Michael Longford v Aboriginal Elders & Community Care Services Inc T/A Aboriginal Elders Village
[2015] FWCFB 3646
•29 MAY 2015
| [2015] FWCFB 3646 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Aboriginal Elders & Community Care Services Inc T/A Aboriginal Elders Village
(C2015/2226)
VICE PRESIDENT CATANZARITI | SYDNEY, 29 MAY 2015 |
Appeal against decision [2015] FWC 1480 of Commissioner Wilson at Melbourne on 3 March 2015 in matter number U2014/8955.
Introduction
[1] Mr Michael Longford (Appellant) was dismissed from his employment with Aboriginal Elders and Community Care Services Inc t/a Aboriginal Elders Village (Respondent) on 15 August 2014. The Appellant was employed as a chef at the Respondent’s Davoren Park aged care facility in South Australia. He began that employment in late 2010. The Appellant’s employment was terminated by the Respondent on the grounds of misconduct. The Appellant subsequently made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Appellant’s unfair dismissal remedy application was heard by Commissioner Wilson on 15 and 16 December 2014 and determined by him on 3 March 2015. The Commissioner determined that the Appellant’s dismissal was not unfair 1 and consequently he dismissed the application.2
[3] The Appellant seeks permission to appeal the Commissioner's decision and order.
[4] The decision the subject of the application for permission to appeal was made under Part 3-2 – Unfair Dismissal – of the 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’. 3 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’4..The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin6 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.
[6] 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. 8 However, the fact that the FWC Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
Consideration
[7] The Appellant’s complaint on appeal is three-fold.
[8] First, it is said the Commissioner denied the Appellant procedural fairness by excessively intervening during cross examination of the Appellant and by, in effect, taking over the cross examination of the Appellant after expressing his dissatisfaction with the Respondent's counsel's attempt. The Commission is obliged to act "judicially" and must act in accordance with the rules of procedural fairness. It was submitted that the excessive intervention by the Commissioner constituted a fundamental departure from the rules of procedural fairness and rendered the hearing unfair.
[9] The particulars of the intervention said to have been excessive are as follows: 10
“9.1 The appellant's evidence in chief was provided through his written statement; 11
9.2 The respondent's counsel cross examined the appellant from 10.13 am to 10.41 am; 12
9.3 At the initial closure of the cross examination of the appellant, the Commissioner advised the respondent's counsel: "I don't feel I've got enough evidence by way of cross examination of the [appellant] to find against him at this stage" and invited the respondent's counsel to resume cross examination; 13
9.4 he respondent's counsel further cross examined the appellant for a brief time. The Commissioner then questioned the appellant from shortly after 10.46 am to shortly before 11.09 am. The Commissioner's questioning covered most of the matters in issue; 14
9.5 The Commissioner found the appellant's evidence to be "problematic", and made findings adverse to him on differences between himself and Ms Behan.” 15
[10] The principles that govern excessive judicial intervention are conveniently set out in The Council of the Municipality of Burwood v Harvey 16 as follows:
“A number of points may be made concerning the considerations which the Court will keep in mind in considering complaints such as are advanced by the Council in this case about the conduct of the primary hearing:
1. A judicial officer enjoys a wide discretion in the conduct of court proceedings. Appellate supervision (particularly in appeals limited to questions of law) will show restraint and respect for the primacy of a judicial officer conducting a trial. This is done out of recognition of the extremely large variety of circumstances which have to be taken into account in the conduct of a trial in ensuring that it proceeds to its result fairly and produces orders which dispose of the controversy justly and in accordance with law. Appellate courts also recognise the variety of the personalities and dispositions of those who constitute the judiciary. Some judicial officers are, by personality and disposition, more inclined to intervene in proceedings than others. The appearance of justice and fair procedures does not impose a monochrome uniformity upon judicial conduct such that only one style of conducting proceedings is permitted. There are special restraints in the conduct of criminal trials. Cf Titheradge v The King (1917) 24 CLR 107, 116; X v Y [No 2] [1954] VLR 715 (SCV), 718; R v Delaney [1955] VLR 47 (FCV), 50. But in civil proceedings there is much greater room for variety and innovation. TD McCawley, "Judicial Intervention in the Examination of Witnesses" (1957) 31 ALJ 529, 530;
2. A number of considerations which have affected the conduct of civil proceedings in recent times also affect the approach which will be taken by an appellate court to a complaint of excessive judicial intervention in the conduct of a civil trial. These considerations include: (a) The increasing realisation of the significance of the significance of the public costs involved in the conduct of court proceedings and of the obligation of judicial officers, at least to some extent, to take an active part to prevent the injustices which may occur to parties and to the public as a result of the inefficient conduct of trials; (b) The increasing number of litigants in person who, for default of legal aid, lack of confidence in legal representation or otherwise by choice, present their own cause and represent themselves; (c) The creation of expert tribunals with specialised judges and other members, novel standing rights and modified procedures aimed to facilitate, if not actually to encourage, persons to pursue, or defend, their legal rights without the necessity of securing qualified legal practitioners to represent them; and (d) The heightened awareness of all courts of the requirements of fair procedure including the requirement that parties and essential witnesses, whose evidence may be disbelieved, qualified or in some way affected by a contrary proposition, should have the fair opportunity of answering such proposition before a final decision is made. The rule in Browne v Dunn (1893) 6 R 67 (HL) and its local applications and expositions, has had a greater effect upon court procedures in recent times than was earlier the case. See eg Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 (CA), 552, 560; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (CA), 590. This development has imposed increased duties upon judicial officers conducting trials, to ensure that the trial does not miscarry for the failure of procedural fairness involved in a want of compliance with the rule. It has been suggested that the rule in Browne v Dunn has little application in the Land and Environment Court because each party's case will nearly always be apparent in advance through the exchange of reports, affidavits, statements etc. See TFM Naughton, Land and Environment Court Law and Practice, 2-1324 (para2.3315). Whilst that might ordinarily be the case, it is less obviously applicable in a case, as here, where one of the parties was not legally represented and much of the evidence was elicited by oral testimony taken over eleven hearing days;
3. Notwithstanding the foregoing, which sustains an increasingly active role on the part of judicial officers today, a judicial officer observing the conventions of the Australian courts must conform to certain restraints which have been accepted as inherent in the judicial office and necessary to the manifestly neutral determination of controversy in a court of law. In a well-known passage in Jones v National Coal Board [1957] 2 QB 55 (CA), Denning LJ, at 64, chartered the limits by reference to the metaphor of the lay-out of a courtroom. Advocacy is for the bar table. The judicial officer sits on an elevated bench, not to promote a sense of self-importance, but to symbolise his or her removal from the fray. Such removal is designed to promote both the appearance and actuality of neutrality and independence of the parties which are the hallmarks of the judicial office: "The judge's part in all this is to harken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well."
4. There are also reasons of a practical and substantive character which reinforce the traditional distance, neutrality and limited intervention which have been the features of judicial conduct in our system of justice. They include the need, every day, to win the confidence of the litigants and their acceptance that the judicial officer has approached the controversy presented to the court with detachment and equal attention to the arguments of each party. The losing party, in particular, must not be left with a sense of grievance that the judicial decision-maker has taken on the cause of, or become too close to, its opponent. To this traditional explanation may be added one offered by Sir Robert Megarry in his "Temptations of the Bench" (1978) 16 Alberta L Rev 406, 409. The judicial officer must be aware of the "perils of self-persuasion". So long as he or she retains a distance and is relatively circumspect in interventions in the conduct of the trial, the appearance, and the actuality, of self-persuasion will be diminished. If a party feels that the decision-maker is not neutral, but has taken on the cause of its opponent, the central point of judicial decision-making will have been lost. The losing party will not only be disappointed. It will be disturbed at the apparent failure of the judicial institution to operate as intended and expected. Interventions, put forward provisionally, to test evidence and to invite further persuasion are perfectly permissible. See eg In the marriage of Lonard (1976) 26 FLR 1, (FFC) 10-11. But interventions which suggest a partisan opinion are intolerable. They attack the integrity of the judicial process which is the ultimate foundation of the judiciary's authority and of community acceptance of its orders. See Tousek v Bernat (1961) 61 SR (NSW) 201 (FC), 209;
5. The foregoing general principles are well-known. They provide the framework within which decisions in individual cases of complaint against excessive judicial intervention must be made. Determining whether judicial intervention has crossed the line from the permissible to the impermissible requires an exercise of judgment by the appellate court. Sometimes it is difficult to explain, with precision, why a case falls upon one side of the line rather than another. Upon such questions judicial minds will sometimes differ. See eg Government Insurance Office of New South Wales v Glasscock, Court of Appeal, unreported, 19 February 1991; [1991] NSWJB 11. Standards of restraint differ as much amongst appellate judges as amongst those at trial. And the ultimate question is whether the conduct complained of has undermined the fairness of the trial so as to render it, in law, no trial at all. A fundamental departure from the rules of procedural fairness has been held to involve an error of law authorising correction in an appeal so limited. See eg Escobar v Spindaleri and Anor (1986) 7 NSWLR 51 (CA), 57, 59. See also EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA). Some of ie earlier judicial attempts to define where the line is drawn, by reference to an ideal of judicial silence, must now be read as subject to the changing circumstances of litigation, heightened pressures on the courts and a growing acceptance that complete silence on the part of a judicial officer may actually sometimes work an injustice. See Vakauta v Kelly (1989) 167 CLR 568, 571; Galea v Galea (1990) 19 NSWLR 263 (CA), 278f. Nevertheless, the line, although not always bright, will ultimately be reached where it can be said with assurance that the judicial interventions in a particular case were excessive. That point may be expressed in terms of apparent bias; departure from due process and procedural fairness; or invalid conduct of the trial. But the essential point will be the same. The parties are then held not to have had a trial at all, as our system of law guarantees them. Subject to what follows, the appellate court must then order a new trial to repair such a serious default;
6. There are at least two categories of exception for the provision of relief where a court is of the opinion that excessive intervention on the part of a judicial officer has been established: (a) The first is where the appellate court is convinced that the interventions, although excessive, did not prevent a fair trial from being had or cause a reasonable apprehension of bias to arise. This, for example, was the opinion of the majority of the Court in Ardvark Security Services Pty Ltd v Ruszkowski, Court of Appeal (NSW), unreported, 19 March 1993; [1993] NSWJB 38; and (b) The second is where the appellate court concludes that the party complaining waived an objection to the manner of the conduct of the proceedings at trial or is estopped by its conduct from later complaining about the suggested irregularity of the trial. The earlier controversy as to whether it was open to an individual party to waive the public's interest in the conduct of a manifestly fair trial was settled by the High Court of Australia in Vakauta v Kelly (above). It must now be accepted that, in Australia, there is no reason why "in authority or in principle a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, could not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case". See Vakauta, ibid, 587. There seems no reason to doubt that this principle applies in respect of objections to the way a trial has proceeded which were not raised when there was still time to retrieve the situation but were kept in abeyance until an appeal. As Blair CJ pointed out in R v Power [1940] St R Qd 111, it may perhaps be understandable that counsel will usually be reluctant unwilling to object to questioning by a judge who then has himself to decide the propriety of his own questions. But "it is not only unfair to the judge himself, but may seriously affect the [party] upon an appeal". See ibid, 120. Cf Power v The King 15 ALJ 100 (HC); Hinton v Mill (1991) 57 SASR 97 (SC), 100; Preston v Carmody and Ors(1993) 53 IR 206 (FC), 218; Varga v Scigliano Court of Appeal (NSW), unreported, 6 February 1995. In such cases the party affected must take courage and raise the objection. Otherwise a risk is run that the appellate court may hold that the party has waived its objection to the way the judicial officer conducted the proceedings.” 17.
[11] The Appellant accepted that these principles are not to be applied in a vacuum but are to be applied having regard to the statutory context in which the proceeding about which a complaint is made occurs, 18 however, the Appellant submitted that the Commissioner nonetheless exceeded the acceptable bounds of intervention. We do not agree.
[12] It is important that any review the Commissioner’s intervention (and his motive or reason for intervention) in not founded solely on one sentence extract from the transcript. The sentence relied upon by the Appellant to support his criticism that the subsequent intervention, about which complaint is now made, needs to be read in context. The context is set out in the following extract from transcript:
“THE COMMISSIONER: Could the witness be excused, please? Mr Longford, could you please step down and leave the hearing room?---Yes.
<THE WITNESS WITHDREW [10.41AM]
THE COMMISSIONER: Ms Butler, can I just understand your case, please? Your case is that the applicant had an altercation of some measure with Ms Behan on the date that escapes me - - -
MS BUTLER: On the 17th.
THE COMMISSIONER: On 17 July. Your case is then that he, contrary to instruction, spoke with her on two occasions and that from that point there was then an investigation which was conducted by Mr Somes, which led to the applicant's dismissal. Is your case also that the applicant was untruthful or less than honest in the course of that investigation?
MS BUTLER: Yes.
THE COMMISSIONER: The reason I'm putting this to you is I don't feel I've got enough evidence by way of cross-examination of the applicant to find against him at this stage. Obviously your case is yet to be put on, but if the allegation is that there was an altercation of some measure with Ms Behan on the 17th, then it is going to be necessary to put the full detail of those matters to the applicant. I will come back to what I was about to say, in respect of your case if it's the case that he, contrary to instruction, spoke with Ms Behan again, I need a little bit more.
If it's then the case that he was untruthful in the course of the investigation, then those things will need to be put to him in some detail. The point that I was just going to come back to, this may be one of those rare moments, Mr Dean, where I midway through giving evidence authorise you to speak to your member. What I'm finding is that he's giving very, very short clipped answers. What that does is again not provide me with a lot of evidence. The situation which that creates for him is that this is his best opportunity to put forward his side of events. He may well need to be a little bit more fulsome in his answers.
MR DEAN: Thank you, Commissioner. I can assure you this is a manner of speaking that exceeds beyond the commission.
THE COMMISSIONER: Fair enough.
MR DEAN: I can attempt to impress that upon him, but I may be - - -
THE COMMISSIONER: Maybe I will. Ms Butler, you've heard what I have to say.
MS BUTLER: Yes.
THE COMMISSIONER: Is there anything further that you wish to put to the applicant?
MS BUTLER: Thank you, Commissioner. I'm happy if the applicant is brought back on, to question him further. I will also be putting some of those questions to my witnesses and I think it will come out in the statements of my witnesses. But I'm also happy to have Mr Longford return to the commission and be able to discuss these matters with him further.
THE COMMISSIONER: Maybe if we bring him back and you ask such further questions as you wish.
MS BUTLER: Thank you.
<MICHAEL DAVID LONGFORD, ON FORMER OATH [10.45AM]” 19.
[Our underlining]
[13] It seems to us that on a fair reading of the above passages, particularly the segments that we underline, the Commissioner was doing no more than alerting the Respondent’s counsel, Ms Butler, of the “puttage” obligation that counsel has to a witness discussed in Browne v Dunne. 20 Read in context, we do not accept that the Commissioner’s intervention was, either expressly or by implication, expressing dissatisfaction with the Respondent’s attempt at cross-examination.
[14] The questions the Commissioner asked of the Appellant at the conclusion of the Respondent’s cross examination of him, 21 were not, in our view, questions designed to score any particular point or otherwise unfair in any particular. The questions were open questions clearly directed to eliciting information relevant to issues which were central to the determination of the proceeding before the Commissioner and to better equip the Commissioner to choose between the conflicting versions of events. That this was the Commissioner’s purpose seems clear from the following extract from transcript
“THE COMMISSIONER: . . .
. . . What I'm finding is that he's giving very, very short clipped answers. What that does is again not provide me with a lot of evidence. The situation which that creates for him is that this is his best opportunity to put forward his side of events. He may well need to be a little bit more fulsome in his answers.” 22.
[15] The question whether the Commissioner’s intervention has crossed the line from the permissible to the impermissible requires the exercise of judgment on our part. 23 Having reviewed the transcript of the proceedings before the Commissioner and understanding the factual controversy that required his determination, we are satisfied that the Commissioner’s intervention, whilst elongated, fell well short of impermissible.
[16] The Appellant submitted that the extent to which the Commission can legitimately intervene in proceedings, and the limits on that intervention before unfairness arises, are matters of general importance and widespread application, and have received little attention from the Commission. Moreover, the unfairness to the Appellant arising from the manner in which the Commissioner conducted the hearing enlivens the public interest. Because we are satisfied that the Commissioner’s intervention was well within permissible bounds, we do not consider this case to be an appropriate vehicle by which the limit of those bounds should be explored. For that reason we refuse permission to appeal on this ground.
[17] The second basis upon which it is said that permission to appeal should be granted is that the Commissioner erred in identifying the reason for the Appellant’s dismissal.
[18] The Appellant submitted that correctly identifying the reason for dismissal was fundamental to the Commissioner's consideration of the fairness of the Appellant’s dismissal. The assessment of valid reason, opportunity to respond, and whether there might be "other matters" relevant to the consideration all rely on the “reason” for dismissal. It was submitted that in the proceeding before the Commissioner, the reasons for discipliningthe appellant were the incidents on 17 and 21 July 2014. But the reasons for dismissingthe Appellant were those incidents combined withthe Respondent's conclusions about prior incidents involving the Appellant. The Respondent’s conclusions about prior incidents were said to be erroneous and were not put to the Appellant at the time of his dismissal. The Commissioner concluded that these matters were "demonstrably not the reasons relied upon" by the respondent in dismissing the Appellant. 24 The Appellant submitted that this conclusion was erroneous and consequently the Commissioner to did not take into account the Respondent’s reliance on the prior incidents in his consideration of valid reason, or opportunity to respond, or "other matters". It was submitted, therefore, that in failing to properly identify the actual reason for dismissal, the Commissioner’s decision was attended by a significant error of fact.
[19] The Appellant submitted that the public interest is enlivened because the extent to which in any case factors other than the proximate cause of a decision to dismiss form part of the reason for dismissal, and to the extent that those factors do, the obligations of an employer arising from consideration of the other factors and the effect of that consideration upon the fairness of the dismissal, are matters of general importance and widespread application.
[20] We are not persuaded by these submissions. The reasons for the Appellant’s dismissal are set out in the letter of termination dated 15 August 2014. 25 The Commissioner’s finding as to the reason for the dismissal and its validity is as follows:
“[81] The combined effect of Mr Longford’s conduct on 17 July with that on the days proximate to 21 July 2014 give rise to a valid reason for his dismissal.
[82] Despite being under a disciplinary cloud for what had taken place on 17 July, Mr Longford displayed no insight into his situation, and knowingly contravened an explicit instruction from Aboriginal Elders Village.
[83] The complaint against him had been put to him in writing on 18 July, and advised him it was “in relation to an incident yesterday in which you are alleged to have approached [Ms Behan] and spoken to her in a manner which she found threatening”.70The operative part of the allegations were that he had approached Ms Behan and that his approach had been threatening.
[84] The conduct of Mr Longford on the days proximate to 21 July 2014 raises similar issues, since the evidence allows me to find that he approached Ms Behan, who was upset as a result. The evidence I prefer of the interactions of the two around that time is that of Ms Behan, in which she recalls that Mr Longford approached her, and that following his approach she “was feeling very nervous”, even though it was a “relatively friendly interaction”. The evidence allows, and I find, that Mr Longford approached Ms Behan and that he caused her to feel threatened, which is a repetition of the alleged conduct he had been put on notice about on 18 July.
[85] In proper context, the investigation report conducted by Mr Somes made findings about Mr Longford that were reasonably open to him as an investigator, and which were consistent with the inquiries he made and the information that the various staff members related to him. In the absence of any explanation from Mr Longford about why he subsequently approached Ms Behan, despite being instructed not to, the investigator’s findings and recommendations were balanced and reasonably open to him. The decisions subsequently made by Mr Aitken were also reasonably open to him, on the basis of the information he had at his disposal through the report provided by Mr Somes.
[86] I am satisfied that, on the balance of probabilities, the misconduct related in the termination letter of 15 August 2014 took place and that it was sufficiently serious for dismissal.
[87] Accordingly I find that Aboriginal Elders Village had a valid reason for Mr Longford’s dismissal related to his conduct.” 26 [Endnote omitted; Emphasis in original]
[21] The Commissioner subsequently concluded that the Appellant’s past history of employment were “demonstrably not the reasons” 27 relied upon by the Respondent for the dismissal of the Appellant. The evidence before the Commissioner disclosed that Mr Aitkin, the Respondent’s Executive Director and the person who took the decision to dismiss the Applicant, variously took into account the Appellant’s past history of employment in coming to the decision to terminate the Appellant’s employment.28 However, we consider that there is a material difference between matters that the Respondent took into account in ultimately coming to the conclusion to dismiss the Appellant and the reason for the dismissal. For example an employer might take into account an employee’s length of service and good work record in deciding whether to dismiss an employee for misconduct. But if dismissal for misconduct occurs it cannot be said that the reason for the dismissal included the employee’s length of service and good work record.
[22] We consider that the Commissioner correctly concluded that the reason for the dismissal was the misconduct in which the Appellant had engaged in his dealings with Ms Behan and his disregard for the direction given to the Appellant not to approach Ms Behan. It was open to the Commissioner on the evidence to conclude that although the past employment history of the Appellant was taken into account by Mr Aitkin, 29 those matters were not the reasons for the Appellant’s dismissal. Consequently no appellable error has been identified.
[23] Although the Commissioner may have erred in not taking into account the Appellant’s past employment history in his consideration of other relevant matters as required by s.387 (h) of the Act, we do not consider that the failure to do so would have materially altered the ultimate result, that is, that the dismissal of the Appellant was not unfair. For that reason we are not persuaded that the public interest is enlivened.
[24] As to the third basis of complaint, the Appellant submits that the Commissioner erred in relying on the evidence contained in the written statement provided by Ms Behan, to that set out in her earlier statements and in her oral evidence and in preferring her evidence over that of the Appellant. It was submitted that the Commissioner made findings based on Ms Behan’s written statement despite Ms Behan conceding that her written statement did not accurately summarise particular events and that her oral evidence contradicted her witness statement in material respects.
[25] The Appellant also submitted that the Commissioner erred in finding that the Appellant's conduct, in apologising to Ms Behan on 21 July 2014, constituted threatening conduct, and therefore provided a valid reason for dismissal. It was submitted that there is no evidence that the Appellant understood his conduct to be threatening or should reasonably have understood his conduct to be threatening. It was submitted that there is no evidence that Ms Behan felt threatened by this conduct.
[26] Dealing with this last submission first, the Commissioner’s conclusion about the Appellant’s approach to Ms Behan was as follows:
“[84] . . . The evidence I prefer of the interactions of the two around that time is that of Ms Behan, in which she recalls that Mr Longford approached her, and that following his approach she “was feeling very nervous”, even though it was a “relatively friendly interaction”. The evidence allows, and I find, that Mr Longford approached Ms Behan and that he caused her to feel threatened, which is a repetition of the alleged conduct he had been put on notice about on 18 July.” 30 [Endnote omitted]
[27] The Commissioner’s conclusion was not that the Appellant knew or should have known that his conduct was threatening, but simply that Ms Behan felt threatened by the approach of the Appellant in the circumstances of their earlier interactions. In addition to the evidence referred to by the Commissioner in the extracted paragraph above, Ms Behan’s evidence included the following:
“The actual words he said to you were words to the effect of, “I’m sorry about all of this,” weren’t they?---He could see how it was - could have been intimidating to me.” 31; and
“MS BUTLER: Ms Behan, earlier you gave evidence that you hugged Mr Longford. Why did you hug him?---I think at the time I was just feeling I wanted it all over with, I wanted it to go away. I just wanted to get on with work and, yes, so I just felt it was the right thing to do.
Were you comfortable hugging him?---No.” 32.
[28] We consider that the finding was open to the Commissioner on the evidence.
[29] As to the Applicant’s submissions summarised at [24] above, we do not consider these to have any substance. The Commissioner observed that both the evidence of Ms Behan and that of the Appellant were problematic, but concluded ultimately that he regarded Ms Behan to be a witness of truth and that the Appellant appeared to suffer from selective recall a lack of detail might not assist his case. 33 It was for these reasons that the Commissioner preferred the evidence of Ms Behan where it conflicted with the evidence given by the Appellant.34 We are not persuaded that the deficiencies in Ms Behan’s evidence identified by the Appellant, and about which the Commissioner was not only aware but acknowledged, provides a sufficient basis to interfere with the Commissioner’s finding that he preferred the evidence of Ms Behan or with his reliance on that evidence. The Commissioner had the benefit of listening to the cross examination in context and observing both Ms Behan and the Appellant whilst they gave evidence. This is not an advantage that an appeal bench has. It follows that no significant error of fact or other appellable error has been identified by the Appellant.
Conclusion
[30] We are not persuaded that the Appellant has identified any significant factual error made by the Commissioner or any other appellable error except for that discussed at [23] above. For the reasons already given we are not persuaded that permission to appeal should be given on that count alone. Absent any other identifiable and significant error in the factual findings or in the decision-making process, we do not see any basis on which the public interest is enlivened.
[31] As we have also 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.
VICE PRESIDENT
Appearances:
The Appellant: Mr Blewett
The Respondent: Ms Stewart of Counsel
Hearing details:
Sydney
20 May 2015
1 [2015] FWC 1480 at [96]
2 Ibid at [97] and PR561600
3 Section 400(2)
4 (2011) 192 FCR 78 at paragraph 43
5 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
6 (2010) 197 IR 266
7 Ibid at [27]
8 Wan v AIRC [2001] FCA 1803 at [30]
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] (2010) 197 IR 266 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]
10 Appellant’s outline of submissions at [9]
11 Exhibit A4; AB Tab 7
12 AB Tab 3 Transcript PN 51 - 198
13 Ibid PN 203; PN210
14 Ibid PN 220-239; 240-343
15 [2015] FWC 1480 at [50]-[51]
16 Unreported judgement of the Supreme Court of New South Wales Court of Appeal (BC 95 04421) Kirby P, Mahoney and Coal JJA
17 Ibid per Kirby P at [8] -[14]
18 Transcript PN32-33
19 AB Tab 3 Transcript PN198-213
20 (1893) 6 R 67
21 AB Tab 3 Transcript PN 240 – 343
22 Ibid PN204
23 The Council of the Municipality of Burwood v Harvey unreported judgement of the Supreme Court of New South Wales Court of Appeal (BC 95 04421) per Kirby P at [12]
24 [2015] FWC 1480 at [90], [92]
25 AB Tab 7, attachment H to witness statement of Michael Longford
26 [2015] FWC 1480 at [81] – [87]
27 Ibid at [90], [92]
28 See for example AB Tab 3, Transcript PN992 – PN 1009 and PN 1168 – PN 1178
29 [2015] FWC 1480 at [90]
30 Ibid at [84]
31 AB tab 3 Transcript at PN 394
32 Ibid at PN 601 – 602
33 [2015] FWC 1480 at [48] – [50]
34 Ibid at [51]
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