Monash University v Michael Meaney
[2019] FWCFB 22
•16 JANUARY 2019
| [2019] FWCFB 22 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604—Appeal of decision
Monash University
v
Michael Meaney
(C2018/6030)
DEPUTY PRESIDENT SAMS | SYDNEY, 16 JANUARY 2019 |
Appeal against a decision [[2018] FWC 5796] of Commissioner Cribb at Melbourne on 9 October 2018 in matter number U2017/13646; arguable case of appealable error established; public interest enlivened; permission to appeal granted.
Introduction
[1] Mr Michael Meaney was summarily dismissed from his employment as an Engineering Support Officer (ESO) with Monash University (Monash) on 20 December 2017. He had commenced employment with Monash on 8 July 2014. Following his dismissal Mr Meaney applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The merit of that application was determined by Commissioner Cribb in a decision published on 9 October 2018 1 (Decision). The Commissioner determined that Mr Meaney’s dismissal was harsh2, that reinstatement as a remedy was not appropriate3 and that it was appropriate to order compensation.4 The precise amount of the compensation order is yet to be determined.5
[2] By its notice of appeal lodged on 29 October 2018 (amended on 20 December 2018 6), Monash applies for permission to appeal and appeals against the Decision. Mr Meaney did not file any written submissions in these proceedings and nor did he make an appearance at the hearing of this matter on 10 December 2018. This decision is concerned only with whether permission to appeal should be granted.
Consideration
[3] An appeal under s.604 of the Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[4] As this is an appeal from a decision made under Part 3-2 of the Act, s.400 of the Act also applies. Section 400 of the Act 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.”
[5] By its Notice of Appeal, Monash alleges that the Decision contains significant errors of fact and that the public interest is invoked because:
• the grounds identified in the Notice of Appeal, by which Monash contends significant errors in the Decision, result in an outcome that is manifestly unjust, exposes errors of legal principle and significant factual errors;
• the Decision requires correction on appeal, including having regard to the objective of Part-3-2 of the Act, the balance required under s.381(1), the requirement that a "fair go all round" be accorded under s.381(2) and the general fairness object stated in s.3 to "provide a balanced framework for cooperative and productive workplace relations";
• the appeal raises matters of general importance concerning:
• the application of s.387 in circumstances of serious misconduct by an employee with potential mental health issues;
• whether it is open to find a dismissal is harsh because of generalised knowledge by the employer of a medical condition, in circumstances where the Commission finds that the employee has engaged in serious misconduct; and
• the extent to which an employer is limited in proceeding to dismiss an employee in relation to intentional misconduct, by knowledge of potential mental health issues.
[6] Granting permission to appeal will rarely be appropriate unless an arguable case of appealable error is demonstrated. In the absence of appealable error an appeal cannot succeed. 8 The fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.9
[7] As can be seen from the above, an appeal against an unfair dismissal decision can only proceed on the ground that it is in the public interest that permission to appeal be granted and where an error of fact is alleged, it must be a significant error of fact.
[8] These proceedings are restricted to permission to appeal considerations. Monash is not required to present full or developed argument about its appeal grounds. Our present task is to determine whether it is in the public interest that permission to appeal against the Decision should be granted, and relevantly in doing so, to consider whether an arguable case of appealable error has been made out.
[9] In O’Sullivan v Farrer 10, the High Court said:
“… the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view. . .” 11 [Citations omitted, editing in original]
[10] 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 of the Act as “a stringent one”. 12 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.13 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.” 14
[11] As we have already noted, the Commissioner concluded that Mr Meaney’s dismissal was harsh. The Commissioner so concluded “on fine balance”, 15 having also concluded that:
• there was a valid reason for Mr Meaney’s dismissal related to his conduct; 16
• Mr Meaney had been notified of the reason for dismissal 17 and had been given an opportunity to respond to the reason;18
• there was no unreasonable refusal of a support person; 19
• whether there were warnings about performance was not a relevant consideration in the circumstances; 20
• neither the size of Monash’s enterprise, nor the absence of human resources expertise impacted the procedure adopted by Monash to effect the dismissal; 21 and
• Mr Meaney’s “mental health issues” was a mitigating factor, as was the delay in dealing with some of the allegations and dealing with them as disciplinary matters when it had previously dealt with these issues as a performance improvement process. 22
[12] The Commissioner’s finding of a valid reason related to conduct that included Mr Meaney:
• deliberately driving his car at his workplace (a university campus driveway) in a manner and speed that caused it to slide sideways with the rear wheels spinning; 23
• behaving in a manner that was angry and aggressive and to some degree abusivetowards a security officer who challenged his driving; 24 and
• telling another staff member that “I feel like I am being victimised, might have to kill someone”. 25
[13] This conduct had occurred against the backdrop of previous conduct which included Mr Meaney speaking to, or about his manager in derogatory and abusive terms, stating that he was “not a manager’s arsehole”, and referring to him as “a filthy little grub”, “a disgusting creep” and “this unqualified jerk” who was “not fit to manage human staff”, as well as speaking aggressively and abusively to another manager. 26
[14] It is unnecessary for us to delve into the minutiae of the appeal grounds. It is sufficient for the purposes of considering the application for permission to appeal, for us to state, having regard to the reasoning of the Commissioner summarised above and the nature of the conduct in which Mr Meaney engaged, that Monash has established an arguable case of appealable error that the Decision was plainly unjust and thus the Commissioner’s discretion miscarried.
[15] We are persuaded having regard to the arguable appealable error identified that the appeal raises important questions relating to:
• the proper exercise of the Commission’s discretion under ss.385(b) and 387 of the Act; and
• dismissal for misconduct said to be referable to an employee’s purported mental health or mental illness.
[16] It is also relevant for the purposes of this permission to appeal application, that questions arise as to the extent to which the decision in Parmalat Food Products Pty Ltd v Wililo 27 had any binding application and whether the Decision is inconsistent with Parmalat.
[17] For these reasons, the public interest is enlivened by the appeal and we propose to grant permission to appeal.
Conclusion
[18] Permission to appeal is granted. The parties will separately be advised about the filing of submissions and a date for the hearing of the appeal.
DEPUTY PRESIDENT
Appearances:
J Bourke QC, with R Sweet of Counsel for the Appellant.
Hearing details:
2018.
Sydney and Melbourne (video hearing):
December 10.
Printed by authority of the Commonwealth Government Printer
<PR703574>
1 [2018] FWC 5796
2 Ibid at [145]
3 Ibid at [151]
4 Ibid at [152]
5 Ibid at [167]-[168]
6 We have yet to grant leave to amend the notice of appeal. This application for permission is determined on the basis of the notice of appeal as lodged on 29 October 2018.
7 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 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]
10 (1989) 168 CLR 210
11 Ibid at 216
12 (2011) 192 FCR 78 at [43]
13 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]
14 [2010] FWAFB 5343, 197 IR 266 at [27]
15 [2018] FWC 5796 at [139]
16 Ibid at [103]-[107]
17 Ibid at [108]-[109]
18 Ibid at [110]
19 Ibid at [111]
20 Ibid at [112]
21 Ibid at [113]
22 Ibid at [122]-[135], [140]-[144]
23 Ibid at [98] and [106]
24 Ibid at [99] and [106]
25 Ibid at [79], [84] and [102]
26 Ibid at [25], [26], [35]-[36], [37] and [45]
27 [2011] FWAFB 1166
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