Michael Cox v Tweed Health for Everyone Pty Ltd
[2018] FWCFB 3758
•26 JUNE 2018
| [2018] FWCFB 3758 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Michael Cox
v
Tweed Health for Everyone Pty Ltd and Others
(C2018/2550)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2018] FWC 1109 of Deputy President Asbury at Brisbane on 23 April 2018 in matter number AB2017/190.
Introduction and background
[1] Mr Michael Cox has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Asbury on 23 April 2018 (Decision). 1 In that decision the Deputy President dismissed an application made by Mr Cox under s 789FC of the Fair Work Act 2009 (FW Act) for an order to stop bullying against Tweed Health for Everyone Pty Ltd (Tweed Health) and four other named persons. This decision concerns whether permission to appeal should be granted.
[2] Under s 789FF(1)(b) of the FW Act, there are two matters about which the Commission must be satisfied before it can make an order to stop bullying pursuant to an application made under s 789FC. The second matter, specified in s 789FF(1)(b)(ii), is that “there is a risk that the worker will continue to be bullied at work by the individual or group”. In the proceedings before the Deputy President, Tweed Heath submitted that Mr Cox’s application should be dismissed because he had resigned his employment with it on 7 March 2017 and, in those circumstances, there could be no basis upon which the Commission could be satisfied that there was any future risk of him being bullied at work.
[3] The factual background of this matter is described in detail in the Decision. It is sufficient for present purposes to summarise the facts in the following way. Tweed Health operates a large medical centre, and it employed Mr Cox as its Chief Executive Officer on 10 October 2016. Within a few days of commencing his employment, Mr Cox was requested to investigate a bullying complaint made by a contractor to Tweed Health who was the wife of Dr Sterne, one of Tweed Health’s three directors/shareholders. The complaint involved allegations against another director, Dr Soden, and other persons. The bullying complaint was made against the background of a falling out between Dr Sterne on the one hand and the other two directors/shareholders, Dr Soden and Dr Blanckensee.
[4] In his investigation of the complaint, Mr Cox became involved in a personal dispute with Dr Soden and Dr Blanckensee. This came to a head at a board meeting on 7 March 2017. Mr Cox, who was the subject of criticism by Dr Blanckensee, walked out of the meeting and returned to his office. A little later Mr Cox sent Dr Sterne an email in which he asked that he “invoke the separation clause in my contract of employment”, made allegations that he had been bullied and harassed, and said “I’m very sorry, I can no longer endure these personal attacks on my character… I intend to file immediately with work cover Australia for being forced from my job.” He eventually left the workplace (in circumstances which were disputed), leaving his office keys and security fob there, and went home. There were some telephone conversations that afternoon and evening between Dr Sterne and Mr Cox, about which there was some evidentiary contest.
[5] On 8 March 2018 Dr Soden and Dr Blanckensee conducted an emergency directors’ meeting, at which Dr Sterne was not present. The meeting resolved, among other things, to send an email to staff confirming Mr Cox’s resignation. Pursuant to that resolution, an email was sent to all staff at 1.29 pm stating that Mr Cox was “no longer in the employ” of Tweed Health. At 4.57pm Mr Cox sent an email to Dr Sterne advising that, due to “stress, bullying and harassment I have been subjected to”, he was not fit to return to his duties, and that he would be able to provide a certificate for his “work related illness” after a GP appointment on the following Monday (13 March 2017). Dr Sterne then replied by email at 8.36pm saying, among other things, that he was pleased that Mr Cox had decided to stay with Tweed Health and wishing him a speedy recovery. Dr Sterne shortly afterwards sent an email to Dr Soden, Dr Blanckensee and others informing them that Mr Cox had advised he was on sick leave and would be providing a medical certificate.
[6] On 9 March 2017 Dr Sterne sent an email to Dr Soden and Dr Blanckensee stating that it was a mistake to inform the staff that Mr Cox was no longer employed, and Dr Sterne then sent an email to all staff stating that there had been a miscommunication and that Mr Cox had not left the business but was on sick leave. This caused further conflict between the directors. Lawyers acting for Dr Soden and Dr Blanckensee as majority shareholders of Tweed Health then sent Dr Sterne a letter stating their position that Mr Cox had resigned effective from 7 March 2017, this resignation had been accepted, staff had been advised accordingly, there had been no advice about Mr Cox taking sick leave until after the resignation took effect, and that Mr Cox would not be reinstated.
[7] Following this there was further correspondence sent to the directors by Mr Cox on 10 March 2017, which alleged among other things that he had been informed that he had been dismissed without legal process and offering to resign upon certain terms. On 21 March 2017 Mr Cox was paid his accrued leave entitlements. On 10 April 2017 lawyers acting for Tweed Health sent a letter to Mr Cox asserting that Mr Cox had resigned from his employment on 7 March 2017 and demanding that he desist from holding out that he remained in the position of Chief Executive Officer of Tweed Health.
[8] Mr Cox appears to have been paid workers’ compensation benefits arising from his employment with Tweed Health. His lawyer informed the Deputy President that the payment of benefits had commenced in August 2017 and were backdated to 7 March 2017. Mr Cox has not performed any work for Tweed Health since 7 March 2017, and has not been paid salary for any period after that date.
The Decision
[9] In the Decision, the Deputy President stated the following significant findings and conclusions:
● Mr Cox was not a credible witness, and on a number of issues his evidence was “disingenuous to say the least”; 2
● The evidence of Dr Soden and Dr Blanckensee was consistent and credible; 3
● Mr Cox had resigned his employment on 7 March 2017; 4
● The resignation was not forced by the conduct of Tweed Health and was not involuntary; 5 and
● Dr Stern did not have the authority to accept Mr Cox’s retraction of his resignation. 6
[10] Alternatively, the Deputy President concluded that, even if the resignation was not voluntary and Dr Sterne had the authority to accept a retraction of the resignation, it was nonetheless the case that Mr Cox’s employment had ended. In this respect the Deputy President said (footnotes omitted):
“[116]The following matters also evidence that the employment relationship and the contract of employment between Mr Cox and THE 7 has ended. The terms of Mr Cox’s resignation email are partisan and indicate his support for Dr Sterne and his antipathy towards Dr Blanckensee and Dr Soden. The resignation email also indicates that Mr Cox accepts that Dr Blanckensee and Dr Soden have bullied Dr Sterne before any investigation has been conducted. By 4.00 pm on 7 March 2017, Mr Cox’s work email account had been disconnected and Mr Cox referred to this fact in subsequent emails sent from his private email account. Mr Cox sent some 20 emails to Dr Sterne from his private email account between 7 March 2017 and 8 May 2017 seeking responses to questions including about the status of his employment. On 10 March 2017 Mr Cox corresponded with all Directors stating that he had been informed by his colleagues that he had been dismissed. There is no evidence that Dr Sterne or the other Directors responded to any of these emails. The tone of many of those emails – particularly the email to the Board sent on 10 March 2017 – is highly derogatory of Dr Soden and Dr Blanckensee. It is improbable that Mr Cox could have written such emails if he had some intention of returning to his position.
[117] Mr Cox was not paid by THE after 21 March 2017 when he received an amount for accrued annual leave and 12 hours worked before he left the workplace. I do not accept Mr Cox’s assertion under cross-examination that he did not understand what the payment was for because he had not received pay slips. That assertion was shown to be false evidenced by the fact that Mr Cox forwarded a pay slip to Dr Sterne on 21 March 2017 querying why he had not been paid his salary and for the sick leave he claimed to have been taking. By 4 April 2016 Mr Cox was seeking clarification about whether he was still employed and there is no evidence that such clarification was ever provided. Mr Cox did not receive workers compensation payments until August 2017 and I can only wonder at how he could have believed that he was still employed when he had not been paid since 21 March 2017 and his many emails seeking clarification of his employment status had been ignored.
[118] If there was any doubt about Mr Cox’s employment status, it was removed by the letter from lawyers acting for THE dated 10 April 2017 and sent to Mr Cox, stating that Mr Cox’s employment had ended by resignation and that Mr Cox should cease to hold himself out as the CEO of THE. The letter of 10 April 2017 confirmed that Mr Cox’s resignation had been accepted. Regardless of the circumstances in which the resignation had been given, or its effect, or whether the resignation was capable of acceptance, the acceptance of the resignation was a repudiation of the contract of employment between Mr Cox and THE and was sufficient to end the employment relationship.”
[11] The Deputy President concluded that Mr Cox’s application had no reasonable prospects of success because Mr Cox was no longer at work with the persons he alleged had bullied him and there was no reasonable prospect that he would be at work with those persons in the future.
[12] Mr Cox’s appeal grounds were extensive and challenged a wide range of factual findings in the Decision as well as canvassing the merits of his anti-bullying application. The two main propositions of relevance he advanced were that he had not resigned voluntarily but in the heat of the moment, and that Dr Sterne had the authority to “rescind his resignation”. The appeal grounds did not challenge the Deputy President’s conclusion that Mr Cox’s employment had ended on 7 March 2017 irrespective of whether his resignation was involuntary and Dr Sterne had the authority to accept his retraction of the resignation. The grounds for the grant of permission to appeal stated in Mr Cox’s notice of appeal were as follows (emphasis added):
“There is sufficient doubt in these proceedings to warrant reconsideration. Such doubt includes:
1. Evidence that supports Dr Sterne held ostensible authority to rescind Mr Cox’s heat of the moment resignation.
2. That the respondents had a direct conflict of interest in voting not to accept Dr Sterne’s directive that Mr Cox had not resigned and was on sick leave.
3. That the respondents have fabricated untrue evidence into the proceedings that have caused bias and clouded this judgement issued by DP Asbury.
4. THESC is a Commonwealth funded business. It would be in the public interest to see who is managing Tax Payers Money. It would be an injustice for the respondents to get away with abusing their position as majority directors in order to remove a CEO in order to stop an investigation into their alleged involvement in Medicare and ATO fraud.
5. Mr Cox was unfairly removed due to his role as liaison officer and being responsible for preventing the directors interfering with the investigation. It is a substantia[l] injustice for him to suffer as a result. Mr Cox believes that he should have the right to file for an unfair dismissal.
6. Mr Cox accepts that under the current circumstances that a Stop Bullying order is no longer necessary, but contests that as he did not resign, if he is no longer employed then he has been unfairly dismissed by the respondents. If that is the case, then the dismissal date should be set when all appeals have been exhausted.
7. To expose the dishonest behavio[u]r of a GP to deliberately mislead the Commission to such an extent that they have fabricated evidence and forced staff to not participate in a Work Place Investigation.
8. Despite having serious Conflicts of Interest, the respondents still chose to harass other directors out of the decision-making process.
9. The dismissal of the Applicant was unlawful and did not follow a prescribed process.
10. If the Commission allow the respondents to improperly use their majority vote to remove the CEO and Liaison Officer for an investigation into their own wrongdoing, then Fair Work are sanctioning breaches [of] the Corporations act.”
[13] Mr Cox’s written and oral submissions in support of his application for permission to appeal focused on the propositions that his resignation was involuntary and that Dr Sterne had the authority to accept the retraction of his resignation and approve his sick leave. They included the assertion, not elaborated upon, that “As such Mr Cox remains employed by THESC 8”.
Consideration
[14] 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.9 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.10 The public interest is not satisfied simply by the identification of error, or a preference for a different result.11 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...”12
[16] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.13
[17] 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.14 However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[18] 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.15
[19] We have decided not to grant permission to appeal for two reasons. The first is that Mr Cox’s appeal does not advance any reasonably arguable challenge to what we consider to be the critical conclusions reached by the Deputy President, namely that Mr Cox’s employment with Tweed Health ended on 7 March 2017, that there was no reasonable prospect of that employment resuming in the future, and that for those reasons there could not be a risk of Mr Cox being bullied at work in the future (even if he had been bullied in the past).
[20] Although the Decision dealt extensively with the questions as to whether Mr Cox resigned, whether the resignation was voluntary and whether Dr Stern had authority to accept a retraction of the resignation, it was not strictly necessary for the Deputy President to determine any of those issues. The real issue, for the purpose of the prerequisite for the exercise of power in s 789FF(1)(b)(ii), was whether Mr Cox’s employment with Tweed Health had come to a permanent end such that there could not be a future risk of Mr Cox being bullied at work there. The precise circumstances in which that employment came to an end were largely immaterial.
[21] The conclusions stated by the Deputy President at paragraphs [116]-[118] of the Decision, which we have earlier quoted in full, were supported by evidence that was not in dispute and by inferences which were not the subject of any explicit challenge and were plainly correct. As earlier stated, the notice of appeal did not contend that the Deputy President erred in concluding that the employment had ended and that there was no reasonable prospect of it resuming, and indeed Mr Cox’s grounds for the grant of permission to appeal (earlier set out) appeared to involve an acceptance that his employment had ended by way of dismissal. Mr Cox’s submission, in contradiction of his own appeal notice, that he remained in employment, on sick leave, rose no higher than the level of assertion, and there was no indication that he intended to advance any reasonably arguable submissions in support of this proposition in his appeal if permission to appeal was granted.
[22] At the hearing of his application for permission to appeal, Mr Cox sought to rely on the apparent fact that he is in continuing receipt of workers compensation payments resulting from an injury claim arising out of his employment with Tweed Health, which claim he asserts has been accepted by insurers, as evidence of his continuing employment. Were this to be so, it is of no assistance to his application. That a person is in receipt of workers compensation payments under relevant workers compensation laws is not evidence of a continuing employment relationship.
[23] Second, Mr Cox’s own notice of appeal expressly indicates (in the emphasised parts of the grounds for permission to appeal set out above) that “under the current circumstances” (which we take to mean in circumstances where the employment has ended), a stop bullying order was no longer necessary. That being the case, the grant of permission to appeal would be completely futile. There would be no point hearing and determining Mr Cox’s appeal against the dismissal of his application for an order to stop bullying if he no longer actually seeks an order to stop bullying. Even if his appeal was successful, it would be without practical purpose.
[24] When this issue was raised with Mr Cox at the hearing of his application for permission to appeal, he indicated that on reconsideration it was in fact still necessary for him to seek an order to stop bullying. He advanced no cogent explanation for this change of position, and we consider this response to have been disingenuously advanced in the realisation of the difficulty which his application for permission to appeal faced if he no longer sought an order to stop bullying.
[25] For these reasons, the refusal of permission to appeal could not result in any substantial injustice being visited upon Mr Cox. The Decision, in respect of its critical findings and conclusions, is not attended by sufficient doubt to warrant reconsideration. Mr Cox’s appeal does not raise any issue of novelty or general application which would justify the grant of permission to appeal. We are therefore not satisfied that it is necessary to grant permission in the public interest, or that we should exercise our discretion in favour of granting permission to appeal.
Conclusion
[26] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Cox on his own behalf.
G. Radcliff of counsel on behalf of Tweed Health for Everyone Pty Ltd; Jennifer Soden; Steven Conroy; Alana Flohr; Diane Blanckensee.
Hearing details:
Melbourne.
12 June:
2018.
Printed by authority of the Commonwealth Government Printer
<PR608439>
1 [2018] FWC 1109
2 Decision at [9]
3 Ibid
4 Decision at [90]-[99]
5 Decision at [100]-[105]
6 Decision at [106]-[114]
7 Tweed Health
8 Tweed Health
9 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
10 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]
11 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]
12 [2010] FWAFB 5343, 197 IR 266 at [27]
13 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
14 Wan v AIRC (2001) 116 FCR 481 at [30]
15 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
0
9
0