Monash Health v Mr Allan Agustin
[2014] FWCFB 4580
•19 AUGUST 2014
| [2014] FWCFB 4580 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Allan Agustin
(C2014/3308)
VICE PRESIDENT WATSON | MELBOURNE, 19 AUGUST 2014 |
Appeal against decision [[2014 FWC 1092] of Commissioner Johns at Brisbane on 14 February 2014 in matter number U2013/11916 - permission to appeal - whether grounds of appeal attract the public interest - permission to appeal not granted - Fair Work Act 2009 - s. 394, s.400, s. 604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of Commissioner Johns handed down on 14 February 2014. The decision of the Commissioner concerned an unfair dismissal application made by Mr Allan Agustin on 25 July 2013 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Monash Health.
[2] At the hearing of the matter Mr N. Harrington, of counsel and Mr D. Hartnett appeared on behalf of Monash Health and Ms C. Serpell, of counsel and Mr A. Crabb appeared on behalf of Mr Agustin.
Background
[3] Mr Agustin was employed by Monash Health as a Patient Services Assistant since July 2003. On 30 May 2013, an incident report was made by a person employed by a contractor to Monash Health about a conversation she had overheard in the staff tearoom. The report alleged that a person who appeared to be a Monash Health employee had threatened violence against a female supervisor in the staff tearoom on 29 May 2013.
[4] From this report Monash Health formed the view that the person alleged to have made the threatening comments was Mr Agustin. Mr Agustin was suspended on full pay the following day while an investigation was undertaken into these events.
[5] Mr Agustin was interviewed in relation to the events on 7 June 2013 by Mr T. Butler, a Human Resources Business Partner at Monash Health. Mr Agustin was advised on 27 June 2013 that the allegations against him had been substantiated and his employment was subsequently terminated on 4 July 2013. Mr Agustin filed an unfair dismissal application with the Fair Work Commission on 25 July 2013.
[6] The critical issue in the case before the Commissioner was whether the conduct alleged to have been engaged in by Mr Agustin was engaged in by him or another person. The Commissioner’s conclusions on this point were as follows:
“[69] Having considered all that has been put before the Commission and its assessment of the evidence as a whole (including how all the evidence internally relates to itself), the Commission is satisfied that:
a) for the reasons set out above (paras [50] to [57]), the identification of the Applicant by Ms Campbell-Wright (who was a witness of truth) is attended by doubt and there is a possibility of mistaken identity;
b) Ms Campbell-Wright’s evidence is not corroborated;
c) Ms Campbell-Wright’s evidence was likely prejudiced by the identification process undertaken by the Respondent’s investigators;
d) the Applicant’s version of events (i.e. that he did not make the offensive statements) is corroborated by the evidence of Mr Rainsford (also a witness of truth);
e) the Applicant (also a witness of truth) has a tendency not to swear; and
f) the credibility of the Applicant was not impeached during the hearing.
[70] Consequently, having regard to:
a) the gravity of the matters alleged;
b) the gravity of the consequences for the Applicant; and
c) a careful examination of the evidence,
the Commission is not satisfied that, on the balance of probabilities, it is more probable than not that the Applicant made the offensive statements. The Commission finds the Applicant did not make the offensive statements.
[71] Because, the Commission has found that, having regard to all of the evidence before it, on the balance of probabilities, the Applicant did not make the offensive statements, it necessarily follows that there was no valid reason for the dismissal. Counsel for the Respondent did not contest that the conclusion (that there is no valid reason) flows from the finding that the Applicant did not make the offensive statements.”
The Appeal and Grounds of Appeal
[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of s.604 and s.400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 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 the FWC 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.”
[8] The test for determining the public interest has been described as follows 1:
“[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.”
[9] Monash Health contends that the primary error by the Commissioner was the finding that there was no valid reason for Mr Agustin’s dismissal. It submits that on a plain, rational and logical consideration of all of the admissible evidence, that finding was not open and that the finding was the product of multiple errors in the reasoning process. Monash Health submits further that the Commissioner engaged in a process of reasoning that was illogical, irrational, not based on findings of fact or inferences of fact supported by logical grounds, and that the illogicality affected the whole of the decision and caused jurisdictional error.
[10] Mr Agustin submits that there is no significant error of fact and that in accordance with well established authority, an appeal bench should not interfere with the decision of the primary decision-maker who has seen the witnesses and has been able, with the impression formed fresh in his mind, to decide between competing evidence - unless there is some good and special reason to throw doubt upon the soundness of the conclusions. Mr Agustin submits that there is no such basis to do so in this case.
Permission to Appeal
[11] Permission to appeal can only be granted if the public interest is enlivened. The public interest test is a discretionary task involving a broad value judgment.
[12] Monash Health submits that the public interest is enlivened because:
a) in erroneously finding there was no valid reason for the dismissal, the Commissioner:
i) committed jurisdictional error in failing to properly carry out the statutory task;
ii) reached a conclusion that was glaringly improbable and not open to him on a fair reading of the facts: Fox v Percy 2;
iii) failed to provide any reasons for rejecting a key aspect of the evidence - the tattoo identification; and
iv) failed to put the essence of the Key Factual Finding to the independent witness; and
v) ignored the independent witness’s direct evidence of what she saw and heard on the day and the fact that she made contemporaneous notes of her observations.
b) the Commissioner acted without jurisdiction by:
i) committing a Wednesbury 3 style error; and
ii) denied the Appellant natural justice by not putting to the witness the Key Factual Finding upon which the Commission would rely to find no valid reason existed for justifying the dismissal.
[13] Mr Agustin submits that the decision at first instance raised orthodox questions requiring nothing more than the application of orthodox, well established principles and there is no demonstrated error.
[14] This is not a case involving important issues of general application. There is no diversity of first instance decisions requiring guidance of an appellant bench. There appears to be no demonstrated error of principle. The possible public interest element is based on the contention that the decision manifests an injustice and the result is counterintuitive.
[15] The alleged denial of natural justice is that it was never put to the independent witness who reported the conduct that she had not seen Mr Agustin speak the offensive words. The independent witness gave evidence about the way in which she observed the others in the tea room. Because of her concern about becoming involved in the heated discussion she did not directly engage with the two people involved in the conversation either verbally or through direct eye contact. She did however explain how she glanced around the room on various occasions to more subtly monitor what was occurring. In our view this is a matter going to the fair and proper assessment of evidence rather than a matter of procedural fairness. Further, the authorities on procedural fairness relied upon by Monash Health, in our view, are taken out of context.
[16] The Commissioner formed the view, after hearing and considering all of the evidence, that the report of the conduct and the conclusions of Monash Health involved mistaken identity. The independent witness worked for a different employer and did not know or work with the relevant persons in the tearoom where the incident occurred. No other witness confirmed the comment or the identity of the person making such a comment. A conclusion of mistaken identity in these circumstances is not counterintuitive.
[17] We accept that the conclusion reached by the Commissioner may be open to debate. A different conclusion may have been reached by other decision-makers assessing the evidence. Indeed there is some substance in the criticism made by Monash Health that the Commissioner appeared to be overly dismissive of evidence of identification by the independent witness of Mr Agustin’s tattoo and in the courtroom. Different aspects of the evidence may have impacted on an assessment made by others. But these are not matters that lead to a conclusion that the result was counterintuitive or manifests an injustice. The case involved the assessment of the evidence on the key question of whether Mr Agustin was the person who engaged in conduct that obviously occurred and obviously amounted to misconduct. The Commissioner was not satisfied on the evidence that Mr Agustin was the person who engaged in that conduct. The appeal grounds relate to the weight and assessment of parts of the evidence.
[18] In reaching this conclusion we express sympathy for the independent witness and to some extent, the employer. The witness heard a totally inappropriate and offensive comment and made a report of that to her supervisor. In all respects she acted in a highly commendable manner. Upon being advised of the events the employer took the matter seriously and conducted an investigation. Given the outcome of the case the investigation could have been more comprehensive and should have led to a more reliable conclusion as to the identity of the perpetrator. However the employer was right to regard this conduct as serious and take the view that it warranted serious disciplinary action. Only because it was not able to establish to the satisfaction of the Commissioner that Mr Agustin was the perpetrator did its defence of the unfair dismissal action fail.
[19] The conclusion we have reached relates to the nature of the appeal grounds and the application of s.400 of the Act. We are not satisfied that this appeal attracts the public interest.
Conclusion
[20] For the above reasons the application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr N. Harrington, of Counsel, with Mr D. Hartnett, solicitor, for Monash Health.
Ms C. Serpell, of Counsel, with Mr A. Crabb, solicitor, for Mr Agustin.
Hearing details:
2014.
Melbourne.
17 June.
1 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
2 (2003) 214 CLR 118.
3 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
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