Metecno Pty Ltd T/A Bondor v I Cameron
[2014] FWCFB 1207
•19 FEBRUARY 2014
[2014] FWCFB 1207 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
I Cameron
(C2013/7529)
SENIOR DEPUTY PRESIDENT WATSON | |
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 19 FEBRUARY 2014 |
Appeal against decision [[2013] FWC 8902] of Commissioner Deegan at Canberra on 13 November 2013 in matter number U2013/7743 - Appeal dismissed.
[1] On 4 December 2013, Metecno Pty T/A Bondor (the Appellant) filed an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act) against the decision of Commissioner Deegan of 13 November 2013 1 in U2013/7743. The decision concerned an application under s.394 of the Act by Mr I Cameron (the Respondent) seeking relief in respect of the termination of his employment by the Appellant.
[2] In her decision, Commissioner Deegan found that the manner in which the termination occurred was harsh (s.385(b) of the Act), the Respondent had been unfairly dismissed (s.385) and made an order for compensation in lieu of reinstatement (s.392 of the Act).
Approach to the Appeal
[3] An appeal under s.604 of the Act in a matter of this kind, concerning a decision made under Part 3–2 (Unfair Dismissal) is subject to s.400 of the Act, which provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA 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.”
[4] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin C 2 considered the impact of s.400 of the Act on the approach to granting permission to appeal:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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 seems to us that none of those elements is present in this case.”
[5] The decision in this matter is properly viewed as a discretionary decision. 3 The appeal is therefore to be considered in accordance with the principles of House v R.4
[6] Section 400(2) of the Act modifies the House v R principles by limiting any review based on a mistake of fact to a significant error of fact. Section 400 of the Act clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than in other matters under the Act.
Background to the termination
[7] The Respondent was employed with the employer and its predecessor companies from 1977-2001 at which time he changed his status to that of a contractor. His status reverted to that of employee in 2006.
[8] The employment of the Respondent was terminated on and with effect from 7 February 2013. The termination followed two incidents in the preceding three months:
• On 27 November 2012, the Respondent directed two employees from the factory to attend a worksite with some contractors to dismantle a cold store. During the operation one of them was injured. The incident raised issues in respect of the Respondent’s responsibility for the unauthorised nature of the work concerned and his failure to ensure that the work was carried out safely.
• In early January 2013, a contractor who had not undergone an induction was discovered onsite in the factory. The incident raised issues concerning the Respondent’s knowledge of and responsibility for the presence of the contractor who had not been inducted.
[9] The November incident was investigated by the Appellant in late 2012, with the Appellant’s National OHS Manager completing a Hazard Incident Investigation Report, 5 which he provided to the Appellant’s General Manager, Mr G Marsdon prior to Christmas 2012. There was no suggestion of disciplinary action against the Respondent at the time of the Christmas shut-down.
[10] On his first day back after Christmas shut-down, Mr Marsdon, received a call from the State Manager, who informed him that the Respondent had engaged a contractor who had been onsite without any induction process. Mr Harris had directed the contractor to leave the site. By that time, Mr Marsdon had “more or less come to the conclusion that [the Respondent’s] mistakes around the [pull-down job] had amounted to misconduct sufficiently serious to justify dismissal”. 6 The advice about the contractor issue in January 2013 caused Mr Marsdon to seek advice as to how to proceed and he arranged to meet with the Respondent.
[11] The process thereafter involved both meetings and exchanges of correspondence between Mr Marsdon and the Respondent:
• Mr Marsdon handed a letter to the Respondent at a meeting on 29 January 2013, setting out a series of events and actions Mr Marsdon considered by the Respondent to be serious misconduct, raising a general allegation that the Respondent failed to adhere to policy concerning the hiring and induction of employees, allegations concerning the November 2012 incident and an allegation that the Respondent had engaged a contractor after Christmas without authority and without induction. 7 The Respondent was stood down on pay and asked to provide a response;
• The Respondent responded in writing on 29 January 2013, addressing each of the allegations. 8
• Mr Marsdon responded in a letter of 4 February 2013 9 in respect of each allegation, concluding that the Respondent had exposed the Appellant to potential prosecution under Work Health Safety legislation and a substantial damages claim by the worker injured on 27 November 2012, and unless the Respondent wished to further respond, his employment would be terminated with immediate effect. The Respondent was afforded a further day to respond.
• Mr Marsdon advised the Respondent of the termination of his employment in a letter dated 7 February 2013. 10 The letter relied entirely on the November 2012 incident and the serious consequences it exposed the Appellant to. It indicated that since the Respondent had been summarily dismissed, he was not entitled to notice.
The Commissioner’s Decision
[12] Before proceeding to consider whether the termination was harsh, unjust or unreasonable (s.385(b) of the Act), Commissioner Deegan was satisfied as to each of the other elements of s.385 of the Act, necessary to find that the Respondent was unfairly dismissed. 11 No issue was taken with these findings on appeal.
[13] The Commissioner then addressed each of the statutory matters in s.387 of the Act in determining whether the termination was harsh, unjust or unreasonable. She found:
• The Respondent’s failures in relation to the November 2012 incident constituted a valid reason for the termination of his employment and, in that circumstance, it was unnecessary to determine whether the Respondent was aware of, or condoned, the presence of the contractor who had not been inducted in early January 2013; 12
• The Respondent was notified of the reason for the dismissal and was given every opportunity to respond to the allegations against him; 13
• The Respondent was accompanied by a support person in meetings concerning the termination; 14
• The Respondent’s “termination was not for reasons of unsatisfactory performance”; 15
• The Appellant is a very large company and the procedures adopted in effecting the termination were not adversely affected by the size of the organisation and there was no suggestion that a lack of dedicated human resources specialists had affected the Appellant’s ability to deal with the termination; 16 and
• The Appellant appears to have accepted the Respondent as an “employee with a long period of service in the same business, albeit with a number of changes of company operating that business.” 17 Commissioner Deegan had particular regard to the Respondent’s lengthy period of employment in determining whether the dismissal was unfair.18
[14] No challenge was made to these findings or the Commissioner’s reasoning in relation to them, save for some elements of her decision in relation to the significance of the January 2013 incident in relation to her consideration of valid reason.
[15] The Appellant did, however, take issue with the ultimate conclusion reached by the Commissioner when weighing up her findings in each of the matters in s.387 of the Act, Commissioner Deegan concluded:
“[110] I have accepted that there was a valid reason for the termination. I do not consider that the decision to terminate the applicant’s employment either unjust or unreasonable. I do, however, consider that the manner in which it occurred was harsh. The applicant was summarily dismissed after 35 years of service in the same business. The dismissal was largely based on facts which were well known to the employer by mid-December 2012 yet the dismissal did not take effect until February 2013.
[111] If, as I have found to be the case, the circumstances surrounding the incident of 27 November amounted to serious misconduct and provided a valid reason for the applicant’s summary dismissal then it was incumbent upon the employer, in light of the seriousness of the applicant’s conduct, to suspend him from his position pending a full investigation.
[112] In my view, while the incident of 27 November incident was sufficient reason for the termination of the applicant’s employment, I do not consider that summary dismissal can be justified in circumstances where the applicant was permitted to continue to work as normal for a further two months.
[113] I find that the termination of the applicant’s employment was harsh in that he was terminated without notice.”
Consideration
[16] The Appellant did not challenge the findings of Commissioner Deegan, or her reasoning in relation to the matters in s.387 of the Act, other than to question some elements of the Commissioner’s decision in relation to the significance of the January 2013 incident when considering valid reason.
[17] The Appellant did, however, take issue with the ultimate conclusion reached by Commissioner Deegan that the termination was harsh.
[18] Plainly, if the Appellant succeeded in overturning the Commissioner’s finding that the termination was harsh, the Respondent could not be found to have been unfairly dismissed and there would be no jurisdiction to order a remedy. Beyond that, however, no issue was taken by the Appellant with the remedy ordered by Commissioner Deegan, or her reasoning in relation to it, in the appeal. 19
[19] The basis of the Appellant’s challenge to the Commissioner’s finding that the termination was harsh is, that having found that the Respondent’s actions in relation to “the circumstances surrounding the incident of 27 November amounted to serious misconduct and provided a valid reason” 20 for the Respondent’s summary dismissal, Commissioner Deegan erred in finding that the manner in which it occurred was harsh in that the Respondent was “summarily dismissed after 35 years of service in the same business. The dismissal was largely based on facts which were well known to the employer by mid-December 2012 yet the dismissal did not take effect until February 2013.”21
[20] The Appellant argued that, in reaching that decision, Commissioner Deegan made significant errors of fact, in finding:
• The events of 27 November 2012 were “the sole reason” for the Respondent’s termination, at paragraph [110] of her decision; and
• Letters exchanged between the Appellant and the Respondent in the process leading to the termination did not rely on the company’s concern about the Respondent’s role in a later (27 January 2013) incident, at paragraph [99] of her decision.
[21] We are not persuaded these Commissioner Deegan’s findings reflect error, let alone significant error.
[22] Whilst the appeal notice and submissions filed in the appeal contend that the Commissioner concluded that the November incident was the “sole” 22 or “only”23 reason for the Appellant’s decision to terminate the employment, the contention is falsely based. No such conclusion appears in the Commissioner’s decision. The Commissioner found that “The dismissal was largely based on facts which were well known to the employer by mid-December 2012 yet the dismissal did not take effect until February 2013.”24 [emphasis added]
[23] In relation to the letters, Commissioner Deegan concluded:
“[99] According to the letters from the employer, the applicant’s employment was terminated as a consequence of his actions in directing employees to perform work dismantling the cold store on 27 November 2012 and failing to ensure even basic safety measures were taken. The applicant’s failure to offer any reasonable explanation for the unauthorised nature of the work concerned and his failure to ensure that it was carried out in a safe manner were relied upon. The letters did not rely on the company’s concern about the role the applicant may have had in permitting a contractor to be onsite in January in contravention of a direction that no worker be allowed onsite without an induction.”
[24] We are satisfied that the Commissioner’s conclusions in relation to the letters accurately reflect their content and reflect no error. The content of the letters, which we have summarised above, disclose that:
• the Appellant raised a general allegation that the Respondent failed to adhere to policy concerning the hiring and induction of employees, allegations concerning the November 2012 incident and an allegation that the Appellant has engaged a contractor after Christmas without authority and without induction;
• the Respondent responded in relation to each of the allegations;
• the Appellant considered the responses and indicated an intention to terminate subject to a final opportunity for input by the Respondent; and
• the employment was terminated summarily with effect from 4 February 2013, with the termination letter of that date, relying, on its face value, entirely on the November 2012 incident and the exposure of the Appellant to serious consequences. The letter contains no reference to or reliance on the matters reflected in the general allegation put to the Respondent about hiring and induction or the specific allegation about the January 2012 issues.
[25] Read together, the letters indicate that whilst three broad categories of allegations - the general hiring and induction allegation, allegations in relation to November 2012 and allegations in relation to January 2013 - were put and responded to, the decision to terminate as expressed in the 4 February 2013 letter, 25 following a consideration of all of the allegations and the responses provided, was based on the Respondent’s actions in respect of the November 2012 incident, the consequences of that incident and the exposure of the Appellant’s business to serious consequences.
[26] That conclusion arises from the letters and the Commissioner’s conclusion in respect of the letters in paragraph 99 of her decision correctly reflects that position.
[27] The Appellant submitted that evidence of Mr Marsdon 26 supported a finding that the Appellant terminated the Respondent’s employment as a result of his conduct in both November 2012 and January 2013. We do not agree. We accept that Mr Marsdon’s evidence indicates that the revelation to Mr Marsdon of the January incident caused him to institute processes directed to the dismissal of the Respondent. Those processes resulted in the meetings and correspondence referred to above.
[28] We also accept that allegations about the January 2013 incident were put to the Respondent, and responded to, within those processes. The outcome of those processes, which followed the putting of allegations, the making of responses and the consideration of the responses by the Respondent, is reflected in the letter of 4 February 2013. The content of that letter discloses that the termination was based on the Respondent’s actions in respect of the November 2012 incident.
[29] The Appellant also contended that given the findings of Commissioner Deegan, she acted on a wrong principle and/or, given her specific findings, the decision is manifestly unjust. 27 In relation to the “wrong principle” part of the ground, the Appellant submitted that the decision of Commissioner Deegan was unjust, counter intuitive and inconsistent with other decisions (citing in its written submissions)28
[30] The Full Bench decision in Parmalat Food Products Pty Ltd v Wililo K 29 (Parmalat). The Appellant argued that Commissioner Deegan acted on a wrong principle in not applying the proposition in Parmalat that:
“Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 30
[31] Such a contention is not made out.
[32] Parmalat is not authority for the proposition that leave to appeal (permission in the current Act) is automatic in relation to matters involving Workplace Health and Safety obligations. As noted by an Appeal Bench in Holcim (Australia) Pty Ltd and Serafinai R:
“[6] We do not consider that the decision in Parmalat is authority for the proposition that leave to appeal is automatic when matters of workplace safety and statutory obligations regarding occupational safety arise for consideration, either at first instance, or on appeal. This includes those applications where the finding at first instance is that the breach of safety rules amounted to serious misconduct.” 31
[33] The determination of an application under s.394 of the Act requires the finding of facts on the evidence and the application of the law to the facts in the particular circumstances of each matter. The fact that there is one common factual matter between matters, even an important one - such as a finding that actions by an applicant constitute serious misconduct which supports a finding of a valid reason for termination - does not make a decision made after considering and balancing matters within s.387 of the Act in the particular circumstances of a matter inconsistent with the decision in another matter where, notwithstanding some common considerations, the circumstances are not, in all respects comparable.
[34] In the circumstances of the matter before her, Commissioner Deegan found that there were mitigating factors which made the manner of the termination of the employment without notice, as occurred, harsh. These were that the Respondent was summarily dismissed after 35 years of service in the same business, on the basis of facts known to the employer by mid-December 2012, with the Appellant allowing the Respondent to continue working in his position for a further two months. Such a finding of mitigating circumstances was properly made based on the evidence as to the Respondent’s service, the reason for the termination and the Respondent being allowed to continue work until his employment was summarily terminated. The Respondent continued in his job, notwithstanding Mr Marsdon having reached a conclusion as to “the seeming reckless disregard for any safe practices” 32 by the Respondent in relation to the November 2012 incident before Christmas in 2012.
[35] The Commissioner was entitled, within her discretion, to weigh up her finding as to those mitigating circumstances amongst the other findings she made in relation to matters of s.387 of the Act. The finding of Commissioner Deegan in relation to the mitigating circumstances and her ultimate conclusion that the termination was harsh, made after weighing that consideration against findings in relation to other matters arising from s.387 of the Act, including her findings as to valid reason, do not reflect error, let alone significant error.
[36] The matter before Commissioner Deegan was not of the same nature as those considered in Parmalat. In that appeal, the Full Bench could not readily discern findings by the Commissioner at first instance as to mitigating circumstances and did not believe that any of the circumstances involved in the matter it was considering amounted to significant mitigating factors. 33
[37] We also see no basis for the Appellant’s proposition that given the Commissioner’s specific findings, the decision is manifestly unjust or counter-intuitive. In our view, the decision that the termination was harsh, in the circumstances, arose from a reasonable balancing of the statutory considerations within s.387 of the Act, reflecting findings properly made by the Commissioner.
[38] The Appellant contended that public interest grounds for permission to appeal arise because of manifest errors apparent in the decision of Commissioner Deegan. Given our findings in relation to error and the absence of any other basis for attracting the public interest, we do not consider that the public interest supports permission to appeal.
[39] Permission to appeal is refused. The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
D Miller of Australian Industry Group for the Appellant.
D Grey for the Respondent.
Hearing details:
2014.
Melbourne, Brisbane and Launceston (video hearing):
February 13.
1 [2013] FWC 8902.
2 [2010] FWAFB 5343.
3 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
4 (1936) 55 CLR 499, at 504-505.
5 Exhibit M4, attachment WL-10.
6 Exhibit M6 at para 29.
7 Exhibit M6, attachment G-M 8.
8 Exhibit M6, attachment G-M 9.
9 Exhibit M6, attachment G-M 10.
10 Exhibit M6, attachment G-M 12.
11 [2013] FWC 8902, at para 97.
12 [2013] FWC 8902, at paras 99-102.
13 [2013] FWC 8902, at paras 103-104.
14 [2013] FWC 8902, at para 105.
15 [2013] FWC 8902, at para 106.
16 [2013] FWC 8902, at paras 107-108.
17 [2013] FWC 8902, at para 109.
18 [2013] FWC 8902, at para 109.
19 However, the Respondent submitted that if we were persuaded to grant permission to appeal, quash the decision of the Commissioner and re-hear the matter ourselves, we should not reduce the amount of compensation on account of misconduct, or reduce it by a lesser amount than did Commissioner Deegan. Given our decision to refuse permission to appeal, a re-consideration of remedy does not arise.
20 [2013] FWC 8902, at para 111.
21 [2013] FWC 8902, at para 110.
22 Appeal Notice at 2.6 and Appellant submissions at 6.3.
23 Appeal Notice at 2.12 and Appellant submissions at 6.10.
24 [2013] FWC 8902, at [110].
25 Exhibit M6, attachment G-M 12.
26 Exhibit M6 at para 29.
27 Notice of Appeal, at 2.1(b).
28 Appellant submissions at point 7.
29 [2011] FWAFB 1166.
30 [2011] FWAFB 1166, at para 24 and also see para 29.
31 [2011] FWAFB 7794 at para 6.
32 Exhibit M6 at para 26.
33 [2011] FWAFB 1166, at para 24.
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