Matthew Smith v AWH Pty Ltd
[2017] FWCFB 1981
•11 APRIL 2017
| [2017] FWCFB 1981 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
AWH Pty Ltd
(C2016/6244)
| VICE PRESIDENT HATCHER | SYDNEY, 11 APRIL 2017 |
Permission to appeal against decisions [2016] FWC 5788 and [2016] FWC 6861 of Commissioner Cloghan at Perth on 25 August 2016 and 28 September 2016 respectively in matter number U2016/2275.
Introduction
[1] Mr Matthew Smith (Appellant) has applied for permission to appeal and appealed two decisions 1 of Commissioner Cloghan issued on 25 August 2016 and 28 September 2016 respectively, relating to the Appellant’s application for an unfair dismissal remedy.
[2] The first decision (First Decision) dealt with the issue of whether the Appellant’s dismissal was a case of genuine redundancy. The Commissioner concluded that the Applicant’s dismissal was not such a case. In the later decision (Second Decision), the Commissioner dealt with the merits of the unfair dismissal remedy application and in doing so, he relied on some of the findings made in the First Decision. The Commissioner’s ultimate conclusion was that he was not satisfied that the Appellant’s dismissal, on redundancy grounds, was harsh, unfair or unreasonable. 2
[3] The Appellant commenced full-time employment with AWH Pty Ltd (Respondent) in the position of Business Development Executive (BDE) on 23 March 2015. The Appellant’s employment ceased on 29 April 2016.
[4] This application for permission to appeal was listed for hearing before this Full Bench on 13 December 2016. Prior to the commencement time of the hearing on that day Mr Paul King, representing the Appellant, requested that the hearing be adjourned for reasons which we need not disclose. Mr King was advised that his request would be dealt with at the hearing. The Appellant and the Respondent’s representative, Ms Marnie Briggs attended the hearing. The adjournment request was granted pursuant to s.607(1) and with the consent of the parties to the appeal we determined that the application for permission to appeal could be adequately determined on the papers, without the need for oral submissions.
The Decisions
[5] In the Second Decision, the Commissioner addressed s.387 of the Fair Work Act 2009 (FW Act), which sets out matters that must be taken into account in assessing whether a dismissal was “harsh, unjust or unreasonable”. As earlier indicated and as will become evident below, the Commissioner relied on certain findings made in the First Decision to support conclusions about certain matters in the Second Decision.
[6] In the Second Decision, the Commissioner concluded that the matters to which regard must be had in ss.387(b), (c), (d), (e) and (f) were on the facts as found either not relevant or neutral. 3 The Commissioner went on to consider the matter identified in s.387(a) of the FW Act and his reasoning and findings were as follows (footnotes omitted):
“[16] The Applicant submits that:
‘Subsection 387(a) plainly disclose that a valid reason must relate to ‘the person’s capacity or conduct’. In the ordinary course, a dismissal for redundancy does not involve any reasons related to an employee’s capacity or conduct’.
[17] However, the Applicant refers to UES (Int’l) Pty Ltd v Harvey (UES) [2012] FWAFB 5241 and submits that the facts are dissimilar.
[18] I agree with the Applicant that the facts in this application are different to UES, however, that does not detract from the finding in UES and my earlier decision, that Mr Smith was dismissed because his position had been made redundant.
[19] The majority in UES state:
‘…in our view the reasons for the dismissal of Mr Harvey by UES were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case we regard it as a neutral matter with respect to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable.’
[20] Kaufman SDP, in a separate decision, states:
‘In this case there is no dispute that the respondent’s dismissal was a case of redundancy within the generally understood meaning of that expression. That it was not a genuine redundancy for the purposes of s 385(d), and thus was not excluded from the s 385 definition of ‘unfairly dismissed’, does not detract from the fact that his position was nevertheless redundant.’
[21] In my earlier decision, at paragraphs [32] and [83], I stated:
‘[32] Having considered the guidance provided by the Explanatory Memorandum, I find, on undisputed evidence, that the condition required in s.389(1)(a) of the FW Act has been met. The Employer no longer required the position occupied by Mr Smith to be performed by a discrete person because of changes in the operational requirements of the business.’
…
‘[83] I find, on the evidence, that the tasks and responsibilities of the BDE were distributed to other employees including Mr Ward. No discrete position of BDE exists either structurally or as a whole, but as part of Mr Ward’s position of General Manager South West Region and other employees.’
…
[22]Put shortly, Mr Smith’s dismissal was due to the Employer’s decision (for operational reasons) to abolish the position of Business Development Executive (BDE) and not because of his capacity or conduct.
[23] However, just because Mr Smith’s dismissal was not related to his capacity or conduct, this does not prevent the Commission taking into account whether there was a valid reason for his dismissal, pursuant to s.387(h) of the FW Act.
[24] In view of the fact that Mr Smith’s dismissal was not related to his capacity or conduct, I consider the criteria in s.387(a) of the FW Act not relevant or neutral in my consideration of whether the dismissal was “harsh, unjust or unreasonable.”
[7] The Commissioner then went on to consider the degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal. The Commissioner’s reasoning and findings were as follows:
“[25] Before referring to the respective submissions, in my view, the plain and
ordinary meaning of the criteria in s.387(g) of the FW Act, is that it has effect, and must be taken into account, if there is an “absence of dedicated human resource specialists or expertise”. Further, for the criteria to take effect, or be operative, is in situations where the lack of human resources expertise would be expected, and most probably did, have an impact on procedures followed in effecting the employee’s dismissal.
[26] I do not think it can be seriously contested that AWH has dedicated human resource specialists or expertise. Consequently, the criteria cannot be taken into account, because the circumstances required for it to take effect, do not exist. There was no absence of human resource specialists or expertise.
[27] In my view, the submissions of both parties, with respect to s.387(g), are more appropriately matters for consideration pursuant to s.387(h) of the FW Act.
[28] For the reasons in paragraphs [25] to [27] above, I consider the criteria not relevant or neutral in my consideration of whether the dismissal was “harsh, unjust or unreasonable”.”
[8] The Commissioner then turned to consider other matters which might be relevant pursuant to s.387(h) of the FW Act and he determined as follows (footnotes omitted):
“[29] Section 387(h) of the FW Act provides the Commission with significant latitude
to consider a range of relevant matters not specifically covered in ss.387(a) to (g).
[30] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:
‘In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly.’
[31] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[32] The decision for the Commission to make is whether the decision was “harsh, unjust or unreasonable”. The interrelationship between the statutory provisions of “valid reason” and “harsh, unjust and unreasonable” is best expressed in the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24 in the following paragraphs:
‘128. ...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’
…
130. That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (168). But the question...is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.’ (my emphasis)
[33] As I stated in my earlier decision, there was overwhelming and undisputed evidence that AWH no longer needed the position of BDE to be performed by a discrete employee because of changes to the business. Accordingly, I am satisfied that there was a valid reason for Mr Smith’s dismissal consistent with the meaning in Selvachandran. A valid reason to dismiss an employee is, subject to other matters, demonstrative of a dismissal that is not harsh, unjust or unreasonable.
[34] Further, in my earlier decision I came to the view that Mr Smith was adequately informed about the major change occurring in the AWH business, other positions which had been abolished, the increasing warehouse capacity, the abolition of equivalent positions interstate and why his position was to be made redundant.
[35] The fact that there was a valid reason for Mr Smith’s dismissal and that he was aware of, and informed of, the evolving changes to the operational requirements of the business are matters which I consider relevant, and of significant weight, in considering whether the dismissal was not harsh, unjust or unreasonable.
[36] I now turn to a countervailing factor submitted by Mr Smith of my finding that the Employer, “at the time of abolishing the BDE position” did not pay sufficient attention as to whether [Mr Smith] could be reasonably employed into another position .
[37] The Applicant’s submission as to why his dismissal was harsh, unjust or unreasonable is reduced to the following:
- failure of the Employer to discuss whether he could be reasonably redeployed into another position;
- his age, domestic circumstances and financial situation;
- lack of performance issues; and
- “at the time of his employment in March 2015, AWH should have been aware of the downturn in its business and the fact that it may have been left with no alternative but to make redundancies, it should have advised Mr Smith instead of letting him believe that the position to which he applied was secure and long term”.
[38] I now turn to each of these factors, as to why Mr Smith considered his dismissal harsh, unjust and unreasonable.
[39] In my earlier decision, I made a finding that the Employer did not “discuss with Mr Smith measures to avert or mitigate the adverse effect” of his position being abolished. Further, AWH did not diligently apply itself to determine whether there were positions available into which Mr Smith could be redeployed.
[40] While those matters in paragraph [39] above went to the provisions of s.389(2) of the FW Act, my consideration in s.387(h) of the FW Act is less specific, and more broader, when enquiring into whether the dismissal was “harsh, unjust or unreasonable”.
[41] In my earlier decision, I made the following observations:
‘[92] Notwithstanding my finding with respect to the Employer not meeting the provisions of s.389(2) of the FW Act, I do not accept entirely the evidence of Mr Smith regarding the reasonableness of being redeployed into the positions he suggested he could be redeployed into.
[93] Mr Smith’s evidence regarding s.389(2) of the FW Act, must take into account self-interest.
[94] Mr Smith’s self-interest was evident with respect to his evidence that he could have fulfilled the role of a number of positions, would have considered an interstate position with a salary of $30,000 less than he was currently earning and was prepared to “job share”. In my view, his evidence was best summarised when he stated that the ‘could have gone into…anything’.
[95] Rather than be measured with respect to redeployment, his evidence reached a crescendo in cross examination as follows:
‘But did you expect us to make somebody else redundant to provide you with a position?---Why not? You made me redundant’.’ (footnotes omitted).
[42] The context of Mr Smith’s dismissal is that:
- the Employer’s workforce in Western Australia had reduced by over 30% in the 2015/16 financial year as a result of a downturn in business;
- Mr Smith was one of 16 employees whose position has been abolished;
- two (2) comparable BDE interstate positions had been abolished; and
- Mr Smith had been employed for a period of approximately 13 months.
[43] Mr Smith submits that he was ‘qualified for the position of BDE having worked in the industry for a significant number of years and his qualifications should be taken into account’.
[44] Mr Smith is a chef by trade . Mr Smith’s experience ‘in the industry’ related to a hospitality supply company’s warehouse where he was, ‘forced into a role where I was basically operations manager for the warehouse’. Mr Smith’s qualifications, apart from being a Chef, were a couple of units at the Australian Institute of Management.
[45] While Mr Smith gave evidence that he was capable of doing ‘anything’, I am not persuaded that, even if there were positions where he could be considered for redeployment (which the Employer denies), there was any certainty or possibility of him filling the position.
[46] Mr Smith may have had a desire that he be redeployed, however, the total context evinces the Applicant’s hope rather than sureness.
[47] In my earlier decision, I made a finding that the Employer did not give sufficient attention to redeployment opportunities. That finding related to the genuineness of the redundancy, pursuant to the FW Act. In view of the evidence of both parties and the context Employer’s business, I am not persuaded to reach a conclusion that, even if the Employer gave sufficient attention to redeployment opportunities, speculating on whether Mr Smith could be reasonably redeployed, is the proper way to address whether the dismissal was harsh, unjust or unreasonable.
[48] In my view, objectively assessing the evidence and looking at the Employer’s business situation, I am satisfied that the inferences lead to a conclusion that Mr Smith could not have been reasonably redeployed into a position elsewhere in the business. It was in Mr Smith’s best interests to give evidence that he would accept redeployment into ‘anything’. However, when the Commission considers all the relevant factors involved in redeployment, Mr Smith’s desire to be redeployed is but one factor and this should not become the overriding factor. In my view, to adopt such a course of action, would result in an injustice or unreasonable outcome when balancing the needs of the employee and employer (s.381(1)(a) and (b) of the FW Act).
[49] In summary, notwithstanding the determining role redeployment plays when considering ‘genuine redundancy’ in s.389 of the FW Act, the relevancy of this matter is not determinative when considering s.387 of the FW Act. Redeployment opportunities (if any) are not conclusive of whether a dismissal is ‘harsh, unjust or unreasonable’ but as the majority of the Full Bench stated in B, C & D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 ‘involves a weighing process’ (p58). It is in the ‘weighing process that the Commission considers whether the dismissal was ‘harsh, unjust or unreasonable’.
[50] I now turn to Mr Smith’s domestic circumstances, age and financial position.
[51] For many, at any age, being dismissed after a position is abolished is never a good situation. For each individual employee, there are numerous factors which may be put to the Commission as to why the dismissal is ‘harsh’. In Mr Smith’s case, he is 41 years of age. I am unable to say whether 41 years is worse than 31 years or 51 years of age. If Mr Smith was 61 years, it could be argued that his employment opportunities are limited but at the same time, it could be submitted that the employee had enjoyed many years of uninterrupted work.
[52] Being dismissed almost simultaneously with having a new-born child is not an ideal situation. However, the Commission, in assessing this submission, must recognise that a family’s decision to have a child, is not an event which the Employer has any control over. Further, it could be relatively argued that Mr Smith’s situation is less detrimental than, for example, when a child is entering their school years.
[53] With respect to the dismissed employee’s financial circumstances, no details were provided in submissions except to say that Mr Smith is required to pay a mortgage. While obviously difficult, it is a situation faced by many Australians especially in circumstances of a downturn or reshaping of our economy. It is not necessary to enquire into all the details of Mr Smith’s financial circumstances, save to say that a dismissal from employment (for whatever reason) will affect a person’s financial circumstances; however, the precise impact varies from person to person.
[54] I have considered these factors in coming to a determination of whether the dismissal was ‘harsh, unjust or unreasonable’.
[55] I now turn to the issue of Mr Smith’s performance. The Employer did not allege poor performance but it was notable that the warehouse vacancy which he was required to reduce actually increased between 50% and 100% during his period of employment. This is an observation and not a judgement of Mr Smith’s performance.
[56] In evaluating this submission, I am mindful that this was not a case of the Employer having to choose between two BDEs where performance may be a determining factor. It is a case of one BDE position being abolished. Further, even if poor performance was an issue, does that override a person’s age, financial and domestic circumstance? This question demonstrates the difficulty of the Commission in having to weigh up all the circumstances.
[57] I now turn to the final submission that Mr Smith should not have been led to believe that the BDE position was secure and long term.
[58] In my view, this is a reconstruction of the employment relationship after Mr Smith’s dismissal. The Employer knew it had to create business to decrease its warehouse space and decided to do that through ‘business development’. Hence the reason for creating the BDE position and employing Mr Smith. I would be surprised if Mr Smith, having worked in the industry, did not understand that demand for your employer’s products or service keeps a warehouse ‘ticking over’ and employees in a job.”
Consideration
[9] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[10] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(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.
[11] 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 s.400 as “a stringent one”. 5 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment6. 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.” 7
[12] It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error. 8 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.9
[13] 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. 10
[14] We are not persuaded that any of the grounds of appeal on which the Appellant relies raise any issue of importance or general application nor do any of those grounds disclose an arguable case of error. Our reasons for this conclusion follow below.
[15] The Appellant contended that permission to appeal should be granted because it is in the public interest to do so. The Appellant’s notice of appeal asserted that the public interest was enlivened as the appeal identified significant errors of law and in fact manifesting an injustice to the Appellant. For reasons that will shortly become apparent we are not persuaded that is the case. The Appellant’s grounds of appeal are numerous but may broadly and conveniently be summarised as follows:
1. Generalised grounds alleging error without providing particulars of any error;
2. Procedural fairness grounds;
3. A ground alleging the non-disclosure of a possible conflict of interest on the part of the Commissioner;
4. Grounds alleging error in respect of the evidence about statements made by Ms Danni Clark;
5. Grounds alleging error in the Commissioner’s consideration and assessment of some of the evidence and/or a failure on the Commissioner’s part to take into account “all of the evidence”; and
6. A ground alleging error as to the manner in which the Commissioner conducted the proceedings.
Generalised allegations of error (Grounds 1– 5)
[16] Grounds 1 to 5 of the notice of appeal on their face do not disclose an arguable case of appellable error. These grounds are:-
- Commissioner Cloghan “strayed into error in refusing to grant the Appellant’s substantive application and dismissing it”;
- Commissioner Cloghan “erred in finding” that the Appellant’s dismissal was not harsh, unfair or unreasonable in all the circumstances;
- Commission Cloghan “erred in law in that he failed in accordance with section 381(2) FW Act 2009 to accord the Applicant a fair go all round”;
- Commissioner Cloghan “erred in that he failed to accord the appellant natural justice/due process”; and
- Commissioner Cloghan “erred in finding that there was a valid reason for Mr Smith’s dismissal”.
[17] These grounds seem simply to summarise grounds later advanced in the notice of appeal. The errors asserted by the Appellant largely involve a generalised complaint about the result, without pointing to any relevant or probative matter which might point to the possibility of an erroneous factual finding, legal conclusion, or any other House v King 11type of error. Consequently, these grounds do not provide any basis for granting permission to appeal.
Procedural fairness (Ground 22)
[18] Ground 22 of the notice of appeal related to email correspondence between Mr King and the Chambers of the Commissioner. Mr King sent an email to the Commissioner’s Chambers on 28 September 2016 at 10.50am. The content of the email was as follows (omitting formal parts):
“In reference to the above mentioned matter.
Does the Applicant get a right of reply to the Respondents submissions?
I also advise that the Applicant will be filing a document today seeking leave of the Commission to address certain matters in the Respondents submissions that the Respondent introduced in its submissions evidence that was not in any of the filed or evidence heard at trial etc.”
[19] The following email response was sent to Mr King from the Chambers of the Commissioner on 28 September 2016 at 12.54pm (omitting formal parts):
“Re: U2016/2275 Smith v AWH Pty Ltd
The Commissioner advises that the Directions issued on 5 September 2016 properly reflects the agreed position discussed at the conference on the same day. Please see paragraph [4].
As you know, the time and date in paragraph [5] of the Directions was changed at your request.
Further, please see attached the Commissioner’s Decision on the matter.”
[20] The Commissioner issued directions to the parties on 5 September 2016 following a conference earlier that afternoon. The parties agreed to each file and serve written submissions by Friday, 16 September 2016. The directions were amended at the Appellant’s request and the parties were directed to file their submissions by Monday, 20 September 2016.
[21] At no point prior to the email of 28 September 2016 did the Appellant raise any concern about the directions not making a provision for a reply nor did the Appellant request that the directions be varied so as to make such provision. The Respondent’s materials were filed on 19 September 2016. The Appellant had ample time to seek leave to file submissions in reply prior to 28 September 2016 but did not do so. The Appellant’s application to file submissions in reply was made 9 days after the Respondent’s materials had been filed.
[22] There is no explanation given for the delay in making the request. Moreover, it is apparent on the face of the materials before us that the Commissioner had already decided the matter, given the Second Decision was published on 28 September 2016, shortly after the request was received. Furthermore, as noted in the email correspondence above, the directions issued by the Commissioner reflect the earlier agreed position of the parties as to the further conduct of the matter. The email correspondence from Mr King neither identifies the basis for the request to file further submissions nor the particular matters in the Respondent’s submissions to which any reply would be directed. In these circumstances, we are not persuaded that an arguable case of error has been made out.
Conflict of interest (Ground 9)
[23] The Appellant asserted that the Commissioner failed to disclose to the Appellant a possible conflict of interest that may have existed in him hearing the Respondent’s jurisdictional objection. The Appellant submitted that the Commissioner should have made a declaration about DP World prior to the commencement of the hearing of the Respondent’s jurisdictional objection and relies on PN911 of the transcript of proceedings.
[24] The following extract from the transcript records the relevant exchange between the Commissioner and Mr King:
“MR KING: He said he has done hundreds of redundancies. He's experienced, he
knows what to do. They, in making a redundancy, they should have consulted the Fair Work Act as well and had regard to that.
THE COMMISSIONER: I think Mr Ward's focus would be in DP World most probably trying to get back the contracts that they had lost some time ago.
MR KING: Well, no, we don't know about contracts in DP World, Commissioner.
THE COMMISSIONER: I do unfortunately.
MR KING: Well, that wasn't put in evidence so it's - - -
THE COMMISSIONER: No, it's just a by the way comment.
MR KING: Yes, well we don't know that, you see, and you do. It wasn't raised in his evidence.
THE COMMISSIONER: No.
MR KING: And we say there was the interaction there. He's aware of it.
THE COMMISSIONER: Yes.
MR KING: And the HR department, they also had legal counsel who should be advising them as well, Commissioner, who would tell them ‘Section 389 of the Act, we have to comply with that if it's going to be a genuine redundancy’. We have not seen any evidence that that has occurred, Commissioner. They have a dedicated human resources department. It's not small and - - -
THE COMMISSIONER: I made no comment because I don't know.” 12
[25] The Commissioner’s comment recorded in transcript is opaque. However Mr King, for the Appellant, did not then seek clarification of the comment nor did he raise any objection at the time the comment was made. Further, the Appellant did not raise any concern after the jurisdiction hearing or after delivery of the First Decision. The Appellant did not raise any issue about the comment during the telephone conference of 5 September 2016 at which the program for filing further submissions as to the merits of the application was settled. Moreover, the Appellant proceeded to file subsequent submissions without complaint about the Commissioner’s earlier comments or any suggestion that the comment raised a possible conflict of interest.
[26] The Appellant first raised the issue in his notice of appeal, even though there was ample opportunity to raise it at the various stages noted above. The Appellant is bound by the conduct of his case before the Commissioner and we are not persuaded that the ground of appeal now sought to be advanced, in the circumstances described above discloses an arguable case of error.
Evidence of Ms Clark (Grounds 14 and 15)
[27] The Appellant said that the Commissioner erred in finding that Mr Matthew Smith’s evidence, which was to the effect that Ms Clark, the State Administration Manager of the Respondent, had said at the meeting on 13 January 2016 that there would be no more redundancies, did not have probative value. The Appellant argued that the Respondent did not produce any evidence to the contrary.
[28] The Appellant also said that the Commissioner erred in finding that, in relation to the alleged comment of Ms Clark, its veracity could not be tested in the circumstances and so the conclusion that the evidence was of no probative value was erroneous. The Appellant maintained that the Commissioner failed to take into consideration that the Respondent could have asked Ms Clark to attend the hearing to give evidence. We are not persuaded that these grounds of appeal or the submissions made in support of them disclose an arguable case of error. First, the evidence identified is hearsay in nature and the circumstances in which the evidence was adduced meant that that was not able to be tested.
[29] Secondly, the evidence identified was not contained in materials filed by the Appellant and the Respondent only became aware of the evidence during the hearing. Prior to the hearing on 15 August 2016 at which time Ms Clark’s alleged comment was raised for the first time, the Respondent had no knowledge of the comment alleged and no notice that the Appellant would rely upon it.
[30] The Appellant said that in effect he did not disclose the comment to his representative, until consulting with Mr King prior to the hearing. 13 Be that as it may, the Respondent nonetheless was not in the position to respond to the evidence presented at the hearing. It was for the Appellant to take such steps as were available to him to prove the veracity of the comment relied upon. There is no suggestion that the Appellant requested an adjournment to call Ms Clark and it is no answer that the Respondent might have done so. The hearsay evidence was thus very weak. It was given without context and it was unsurprisingly described by the Commissioner as not probative. The probative value of the evidence needs also to be assessed against that which on the face of the First Decision appears to be the Commissioner’s reliance on the minutes of the meeting and the Finance Manager’s report in March 2016 to conclude that further redundancies were a possibility.14
[31] Thirdly, the Commissioner’s description as to the probative value of the hearsay evidence is contained in the First Decision 15, which was published on 25 August 2016. Armed with this knowledge, the Appellant made no request at the conference held on 5 September 2016 or subsequently to adduce further evidence and instead agreed that the proceeding would be conducted to finality on the filing of written submissions. Again, the Appellant was bound by the way he conducted the case at first instance and we are not persuaded that an arguable case of error has been made out.
- Consideration and assessment of evidence (Grounds 6 – 7, 10 – 11 and 20) / Failure to take into account (Grounds 8, 12 – 13 and 16 – 19)
- Failure to take into account
[32] The Appellant said that the Commissioner erred in that he “failed to take into consideration all the evidence before him” in finding that the Appellant was adequately informed about the major changes occurring within the Respondent’s business and that if there were redeployment positions, there was not any certainty or possibility of the Appellant filing them. Further, the Appellant said that the Commissioner erred in finding that the tasks and responsibilities of the BDE were distributed to other employees including Mr Ward and that the Respondent no longer required the position occupied by the Appellant. Lastly, the Appellant says that the Commissioner erred in that he “failed to consider all the evidence” in respect of the Respondent’s financial position.
[33] The failure to take into account grounds advanced by the Appellant do not point to any particular error in the Commissioner’s reasoning or factual findings. Rather the grounds raised do no more than complain that the Appellant’s case was not accepted and the Respondent’s case was preferred. We are not persuaded that an arguable case of error has been made out.
- Consideration and assessment of evidence
[34] The Appellant said that the Commissioner erred in his objective assessment of the evidence in finding that the Appellant could not have been reasonably redeployed into a position elsewhere. Further, the Appellant said that the Commissioner erred in finding that he preferred the evidence of Mr Ward that he has assumed some of the tasks and not all of the duties of the BDE 16 and in finding that the Respondent no longer required the position occupied by Mr Smith to be performed by a discrete person.
[35] The Appellant said that the Commissioner erred in finding that the Appellant reshaped consultation after the event and further said that the Commissioner erred in finding that he was unable to accept any submissions that the Appellant was not aware of the major change or the expected effects of the consolidation of work sites, and that the Commissioner was also in error in concluding that further redundancies, including the abolition of the BDE position, was a possibility due to the Respondent’s need to reduce costs.
[36] As appears to be the case with other grounds advanced by the Appellant and discussed above, the failure to take into consideration grounds advanced do not point to any particular error in the Commissioner’s reasoning or factual finding. Rather the grounds appear to do no more than complain that the Appellant’s case was not accepted and the Respondent’s case was preferred. We are not persuaded that an arguable case of error has been made out.
Conduct of proceedings (Ground 21)
[37] On 17 January 2017, the Appellant sought leave to amend his notice of appeal. The amended notice of appeal raised an additional ground concerning the conduct of proceedings. The Appellant submitted that the Commissioner erred in that he continually allowed Ms Briggs to ask of its witness leading questions and offer up evidence not known to the Appellant from the bar table during examination in chief and in cross examination.
[38] The Respondent said that there was no justification for this ground of appeal and said that the Appellant was afforded a sufficient opportunity to present his case before the Commissioner. The Respondent submitted that the Appellant was represented at all stages of the matter by Mr King, who was an experienced industrial relations practitioner. The Respondent by comparison was represented by its sole Human Resource Manager, Ms Briggs, and it was Ms Briggs’ first appearance in the Commission.
[39] Members of the Commission have ultimate responsibility for the conduct and control of proceedings before them. The Commission is not bound by the rules of evidence and procedure in relation to a matter before it. 17 However, rules of evidence and procedure are not thereby to be completely ignored. Members of the Commission will likely be more flexible about the strict adherence to such rules when, as here, an inexperienced representative is appearing. So far as the conduct of the proceedings may be discerned from the material before us, it is apparent from the transcript that objection was taken only once and, on that occasion, determined in the Applicant’s favour.18 No other objection was taken. As an experienced practitioner, the time for the Appellant’s representative to raise objection to the conduct of proceedings was during the proceedings. No point is taken nor is any issue raised in submissions filed subsequently. We are not persuaded that an arguable case of error has been made out.
[40] Simply disagreeing with the decision at first instance does not provide a basis for satisfying the public interest test for the grant of permission to appeal. On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner’s exercise of his discretion, of the kind discussed in House v King. 19 We also do not consider that an arguable case has been made out that the Commissioner's conclusion was unreasonable, manifested by any injustice or counter-intuitive. Nor are we persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise. In accordance with s.400(1) of the FW Act, permission to appeal is refused.
VICE PRESIDENT
Final written submissions:
2017.
Melbourne:
13 February.
1 [2016] FWC 5788 and [2016] FWC 6861
2 Second Decision at [59]
3 Second Decision at [14]
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 (2011) 192 FCR 78 at [43]
6 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]
7 [2010] FWAFB 5343, 197 IR 266 at [27]
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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 388, 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]
10 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
11 (1936) 55 CLR 499
12 Transcript PN908 – PN919
13 Applicant’s Reply Submissions dated 13 February 2017 at [33]
14 First Decision at [56]
15 First Decision at [55]
16 First Decision at [81]
17 FW Act s.591
18 Transcript PN76 – PN78
19 (1936) 55 CLR 499
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591694>
3
13
0