] FWC 879
[2] [2022] FWCFB 95
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