Michael Ross v Fall and Associates Pty Ltd
[2013] FWCFB 6958
•19 SEPTEMBER 2013
[2013] FWCFB 6958 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Fall and Associates Pty Ltd
(C2013/5679)
VICE PRESIDENT HATCHER | MELBOURNE, 19 SEPTEMBER 2013 |
Appeal against decision [2012] FWA 8111 of Commissioner Ryan at Melbourne on 19 September 2012 in matter number U2012/6257.
[1] In a decision issued by Commissioner Ryan on 19 September 2012 1 (Decision), an application by the appellant, Michael Ross, for an unfair dismissal remedy filed pursuant to s.394 of the Fair Work Act 2009 (the Act) was dismissed. On 21 August 2013 - approximately eleven months later - Mr Ross lodged a notice of appeal against the Decision. Rule 12.3 of the Fair Work Australia Rules 2010 requires that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such further time as is allowed on application. Mr Ross has applied for an extension of time to institute his appeal.
[2] At the conclusion of the hearing of this application on 17 September 2013 we announced our decision on transcript. We also indicated that we would give our full reasons for our decision at a later time. This decision sets out those reasons.
[3] The principles to be taken into account in considering whether to grant an extension of time were set out in the Full Bench decision in Tokoda v Westpac Banking Corporation 2 as follows:
“[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 12.3(b):
- whether there is a satisfactory reason for the delay;
- the length of the delay;
- the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
- any prejudice to the respondent if time were extended.
[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.”
[4] To understand Mr Ross’s submission as to why time to institute his appeal should be extended, it is necessary to give a brief explanation of the circumstances which led to his dismissal. Mr Ross had been employed by the respondent as a real estate consultant. Part of his duties involved assisting with the management of rental properties. In August 2011, Mr Ross arranged with the owner of a rental property managed by the respondent to conduct an inspection of the property and serve an eviction notice for unpaid rent on 26 August 2011. Mr Ross attended the property on the previous day, 25 August 2011, to ensure that the tenants were given proper notice of the following day’s inspection. When he did so, an incident occurred between Mr Ross and the tenants which led to him being arrested by police later that day and subsequently charged with a number of offences including common assault. On 9 February 2012, Mr Ross pleaded guilty in the Tasmanian Magistrates Court to a charge of common assault. No conviction was recorded, but the matter was adjourned for two years on the condition that Mr Ross was of good behaviour, and an order restraining Mr Ross from approaching the victim was made.
[5] Mr Ross resigned from his employment on 5 March 2012. In the Decision, the Commissioner determined that Mr Ross was forced to resign because of conduct or a course of conduct by the respondent, with the result that Mr Ross had been dismissed within the meaning of s.386 of the Act. However, the Commissioner subsequently found in the Decision that Mr Ross’s conduct on 25 August 2011 constituted a valid reason for the dismissal, and consequently that the dismissal was not unfair. The Commissioner’s consideration on the question of valid reason was as follows:
“[53] The Applicant admits that he had a knife in his hand when he engaged in a verbal altercation with a tenant on 25 August 2011.
[54] At least part of the verbal altercation between the Applicant and the tenant on 25 August 2011 was recorded by the police when the tenant rang them whilst the Applicant and the tenant were exchanging words.
[55] The actual Police record of part of the conversation was not in evidence but Mr Dennis Fall included in his evidence a copy of the transcript of proceedings before the Magistrates Court. The transcript is as follows:
“Prosecutor: Mr and Ms (names deleted) had a current lease on the property through Falls Real Estate for which the Defendant worked and at the time they were washing their pet dog on the front, outside the front of the house. The Defendant has approached the property and the dog has been taken and locked inside the house. When the dog was locked inside the house Your Honour it was in the process of being washed and was playing with water and the dog was subsequently wet and was taken inside the house wet. The Defendant has alighted from his car and walked up to the female occupant and to (name deleted) who have returned from the house. The complainants’ describe him as agitated and was carrying a knife in his right hand. (Name deleted) was concerned about what happened and dialled 000 on his mobile phone. The conversation that subsequently occurred was recorded on the 000 line, it went as follows:
The Defendant Mr Ross said to the two complainants “and keep that fucking dog out of it”. Mr (name deleted) replied “No you keep your knives and shit off’ but was interrupted by the Defendant “I’m telling you if that dog attacks me I will kill it alright”. When told it didn’t go near him the Defendant replied “If that dog goes out and chases sheep it will be shot”. Mr (name deleted) said “has it ever’’. The Defendant started to reply however the female occupant Ms (name deleted) asked overthe top of him “Why come on to our property holding a knife like that threatening our dog?”. The Defendant has then held the knife above his shoulder, made stabbing motions with it. (name deleted) was about 2 feet from the complainant at the time and (name deleted) felt threatened by the Defendant and the Defendant saying hold your knife to my face to which the Defendant replied “If I was holding a knife to your face it would be coming out the back of your fucking head”.
At this time the complainants made their way back to the house entering the dwelling. The Defendant made his way to his car and exchanged more words before driving away.”
[56] The evidence of the Applicant paints a different picture but does not alter the words used, and the Applicant admits holding a knife (a box cutter) whilst arguing with the tenants.
[57] The Respondent treated the conduct of the Applicant as a serious issue. The Respondent conducted its own internal review of the incident and sought a response from the Applicant. The Applicant was clearly put on notice by the Respondent as early as 26 August 2011 as follows:
“based on the information we have been provided by the police and the tenants these allegations are extremely serious and if shown to be correct could result in termination of your employment.”
[58] For a reason for dismissal to be a valid reason it must be sound defensible and well founded and must not be capricious, fanciful, spiteful or prejudiced.
[59] Having considered the evidence of the Applicant and the evidence of Ms Gee it is apparent that the dog kept by the tenants who were involved in the incident on 25 August 2011 was fearsome. I have no doubt in accepting the evidence of the Applicant that he had genuine concerns about the dog on the rental property.
[60] Where the Applicant crossed the line was in carrying a knife (even a small knife such as a box cutter) when he entered the property on 25 August 2011 to advise the tenants of the planned inspection on 26 August 2011. Given the Applicant’s concern about the dog and the description of the dog given in evidence it would appear that holding a box cutter would not have ensured the Applicant’s safety if the dog did attack. Further given the Applicant’s concern about the dog on the property he could have and should have ensured that he went accompanied onto the property.
[61] A verbal altercation with the tenants but without the Applicant holding a knife would most likely not amount to a valid reason for dismissal. But holding a knife whilst speaking aggressively to tenants is very different. The Applicant on his own evidence was performing work for his employer when he entered the rental property on 25 August 2011. The conduct of the Applicant reflects on the Respondent and the real estate profession generally.
[62] Dismissal for the reason of threatening a tenant whilst holding a knife could not be considered to be a capricious, fanciful, spiteful or prejudiced reason.
[63] I find that there was a valid reason for the dismissal.”
[6] Mr Ross’s main contentions as to why he should be granted an extension of time to institute his appeal, as set out in his notice of appeal, were as follows:
(1) “Delays for appeal were unavoidable, because of serious health issues and financial austerity” (paragraph 3(c) of the notice of appeal). Mr Ross elsewhere referred to a “debilitating illness” (paragraph 3(d)).
(2) “[V]ital information for a significant error of fact only became evident on 26th June 2013 and confirmed after the 29/7/13” (paragraph 3(d)). 26 June 2013 appears to be the date upon which there was a hearing conducted by the Tasmanian Property Agents Tribunal concerning Mr Ross being disqualified to be employed as a property consultant. 29 July 2013 appears to be a date connected with an application by Mr Ross to the Administrative Appeals Division of the Magistrates Court for review of a decision of the Property Agents Board of Tasmania.
(3) Paragraphs [53], [56], [61] and [72] of the Decision are wrong in that at no point did Mr Ross “specifically state or admit I was holding a knife” (paragraph 4.2).
[7] Mr Ross’s notice of appeal also states the following (paragraph 3(i)):
“The extension of time is a necessity. I original[ly] wrote an unsent letter to CM Ryan dated the 14/10/12 that remains on my hard drive as a cathartic ‘note for file’. This letter naively explains the concern regarding paragraph 53/56/61 & 63 and it has taken all this time to correlate a clear and trustworthy strategy of provable evidence to present this belief in a convincingly clear manner, accumulating in an unacceptable process based on the findings centred on paragraph 53/56/60-66.”
[8] The delay in Mr Ross filing his notice of appeal - over ten months - is very considerable. We do not consider that Mr Ross has provided a satisfactory reason for this delay. There is no foundation for Mr Ross’s contention that information allowing him to identify or demonstrate a significant error of fact only became available to him in June of this year. The “significant error of fact” which Mr Ross alleges concerns the Commissioner’s finding that he was holding a knife during the incident on 25 August 2011. It must have been immediately apparent to Mr Ross, upon receiving the Decision in September 2012, that the Commissioner had made that finding. That it was in fact apparent to him is demonstrated by Mr Ross’s unsent letter to the Commissioner of 14 October 2012, which referred to paragraphs [53], [56], [61] and [63] of the Decision as being of concern to him. Those paragraphs of the Decision, which we have earlier quoted, are where the Commissioner’s findings that Mr Ross was holding a knife, and that this constituted a valid reason for the dismissal, are located. Further, included in the materials filed by Mr Ross in support of his appeal is a lengthy letter from him to Mr Roman Seliga of Workplace Standards Tasmania, dated 12 March 2013, containing a very detailed analysis of the Decision from Mr Ross’s perspective. This included the statement “Paragraph[s] [52] to [65] I absolutely disagree with.” We conclude that, even without the benefit of legal advice, Mr Ross has at all relevant times since the Decision was issued been capable of lodging a notice of appeal identifying the error of fact on the part of the Commissioner which he now alleges.
[9] The “serious health issues” and “debilitating illness” referred to in Mr Ross’s notice of appeal appear to relate at least partly to his wife. We were not provided with any specific information let alone evidence as to the time of commencement or duration of the illness/illnesses. Further, we note that on the materials put before us by Mr Ross, any such illness/illnesses did not prevent him from preparing and sending the letter to Workplace Standards Tasmania earlier referred to, making a detailed written submission dated 12 March 2013 to Mr Simon Overland (the Secretary of the Tasmanian Justice Department) alleging a miscarriage of justice in the Magistrates Court on 9 February 2012, pursuing a complaint with the Legal and Professional Board of Tasmania against the barrister who represented him in the Magistrates Court on 9 February 2012 (as evidenced by a detailed letter written by Mr Ross and dated 2 July 2013), and filing the application for review in the Administrative Appeals Division of the Magistrates Court to which we have also earlier referred. As to “financial austerity”, given that Mr Ross has now been able to file an appeal notice without the benefit or expense of any professional legal assistance, there is no basis for the proposition that Mr Ross could not have done the same thing within the 21 day time period allowed by rule 12.3.
[10] Mr Ross’s prospects of success in his appeal, if time is extended, are weak. He contends that the Commissioner erred in finding that he had admitted to holding a knife during the incident on 25 August 2011. Having carefully reviewed the evidence, we consider that it is correct that Mr Ross did not specifically admit this in his evidence or submissions. Nor did he specifically deny it. It is not clear whether the Commissioner, in stating that Mr Ross had admitted this, was referring to what occurred in the proceedings before him or to Mr Ross’s plea of guilty to the common assault charge in the Magistrates Court. If the latter, it is doubtful that the Commissioner erred, since a plea of guilty to a criminal offence constitutes an admission of all the essential elements of the charged offence. 3 As the NSW Court of Criminal Appeal said in R v Radic4:
“[30] It is important to remember that a plea of guilty is a solemn matter; it has two effects: first of all it is a confession of fact; secondly, it is such a confession that without further evidence the Court is entitled to, and indeed in all proper circumstances will so act upon it, that it results in a conviction: see R v Bamford (1972) 2 NSWLR 261 at 263. Thus the plea admits those matters which are of the essence of the charge.”
[11] In any event we consider that two undisputed matters reveal misconduct of such a serious nature on the part of Mr Ross as to make it unlikely that he would obtain permission to appeal, regardless of the evidence before the Commissioner concerning whether he was holding a knife:
(1) Mr Ross was found guilty of common assault upon one of the tenants in relation to the incident on 25 August 2011 based on his own guilty plea.
(2) Mr Ross specifically admitted before the Commissioner that he said to one of the tenants: “If I was holding a knife to your face, it would be coming out of the back of your fucking head”.
[12] Having regard to the above matters, we do not consider that the interests of justice favour an extension of the time for Mr Ross to lodge his appeal. His appeal notice is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
M. Ross on his own behalf
A. Cameron solicitor for the Respondent
Hearing details:
2013.
Melbourne:
17 September.
1 [2012] FWA 8111
2 [2012] FWAFB 3995
3 R v O’Neill [1979] 2 NSWLR 582; Maxwell v R (1996) 184 CLR 501 at 510-511 per Dawson and McHugh JJ.
4 [2001] NSWCCA 174
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