Monash Health v Allan Agustin

[2014] FWC 1861

[2014] FWC 1861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Monash Health
v
Allan Agustin
(C2014/3308)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MARCH 2014

Application for stay order.

[1] On 14 February 2014, Commissioner Johns determined that Mr Allan Agustin had been unfairly dismissed 1 by Monash Health (Monash) and ordered that he be reinstated.2

[2] Monash has appealed the order and the decision and have sought a stay of the reinstatement order.

[3] On 14 March 2014, I issued an order staying the reinstatement order pending the determination of the appeal. These are my reasons for that decision.

[4] The parties are not in dispute that the relevant principles to be applied in considering whether to grant a stay are as follows:

1. The Fair Work Commission (the Commission) must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both permission to appeal and the substantive merits of the appeal; and

2. The balance of convenience must weigh in favour of the order subject to the appeal being stayed.

Monash’s submissions

[5] Monash’s primary submission at the stay hearing was that there was an erroneous finding that there was no valid reason for the dismissal.

[6] Monash contended that the finding, that the witness was mistaken in her identification of Mr Agustin, involved a significant error of fact. It was submitted that this is a case where on no reasonable view of the evidence could the finding of the Commissioner be supported.

[7] Monash contended that there was an arguable case of error.

[8] It further submitted that it had some reasonable prospect of success on permission to appeal given the serious nature of the error.

[9] In relation to the balance of convenience Monash argued that it had a strong prima facie case of error. It further submitted that the evidence supports a finding that it would be inappropriate to reinstate Mr Agustin to his pre-termination position because the person he was alleged to have made serious threats about would be his supervisor.

[10] Further, Monash undertook to deposit into an interest bearing account any compensation ordered to be paid by Commissioner Johns. In the event that Mr Agustin is successful in defending the appeal he would receive the benefit of Commissioner John’s compensation order with interest. It should be noted that no order for compensation has been made by Commissioner Johns as he is awaiting advice from the parties as to the appropriate calculation of the compensation.

[11] Mr Agustin opposed the stay submitting there was no strong prima facie case of error. It was submitted that the reinstatement order enabled Monash to appoint Mr Agustin to a position which did not require him to be supervised by the person he was alleged to have threatened. Further, her fear was based on her belief that Mr Agustin had made the threat and given the Commissioner’s findings that Mr Agustin did not make the threat, there is no basis for her fear.

[12] Mr Agustin submitted that this matter raises no issues of general application, it is not one where there are a variety of competing decisions at first instance and the decision was not counter intuitive and therefore there is no reasonable prospect that permission to appeal would be granted.

[13] Mr Agustin submitted that there was competing evidence between the persons present at the relevant time and the Commissioner made findings in respect to that competing evidence. Those findings were open to him on the evidence.

[14] It was submitted that attendance at work is important to Mr Agustin’s dignity, well-being and mental health. Further, the allegations are damaging and the longer he is away from work the more difficult it is for him to clear his name. The balance of convenience, it was submitted, favoured Mr Agustin.

Conclusion

[15] This case involved an allegation of a serious threat made by Mr Agustin against his supervisor. The threats were heard by an independent witness. The witness identified Mr Agustin as the person who made the threat. Mr Agustin denied making the threats and other witnesses did not hear the threats made. The Commissioner found that the witness and Mr Agustin were telling the truth. He found that the witness heard the threat but was mistaken in her identification of Mr Agustin. The Commissioner had regard to the similarities in the description of the person who made the offensive remarks in the contemporaneous notes made by the witness and Mr Agustin. He also had regard to the inconsistencies. Commissioner Johns had regard to the investigation conducted by Monash and the impact that had on the identification of Mr Agustin by the witness. Commissioner Johns found that the witness did not see Mr Agustin make the threats even though she heard the threats being made.

[16] I find that there is an arguable case that the Commissioner erred when he found that the witness did not see and hear Mr Agustin make the threats. If this is an error, it is a significant error of fact.

[17] In those circumstances, given the serious nature of the threats, I find that there is an arguable case that permission to appeal would be granted.

[18] I further find that the balance of convenience favours the Appellant. If the appeal is dismissed then Mr Agustin will receive the compensation and he will be reinstated. His reputation will then be vindicated. No evidence was called by Mr Agustin that he is currently suffering any financial difficulty.

[19] I accept that Monash could reinstate Mr Agustin to a position away from his supervisor. However this would require other employees to work with Mr Agustin while this matter is resolved. If a stay were not granted and the appellant is successful, it would have been required to reinstate an employee who made serious threats against a supervisor. Monash will have no recompense for that should it succeed on appeal. In all the circumstances the balance of convenience favours the stay.

DEPUTY PRESIDENT

Appearances:

N Harrington for the Appellant

C Serpell for the Respondent

Hearing details:

Melbourne.

2014.

12 March.

 1   Agustin v Monash Health,[2014] FWC 1092.

 2   PR547755.

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