Maria Panera v Qantas Airways Limited
[2015] FWCFB 6715
•16 OCTOBER 2015
| [2015] FWCFB 6715 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Qantas Airways Limited
(C2015/4968)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 16 OCTOBER 2015 |
Appeal against decision [2015] FWC 4527 of Senior Deputy President Drake at Sydney on 10 July 2015 in matter number U2014/10369.
[1] On 10 July 2015 Senior Deputy President Drake handed down a decision 1 dismissing an application made under s.394 of the Fair Work Act 2009 (‘the Act’) by Ms.Maria Panera. On 30 July 2015 Ms.Panera filed an appeal against the decision.
[2] Ms.Panera was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. The matter was listed for hearing on 29 September 2015.
[3] As the decision was from an unfair dismissal decision, s.400 applied to the appeal. That section provides:
‘400 Appeal rights
(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.’
[4] Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, 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 counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters2.
The decision
[5] The Senior Deputy President considered the allegations relied upon by Qantas for the termination of Ms.Panera’s employment. She found that there was a valid reason for termination of employment arising out of a booking made by Ms.Panera on 2 December 2013 for a friend (allegation 1), a booking for personal friends on 21 February 2014 (allegation 2), ticketing of a booking on 5 April 2014 for a personal friend (allegation 3), a booking for an ‘early bird’ fare which had expired for a personal friend on 22 March 2014 (allegation 4), a booking on 3 October 2014 for relations (allegation 5), bookings on 11 November 2013 for persons one of whom was a colleague (allegation 6), bookings on 16 November 2013 to access ‘early bird’ fares which had expired (allegation 7), and bookings on 6 May 2014 (allegation 8), a failure to charge a cancellation fee on 14 May 2014 for a personal friend (allegation 9). She made findings in relation to each of the other matters in s.387 of the Act. Finally, in weighing up the matter and any other relevant matters she took account of a range of issues including whether or not other employees engaged in the same or similar practices. She found that the termination with notice was not harsh, unjust or unreasonable and dismissed the application.
Submissions
[6] Ms.Panera filed two written submissions, which considerably exceeded the length required in the directions. Nevertheless we have had regard to both submissions. In the first submission 3, Ms.Panera submitted that she was not given a fair go at the termination meeting, that the Commission erred in: finding that it was common practice using and applying the ‘pricing’ techniques, gave insufficient weight to the context in which the nine transactions took place, in finding that other employees had not engaged in the same or similar conduct, in finding that there was a cohesive policy prohibiting the conduct of the appellant, in finding that there was no evidence of a culture of breaching the fare rules, in not ordering Qantas to produce documents in relation to a wider audit process of the sales desk transactions, in finding that Qantas had no reason to audit the appellants compliance with the fare rules, in not accepting documents which should it was common practice to utilise manual overriding techniques to provide cheaper tickets, in finding that no further submissions on merit or mitigation should or would make any difference to the decision to terminate, in giving insufficient weight to Ms.Panera’s age, length of service and very good employment record, future employment prospects and detrimental effects on her financial situation, the fact that she was terminated one day prior to exiting the business by way of voluntary redundancy therefore not receiving large redundancy payments, and other matters.
[7] In the second submission Ms.Panera repeated many of these submissions. She submitted that the Commission erred in finding that there was no evidence of a culture of breaching the fare rules, in finding that there was a loss of revenue caused by Ms.Panera, in not ordering that Qantas produce wider audit documents, and also put submissions on the public interest. She submitted that it was in the public interest to allow permission to appeal because of decisions such as Carter v. Qantas 4, and other matters. She sought to tender new evidence, a policy issued on 9 June after her dismissal which she submitted dealt with issues relevant to her dismissal.
[8] In oral submissions she submitted that the Commission erred in finding in paragraph 111 that she breached Qantas policy, because there was no such policy 5, and she sought to rely on new evidence to support her claim, namely a new policy introduced by Qantas6. She submitted that there was a culture of breaching the fare rule7, and that the Commission erred in finding that no other sales agent engaged in the same conduct as her8. She submitted that the Commission erred in finding that there was a loss of revenue9, and that the Commission relied on a witness, Mr.Mahoney, who did not appear at the hearing10. She submitted that the Carter v. Qantas case was not properly taken into account11, and that the Commission did not properly disclose a personal relationship with a witness12. She sought to address alleged public interest considerations which warranted granting permission to appeal, including that the Commission should address alleged inconsistencies in decisions, namely between the decision under appeal and the Carter v. Qantas case13. She submitted that the termination was inconsistent with the employer agreement that she exit the business by way of redundancy14.
Consideration
[9] In Carter v. Qantas 15, the Commission at first instance found in a complex and carefully reasoned decision that Qantas had no valid reason to terminate the employment of an employee of Qantas, and made a number of observations on the evidence before it. On appeal a Full Bench of the Commission refused leave to appeal16, but also found that there was a valid reason for termination of employment:
[39] The error we are persuaded the Commissioner has made is taking into account the diverse matters she did in paragraph [81] when the requirement, for the purposes of s.387(a), was to consider whether Qantas had a valid reason to dismiss Mr Carter. The finding that it was questionable whether he had any valid operational reasons to make the changes he did was of significance and, in our opinion, given insufficient weight by the Commissioner. In fact the evidence established, and the Commissioner accepted it to be so, that there was no operational reason for Mr Carter to have made many of the changes to the bookings which he did make.
[40] We are also of the opinion that in considering whether a valid reason was established the Commissioner gave insufficient weight to the number of changes made where the customer was not to fly into or out of Brisbane Airport, where some changes were made outside the 12 month period of the ticket and where the booking was weeks or months in advance of the proposed travel date. In our opinion the evidence supported the submission of Qantas that it had a valid reason to dismiss Mr Carter. It was a reason which could properly be described as sound, defensible or well founded. In finding to the contrary the Commissioner was in error.
[10] Qantas submitted that unfair dismissal cases invariably turn on their own facts, and the quotation above indicates that it is sometimes difficult to directly apply conclusions reached in other similar matters. The observations quoted above show that the Commission in that decision was dealing with specific evidentiary issues not directly relevant in the present matter, and in any event if they were relevant they might not be helpful for Ms.Panera in the case before us.
[11] In our view the Senior Deputy President had proper regard to the decision, and expressly referred to it in her decision at paragraph 106. In addition, the Commission had to make its decision on the evidence and submissions before it, which it did. There is no error and no public interest to be addressed by granting permission to appeal having regard to the Carter decision.
[12] The Commission found at paragraph 111 of the decision that Ms.Panera breached ‘Qantas policies’. She considered the evidence before her and made a number of findings (paragraphs 13-17). In our view it was open to her to accept the evidence of Mr.English, Qantas Marketing Manager Pricing and Investory Asia (paragraph 13), and to do so in preference to other evidence. She was also entitled to make other findings of fact, accepting the evidence of Mr.English, and Mr.Grace at paragraph 26, Mr.English and Mr.Lynch at paragraph 33, Mr.English and Mr.Wakefield at paragraph 40, Mr.English and Mr.Grace at paragraph 47, Mr.English at paragraph 54, Mr.English and other similar findings at paragraphs 69, 78-80, and 93-94. The Senior Deputy President made relevant findings on the disputed matters based on the evidence. This included the issues of Qantas fare policy, the culture and practices within the company, and the impact of Ms.Panera’s conduct on Qantas. We note that Ms.Panera has made many challenges to the findings of fact made by her Honour. However, this matter is not a rehearing, but rather pursuant to s.400 significant error must be demonstrated and public interest grounds for granting permission to appear. In our view the Senior Deputy President made findings on the facts which were open to her. There was no significant error of fact. We also find no basis to conclude that the Senior Deputy President failed to have regard to relevant evidence.
[13] The Senior Deputy President considered the impact of the termination on Ms.Panera’s redundancy entitlement. She weighed that matter with the other relevant matters she was required to consider. We can see no error in her approach or her conclusions.
[14] Ms.Panera submits that it was relevant that termination once given cannot be withdrawn without the consent of either party, and cited Adventure World Travel v. Newsom 17. In this case Ms.Panera expressed an interest in a voluntary redundancy in a letter of 4 April 2014, and on 19 April 2014 she was advised by letter that her employment would cease on 10 June 2014. Before that occurred her employment was terminated on 6 June 2014.
[15] The obligations of employee and employer under a contract of employment do not cease on notice being given or by agreement to a redundancy at a later date. Obligations continue until termination or variation, including the obligation to pay wages and the duty to comply with lawful and reasonable directions 18. There is no error.
[16] In relation to the issue of alleged bias, the Senior Deputy President disclosed to Ms.Panera, who was also represented, the fact that Ms.Karen Sorenson was a ‘close personal friend of a very close friend of mine and I know her children’ 19. After an adjournment to enable Ms.Panera to consider her position, the Commission was advised by her representative that there was no issue20. Ms.Sorenson was not a witness in the proceedings, although apparently also employed by Qantas, as an Operation and Compliance Co-ordinator.
[17] The test for apprehended bias is well established. If a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question a judicial officer may disqualify himself or herself. The application of the test requires two steps. First it requires the identification of what is said might lead a judge to decide a case other than on its legal and factual merits. Secondly there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion of an interest will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated and the reasonableness of the asserted apprehension is assessed. In the absence of satisfaction of the test tribunal members have a duty to hear and determine matters before them 21.
[18] Ms.Panera sought to tender new evidence, which included an email from Ms.Sorenson dated 9 June 2015, and photographs which appear to be of the Senior Deputy President in the company of a number of people including Ms.Sorenson. The usual principles for the admission of new evidence include that the evidence is such that there is a high degree of probability that there would have been a different outcome, and that the evidence is credible: Power Projects International Pty Ltd v. AMWU 22, and Akins v. National Australia Bank23. In this case these tests are not satisfied. Even if we admitted the evidence it would not raise any inconsistency with the disclosure made by the Senior Deputy President. The email and photograph are of almost no probative value. There is no reason to depart from the usual approach that new evidence is not accepted on appeal until a rehearing is conducted. We refuse leave to accept new evidence: Ancon Chemicals Pty Ltd24. The Senior Deputy President quite properly disclosed her relationship with Ms.Sorenson, and Ms.Panera through her legal representative accepted that the matter should continue to final determination.
[19] In relation to a Qantas policy document dated 31 May 2015, and other evidence, again using the same tests we do not consider that it is of any probative value in determining this appeal. The Commission carefully considered the witness evidence of Mr.English and others, and made findings in relation to that evidence which was open to it. The new document does not have any persuasive bearing in relation to the evidence led by the parties and assessed by the Commission. It does not lead us to conclude that there was a significant error of fact made by the Commission, or some other error. In our view the evidence sought to be tendered should be refused. While it is of a later date to the decision, and was therefore not available at the time of the initial hearing, it has no probative value which can assist us in our task under s.400 or elsewhere in the Act.
Conclusion
[20] In our view there are no grounds which warrant permission to appeal. The matter does not raise issues of importance and general application, there is no diversity of decisions, or decision which manifests an injustice, or counterintuitive result, or other matter warranting permission to appeal. We dismiss the appeal. An order is contained in PR572983.
DEPUTY PRESIDENT
Appearances:
Ms M Panera, the applicant
Ms H McKenzie, lawyer for the respondent
Hearing details:
2015
Melbourne and Sydney (by video)
29 September
1 [2015] FWC 4527
2 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266.
3 Appeal Book, tab 2
4 [2011] FWA 8025
5 PN24
6 PN37-61
7 PN67
8 PN75
9 PN91-98
10 PN102
11 PN103
12 PN111-145
13 PN107
14 PN110
15 ]2011] FWA 8025, 25 November 2011
16 [2012] FWAFB 5776
17 [2014] NSWCA 147 at 27
18 Bayley v. Osborne (1984) 4 FCR 141 at 145 per Davies J
19 PN1162
20 PN1170
21 R v Watson;Ex parte Armstrong (1976) 136 CLR 248; Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner).
22 [2011] FWAFB 1327 paragraph 12
23 (1994) NSWLR 155 at 160
24 Full Bench, PR941634
Printed by authority of the Commonwealth Government Printer
<Price code c, PR572406>