Kieran Michael Chalk v Ventia Australia Pty Ltd - [2023] FWCFB 79

[2023] FWCFB 79

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Kieran Michael Chalk
v

Ventia Australia Pty Ltd

(C2023/601)

VICE PRESIDENT CATANZARITI
VICE PRESIDENT ASBURY
COMMISSIONER SIMPSON

SYDNEY, 24 APRIL 2023

Appeal against decision [2023] FWC 121 of Commissioner Platt at Adelaide on 17 January 2023 in matter number U2022/7847 - permission to appeal refused.

Background

Mr Kieran Michael Chalk (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required, against a decision (the Decision) of Commissioner Platt (the Commissioner) issued on 17 January 2023. The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from his employment with Ventia Australia Pty Ltd (the Respondent) under s.394 of the Act.

The matter was listed for permission to appeal only. On 8 February 2023, directions were set for the filing of material and the matter was listed for hearing on 6 March 2023. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed an outline of submissions. The Appellant also provided a list of authorities and was content for the decision pertaining to permission to appeal to be determined on the papers. On that basis the hearing scheduled for Monday 6 March 2023 was vacated. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.

For the reasons that follow, permission to appeal is refused.

Decision under appeal

The Commissioner’s Decision noted that a confidentiality order pursuant to s.594 of the Act was made by consent of the parties in respect of the publication of the contents or any material that tended to identify the contents of a commercial contract between Ventia and its Client (who the Commissioner chose not to name) for the provision of specified services (referred to as the ‘Services Agreement’). The order was made by the Commissioner to protect the commercially sensitive contract.

Ventia provides facility management services to a client pursuant to the Services Agreement. Mr Chalk was employed by Ventia as Strategic Asset Manager and was a senior member of the team that managed that contract. Mr Chalk’s contract of employment contained general obligations in respect of his duties to Ventia, requirements prohibiting the disclosure of confidential information and Code of Conduct obligations.

On Saturday 26 March 2022, Mr Chalk emailed Ms Kate Toner a confidential version of the Services Agreement. Ms Toner was a former employee of Ventia who left the employ of Ventia in acrimonious circumstances on 19 January 2022.

Whilst Ventia was not aware of this communication at the time of Mr Chalk’s dismissal, it contends this email was sent in breach of Mr Chalk’s confidentiality obligations and is a valid reason for dismissal. Mr Chalk contends he sent the email to Ms Toner’s email so that he could manipulate a graphic contained within the document.

On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 79
Decision Date: 24 APRIL 2023

CaseChat Overview and Summary

Kieran Michael Chalk appealed a decision by the Fair Work Commission (FWC) which dismissed his unfair dismissal application against his former employer, Ventia Australia Pty Ltd. Chalk was dismissed for sending confidential information to a former employee and for alerting the employer's client directly about a potential overcharge in service fees. Chalk argued that the FWC erred in its interpretation of the law, failed to consider the legal provisions for breach of confidence, erred in its assessment of evidence, and made significant errors of fact. The FWC found that the appeal did not present an arguable case of appealable error and did not attract the public interest required for an appeal under the Fair Work Act 2009. The FWC rejected all grounds of appeal and refused permission to appeal.

The FWC determined that the Commissioner's application of the law was correct and that the evidence was properly considered. The FWC found that the Commissioner was entitled to make findings of credit against Chalk based on his evasive and inconsistent testimony. The FWC also found that the Commissioner did not make significant errors of fact by excluding certain evidence, as those decisions were reasonably open to the Commissioner. The FWC concluded that the appeal did not raise issues of importance or general application and did not manifest an injustice or disharmonious legal principles. Therefore, the FWC refused permission to appeal Chalk's unfair dismissal application.

Orders