Julie Palm v Sydney Night Patrol & Inquiry Co Pty Ltd t/a SNP Security
[2016] FWCFB 5504
•2 SEPTEMBER 2016
| [2016] FWCFB 5504 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Sydney Night Patrol & Inquiry Co Pty Ltd t/a SNP Security
(C2016/4510)
VICE PRESIDENT HATCHER | SYDNEY, 2 SEPTEMBER 2016 |
Permission to appeal against decision [2016] FWC 4292 of Deputy President Kovacic at Melbourne on 30 June 2016 in matter number U2015/13854.
Introduction
[1] Ms Julie Palm has applied for permission to appeal a decision of Deputy President Kovacic issued on 30 June 20161 (Decision). The effect of the Decision was that the Deputy President dismissed an unfair dismissal remedy application lodged by Ms Palm pursuant to s.394 of the Fair Work Act 2009 (FW Act) on the basis that her dismissal was not harsh, unjust or unreasonable.
[2] At the hearing before the Full Bench, permission was granted to each party to be represented by lawyers. Mr R Abbas appeared for Ms Palm. Mr N Chadwick appeared for the respondent, SNP Security (SNP).
[3] Ms Palm was terminated from her role with SNP as an Aviation Security Team Leader at Canberra Airport on 15 October 2015 for serious misconduct, related to her removing a manicure kit from the surrendered items drawer at the screening point and placing it into her handbag, contrary to the Standard Operating Procedures (SOPs).
[4] In determining if Ms Palm had been unfairly dismissed the Deputy President considered each of the criteria of s.387 of the FW Act to decide if the dismissal was harsh, unjust or unreasonable. In his consideration, the Deputy President found:
“[42] SNP submitted that in taking the manicure kit from the surrendered items drawer Ms Palm engaged in theft as surrendered items become the property of CAG [Canberra Airport Group] when surrendered. The issue of whether surrendered items become the property of CAG was implicitly disputed by Ms Palm, primarily in the questions put to Mr Nelson in cross examination. As previously noted, Mr Nelson attested that CAG was responsible for surrendered items under relevant legislation. Section 12(1)(a) of the Aviation Transport Security Act 2004 (Cth) requires an operator of a security controlled airport such as Canberra Airport to have a transport security program (TSP). Further, Reg 2.20 of the Aviation Transport Security Regulations 2005 sets out what an airport operator’s TSP must contain in the following terms:
“REG 2.20 What airport operator’s TSP must contain—control of firearms, other weapons and prohibited items
(1) The TSP must include:
(a) measures to deter unauthorised possession of firearms, other weapons and prohibited items; and
(b) procedures for dealing with surrendered firearms, other weapons and prohibited items;
(c) procedures for handling and movement of firearms and other weapons; and
(d) procedures for using firearms and other weapons in the airside area or landside security zones; and
(e) methods for ensuring that staff who have a need to know are aware of the restrictions on the possession and use of firearms, other weapons and prohibited items within the airport.
(2) The airport operator must ensure that procedures in the TSP to handle or transport firearms, other weapons and prohibited items are consistent with relevant Commonwealth, State or Territory laws.” (Underlining added)
[43] While CAG’s TSP was not before the Commission, the inference that can reasonably be drawn from the above legislative provisions is that CAG is responsible for any prohibited items surrendered at Canberra Airport’s screening points. That, together with Mr Nelson’s actions in keeping CAG fully abreast of the incident regarding Ms Palm, point to the manicure kit becoming the responsibility/property of CAG once it was surrendered. This in turn supports a finding that Ms Palm’s action in taking the manicure kit constituted theft.
…
[45] Ms Palm’s actions in taking the manicure kit therefore also constituted serious misconduct for the purposes of the FW [Fair Work] Regulations.
[46] I note that Ms Palm’s conduct in taking the manicure kit contravened SNP’s Code of Conduct which, as previously noted, requires employees to “Behave honestly and with integrity.”
[47] Finally, as Justice Kirby observed in Concut:
“It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment.” (Footnotes not included, underlining added)
[48] Based on the above analysis, and drawing on the decision in Concut, I am satisfied that there was a valid reason for Ms Palm’s summary dismissal. Drawing on the language in Selvachandran, the reason relied upon by SNP to dismiss Ms Palm was sound, defensible and well founded.”
[5] In considering the other criteria of s.387, the process undertaken and the opportunity for Ms Palm to respond to the reason for dismissal the Deputy President found at [49] to [61]:
● It was not disputed that Ms Palm was notified of the reason for her dismissal
● It was not disputed that Ms Palm was provided with an opportunity to respond to the allegations of misconduct at the meeting of 14 October 2015
● Ms Palm attended the meeting of 14 October 2015 with Mr Armaghan as her support person
● Having considered the evidence of Ms Palm and SNP’s manager Mr Nelson, the circumstances involving another employee, Ms Tutt, and a surrendered item, were quite different to those existing in this case. The incident involving Ms Tutt was considered not to be relevant in establishing differential treatment
● Based on the material before the Commission, SNP did have an SOP relating to surrendered items; not all staff were aware of that SOP; the SOP advised surrendered items were to be disposed of and did not explicitly state employees were not to remove surrendered items; and that employees (including Ms Palm) were aware it was wrong to take surrendered items from the drawer
● The absence of an explicit statement in the SOP that surrendered items could not be taken was irrelevant, in light of employees’ acknowledgement that it was wrong to take surrendered items
● That Ms Palm’s actions in taking the manicure kit constituted serious misconduct.
● That Ms Palm’s role as a Team Leader, her length of service, and employment record were all relevant considerations.
[6] The Deputy President concluded:
“[62] Drawing on the above analysis, I find that there was a valid reason for Ms Palm’s dismissal, that Ms Palm was notified of the reason and given an opportunity to respond, and that Ms Palm’s role as a Team Leader, her length of service and her employment record are relevant considerations in this matter. I further find that the remaining considerations in s.387 are either not relevant or are a neutral consideration in this matter. On balance, I consider that the existence of a valid reason for Ms Palm’s dismissal and her role as a Team Leader outweigh the weight to be attached to her length of service and employment record.
[63] For all these reasons, I do not consider that Ms Palm’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss her application…”
[7] At paragraphs [32] through [37] of the Decision, the Deputy President dealt specifically with key disputed facts and made findings on each of those matters.
[8] Ms Palm’s notice of appeal alleged a number of significant errors relating to findings of fact by the Deputy President. These included:
● No evidence for finding that Mr Saxena was not the Duty Shift Supervisor; that SNP’s decision to dismiss was not harsh, unjust or unreasonable; and that the respondent had an SOP regarding surrendered items
● Error in rejecting evidence of Ms Palm’s co-workers
● Errors in relation to the finding of theft
● Failure to find that Ms Palm had been tricked into taking the item by Mr Saxena
● Failure to find that Mr Saxena authorised the taking of the item
● Failure to consider that no loss of trust and confidence had been alleged.
[9] In addition, there were 11 matters identified in the notice of appeal relating to the public interest for the Commission to grant permission to appeal. These matters included a repeat of many of the error grounds; that the Decision was not in line with existing decisions in similar cases; and that the Deputy President erred in relieving SNP of its duty to have a definite written policy relating to surrendered items which could be relied on by employees.
[10] The legal representatives of both parties provided considerable submissions, both written and oral, which have assisted us in our determination.
[11] At hearing, Mr Abbas on behalf of Ms Palm submitted that the Deputy President’s finding of theft and subsequent finding of serious misconduct were not available to him as the surrendered item had been abandoned and was destined for disposal. He said, therefore, theft of the item could not be established. Mr Abbas stated that the finding of theft was an error and could not constitute a valid reason for dismissal. He also submitted that undue weight had been given to evidence that SNP did not know of or condone taking of surrendered items, particularly when considering a previous incident involving Ms Tutt. Further, Mr Abbas stated that it was in the public interest for employees to be treated fairly when in a similar situation and that an explicit breach of a workplace policy must exist when an employee is being dismissed by an employer.
[12] Mr Abbas provided written submissions alleging some 56 errors, relating primarily to the findings made by the Deputy President as to the key facts in dispute. These key facts involved findings that:
● Mr Saxena was not acting as the DSS on the day in question;
● On balance, the Deputy President could not be satisfied that Mr Saxena did not suggest that Ms Palm take the manicure kit, but that despite this Ms Palm attested that it was wrong to take surrendered items for personal use; and
● The Deputy President was unable to form a definitive view on whether it was common practice for SNP employees to take items from the surrendered items drawer. However the evidence supported a finding that if the practice did occur, Mr Nelson was not aware of it and it was not condoned by SNP.
Consideration
[13] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[14] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error4, or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 6
[15] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 7 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
[16] The Deputy President took an orthodox approach to the matters in s.387 of the FW Act which required his consideration. Having considered Mr Abbas’ extensive submissions alleging errors of fact within the Decision, we have concluded that the findings made by the Deputy President concerning the key facts were supported by the evidence before him. We can identify no arguable case of any significant error of fact.
[17] We accept that it is at least arguable that Ms Palm’s action in taking an item that was shortly destined for destruction, and the ownership of which after seizure was debatable, might not strictly constitute an act of theft. However it does not follow therefore, that there is an arguable case that the Deputy President erred in concluding that there was a valid reason for dismissal. It was clear on the evidence that an important feature of SNP’s contractual obligations to CAG was to ensure its employees acted in accordance with CAG’s security policies and procedures involving surrendered items, something which Ms Palm did not do. Her wilful failure in this respect was a serious matter and provided a proper basis for her dismissal. We are also of the view that there was no error on the part of the Deputy President when he found that Ms Palm had not behaved honestly and with integrity and that a valid reason existed for her dismissal on that basis, having regard to the quoted passage from Concut.10
[18] There is no basis for us to be satisfied that the grant of permission to appeal would be in the public interest. We are not satisfied that Ms Palm has demonstrated any error on the part of the Deputy President in determining that her unfair dismissal remedy application be dismissed.
[19] Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
R. Abbas solicitor for J. Palm.
N. Chadwick solicitor for Sydney Night Patrol & Inquiry Co. Pty Ltd.
Hearing details:
2016.
Sydney:
10 August.
1 [2016] FWC 4292
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
10 Concut Pty Ltd v Worrell [2000] HCA 64, 176 ALR 693
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