Kevin Gugliotta v Path Transit Pty Ltd
[2014] FWCFB 3982
•16 JULY 2014
[2014] FWCFB 3982 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Path Transit Pty Ltd
(C2014/3843)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 16 JULY 2014 |
Appeal against decision [2014] FWC 864 of Commissioner Cloghan at Perth on 3 April 2014 in matter number U2013/13072.
[1] Mr K. Gugliotta (the appellant) has applied for permission to appeal against the decision by Commissioner Cloghan on 3 April 2014 1 dismissing his application for an unfair dismissal remedy in relation to the termination of his employment by Path Transit Pty Ltd (the respondent). His appeal was heard in Perth on 28 May 2014. The appellant represented himself at the hearing. The respondent was represented by Mr I MacDonald, from the Australian Public Transport Industrial Association.
Background
[2] The appellant commenced employment as a bus driver with the respondent on 17 September 2012. On 19 July 2013 he was issued with a final warning, following a complaint about his driving. On 8 August 2013 an incident occurred in the drivers’ staff room involving the appellant and another bus driver, Ms Huckstep. Ms Huckstep completed an incident report about the incident alleging that the appellant had been threatening and abusive towards her. A fellow driver, Mr Perkovich, also prepared an incident report, as did two other employees. On 12 August, the respondent’s area manager, Mr Gildersleve, met with the appellant who denied the allegation. A further discussion then took place between Mr Gildersleve and Ms Huckstep. On 15 August Mr Gildersleve met again with the appellant, at the end of which the latter was told that he was to be dismissed. On the same day the appellant received a letter of termination outlining the reasons for his dismissal. He received pay in lieu of notice.
[3] In his decision, the Commissioner found that the respondent had a valid reason for dismissing the appellant. In particular he found that the appellant’s conduct towards Ms Huckstep was unreasonable, offensive and derogatory. In forming his view about what occurred during the incident, the Commissioner had specific regard to the cross examination of Ms Huckstep by the appellant, and the written and oral evidence of Mr Perkovich. Mr Perkovich gave evidence that on approaching the drivers’ room he heard a male voice shouting. When he entered the room he saw Ms Huckstep crying. The Commissioner stated that ‘the essential elements’ of Mr Perkovich’s evidence were ‘undisturbed’ by his cross examination. 2 The Commissioner also accepted the evidence of Mr Malik, who had seen Ms Huckstep shortly after the incident. Mr Malik’s evidence was that Ms Huckstep was crying and that she told him that the appellant had threatened her.
[4] The Commissioner referred to CCTV footage of the drivers’ room that was tendered in evidence. He noted that the CCTV had the disadvantage of a lack of sound, and therefore could not be relied upon for what was said, but clearly showed the appellant on screen and periodically moving out of vision in the direction of Ms Huckstep, ‘as if to make a point during their discussion’ 3.
[5] The Commissioner considered that it was reasonable for the respondent, in making its decision to dismiss the appellant, to take into account the final warning which had been issued less than three weeks before the incident, and the appellant’s overall work performance since the commencement of his employment. The Commissioner stated:
‘Mr Gugliotta’s dismissal was primarily related to his conduct on 8 August 2013 and not his performance as a bus driver. However, in overall terms, Mr Gugliotta’s dismissal related to his performance as an employee, and in that respect, he had recently received a written Final Warning. Further, Mr Gugliotta’s staff performance record and Assessment Reports (one of which is a ‘mystery shopper’) are not flattering to the Applicant and led to the conclusion, which the Employer adopted, that the incident was a deliberate wrong doing and one too many.’ 4
[6] The Commissioner was also satisfied that the appellant had been told of the reason for his dismissal, and been given an opportunity to provide his own account of the incident with Ms Huckstep.
The grounds of appeal
[7] In his notice of appeal the appellant identified the following alleged errors:
1. ‘That the commissioner based his decision on documents supplied by the employer complaint and witnesses and not on the facts presented at the hearing.
2. That the reason for dismissal was alleged breach of Regulation 1.07 of FWA 2009 not any other issue i.e.: work related.
3. That the Commissioner erred by allowing new documents to be presented on the day of the hearing by the respondent.’
[8] At the appeal hearing, the appellant expanded on these points. He said that the Commissioner had made significant errors of fact. He said that there was video evidence that he had not been given the opportunity to present, and that the CCTV footage had not been viewed in its entirety. ‘What Mr Perkovich is saying is that I’m shouting abuse and about to become violent. Well, the video clearly shows ... that’s impossible’. 5 He also said that the Commissioner had ignored inconsistencies between Mr Perkovich’s incident report and his evidence to the Commission.
[9] The appellant also objected to the Commissioner allowing the respondent to tender some additional documents regarding customer feedback 6, which he said had ‘further polluted the waters’ in relation to his decision. He said that these should not have been used in the case, because he was dismissed for ‘bullying in the workplace and serious misconduct’ - not work performance.7
Consideration
[10] Unfair dismissal decisions, such as the one under consideration here, are discretionary in nature. The principles governing appeals against discretionary decisions are those set out in House v The King where it was held that:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.” 8
[11] Section 604(1) of the Fair Work Act 2009 (FW Act) provides that a person aggrieved by a decision made by the Fair Work Commission (FWC) may appeal the decision with the permission of the FWC.
[12] Section 400(1) of the FW Act provides that the FWC must not grant permission to appeal from a decision made under Part 3–2 of the FW Act unless the FWC considers it is in the public interest to do so. The way in which the public interest may be attracted has been described as follows :
“... 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.” 9
[13] Section 400(2) provides that an appeal from a decision made by the FWC in relation to a matter arising under Part 3–2 of the FW Act 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.
[14] The Commissioner’s decision which is the subject of appeal was made under Part 3–2 of the FW Act.
[15] The key factual issue before the Commissioner was what transpired during the incident on 8 August 2013. The Commissioner broadly accepted the version of events presented by Mr Perkovich and Ms Huckstep, rather than that given by the applicant. He did so after giving due consideration to the written evidence of all the relevant witnesses and after seeing them being cross-examined. The findings he made were available to him on the evidence. We are satisfied that he gave the appellant the opportunity to present all the relevant CCTV footage. Having also had the opportunity to review that footage, we can see nothing that is inconsistent with the Commissioner’s conclusions about the 8 August 2013 incident.
[16] We are satisfied that the Commissioner properly had regard to all the relevant statutory criteria. We are also satisfied that he gave the appellant a fair opportunity to present his case. In these circumstances we can see no public interest in granting permission to appeal.
[17] The appellant’s application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
K Gugliotta on his own behalf
I MacDonald, Australian Public Transport Industrial Association for the respondent
Hearing details:
2014
Perth
28 May
1 [2014] FWC 864
2 At [61]
3 At [72]
4 At [84]
5 PN36
6 Exhibit R7
7 PN328
8 (1936) 55 CLR 499
9 GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343, at [27].
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