Marco Pronk v Woolworths Group Limited
[2020] FWCFB 2121
•24 APRIL 2020
| [2020] FWCFB 2121 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Marco Pronk
v
Woolworths Group Limited
(C2020/1093)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 APRIL 2020 |
Appeal against decision [2020] FWC 633 of Commissioner Simpson at Brisbane on 6 February in matter number U2019/6769 - No arguable case of appealable error – Public interest not enlivened – Permission to appeal refused.
[1] Mr Marco Pronk has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision issued by Commissioner Simpson on 6 February 2020 1 (the Decision), for which permission to appeal is required.
[2] The Decision concerned an application by Mr Pronk under s.394 of the Act for an unfair dismissal remedy in respect of his employment with Woolworths Group Limited Pty Ltd (the Respondent).
[3] The Commissioner had previously granted Mr Pronk an extension of time in which to file his unfair dismissal application having been filed outside of the legislated timeframe. 2 The Commissioner then in dealing with the merits of Mr Pronk’s application, held that his dismissal was neither harsh, unjust or unreasonable and thus not unfair.3
[4] In his Notice of Appeal, Mr Pronk (the Appellant) contends that the Decision of the Commissioner was in error in a number of respects, and that it would be in the public interest to grant permission to appeal the Decision.
[5] There is no right to appeal a decision of the Fair Work Commission (Commission) and for an appeal to proceed s.604(1) of the Act requires the Commission to grant permission. Appeals against an unfair dismissal decision are also subject to s.400(1) of the Act which provides that permission to appeal is only available where the Commission considers that it is in the public interest to grant permission; and further where an error of fact is alleged it must be a significant error, pursuant to s.400(2) of the Act.
[6] Both the Appellant and the Respondent have provided written submissions on whether permission to appeal should be granted and the parties were advised on 23 March 2020 that in view of current circumstances the matter would be determined on the written material filed. The Appellant has filed written submissions on 19 March and 26 March 2020, and 14 April 2020. The Respondent filed a written response on 7 April 2020.
[7] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. Rather, the task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Background and Decision
[8] The Appellant was previously employed by the Respondent in the role of DC Storeperson, Day Shift, Supply Chain – Operations at the Brisbane Regional Distribution Centre. On 13 May 2019 a safety incident occurred involving the Appellant. The Appellant was operating material handling equipment (MHE) and, in attempting to manoeuvre between pallets and a parked forklift, had a collision and appeared to slip from his seat. After the collision, the Appellant realigned his MHE and drove away from the scene; he did not report the incident. The incident was recorded on CCTV footage.
[9] The Commissioner accepted that the incident could have resulted in serious injury and that the Appellant had failed to report the incident as required, and that his actions created an unacceptable risk to safety. The Commissioner did not accept the Appellant’s reason for not reporting the incident. The Commissioner noted that the Appellant had previously been involved in numerous safety incidents (the Respondent submitted 12 safety incidents) and in July 2018 had received a final warning and suspension in relation to a safety incident where he was driving a forklift.
[10] The Commissioner found that there was a valid reason for the dismissal for reasons including that the Respondent had lost confidence in the Appellant’s capacity and willingness to follow safety rules. 4
Appeal Grounds
[11] the Appellant’s appeal grounds are stated under 2.1 What are the grounds for your appeal? of the Form F7 in the following manner:
“There was false and misleading information given, as well as evidence with held (sic) in this matter. Please also see 3.1 below for the grounds of appeal”.
[12] Section 3.1 of the Form F7 requires the Appellant to set out the matters that enliven the public interest for the Commission to grant permission for the appeal. Seven pages of submissions under headings of Training, Investigation, Mitigating Circumstances and Summary are then dedicated to this question and presumably also contain the grounds of appeal.
[13] The submission concludes with references to sayings of Booker T Washington and Mark Twain, as well as the Work Health and Safety Act 2011 (NSW), the ‘Dreamworld investigation and Coroners findings’; and, finally stating at paragraph [24]:
“It is in the public’s interest that this matter be reviewed, as the respondents have breached policies & procedures, but also the law.”
[14] The appeal grounds as we can ascertain do not identify any aspect of the Decision that is said to have been in error as opposed to presenting what appears to be a forensic re-examination of the evidence that was before the Commissioner in the first instance, raising new issues and either drawing conclusions or asking rhetorical questions.
[15] This approach is continued in the Appellant’s written submissions with extensive references to the transcript of the hearing and by concluding that the Respondent has breached policies, procedures, laws and its duty of care by not providing a safe workplace, training, instruction or supervision. It was also submitted by the Appellant that the Respondent has “also wilfully and deliberately falsified documents about me” (the Appellant), 5 and “to lie and commit perjury at the hearing & their statements” (sic).6
[16] Without directing attention to any specific part of the Decision, the Appellant in his response to the written submissions of the Respondent, states that “Commissioner Simpson has acted on evidence inconsistent with facts incontrovertibly or glaringly improbable evidence, with his decision based on false and everchanging stories from the Respondents.” 7
Respondent’s submissions
[17] The Respondent submits that permission to appeal should not be granted as nothing has been put by the Appellant that raises public interest considerations nor has it been established by the Appellant that the Decision contains any significant error of fact. The Respondent submits that the Decision is consistent with case law relating to safety breaches in similar unfair dismissal cases.
[18] It is contended by the Respondent that due to the Appellant’s dissatisfaction with the Decision, the appeal is no more than an attempt to re-run his case before the Full Bench of the Commission.
Appeal considerations
[19] An appeal under s.604 of the 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.8 As stated above, there is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] This appeal, being one challenging an unfair dismissal decision, is subject to the tests set out at s.400 of the Act which have been described by the Federal Court as ‘stringent’. 9 These tests are set out at ss.400(1) and (2) of the Act as follows:
“(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.”
[21] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.10 The Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 11
[22] As an appeal cannot succeed in the absence of appealable error, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.12 The fact that the Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.13
[23] Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits.
Consideration
Public Interest
[24] We have considered the submissions advanced by the Appellant and have been unable to identify any sustainable public interest grounds. the Appellant has not satisfied us that the Decision raises any issues of importance or of general application, nor has the Appellant identified any decisions of a similar nature to allege a disharmony with other decided cases.
[25] To the extent that the submissions raise any contention of appealable error we do not consider them to be seriously arguable having regard to the fact that no specific reference is made to any of the Commissioner’s findings.
[26] We also do not consider that the Commissioner’s conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded that the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on any question.
Significant error of fact
[27] In addition to the public interest requirements of s.400(1) of the Act, an appeal relating to an unfair dismissal must, if alleging errors of fact, be on the ground that any error of fact involved a significant error of fact as per s.400(2) of the Act. It is not clear from the appeal filed and the submissions advanced by the Appellant what, if any, error is alleged to have been made by the Commissioner.
[28] The Appellant states that the Commissioner acted on evidence inconsistent with facts or improbable evidence and that his decision was based on false and everchanging stories from the Respondent’s witnesses. This boldly made assertion is not accompanied with any specific reference in the Decision that this Full Bench could find was arguably a significant error of fact. What is put by the Appellant is an extensive re-agitation of the merits of his application rather than identifying appealable error.
[29] On the material before us, and for the reasons stated above, we are not persuaded that the matters set out in the grounds of appeal raise any arguable case of material error in the exercise of the Commission’s discretion of the kind discussed in House v King 14 or as otherwise required by s.400(2) of the Act. The Commissioner considered all the issues raised by the Appellant and the conclusions in the Decision were reasonably open to be made by the Commissioner.
[30] We are not satisfied that an arguable case of appealable error has been established. The Decision of the Commission is not one attended by sufficient doubt to warrant its reconsideration, nor are we persuaded that substantial injustice will result if permission to appeal is refused.
[31] We do not consider the grant of permission to be in the public interest, nor do we consider there is any other basis upon which permission to appeal should be given. Permission to appeal is therefore refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant’s written submissions dated 14 April 2020.
Respondent’s written submissions dated 7 April 2020.
Printed by authority of the Commonwealth Government Printer
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1 [2020] FWC 633.
2 [2019] FWC 6770.
3 [2020] FWC 633.
4 Decision [95] – [102].
5 Written submission of 26 March 2020 at [11.5].
6 Written submissions of 19 March 2020 at [10].
7 Written submission of 14 April 2020 at [16.5].
8 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2) of the Act; see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
9 The Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) at (43).
10 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
11 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
12 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
13 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
14 (1936) 55 CLR 499 at 505.
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