Martin Barlow v Australian Federal Police
[2021] FWCFB 2627
•10 MAY 2021
| [2021] FWCFB 2627 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Martin Barlow
v
Australian Federal Police
(C2021/1060)
VICE PRESIDENT CATANZARITI | SYDNEY, 10 MAY 2021 |
Appeal against decision [2021] FWC 574 of Commissioner Hunt at Brisbane on 5 February 2021 in matter number U2019/13642 – permission to appeal refused.
[1] On 5 February 2021, Commissioner Hunt delivered a decision (the Decision) in respect of an application which had been filed on 5 December 2019 (the Application), under s. 394 of the Fair Work Act 2009 (Cth) (the Act), by Mr Martin Barlow (the Appellant), seeking relief in respect of the termination of his employment. The Commissioner dismissed the Application after finding there was a valid reason for his dismissal and that the dismissal was otherwise neither harsh, unjust nor unreasonable, within the meaning of s. 387 of the Act. The Appellant seeks to appeal the Decision.
[2] The appeal is pursuant to ss. 400 and 604 of the Act for permission to appeal and appeal the Decision. The appeal was listed before the Full Bench on 6 April 2021 for submissions as to permission to appeal only. Both parties had filed written submissions prior to the hearing. The Appellant was represented by Ms G Adams, Solicitor, and Ms A Coulthard of Counsel represented the Respondent, with permission being granted by the Full Bench, pursuant to s. 596 of the Act.
Decision at First Instance
[3] In the Decision, the Commissioner identified the Appellant’s conduct which was said to be valid reasons for the decision to dismiss him, being that he failed to comply with the Professional Standards of the Australian Federal Police (the AFP) whilst on international deployment to Papua New Guinea (PNG) by:
(a) Having a sexual relationship with a PNG national;
(b) Bringing that PNG National into the AFP safe compound by covert means (on at least one occasion); and
(c) Returning the PNG National to her mother’s home in the early hours of the morning in an AFP marked vehicle.
[4] The Commissioner found that conduct constituted a valid reason for dismissal having regard to the Appellant’s obligations as an AFP appointee, the effect of his misconduct on the safety and welfare of other employees, and reputational damage to the AFP, 1 particularly regarding the AFP’s ongoing relationship with a critical international partner in the pacific, PNG.
[5] As to ss. 387 (b)–(g) of the Act, the Commissioner found that the Appellant was notified of the reason for the termination, given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made, 2 and that the AFP is well resourced and there is no absence of dedicated human resource specialists.3
[6] As to s. 387(h) of the Act, the Commissioner had regard to the Appellant’s length of service, how others who had engaged in similar conduct had been treated, the impact of the termination on the Appellant, and the Appellant’s lack of honesty, judgment and insight. 4 The Appellant also raised mitigating circumstances being his satisfactory or better than satisfactory performance of his work during the investigation process, and not taking sick leave during that time.5 Having considered each of the matters specified in s.387 of the Act, the Commissioner was satisfied that the dismissal of the Appellant was not harsh, unjust or unreasonable.6
Permission to Appeal Principles
[7] This appeal is one to which s. 400 of the Act applies. 7 Section 400 provides that:
(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.’
[8] 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 section 400 as “a stringent one.” 8 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.9 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:10
‘… 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.’
[9] 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. 11 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.12
Grounds of Appeal
[10] The principal grounds of appeal outlined by the Appellant can be summarised as follows:
[11] The Appellant submitted that the decision of Commissioner Hunt had significant errors of both fact and law, and that there were public interests grounds that leave to Appeal ought to be granted.
[12] Regarding public interest, the Appellant’s focus was on the length of the investigation into the Appellant’s conduct, being almost one year. The Appellant asserted that the decision raised important issues regarding length of investigation, and the Appellant’s employment for nearly a year in a role in Australia during that investigation, where the appellant performed work. The Appellant submitted that this situation did not correlate with the Commissioner’s findings that the Appellant could not continue in his employment due to alleged trust and integrity failures of the Code of Conduct. The Appellant referred to another decision of the Commission where length of investigation and failure to stand down an employee were considered relevant.
[13] The Appellant submitted that the Decision was manifestly unjust due to various conclusions made by the Commissioner regarding the weight or regard to be accorded to certain facts, and one finding that the Appellant lied in the initial discussions with an AFP investigator.
[14] The Appellant finally submitted that the Commissioner made a number of errors of law and/or fact.
Consideration
[15] The question of whether the Appellant was unfairly dismissed had to be determined in accordance with the relevant provisions of the Act. The Commissioner applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.
[16] Many of the appeal grounds and submissions relied upon by the Appellant relate to the Commissioner’s findings, which led to the conclusion that the Appellant’s dismissal was not harsh, unjust or unreasonable pursuant to s. 387 of the Act. We are not satisfied that there is an arguable case of error in relation to those findings.
[17] We are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.
[18] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[19] For the reasons set out above, we are not satisfied, for the purpose of s. 400(1) of the Act, that it would be in the public interest to grant permission to appeal.
[20] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms G Adams on behalf of the Appellant
Ms A Coulthard, of counsel on behalf of the Respondent
Hearing details:
2021
Telephone hearing.
April 6.
Printed by authority of the Commonwealth Government Printer
<PR729678>
1 Decision at [394].
2 Decision at [399] to [412].
3 Decision at [418].
4 Decision at [428] to [434], and [436] to [440].
5 Decision at [435].
6 Decision at [445].
7 See Australia Postal Corporation v Gorman [2011] FCA 975 at [37].
8 (2011) 192 FCR 78 at [43].
9 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].
10 [2010] FWAFB 5343 at [27], 197 IR 266.
11 Wan v AIRC (2001) 116 FCR 481 at [30].
12 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 288, 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].
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