Matthew Reid v Broadspectrum

[2015] FWCFB 519

[2015] FWCFB 519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Matthew Reid
v
Broadspectrum Australia Pty Ltd
(C2014/7954)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL MELBOURNE, 29 JANUARY 2015

Appeal against decision [2014] FWC 7108 of Commissioner Hampton at Adelaide on 5 November 2014 in matter number U2014/6520 - public interest not enlivened - permission to appeal refused.

[1] Mr Matthew Reid (the appellant) was dismissed from his employment with Broadspectrum Australia Pty Ltd (Broadspectrum) on 24 March 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act).

[2] On 5 November 2014 Commissioner Hampton dismissed Mr Reid’s application for relief. 1 Mr Reid has sought permission to appeal the Commissioner’s decision and that is the matter before us.

[3] The decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 2 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission 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.” 4

[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. 5 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.6

[6] Broadspectrum was contracted to provide labour to the BHP Billiton Olympic Dam Corporation Pty Ltd (BHPB) operations at Olympic Dam in the far north of South Australia. Mr Reid was a senior electrician employed by Broadspectrum and assigned to perform work for BHPB. Mr Reid was a casual employee, however he met the requirements of s.382 and hence was ‘protected from unfair dismissal’ for the purpose of Part 3-2 of the FW Act.

[7] Mr Reid’s appeal is directed at paragraphs [74]-[76] of the Commissioner’s decision,:

“[74] It is evident to me that the actual reason for dismissal was that in the context of the casual employment relationship, Mr Reid had been absent without notifying his employer and when contacted by the client seeking an ongoing replacement, a replacement employee was provided by Broadspectrum.

[75] By the time that Mr Reid was fully fit to resume work, which was a requirement of BHPB, the replacement employee had been in place for a period and BHPB, as the client, had indicated that they were happy with that employee. As a result, by the time of the 24 March 2014 meeting, the NPI work was no longer available for assignment to Mr Reid and this was the reason for the dismissal.

[76] This is a sound and objective reason for dismissal, however it is not related to Mr Reid’s capacity or conduct in the sense contemplated by s.387(a) of the Act.” (emphasis added)

[8] The appellant challenges the Commissioner’s finding that BHPB had indicated to the respondent that they were happy with the Broadspectrum employee who had replaced Mr Reid while he was absent from work due to a non work related back injury.

[9] The observation which is the subject of the appellant’s challenge was based on Mr Briel’s evidence regarding a conversation he had with a Mr Edwards. Mr Briel was the area manager for Broadspectrum and Mr Edwards was a superintendant within the relevant department of BHPB.

[10] The appellant accepts that the Commissioner’s decision in respect of this issue was based on the evidence in the proceedings before him 7 and that he cross examined Mr Briel, but did not challenge his evidence in relation to this issue.

[11] Mr Edwards did not give evidence in the proceedings at first instance. At some time after the Commissioner handed down his decision Mr Reid met with Mr Edwards. Mr Reid says that during the course of their conversation Mr Edwards said things that were inconsistent with Mr Briel’s evidence before the Commissioner. On the basis of his conversation with Mr Edwards, Mr Reid submits that ‘Mr Briel has misled the Commission, accidentally or otherwise, by claiming Mr Edwards said that he was happy to keep my replacement before my actual dismissal’. In effect Mr Reid seeks to reopen his unfair dismissal proceedings so that Mr Edwards can be called to contradict Mr Briel’s evidence.

[12] The appeal process is not intended to provide an avenue for an unsuccessful party to rerun their case, absent error on the part of the primary decision maker. We are not persuaded that the appellant was denied the opportunity to challenge Mr Briel’s evidence, or to call Mr Edwards, in the proceedings at first instance. Nor is there any evidence before us that would warrant the grant of permission to appeal.

[13] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.

PRESIDENT

Appearances:

The Appellant: Mr Reid in person

The Respondent: Mr G. Gosling

Hearing details:

Sydney with video link to Melbourne and Adelaide

20 January 2015

 1  [2014] FWC 7108

 2   (2011) 192 FCR 78 at paragraph 43

 3   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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.

 4   (2010) 197 IR 266 at paragraph 27

 5   Wan v AIRC [2001] FCA 1803 at [30]

 6   GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 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 in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 7   Appeal Transcript at PN42

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