Martin Karaba v Itero Australia Pty Ltd
[2023] FWCFB 245
•11 DECEMBER 2023
| [2023] FWCFB 245 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Martin Karaba
v
Itero Australia Pty Ltd
(C2023/5283)
| VICE PRESIDENT ASBURY | BRISBANE, 11 DECEMBER 2023 |
Appeal against decision [2023] FWC 1754 of Deputy President Binet at Perth on 15 August 2023 in matter number C2022/8342.
Overview
Mr Martin Karaba (Appellant) has lodged an appeal, for which permission is required, against a Decision[1] and Order[2] of Deputy President Binet issued on 15 August 2023 (Decision). The Decision concerned a general protections application involving dismissal lodged by Mr Karaba pursuant to s. 365 of the Act.
The Deputy President upheld the Respondent’s jurisdictional objection, finding that the Appellant had not been dismissed by the Respondent. As a result, there was no jurisdiction to deal with the Appellant’s general protections application involving dismissal, and the Deputy President dismissed the application.
The Respondent requested and the Appellant consented to the appeal being determined on the papers.
Permission to Appeal
The appeal is made under s. 604 of the Act. There is no right of appeal and an appeal may only be made with permission of the Commission. We are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error[3] or a preference for a different result.[4] A Full Bench of the Commission, 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...” [5]
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.[6] 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.[7]
The Decision under Appeal
At paragraphs [15]-[26] of the Decision, the Deputy President summarised the nature of the Respondent’s business and the relevant conditions of the Appellant’s employment. Relevantly, Itero is a rope access provider specialising in work conducted at heights. Due to the risk involved in working at heights, all employees of Itero are strictly bound by the International Rope Access Trade Association (IRATA) standards, the International Code of Practice for Rope Access Work (ICOP), health and safety legislation, site safety policies and procedures and Itero’s policies and procedures. Itero is engaged by Monadelphous Engineering Associates Pty Ltd to perform work at Fortescue Mining’s Iron Bridge Project pursuant to a commercial contract dated 13 October 2022 (Monadelphous Contract).
On 14 September 2022, the Appellant was employed by Itero, on a casual basis, as a Rope Access Level 1 Operator (Tier 2). The Appellant’s employment contract outlined that the Appellant would be primarily based at the Iron Bridge site, but the Respondent may direct him to perform his duties from time to time at any location.[8]
On 1 November 2022, the Appellant breached safety rules by working on ropes without a IRATA Level 3 Supervisor present, in breach of the IRATA International Code of Practice (Safety Breach). The Appellant alleged that his supervisor left the worksite without his knowledge in order to create a ground for dismissing him, due to his cultural background.
After the incident was reported by an Itero supervisor to Mr Lawrence Tufnell, Itero’s Operations Manager, the Appellant was stood down from height duties while Mr Tufnell made further inquiries. Mr Tufnell investigated the Safety Breach and obtained statements from two witnesses who saw the Safety Breach occur: Mr Lloyd Harrop, Itero IRATA Level 3 Safety Supervisor, and Mr Larry Llubit, a Level 1 Rope Technician. Mr Tufnell also sought feedback from the Project Supervisor from Monadelphous who outlined concerns with the Appellant’s unsafe behaviour.
Upon becoming aware of the Safety Breach, the Health and Safety Advisor at Monadelphous, Mr Michael O’Sullivan also conducted his own investigation. Mr O’Sullivan’s investigation found the Safety Breach to be substantiated. On 4 November 2022, Mr O’Sullivan spoke with Mr Tufnell about the removal of the Appellant’s access from the Iron Bridge site pursuant to clause 10.2 of the Monadelphous Contract. Mr Tufnell indicated that it intended to meet with the Appellant and discuss the findings of the investigation and move him to a different site where he could be more closely supervised.
On 7 November 2022, Mr Tufnell and Mr Patrick McCormack, Founder and Director of Itero met with the Appellant to discuss the findings of the investigation and work options moving forward. Mr McCormack and Mr Tufnell informed the Appellant that Monadelphous had advised that he was unlikely to return to their site as the Safety Breach had been substantiated. The Deputy President found that at no stage during the meeting did Mr McCormack or Mr Tufnell mention or threaten to terminate the Appellant; rather, they offered the Appellant the opportunity to work at one of the Respondent’s Perth-based sites where he could be more closely supported and coached by the Respondent’s supervisors.
After the meeting, the Appellant, Mr McCormack and Mr Tufnell went to Ms Jenny McGillemhaoil, Itero’s Operations Coordinator, to organise the Appellant’s transfer to Itero’s Perth-based site. Mr McCormack, Mr Tufnell and Ms McGillemhaoil all recall that at the meeting, the Appellant said words to the effect of “don’t worry, I have some other work lined up”, which they understood to mean that he did not want to proceed with the transfer arrangements. Mr Tufnell and Ms McGillemhaoil both said they told the Appellant to contact them as soon as he was available to work for Itero again. The Appellant denies he was offered the opportunity to transfer.
Mr Tufnell did not hear from the Appellant until 19 November 2022 when the Appellant sent an email requesting further details about the Fortescue investigation. On 24 November 2022, Mr Tufnell sent the Appellant an email attaching correspondence from the investigation and confirming that Itero had not terminated his employment.
In determining whether the Appellant had been ‘dismissed’ for the purposes of s. 365 of the FW Act, the Deputy President had regard to the definition of ‘dismissed’ in s. 386. Itero contended that it had been directed to remove the Appellant from the Iron Bridge Site; it did not dismiss the Appellant, which was confirmed both orally and in writing; Itero’s management offered the Appellant work on another site; the Appellant declined a work offer; and the Appellant remains on Itero’s books. The Appellant denied that any offer to work at another location was offered to him and that this is supported by the lack of written offer from Itero. The Deputy President accepted the evidence of Itero’s witnesses that they had in fact offered the Appellant employment at its Perth city-based site on 7 November 2022.
Further, the Deputy President determined that, contrary to the Appellant’s assertions that his supervisors fabricated the events that led to his dismissal due to his cultural background, Itero did not dismiss the Appellant. Rather, Itero proposed that the incident could be dealt with adequately with counselling without requiring the Appellant’s exclusion from the Iron Bridge Site or disciplinary action. The Deputy President found that if Itero had wished to dismiss the Appellant, it could have relied on Mr O’Sullivan’s investigation findings, or the concerns raised by the Appellant’s supervisor in relation to his attitude at work. Although Itero could lawfully terminate the Appellant’s employment with an hour’s notice, the Deputy President determined that, on the evidence, Itero took multiple steps to continue the Appellant’s employment including by reconfirming in the 24 November 2022 email that his employment had not been terminated.
The Appellant also contended that he resigned from his employment with Itero and was forced to do so because of the conduct of Itero. The Deputy President was satisfied that, on the evidence, this was an attempt by the Appellant to retrospectively recharacterise what occurred to create a legal basis for his claim. The Deputy President noted that the Appellant had more accurately chosen not to accept an offer for a future casual engagement with Itero. Further, there was no contemporaneous evidence that the Appellant declined the offer of work at a Perth city-based site because he viewed it as constituting a dismissal from his employment.
Taking into account all the circumstances, the Deputy President upheld the jurisdictional objection and dismissed the application.
Public Interest
The Appellant submits that granting permission to appeal is in the public interest as the decision “can have a binding consequence for the general public and can give strength to the spoken word, against the contract, against the principles by which it is governed. In general against the principles of law that every democratic legal state must follow. Keeping the power of one witness statement above the contract is significantly against the basic principles established in a democratic country.”
We are not satisfied that any of these matters enliven the public interest and justify the grant of permission to appeal. The Decision concerns the application of the question of whether one individual was dismissed. We do not consider that the appeal raises any issue of importance or general application. The Decision is the result of the orthodox application of legal principles to the facts and there is no diversity of decisions in similar cases that would make it in the public interest to provide appellate guidance.
We are not satisfied that the Deputy President acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her decision, mistook certain facts or failed to take into account material considerations. Further, as discussed below we are not satisfied that an arguable case of appealable error has been established nor that any substantial wrong has occurred.
Appeal Grounds
The Appellant’s grounds of appeal are that the Decision contains significant errors of fact:
“1.FWC did not deal with the issue of the credibility of witnesses, even though there are significant errors in facts with established evidence and the statements.
2. FWC degraded the contract, which is protected by the basic principles of law. The FWC decision established the fact that the contract and the regulations do not have to be respected, and gives power only to witness statements that are significantly contrary to the procedure that should be carried out on the basis of the contract and also legislation such as the Work Health and Safety (Mine) Regulations 2022 [which] can be considered as a significant error in facts.
3. In the process came out that the respondent shared information that he knew was not true, or may not be true, which resulted in the appellant’s ban on the FMG mine sites and with the Monadelphous Company, only because the appellant demanded compliance with the regulation and the contract on November 3, 2022 What can constitute a violation of section 345 of the Criminal Act and establish criminal defamation, because all the attributed have been fulfilled.”
Consideration
The first ground of appeal, in substance, relates to whether there was a proper basis for the Deputy President to prefer the evidence of the Respondent over the Appellant’s evidence in critical respects.
In the matter below, the Appellant’s evidence was that following his removal from the Monadelphous site, he was not offered other work by the Respondent. His evidence included that at the meeting on 7 November 2023, the only matter discussed was the investigation into the safety breach and he denied that there was any discussion with any of the Respondent’s witnesses regarding a transfer to an alternative site. The Respondent’s evidence was that the Appellant was removed from the Monadelphous site at the direction of its client, but that he was to be offered work on the CBD site. However, no formal written offer was made because the Appellant said that he was not interested because he had other work lined up.
The Deputy President had to determine which evidence to accept and at paragraph [57] of the Decision she set out very clearly and comprehensively why she accepted the evidence of the three witnesses for the Respondent and consistent documentary evidence over the Appellant’s evidence. The Deputy President further explained that the Appellant’s assertion that his supervisor fabricated events to cause his dismissal was not supported by any evidence and was inconsistent with evidence that the Respondent took multiple steps to continue his employment.[9] We identify no error in the Deputy President’s consideration, the matters the Deputy President took into account, nor her conclusion, which we consider was clearly open to her.
There is no appealable error in relation to this ground of appeal.
The second ground of appeal, as we discern it, is that in accepting the Respondent’s witness and other evidence, the Deputy President erred by not giving primacy to the terms of the Appellant’s written contract of employment and requirements of health and safety legislation. The Appellant’s contract of employment includes that “the employee will be primarily based at the Ironbridge Site, and if the employee chooses to work in CBD operations, a letter of offer with relevant rates will be issued….”.[10] At clause 3.1 the contract states that “[w]here a position may change from time due to project requirements, the Employee will be notified in writing …”, and clause 25.10 provides that in relation to Licences and Qualifications, an employee will be advised in writing prior to starting on a new project what their tier classification will be.
We discern no error in relation to this ground of appeal. Firstly, the Deputy President made no error in accepting the Respondent’s evidence that it did not progress to make a formal offer to the Appellant to work at the CBD site because he had indicated that he was not interested and had other work lined up. Accordingly, there was no reason to progress to make a formal offer in writing to the Appellant. Secondly, with respect, the Appellant misunderstands the rights and obligations under the contract and disregards other terms including the Respondent’s right to direct an employee to perform duties at any location. Thirdly, even if an obligation in the contract had not been complied with by the Respondent, it does not follow that the Appellant was, as a result of any such breach, dismissed within the meaning of the Act and this contention does not assist the Appellant.
We understand the third ground of appeal, to contend that by the Decision, the Deputy President has endorsed conduct that contravenes work health and safety legislation. The Appellant contends that Mr Tufnell had no legal right to receive and investigate the alleged safety breach that led to the Appellant being removed from the Monadelphous site. Ground 3 does not allege any error relevant to the issue to be determined by the Deputy President, namely whether the Appellant was dismissed by the Respondent. No appealable error is made out in relation to this ground of appeal.
Conclusion
The issue for this Full Bench is whether, in all the circumstances and having regard to the matters set out above in the context of the necessary principles, an appeal should be granted. We are satisfied that the Deputy President has not erred in the application of the principles to the facts and evidence as presented to her.
We do not consider that it is in the public interest to grant permission to appeal. We also discern no appealable error in the Decision.
The Respondent requested an opportunity to advance submissions on the question of costs if the Decision and Order is upheld. The appropriate course is for the Respondent to make an application for costs if it seeks such an order.
Order
We order that permission to appeal is refused.
VICE PRESIDENT
Final written submissions:
Appellant, 25 September 2023.
Respondent, 12 October 2023.
[1] [2023] FWC 1754 (‘Decision’).
[2] PR765207.
[3] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27].
[4] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28].
[5] [2010] FWAFB 5343 at [27].
[6] Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
[7] 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].
[8] Decision at [22].
[9] Decision at [60]-[61].
[10] Appeal Book at pg. 107.
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