Martin Sheng Lei Huo v Mandoon Estate
[2023] FWCFB 233
•21 DECEMBER 2023
| [2023] FWCFB 233 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Martin Sheng Lei Huo
v
Mandoon Estate
(C2023/6792)
| DEPUTY PRESIDENT BINET | PERTH, 21 DECEMBER 2023 |
Appeal against decision [2023] FWC 2707 of Commissioner Schneider at Perth on 17 October 2023 in matter number U2022/10085- permission to appeal refused
On 6 October 2023, Mr Martin Sheng Lei Huo lodged an appeal against a Decision[1] and Order[2] issued by Commissioner Schneider on 17 October 2023 for which permission to appeal is required. In the Decision, the Commissioner found that Mr Huo had not been unfairly dismissed within the meaning of s 385 of the Fair Work Act2009 (Cth) (Act), and dismissed Mr Huo’s application for an unfair dismissal remedy.
The matter was listed for permission to appeal only. The parties consented to the matter being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be determined without the need for oral submissions. Accordingly, the application has been determined on the basis of Mr Huo’s Notice of Appeal and the written submissions filed by both parties.
For the reasons that follow, permission to appeal is refused.
Relevant background
The Respondent is a hospitality venue in the Swan Valley of Western Australia, consisting of a winery, brewery, hotel, and several restaurants.
Mr Huo was employed by the Respondent from 13 November 2021 as a kitchen hand. His employment was covered by the Hospitality Industry (General) Award 2020 (the Award). Mr Huo was dismissed from his employment on 13 October 2022.
Mr Huo’s dismissal arose from the events of Saturday, 1 October 2022, which can be summarised as follows:
(a) Mr Huo’s shift on 1 October 2022 commenced at 8:00am.
(b) During Mr Huo’s shift, his supervisor, Mr Hong Sun, became concerned about Mr Huo’s fitness for work. Mr Sun instructed Mr Huo to go home. There was no expectation or instruction for Mr Huo to return to work on 1 October 2022.
(c) Mr Huo returned to the Respondent’s premises between approximately 9:15pm and 9:45pm that night.
(d) Mr Huo had a verbal exchange with Mr Sun, concluding with Mr Sun instructing Mr Huo to go home. This was followed by an argument between Mr Huo and the head chef, Mr Anthony Power.
(e) Mr Huo was next rostered to work on Sunday, 2 October 2022.
Mr Huo’s case at first instance was that:
(a) He returned to work on the night of 1 October 2022 to get a head start on the next day’s work.
(b) He had one drink at home on 1 October 2022 at approximately 4pm.
(c) Mr Sun told him to leave the workplace. In the change room, Mr Power confronted him and told him that he’d never experienced a worker walking out mid-service. Mr Huo tried to communicate to Mr Power that he did not walk out and that he was instructed to go home.
The Respondent’s case at first instance was that:
(a) After sending Mr Huo home during his shift on 1 October 2022, he went to a music festival being held next door to the Respondent’s premises. The Respondent produced a screenshot of a Facebook message Mr Huo sent to a co-worker at 8:55pm on 1 October 2022, where Mr Huo effectively told the co-worker there was a “party next door” and asked if he wanted to attend (Co-worker Message).
(b) At the music festival, Mr Huo became intoxicated.
(c) When Mr Huo returned to the workplace at 9:15pm, he was under the influence of alcohol or drugs. The Respondent relied on the evidence of Mr Sun, who said Mr Huo smelled of alcohol, was slurring his words and appeared to have a facial twitch.[3]
(d) When Mr Sun spoke with Mr Huo, Mr Huo was argumentative and did not leave the workplace when directed by Mr Sun.[4]
(e) When Mr Huo went to the change rooms, Mr Power followed him. Mr Power told Mr Huo not to speak to Mr Sun in a disrespectful manner. Mr Power’s evidence was that Mr Huo was argumentative, did not seem to understand what Mr Power was saying, and had slurred speech.[5]
On 3 October 2022, the Respondent suspended Mr Huo and asked him to attend a meeting on 6 October 2022 to discuss allegations that he attended the Respondent’s premises while not on duty and under the influence of alcohol and/or drugs at the time.
At the meeting, Mr Huo apologised for being argumentative. Mr Huo denied being under the influence of alcohol or drugs and explained that he had consumed one drink on 1 October 2022 at approximately 4pm. Mr Huo further explained that his behaviour was due to fatigue and his mental condition.
On 10 October 2022, the Respondent notified Mr Huo via letter that the allegations had been substantiated and asked him to show cause as to why his employment should not be terminated. Mr Huo responded as requested.
On 13 October 2022, the Respondent notified Mr Huo via letter that his employment was terminated for breaching the drug and alcohol policy, which had led to a breakdown of trust and confidence.
Decision under appeal
After addressing initial matters, the Commissioner considered whether there was a valid reason for Mr Huo’s dismissal for the purposes of s 387(a) of the Act. The Commissioner noted that as the dismissal related to Mr Huo’s conduct, he needed to be satisfied that the conduct occurred and that it justified termination.[6]
The Commissioner found that Mr Huo attended the music festival on 1 October 2022 and that he presented at the workplace intoxicated on the night of 1 October 2022.[7] The Commissioner made an adverse credibility finding against Mr Huo, preferring the evidence of Mr Sun and Mr Power as to the events of 1 October 2022.
The Commissioner found that Mr Huo’s conduct was wilful and breached the Respondent’s workplace drug and alcohol policy,[8] and thereby gave rise to a valid reason for the dismissal.[9]
As to the other considerations in s 387, the Commissioner was satisfied that:
· Mr Huo was notified of the reason for his dismissal and given an opportunity to respond to that reason before the decision to dismiss him was made.[10]
· The Respondent did not unreasonably refuse a request for a support person as no such request was made.[11]
· Mr Huo’s dismissal did not relate to unsatisfactory performance such that s 387(e) was not relevant.[12]
· The matters in ss 387(f) and (g) had no impact on the dismissal process.[13]
· As to Mr Huo’s contention that there were other relevant matters such as not being promoted as promised; underpayment issues; workplace bullying; lack of job security; increased workload due to a recent public holiday; and accuracy of his timesheets, the Commissioner found that Mr Huo had not provided evidence in support of these contentions. Further, though Mr Huo had provided copies of timesheets and photos or tasks and workstations, Mr Huo did not provide detail or explanation in support of his position.[14]
The Commissioner accepted that Mr Huo may have been suffering from fatigue on 1 October 2023 due to recent long hours. However, the Commissioner found that there was no evidence to support the argument that fatigue was the sole cause of the Mr Huo conduct,[15] and concluded that the dismissal was not unfair.[16]
Principles – permission to appeal
There is no right to appeal. An appeal may only proceed with the permission of the Commission.
Section 400(1) provides that the Commission must not grant permission to appeal from a decision made “under this Part” unless the Commission considers that it is in the public interest to do so. The “Part” s 400(1) refers to is Part 3-2 of the Act, which includes s 394 of the Act. Section 400(1) accordingly applies to this appeal. The test under s 400 is, “a stringent one”.[17]
The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[18] The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest: [19]
“... 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...”
It will rarely be appropriate to grant permission to appeal unless the appellant demonstrates arguable case of appealable error. This is because an appeal cannot succeed in the absence of an appealable error.[20] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[21]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[22]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[23]
““Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
For there to be a legal error, it is not enough that a different member or an appellate body might have reached a different conclusion. The appellant must show that the Commissioner acted on a wrong principle; took into account irrelevant matters; mistook facts;[24] or that the outcome is unreasonable or plainly unjust.[25]
Grounds of appeal and public interest
Considering Mr Huo’s Form F7 Notice of Appeal together with written submissions, we understand that Mr Huo raises four grounds of appeal. These can be summarised as follows:[26]
(1) The Commissioner’s finding that Mr Huo had attended the music festival next to the Respondent’s premises on 1 October 2022 was a significant error of fact. This is because Mr Huo has evidence of his movements and location on 1 October 2022 which demonstrate that he was not at the music festival.
(2) During the show cause process, the Respondent did not show the Co-worker Message to Mr Huo. Accordingly, Mr Huo did not have the opportunity to defend or explain his messages during the Respondent’s investigation and decision to terminate his employment.
(3) Mr Huo has text messages between himself and Mr Sun regarding his request to be converted from casual to full-time employment. Further, Mr Huo has text messages from Mr Sun that are inappropriate or unprofessional in nature.
(4) Mr Huo has text messages from co-workers requesting that Mr Huo drive them to and from work as they had lost their drivers licences. This shows that the Respondent inconsistently enforces its drug and alcohol policy amongst staff as those co-workers did not lose their jobs.
Mr Huo submits that it is in the public interest to grant permission to appeal to ensure that the Respondent is held accountable for how it manages its employees. Mr Huo contends that he can demonstrate a pattern of unjust behaviour by the Respondent that has affected multiple people.
The Respondent’s written submissions regarding the grounds of appeal can be summarised as follows:
The decision to dismiss Mr Huo was based on reasonable grounds, including evidence that Mr Huo was intoxicated at the workplace. There was no significant error of fact.
The Respondent considered all available evidence. Mr Huo’s location throughout the day is irrelevant to the case and Mr Huo’s dismissal.
Mr Huo’s dismissal was due to misconduct, not due to any alleged discussions regarding conversion to full time employment.
The Respondent takes seriously any claims of unprofessional behaviour. However, those allegations are separate from the grounds for dismissal.
Other co-workers not having their driver’s licences are unrelated to the reason for Mr Huo’s dismissal.
Fresh evidence
In these proceedings, Mr Huo seeks to rely upon new evidence that was not tendered at first instance. This evidence is a screenshot of Mr Huo’s location timeline in Google Maps (Google Maps Location Timeline) on 1 October 2022, and a series of text messages from February to October 2022 between Mr Huo and co-workers in support of appeal grounds (3) and (4).
It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins).[27] In that matter, the New South Wales Supreme Court identified the following three requirements which must be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.
We decline to admit the Google Maps screenshot and the text messages as fresh evidence in the appeal as we are not satisfied that the requirements of Akins are met. Mr Huo has not provided an explanation as to why he did not seek to rely upon this material, which was clearly available to him, at first instance. Further, having considered the screenshot and text messages, we are not satisfied that they have sufficiently high probative value such that there is a high degree of probability that it would lead to a different result.
Consideration
We have considered Mr Huo’s grounds and submissions in support of his application. We are not satisfied that Mr Huo’s grounds of appeal give rise to an arguable case of appealable error.
Mr Huo’s contention by appeal ground (1) that the Commissioner made a significant error of fact in finding that Mr Huo attended the music festival on 1 October 2022 does not demonstrate any arguable error. The valid reason found for Mr Huo’s dismissal concerned his return to the workplace while unfit for work and in violation of the Respondent’s workplace drug and alcohol policy, not any attendance at the music festival. Mr Huo has not sought to challenge this core finding in his appeal. The question of whether Mr Huo attended the music festival has no material bearing upon the Commissioner’s unchallenged conclusion that Mr Huo’s conduct upon his return to work on 1 October 2022 gave rise to a valid reason for his dismissal.
Appeal ground (2) contends that the Respondent did not show the Co-worker Message to Mr Huo prior to making the decision to terminate Mr Huo’s employment. Mr Huo’s contention is that this denied him procedural fairness. However, Mr Huo has not connected his concerns about the Respondent’s conduct to any aspect of the Decision. Consistent with our observations at [33] above, the valid reason for Mr Huo’s dismissal concerned his conduct upon his return to work, not because of any attendance at the music festival. Any failure on the Respondent’s part to disclose the Co-worker message during the investigative process does not demonstrate any arguable case of appealable error in the Commissioner’s Decision.
There is no dispute that Mr Huo was dismissed by the Respondent. Though the matters raised by Mr Huo in appeal ground (3) may relate to grievances between the parties, they do not disclose any arguable error in the Decision.
As to appeal ground (4), consistent with our observations at [33] above, the valid reason for Mr Huo’s dismissal concerned his conduct upon his return to work. The fact that other employees may have breached road safety rules by consuming alcohol and driving is irrelevant to the reasons relied upon by the Respondent for Mr Huo’s dismissal. Nor did Mr Huo raise this matter in the proceedings at first instance. Ground (4) is therefore incapable of supporting any arguable contention of error in the Decision.
Conclusion
We are not persuaded that it would be in the public interest to grant permission to appeal. We do not find that a reasonably arguable case has been advanced that the Decision was attended by appealable error.
We have considered whether the appeal attracts the public interest and we are not satisfied, for the purposes of s 400 of the Act, 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 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. It follows that we must refuse permission to appeal.
Permission to appeal is refused.
DEPUTY PRESIDENT
[1] [2023] FWC 2707.
[2] PR767324
[3] Ibid at [56]-[57].
[4] Ibid at [55], [61].
[5] Ibid at [64], [66].
[6] Ibid at [75].
[7] Ibid at [88]-[92].
[8] Ibid at [92].
[9] Ibi at [96].
[10] Ibid at [97]-[102] and [103]-[108].
[11] Ibid at [109]-[112].
[12] Ibid at [113].
[13] Ibid at [114]-[116].
[14] Ibid at [117]-[121], [124].
[15] Ibid at [123].
[16] Ibid at [127], [129], [131].
[17] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43].
[18] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 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].
[19] [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[20] Wan v AIRC (2001) 116 FCR 481 at [30].
[21] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[22] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29].
[23] [2000] HCA 47; 203 CLR 194 at [19].
[24] And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a “significant error of fact”: s 400(2) of the Act.
[25] House v The King (1936) 55 CLR 499 at 505.
[26] Form F7, 2.1 and 3.1.
[27] Akins v National Australia Bank [1994] 34 NSWLR 155 at 160.
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