Lawrence Mario v ESS Compass Group T/A Compass Group Australia
[2022] FWCFB 194
•26 OCTOBER 2022
| [2022] FWCFB 194 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Lawrence Mario
v
ESS Compass Group T/A Compass Group Australia
(C2022/5552)
| VICE PRESIDENT CATANZARITI | BRISBANE, 26 OCTOBER 2022 |
Appeal against decision [2022] FWC 1937of Deputy President Lake at Brisbane on 22 July 2022 in matter number U2021/4645 – permission to appeal refused.
Mr Lawrence Mario (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 of Deputy President Lake (the Deputy President) issued on 22 July 2022. The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from his employment with ESS Compass Group T/A Compass Group Australia (the Respondent) under s.394 of the Act. The Appellant was terminated after repeated breaches of the Respondent’s Code of Conduct and Behaviour Standards Policy (the Policies).
The matter was listed for permission to appeal only. On 25 August 2022, directions were set for the filing of material and the matter was listed for hearing on 11 October 2022. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant relied solely on the Form F7.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
The Decision provided that the Appellant’s case in short was that the Respondent terminated his employment without fair process during a difficult period in his personal life. The Appellant submitted that the reason given by the Respondent (namely emails sent from his account) had not been fully investigated.
The Appellant submitted that the offensive emails sent from his account were sent by his partner without his direct input or knowledge. The Appellant submitted that the Respondent did not follow a fair process and did not carry out an investigation into the reasons provided for the termination of his employment.
The Decision provided that the Respondent submitted that the reason for the termination of the Appellant’s employment was his repeated breaches of the Policies. The Decision highlighted that the Respondent submitted the Appellant was aware of the requirement to comply with these policies and had received training on the Behaviour Standards in July 2018. The Appellant had signed a contract which referred to the Policies in June 2018.
The Deputy President then considered the factors in s.387(a)-(h) of the Act to determine
whether the dismissal was harsh unjust or unreasonable.
Valid reason for dismissal related to capacity or conduct – s.387(a)
The Deputy President was satisfied that there was a valid reason for the Appellant’s termination based upon the Appellant repeatedly breaching the Respondent’s code of conduct, making threats, sending a series of offensive messages, and refusing a lawful and reasonable instruction to attend work.
Whether the person was notified of that reason and had an opportunity to respond – s.387(b) and (c)
The Deputy President found that the Appellant had been warned that continued emails to the Respondent and to the personal email addresses of its employees was unacceptable and may result in the termination of the Appellant’s employment. The Deputy President found that the Respondent gave at least two formal opportunities to the Appellant to respond to the allegations of inappropriate conduct, to which the Appellant would reply, with words to the effect of “go ahead and sack me”.
The Deputy President found that the Appellant was invited to attend a disciplinary response meeting on 11 May 2021, which he refused to attend, and further a show cause meeting on 17 May 2021, which the Appellant also refused to attend. Further the Deputy President noted that the Appellant denied that he received this letter and that the response to it had been sent by Ms Samuels outside of his purview. The Deputy President found that the Respondent notified the Appellant and that they also provided an opportunity for the Appellant to respond. The Deputy President found the Appellant’s denials were not credible and in his views were false.
Unreasonably refuse to allow a support person – s.387(d)
The Deputy President found that neither party raised the issue of a support person having been refused for the Appellant and in the show cause and letters from the Respondent, the Appellant was advised that they support and encourage the Appellant to bring a support person to any meeting.
Warned about unsatisfactory performance before the dismissal – s.387(e)
The Deputy President found that as to the reason for termination, this factor was irrelevant.
To what degree would the size of the enterprise and degree of human resource expertise be
likely to impact on the procedures followed in effecting the dismissal? – s.387(f) and (g)
The Deputy President found that the Respondent is a large organisation with a resourced human resources department and followed a procedure to address the Appellant’s behaviour. The Deputy President weighed this factor as neutral.
Other relevant matters – s.387(h)
In terms of considering other relevant matters, the Deputy President considered that the Appellant clearly experienced hardship during the months preceding the termination of his employment. The involvement of Ms Samuels in sending emails on behalf of the Appellant, allegedly without his knowledge was considered by the Deputy President.
The Deputy President found that the Respondent was put in a position where they had to consider the welfare of their employees and the effect that the Appellant’s behaviour and perhaps that of Ms Samuels’ behaviour on his behalf, had on others. The Deputy President considered that Ms Bagshawe, an experienced and competent human resources manager, needed to seek additional support as a direct result of the emails received from the Appellant’s email address.
Conclusion
The Deputy President concluded that the Appellant was terminated for repeated breaches of the Respondent’s Policies. The Deputy President concluded that the Respondent requested the Applicant attend meetings related to the allegations and the process of disciplinary action, which he refused and kept up the cacophony of abusive and threating emails in defiance of the Policy. The Deputy President found that the Appellant refused to participate faithfully in the show cause process and claimed at hearing that he had no knowledge of the emails that had been sent from his account.
The Deputy President further found that the Appellant was contradictory in his evidence and responded to the majority of questions with answers ranging from, “I can’t recall” to “there’s no evidence I sent those emails”.
Principles on appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin[1] 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[2]
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.[3] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Grounds of appeal and submissions
The Appellant relied solely on his Form F7 Notice of Appeal. In section ‘2.1 What are the grounds for your appeal?’, the Appellant provided:
“I’m appealing the truth. Compass Group dismissed me very unfairly. They Assumed + Guess it was me without any Face to Face meeting. Me not attending due to medical certificates, report + medication!! If we had face to face meetings then yes my termination is fair.”
On the Form F7 in section 1.2 where the Appellant was asked to provide a description of the decision and/or order he was appealing, he said as follows:
“*I Lawrence never wrote/email compass group.
*I Lawrence was on medication and had medical report. Also a medical report/certificate why I refuse to attend the meetings These evidence sent on hearing date were not mentioned at all.
*All the letters issued were by email and warning letters without any evidence it was me Lawrence. Natasha confirmed it was her that wrote those emails. Assume it was Lawrence he’s fired.
*The bully and underpay wasn’t mentioned at all.
*I was terminated by email no meetings when the border was opened???
*Mel my witness will testify her statement next hearing.
*Covid – I never had covid and I never miscommunicated with my company my area manager told me to stay for 14 days with pay but he never pay me 14 days. This was under paid sorry I checked my payslip yes I was not paid @ all but only 2 days self-isolation
- Border was still open Company (ESS) should force me/threaten me to fly to Australia since I don’t have a medical proof/covid – Like how shane email me saying if you don’t come to Australia you will be fired!!
*Company breaches not mentioned @ all:
*Bully
*Underpay
*Work Injury (health & safety breaches -Burnt finger,
- Asthma
- stress injury
- Nose injury”
Consideration
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. The Appellant’s submissions are very brief and fail to point to any evidence or parts of the Decision that may be infected by error. We consider that the Appellant’s submissions in his F7 are merely an expression of his dissatisfaction with the outcome of the appeal and are an attempt to reagitate the merits of his case as put to the Deputy President at first instance. It is clear that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence before him. We are satisfied that the Deputy President’s conclusions in relation to matters of fact appear to have been reasonably open to him on the evidence before him.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400(1) that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr L Mario, on his own behalf.
Mr A Chamberlain, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
11 October.
[1] (2010) 197 IR 266.
[2] (2010) 197 IR 266 at [27].
[3] Wan v AIRC (2001) 116 FCR 481 at [30].
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