Mr Anthony Duncan v Chief Minister, Treasury & Economic Development Directorate
[2024] FWCFB 124
•5 MARCH 2024
| [2024] FWCFB 124 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Anthony Duncan
v
Chief Minister, Treasury & Economic Development Directorate
(C2023/7931)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 5 MARCH 2024 |
Appeal against decision [2023] FWC 3103 of Deputy President Dean at Canberra on 29 November 2023 in matter number C2023/4819 – permission to appeal refused.
This is an appeal by Mr Anthony Duncan pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act) against a Decision[1] issued by Deputy President Dean on 29 November 2023. The Decision dismissed an application made by Mr Duncan under s 739 of the FW Act against the Chief Minister, Treasury & Economic Development Directorate (Respondent).
In accordance with the Commission’s directions, Mr Duncan filed written submissions in relation to permission to appeal on 18 January and 7 February 2024. The Respondent filed written submissions in relation to permission to appeal on 29 January 2024.
The parties initially agreed to the matter being determined on the papers. On 7 February 2024 Mr Duncan requested that the matter be listed for hearing so that he could make oral submissions. The application proceeded to a hearing before us on 20 February 2024. Mr Duncan did not attend the hearing and, with leave, was represented by his ‘power of attorney’ Mr Peter Hobbs. Mr Hobbs made oral submissions to supplement Mr Duncan’s written submissions in relation to the question of permission to appeal.
For the reasons that follow, we have decided to refuse permission to appeal.
The Deputy President’s Decision
Mr Duncan is a full-time teacher at Lyneham Primary School and is employed by the Respondent. At the time of the events which give rise to these proceedings, Mr Duncan’s employment was covered by the ACT Public Sector Education Directorate (Teaching Staff) Enterprise Agreement 2018-2022 (Agreement).[2]
On Monday 16 August 2021 teachers were the subject of a ‘work from home’ direction issued by the Respondent and a COVID-19 lockdown was in place.[3] Mr Duncan and other teachers were given five days to prepare learning materials before commencing ‘remote learning’ with students.
Around 11:00am that day, during a one-on-one video-conference with his supervisor during his hours of duty, Mr Duncan picked up a cask of wine, lifted it above his head and opened the tap to drink from it. Mr Duncan was not responsible for students for the remainder of Monday 16 August 2021 following the incident.[4]
At the time of the incident, Mr Duncan’s employment was subject to the Code of Conduct for Teachers, School Leaders and Principals (Code of Conduct). Section 7.2(h) of the Code of Conduct prohibits teachers from consuming alcohol during hours of duty or when they have a continuing responsibility for students.[5]
The incident was investigated by the Respondent’s Professional Standards Unit (PSU). The PSU found that Mr Duncan’s conduct was ‘inappropriate’ and not in accordance with the requirements of the Code of Conduct.[6] The proposed findings of the investigation were given to Mr Duncan, and he provided a response before a sanction was imposed.[7] The Respondent then issued a sanction to Mr Duncan on 31 October 2022 consisting of a written reprimand and a financial penalty of a reduction of a pay increment level for 12 months.[8]
The Agreement makes provision for employees to appeal decisions in relation to disciplinary action to an Appeal Panel.[9] Mr Duncan initiated such an appeal which was determined by the Appeal Panel on 1 August 2023. The Appeal Panel noted that it was not in contest that Mr Duncan consumed alcohol, and Mr Duncan’s position was that he was not in a workplace and that he thought the meeting was over. The Appeal Panel found that there was no doubt that Mr Duncan was at work during normal hours of duty and that the relevant policies applied. The Appeal Panel by majority said that the Respondent’s policy prohibiting consumption of alcohol by teachers during hours of duty or when they have a continuing responsibility for students constitutes a lawful direction and that the finding by the Executive Branch Manager, People and Performance that the consumption of alcohol at work was misconduct was open to him.[10]
The Agreement provides an employee who is affected by a decision of an Appeal Panel with the ability to seek a review of the decision by the Commission.[11] On 18 August 2023, Mr Duncan sought a review of the Appeal Panel’s decision by way of an application pursuant to s 739 of the FW Act. The matter was listed for hearing before Deputy President Dean on 24 November 2023. The parties relied upon a Statement of Agreed Facts.[12] In addition, Mr Duncan relied upon his own evidence,[13] and a witness statement of Robert Clements, Teacher, ACT Department of Education & Training.[14] Mr Clements gave evidence that he was appointed to the Appeals Panel in respect of Mr Duncan’s matter and in his professional opinion, the sanction issued to Mr Duncan was harsh. The Respondent relied upon witness statements from Natalie Tasker, Director, People Cases, ACT Education Directorate,[15] and Olivia Neilson, Executive Teacher/Teacher Librarian for the ACT Education Directorate.[16] Ms Tasker made the original disciplinary decision in relation to the incident. Ms Neilson was Mr Duncan’s supervisor and the incident occurred during a meeting with Ms Neilson.
In the Decision, the Deputy President said she was satisfied, on the basis of the Statement of Agreed Facts, that Mr Duncan was at work at the relevant time and consumed alcohol.[17] The Deputy President recited and considered numerous submissions made by Mr Duncan. These included that Mr Duncan was not in breach of the Code of Conduct because his home was not a ‘workplace,’[18] he did not consume alcohol on school premises,[19] the conversation between Mr Duncan and his supervisor during which he consumed alcohol was ‘private,’[20] and that 16 August 2021 was equivalent to school holidays, referred to as ‘stand down time.’[21]
The Deputy President noted there was no dispute that that the Code of Conduct, which Mr Duncan confirmed he was aware of, prohibited the consumption of alcohol during hours of duty.[22] Mr Duncan consumed alcohol while working and during his normal hours of duty irrespective of the ‘work from home’ direction at the time.[23] The Deputy President found that whether Mr Duncan’s home was a workplace or Mr Duncan was responsible for the supervision of students afterwards was irrelevant as the policy was clear that no alcohol is to be consumed during hours of duty regardless of any supervision obligations.[24]
The Deputy President was satisfied that 16 August 2021 was not a time equivalent to school holidays, as this was the commencement of a five day period provided to teachers for planning and preparation of materials for remote learning which was to commence at the conclusion this period.[25] The Deputy President found that while the conversation between Mr Duncan and his supervisor may have been ‘private’ in the sense that they were the only two people involved in the discussion, it was a work related discussion conducted during work time. The primary purpose of the discussion was to discuss how the lockdown would be managed and what the teachers had to do to prepare for remote learning.[26]
The Deputy President agreed with the Appeal Panel’s consideration of the issues.[27] She found that the sanctions imposed on Mr Duncan were sanctions available under the terms of the Agreement.[28] The Deputy President was satisfied the sanctions imposed on Mr Duncan were reasonable and proportionate in the circumstances and dismissed the application.[29]
The respective submissions
The grounds of appeal relied upon by Mr Duncan, which are set out at [34] below, relate to both the Appeal Panel decision and the Deputy President’s Decision and sought ‘another opinion’ about most of the issues raised. The following provides a high-level summary of Mr Duncan’s contentions.
Mr Duncan disputes the findings of the Appeal Panel that he was in a workplace at the time of the incident and that he was at work during work hours. He notes the Investigation Report prepared by Mr Nigel Smith, Assistant Director of the PSU which said that an ACT public sector staff member’s private residence is not strictly defined as a ‘workplace.’ Mr Duncan contends that the Code of Conduct does not state that it applies to teachers working from home because it is not an identified workplace.
Mr Duncan disputes the Deputy President’s findings that the sanction imposed on him was reasonable and proportionate, in circumstances where the incident did not occur in a workplace but in his private residence and did not occur during normal work hours, but rather at a time when he did not have continuing responsibility for students.
Mr Duncan claims that normal work hours do not apply when employees are directed to work from home. Further, Mr Duncan’s position is that he was under the impression that he was not subject to normal work hours and that the consumption of alcohol did not occur during work time. Mr Duncan also claims that the conversation between he and his supervisor was not conducted during work time. This is because it was a private discussion rather than a designated work meeting and at the time, flexible work arrangements including changes to work hours were in place.
Mr Duncan states that the Decision is silent in relation to whether his behaviour was serious misconduct or inappropriate behaviour. Mr Duncan submits that at worst he was guilty of inappropriate behaviour which warranted a lesser form of disciplinary action such as a written warning or training to reduce the likelihood of the behaviour recurring.
Mr Duncan also notes that the Decision does not refer to his exemplary twenty-five year record as a teacher and that this should have been taken into account in determining whether the penalty was appropriate.
In relation to public interest considerations, Mr Duncan submits that if the sanction imposed upon him is maintained, any teacher found consuming any amount of alcohol in similar circumstances could be the subject of a $7,000 fine or a commensurate financial penalty by reducing that teacher’s incremental level. Teachers will be hesitant about drinking alcohol in any venue before 4.51pm. Such a determination will be perceived as discriminatory by teachers.
Respondent’s submissions
The Respondent submits, in summary, that Mr Duncan’s home was a workplace for the purposes of section 7.2(h) of the Code of Conduct. It says that the incident occurred ‘during hours of duty,’ in a meeting with Mr Duncan’s work supervisor and while discussing COVID-19 restriction imposed remote learning for students. It says that section 7.2(h) is concerned with consumption of alcohol during hours of duty, no matter where it occurs and the contention that the discussion was not work related because it was a one-on-one discussion should be rejected.
The Respondent submits that it is unnecessary to determine whether Mr Duncan committed ‘serious misconduct’ or ‘inappropriate conduct.’ The only relevant question is whether the incident was ‘misconduct’ for purposes of the Agreement. It was found to be misconduct by the PSU because it contravened clause H6.5 of the Agreement, which specified that misconduct includes a failure ‘to meet the obligations set out in section 9 of the PSM Act [Public Sector Management Act 1994 (ACT)].’
As to whether the Deputy President considered Mr Duncan’s period of service, the Respondent submits that a decision maker does not need to refer to every piece of evidence and every contention made by a party. In any event, the Deputy President referred to the ‘large volume of correspondence from Mr Hobbs on behalf of [Mr Duncan] throughout this process.’ The Deputy President found that ‘[t]here is no doubt the sanctions imposed on [Mr Duncan] were sanctions available under the terms of the Agreement,’ and that ‘[g]iven the above matters, I am satisfied the sanction imposed on [Mr Duncan] was open to the Respondent, and reasonable and proportionate in the circumstances.’ Those matters evidently concerned the Statement of Agreed Facts, the Appeal Panel’s decision, and the submissions of Mr Duncan, which the Deputy President engaged with in her reasons. The use of the words ‘in the circumstances’ also provides a strong indication that the Deputy President considered Mr Duncan’s circumstances.
The Respondent’s position is that there is no basis for the sanction imposed upon Mr Duncan to be reconsidered. It says that the evidence before the Deputy President supported the finding that the sanction issued by the Respondent was reasonable and proportionate. No appealable error has been shown in that conclusion or in the Deputy President’s reasoning process.
Principles – permission to appeal
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[30] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[31] 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.[32]
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 an appealable error.[33] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[34]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[35] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[36]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[37]
“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
(citations omitted)
For there to be legal error, it would need to be shown that the Deputy President acted on a wrong principle, took into account irrelevant matters, mistook facts, or that the outcome unreasonable or plainly unjust.[38] It is not enough that a different member or an appellant body might have reached a different conclusion.
Consideration
We understand from the matters raised by Mr Duncan in the Notice of Appeal[39] and submissions filed[40] that Mr Duncan raises five grounds of appeal. These appeal grounds are that the Deputy President erred:
At [15] of the Decision in not disturbing the Appeal Panel’s finding that Mr Duncan was in a workplace at the time of the incident;
In finding at [14] and [18] of the Decision that Mr Duncan was at work at the relevant time;
In finding at [20] of the Decision that the sanction imposed on Mr Duncan was reasonable and proportionate in the circumstances;
In not determining whether Mr Duncan’s behaviour was serious misconduct or inappropriate behaviour;
In failing to take into account Mr Duncan’s exemplary twenty-five year record as a teacher in determining whether the penalty was appropriate.
We are not persuaded that it is appropriate to grant permission to appeal. The appeal grounds advanced by Mr Duncan do not give rise to an arguable contention of appealable error. The basis for this conclusion is explained briefly as follows, by reference to each appeal ground.
Appeal ground (1) is based upon the erroneous belief that it was necessary for the Respondent to establish that the incident occurred in a workplace to find that Mr Duncan breached the Code of Conduct. Section 7.2(h) of the Code of Conduct prohibits a teacher on duty from consuming alcohol during hours of duty or when they have a continuing responsibility for students. The Deputy President determined that whether Mr Duncan’s home was a workplace or not was irrelevant to whether the incident occurred during his hours of duty and thereby prohibited by the Code of Conduct.[41] The Deputy President’s conclusion was based on the plain and ordinary construction of the words in section 7.2 of the Code of Conduct.[42] It was not necessary for the Deputy President to review the Appeal Panel’s findings that the incident occurred in a workplace. Accordingly, no arguable contention of appealable error arises.
Appeal ground (2) concerns the Deputy President’s factual finding that Mr Duncan was at work at the time of the incident because it occurred during a five day period within which teachers were planning and preparing learning materials for remote learning.[43] The Deputy President considered and rejected Mr Duncan’s submission that the incident did not occur during work time because the conversation between Mr Duncan and his supervisor during which he consumed alcohol was ‘private’[44] and that 16 August 2021 was equivalent to school holidays, referred to as ‘stand down time.’[45] Mr Duncan’s contention of error rises no higher than expressing his disagreement with the Deputy President’s findings, each of which are informed by the evidence and the Statement of Agreed Facts before the Commission. No arguable appealable error is disclosed.
Appeal grounds (3), (4) and (5) are related because they concern the Deputy President’s finding that the sanctions imposed on Mr Duncan were reasonable and proportionate in the circumstances. This involved the exercise of a discretion. Appeal ground (4) concerns the Deputy President making her finding without determining whether Mr Duncan’s conduct was serious misconduct or inappropriate behaviour. Appeal ground (5) contends that the Deputy President made her finding without taking into account Mr Duncan’s exemplary twenty-five year record as a teacher.
The sanctions available under the Agreement broadly fall into four categories, being reprimand, financial penalty, transfer and termination of employment. In determining the appropriate sanction, the Respondent was required under the Agreement to take into account the nature and seriousness of the misconduct, the degree of relevance to the employee's duties or to the reputation of the directorate or the ACT public service, the circumstances of the misconduct, any mitigating factors, including any full admission of guilt, the previous employment history and the general conduct of the employee.
Although the Respondent is required to have regard to an employee’s previous employment history and general conduct, it is not specifically required to take into account length of service when determining a sanction. Rather, the Agreement states that once a finding of misconduct is made, the Respondent is empowered to impose the sanctions described above.
In the proceedings at first instance, the Respondent relied upon evidence from Ms Tasker in relation to the process she undertook to determine the appropriate sanction. This included Ms Tasker’s consideration of all the evidence and the matters she was required to take into account.[46] It was not specifically contended by Mr Duncan before the Appeal Panel that Ms Tasker failed to follow the requirements of the Agreement in determining the sanctions imposed.[47] Regardless, before the Deputy President, Mr Duncan said that the sanction ought to have been limited to a written reprimand.
The task before the Deputy President, pursuant to the Agreement, was to review the Appeal Panel’s decision, which is precisely what the Deputy President did. The sanctions imposed by the Respondent were plainly available under the Agreement. The Deputy President’s conclusion that the sanctions were reasonable and proportionate was directly responsive to Mr Duncan’s allegation that they were disproportionate in light of Mr Duncan’s exemplary employment history.[48] The contention that the Deputy President did not take into account Mr Duncan’s exemplary record therefore cannot be sustained. Nor is there any material to support a conclusion that the proportionality finding was contrary to incontrovertible facts or glaringly improbable in the manner described at [31] of this decision. The Deputy President’s finding regarding the sanctions imposed was available to her having regard to Ms Tasker’s evidence and the requirements of the Agreement. In the circumstances, no arguable appealable error arises.
In relation to whether Mr Duncan’s conduct was serious misconduct or inappropriate behaviour, we note that there was no allegation by the Respondent that Mr Duncan’s conduct was serious misconduct. No error therefore arises from the contention that the Deputy President did not determine a matter she was not required to address.
By letter dated 9 June 2022, the Respondent advised Mr Duncan that it considered his actions in relation to the incident ‘to be inappropriate and not in accordance with the requirements of the Code of Conduct’ and further that his actions constitute misconduct as defined by clause H6.5 of the Agreement and were in contravention of his obligation as an ACT public sector employee under s 9 of the Public Sector Management Act 1994 (PSM Act). Section 9(1)(c) of the PSM Act refers to the requirement that a public sector employee comply with any lawful and reasonable directions. The Appeal Panel found that the Code of Conduct was a lawful direction and that it was open to the Respondent to find that Mr Duncan’s consumption of alcohol while at work was misconduct. There was no basis for the Deputy President to disturb this finding. Mr Duncan’s desire to obtain another opinion on this matter does not demonstrate any arguable appealable error in the Decision.
Conclusion and disposition
We are not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Deputy President was attended by appealable error.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 602(2), that the appeal raises any legal or factual issue of significance or general application, or that there is diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Further, we do not consider that the Deputy President’s decision is counter intuitive or manifests an injustice.
We order that permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr G Hobbs, for the Appellant
Mr B Hamack and Mr M Aldridge, for the Respondent
Hearing details:
2024.
Melbourne (video hearing):
20 February.
[1] [2023] FWC 3103
[2] Decision, [1]
[3] Decision, [7]
[4] Decision, [6]
[5] Decision, [6]
[6] Decision, [8]
[7] Decision, [9]
[8] Decision, [2]
[9] Decision, [10]
[10] Decision, [13]
[11] Decision, [10]
[12] Decision, [6]
[13] Court Book – First Instance (CB) at p. 75
[14] CB at p. 76
[15] CB at p. 79
[16] CB at p. 83
[17] Decision, [14]
[18] Decision, [15]
[19] Decision, [15]
[20] Decision, [18]
[21] Decision, [17]
[22] Decision [16]
[23] Decision [15]
[24] Decision [15]-[16]
[25] Decision [17]
[26] Decision, [18]
[27] Decision, [14]
[28] Decision, [19]
[29] Decision, [20]
[30] 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
[31] 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]
[32] [2010] FWAFB 5343, 197 IR 266 at [27]
[33] Wan v AIRC (2001) 116 FCR 481 at [30]
[34] 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]
[35] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[36] Fox v Percy (2003) 214 CLR 188; [2003] HCA 22 at [27]-[29]
[37] [2000] HCA 47; 203 CLR 194 at [19]
[38] House v The King (1936) 55 CLR 499 at 505
[39] Notice of Appeal at [2.1] and Attachment A
[40] Submission Supporting Grounds for Appeal; Response to Respondent’s Outline of Submissions
[41] Decision, [15]
[42] Decision, [6]
[43] Decision, [14], [17]
[44] Decision, [18]
[45] Decision, [17]
[46] CB at p.79-82
[47] CB at p.66
[48] CB at p.74
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