King v Patrick Projects Pty Ltd
[2017] FWCFB 2809
•21 JUNE 2017
| [2017] FWCFB 2809 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Patrick Projects Pty Ltd
(C2017/1883)
VICE PRESIDENT HATCHER | SYDNEY, 21 JUNE 2017 |
Permission to appeal against decision [2017] FWC 1583] of Senior Deputy President Drake at Sydney on 17 March 2017 in matter number U2014/7097.
Introduction
[1] Mr Daniel King has applied for permission to appeal a decision of Senior Deputy Drake issued on 17 March 2017 1 (the Decision). The Decision determined Mr King’s application pursuant to section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for his alleged unfair dismissal by Patrick Projects Pty Ltd (Patrick Projects).
[2] Prior to the hearing of Mr King’s unfair dismissal application, Patrick Projects had conceded that the termination of Mr King’s employment was harsh, unjust and unreasonable. The Decision, therefore, dealt only with the issue of an appropriate remedy. Mr King sought reinstatement with payment of compensation for all monies lost to him as a result of the termination of his employment, and continuity of employment. He sought, as far as possible, to be restored to the position he would have been in had his employment not been terminated on 30 April 2014.
[3] The Senior Deputy President found that reinstatement was not an appropriate remedy in all of the circumstances of Mr King’s application. She determined under section 392 of the FW Act that the appropriate amount of compensation payable to Mr King was $64,655. This was, under s.392(5), the maximum amount of compensation permitted to be awarded to Mr King.
[4] Mr King was represented in the hearing before us by Mr Christopher Strauss.
[5] Patrick Projects applied for permission to be represented by lawyers, which was opposed by Mr King. We decided to grant permission to be represented as we were satisfied that the jurisdictional criterion in s.596(2)(a) was satisfied for three reasons. Firstly, the litigation out of which this appeal arose had been extremely long and complex. Secondly, the factual matrix of the matter itself was also extensive and complex, as exhibited by the size of the appeal book. Thirdly, the legal practitioner, Mr Fletcher, was granted permission to appear at first instance and could be presumed to have familiarity with the complexity of the matter. For the same three reasons we considered it appropriate to exercise our discretion to permit Patrick Projects to be represented by Mr Fletcher.
[6] In the Decision, the Senior Deputy President engaged in an extensive analysis of the evidence and submissions concerning the question of whether reinstatement should be granted as a remedy. Her findings included the following:
- There was no work to be performed at Patrick Projects for which Mr King was trained (the project for which Mr King was employed having ended), and Patrick Projects had no continuing obligation to train Mr King to perform other functions. 2
- Before termination Mr King had various absences from work as a result of an injury which he claimed was work-related, and his evidence was that there were days he could not face attending work as a result of overt and covert bullying. 3
- Mr King gave disingenuous evidence concerning a workers compensation settlement sum which had been paid to him in order to distance himself from the incapacity he relied upon to support his workers compensation claim. 4
- The only evidence of Mr King’s recovery and fitness for work was a certificate from a general practitioner dated 8 February 2017. 5
- In giving evidence, Mr King was emotional, displayed a sense of grievance, and was still emotionally fragile. 6
- Restoring Mr King to employment with Patrick Projects would place him in a position of possible further conflict with the MUA and its members, given that he retained a sense of grievance. 7
- Mr King had a particular difficulty with a number of Patrick Project managers and employees, including Mr Burton, and his evidence that he had “moved on” from his resentment with Patrick Projects and had a positive view of Patrick Projects was not accepted. 8
- Mr King’s professed attitude towards Patrick Projects was inconsistent with his litigation against Patrick Projects in the Federal Court, where he had made allegations concerning Patrick Projects’ conduct which were inconsistent with him having a positive view of it as an employer, and was also inconsistent with allegations of legal trickery and fraud he had made against Patrick Projects in proceedings before the Commission. 9
[7] The Senior Deputy President concluded her consideration on the question of reinstatement as follows:
“[64] I have considered and taken into account my conclusions regarding all of these issues.
[65] I have considered and taken into account the legal confrontation between Mr King and a related entity of the respondent in the Federal Court of Australia. This is not consistent with or likely to promote an on-going relationship of trust and confidence.
[66] I have considered and taken into account the fact that the respondent no longer conducts any business at its previous site.
[67] I have taken into account my findings regarding the likelihood of Mr King having an on-going incapacity for work or being vulnerable to further conflict whilst in employment with the respondent.
[68] I have considered and taken into account the present situation regarding trust and confidence between the parties. Mr King professes total trust and confidence in the respondent. I do not accept that. The respondent submits that it does not and cannot have trust and confidence in Mr King. I accept that that is an accurate description of the respondent’s attitude to Mr King and I am persuaded that it is a reasonable position for the respondent to take. In coming to this conclusion I have taken into account Mr King’s conduct in these proceedings.
[69] Whilst many issues in Mr King’s application concerning his treatment by other employees and the manner in which relevant investigations were conducted weigh in favour of reinstatement, I have concluded that on balance reinstatement is not an appropriate remedy in all the circumstances of this application.”
[8] Mr King advanced a number of grounds for appeal which can be summarised as follows:
(a) the Senior Deputy President erred in concluding that reinstatement was not an appropriate remedy;
(b) the Senior Deputy President erred in taking various factors into account as factors weighing against reinstatement;
(c) the senior Deputy President erred in finding that Mr King was “vulnerable to conflict” and had a poor working relationship with his employer and prospective co-workers;
(d) the Senior Deputy President erred in rejecting Mr King’s evidence of his sentiments about Patrick Projects and his prospective co-workers, and in accepting evidence that supported a conclusion that Mr King had a poor relationship with Patrick Projects and his prospective co-workers.
[9] In his written submissions, Mr King submitted that the Senior Deputy President made the following specific errors:
(a) mistakenly concluding that ramp down had occurred;
(b) mistakenly concluding that the risk of future disputes weighed against reinstatement;
(c) mistakenly concluding that the Appellant’s entitlement to beneficial employment conditions weighed against reinstatement;
(d) mistakenly concluding that a return to work plan and discussions was an inappropriate position;
(e) mistakenly concluding unqualified medical assessments rather than qualified evidence;
(f) mistakenly concluding attitude toward lawyers is indicative of the Appellant’s attitude towards a respondent; and
(g) mistakenly concluding other legal proceedings weighed against reinstatement
[10] Mr King’s representative, Mr Strauss, placed significant emphasis in his oral submissions on the errors alleged in (e) and (g).
[11] Mr King argued that it would be in the public interest for the commission to grant permission to appeal because the Decision undermined the statutory intention to make reinstatement the primary remedy for dismissal, and undermined public confidence in the Commission’s willingness to order reinstatement in appropriate cases. He also argued that the public interest arose in circumstances where the Senior Deputy President took into account the exercise by him of workplace rights (including taking legal proceedings against his employer) as a matter adverse to the conclusion that reinstatement was appropriate. Mr King also submitted that the public interest was attracted because:
(a) the Commission has made many errors of fact that are significant and that should be corrected;
(b) the Commission changed its administrative arrangements as to how it would conduct the hearing, and it did so without sufficient notice to the Appellant and it thereby prejudiced his ability to properly present a significant aspect of his case;
(c) the Senior Deputy President made an unjust decision that should be corrected.
Consideration
[12] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 10 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[13] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part 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] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 11 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment12. In GlaxoSmithKline Australia Pty Ltd v Makin 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 the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 13
[15] 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. 14 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.15
[16] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 16
[17] The general principles concerning consideration of whether the remedy of reinstatement should be granted were dealt with in the Full Bench decision in Nguyen
v Vietnamese Community in Australia. 17 Relevantly, the Full Bench said:
- the question whether to order a remedy remains a discretionary one; 18
- reinstatement might be inappropriate in a range if circumstances, including that it would be futile, or the employee was incapacitated by illness of injury, or because of a loss of trust and confidence; 19
- “trust and confidence” was that which was necessary to make an employment relationship workable; 20
- trust and confidence is not the sole or even a necessary criterion for reinstatement; 21
- in relation to a contention of a loss of trust and confidence, each case had to be decided on its own facts; 22 and
- an allegation of a loss of trust and confidence must be soundly and rationally based. 23
[18] Because a decision concerning whether reinstatement should be ordered involved the exercise of a discretion, it is necessary for an appellant from such a decision to demonstrate appealable error. Such error must usually be of one of the types identified in House v The King. 24 The Full Bench is not authorised to set aside a discretionary decision on the basis of a preference for an outcome different to that determined by the first instance decision-maker.25 In considering Mr King’s application for permission to appeal, a crucial issue is therefore whether he has demonstrated an arguable case of appealable error.
[19] In our view, the matters upon which Mr King relies do not demonstrate an arguable case for appealable error except in one respect, to which we will return. The Senior Deputy President’s decision contains a detailed and comprehensive consideration of the evidence, submissions and the application of the FW Act. No error on any serious question of fact is apparent. We are not satisfied that the inferences drawn and conclusions reached by the Senior Deputy President based on her primary findings of fact were not reasonably available to her. The appeal is effectively a statement of dissatisfaction with the conclusions and findings of the Senior Deputy President.
[20] Because it was a focus of the oral submission made on his behalf, we will deal briefly with Mr King’s contention that the Senior Deputy President erred in making an “unqualified medical assessment”. The part of the judgment which Mr King challenged in this respect, was, in full (omitting footnote):
“[50] Mr King was emotional giving his evidence regarding the merit of his claim. His sense of grievance was obvious. At the hearing regarding remedy I observed Mr King very closely. I consider that he was still emotionally fragile. Whilst Mr King made every effort to appear calm and positive when discussing the possibility of reinstatement he was aggressive towards Mr Fletcher in proceedings when there was no occasion to be so. He was argumentative when there was no occasion for an argument. Although Mr King gave evidence that his attitude to the respondent was positive, and Mr Strauss described him as having the dark cloud of doom lifted from him, I consider that his attitude when giving his evidence reflects his true attitude towards the respondent.”
[21] The assessment of whether an employment relationship can be restored by way of a reinstatement order may require an evaluation of the personal attitude of the dismissed employee to the employer and its personnel, since that may be relevant to whether the necessary level of trust and confidence can be re-established. We consider that this was the nature of the analysis engaged in by the Senior Deputy President, rather than (as Mr King submitted) an attempt to engage in a medical diagnosis of Mr King’s mental health. We likewise consider that the later reference to Mr King being “vulnerable to further conflict” (paragraph [67]) was considered in the context of whether a workable employment relationship should be restored. The Senior Deputy President separately considered the relevant issue of Mr King’s medical capacity to return to work, and in that respect took into account his previous claim of a mental injury arising from his employment, the settlement of his workers’ compensation claim, and the thinness of the medical evidence that he was fit to return to work with Patrick Projects. We do not consider that any arguable case of appealable error has been demonstrated in this respect.
[22] The exception referred to earlier was Mr King’s contention that the Senior Deputy President erred by taking into account the proceedings taken by him and others against Asciano, a related entity of Patrick Projects, in the Federal Court. At paragraph [58]-[59] of the Decision, the Senior Deputy President referred to these proceedings, and the allegations made in them, to conclude that Mr King’s evidence that he had a “good and positive view” of Patrick Projects as an employer was not to be accepted. No arguable case of error is identifiable in that respect. However in paragraph [65] of the Decision, earlier quoted, the Senior Deputy President appeared to take the Federal Court litigation into account as a matter bearing directly upon the issue of trust and confidence.
[23] In Nguyen v Vietnamese Community in Australia 26the Full Bench said that the fact a dismissed employee was pursuing an underpayment claim in a court against their former employer was not a consideration relevant to whether reinstatement was appropriate. The Full Bench said:
“[37] In pursuing their underpayment claim the Appellants are exercising a workplace right, within the meaning of s.341(1)(b) of the FW Act. Part 3-1 of the FW Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right. It would be incongruous if the exercise of a workplace right operated as a barrier to reinstatement in an unfair dismissal proceeding in circumstances where Part 3-1 of the FW Act prohibits an employer from terminating the employment of an employee who exercises a workplace right.
[38] The fact that the Appellants have pursued an underpayment claim and that this has given rise to a degree of acrimony between the parties is not a matter which should be taken into account in determining whether reinstatement is appropriate. It follows that the Senior Deputy President made an error in his consideration of this issue, in that he took account of an irrelevant consideration.”
[24] It is therefore arguable that the Senior Deputy President erred in taking into account the Federal Court litigation as she did in paragraph [65] of the Decision (notwithstanding that the proceedings had been dismissed and a costs order made against Mr King and his fellow litigants).
[25] However we are not persuaded that this by itself is sufficient to attract the public interest. The Decision demonstrates that the Senior Deputy President considered that there were a range of considerations militating against reinstatement, and it is apparent that the Federal Court litigation played only a minor part in her analysis. The matter turned on its particular facts, and the appeal raises no issue of general importance or legal principle. Nor, having regard to the substantial amount of compensation ordered as a remedy, do we consider that the Decision manifests an injustice.
[26] We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1), permission to appeal must be refused.
VICE PRESIDENT
Appearances:
C. Strauss on behalf of Daniel King.
D. Fletcher on behalf of Patrick Projects Pty Ltd.
Hearing details:
2017.
Sydney:
29 May.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR593123>
1 [2017] FWC 1583
2 Decision at [24]-[43]
3 Decision at [44]
4 Decision at [45]
5 Decision at [47]
6 Decision at [50]
7 Decision at [51]
8 Decision at [52]-[57], [62]
9 Decision at [58]-[60]
10 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
11 (2011) 192 FCR 78 at [43]
12 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 & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
13 [2010] FWAFB 5343, 197 IR 266 at [27]
14 Wan v AIRC (2001) 116 FCR 481 at [30]
15 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, 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 at [28]
16 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
17 [2014] FWCFB 7198
18 Ibid at [9]
19 Ibid at [17]-[20]
20 Ibid at [23]
21 Ibid at [24]
22 Ibid at [27]
23 Ibid at [27]
24 (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ
25 Norbis v Norbis (1986) 161 CLR 513 at 518-9 per Mason and Deane JJ
26 [2014] FWCFB 7198
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