Mr Elias Farah v Australian Federal Police
[2015] FWCFB 5426
•1 SEPTEMBER 2015
| [2015] FWCFB 5426 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Australian Federal Police
(C2015/4047)
VICE PRESIDENT CATANZARITI | MELBOURNE, 1 SEPTEMBER 2015 |
Appeal against decision [2015] FWC 2667 of Commissioner Cargill at Sydney on 1 May 2015 in matter number U2013/12439.
Introduction
[1] This decision concerns an application for permission to appeal against a decision 1 (Decision) and order2 (Order) of Commissioner Cargill handed down 1 May 2015. The Decision concerned an unfair dismissal application made by Mr Elias Farah (Appellant) on 9 August 2013 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by the Australian Federal Police (Respondent).
[2] At the hearing of the appeal matter, Mr O’Sullivan of counsel sought permission to appear for the Appellant and Ms Callan of counsel sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Background
[3] The Appellant commenced his employment with the Respondent in May 2002. He was employed as a “sworn” officer, initially involved in a Community Policing role in the Australian Capital Territory (ACT) and later in another area of the organisation based in Sydney.
[4] This matter has a lengthy history involving parallel criminal proceedings which is not necessary to reproduce here. The complete factual background of the matter is helpfully set out in detail at paragraphs [9] – [72] of the Decision.
[5] At first instance, seven issues were relied upon by the Respondent as constituting misconduct and forming the basis for the Appellant’s dismissal. 3 These issues were set out in summary form in the decision as follows:
- Issue 1 - Between 14 July 2008 and 12 November 2009 the applicant breached the AFP Code by receiving requests to provide information, agreeing to provide such information and failing to report the approaches to management;
- Issue 2 - On 11 February 2009 the applicant breached the AFP Code by requesting another officer to access a particular database for lawful purposes when he actually had no such purpose;
- Issue 3 - Between February and March 2010 the applicant breached the AFP Code by using an Australian Government diplomatic bag to send personal mail to a relative overseas;
- Issue 4 - Between 14 July 2008 and 12 November 2009 the applicant breached the AFP Code by preparing and providing a serious of references and testimonials without authorisation in contravention of the relevant guidelines;
- Issue 5 - The applicant breached the AFP Code by falsely stating in two Professional Development Assessments (PDAs) that he had recruited human sources;
- Issue 6 - Between 10 February 2010 and 9 December 2010 the applicant breached the AFP Code by engaging in unauthorised secondary employment in contravention of the relevant guideline;
- Issue 7 - On 1 December 2010 the applicant breached the AFP Code by disclosing to another AFP officer that he had been summonsed to appear before ACLEI in contravention of the LEIC Act. 4
[6] The Commissioner, in dismissing the application, went through each of the seven issues in detail at [145] – [163] of the Decision and held that three of them (Issue 1, 3 and 4) were proven and these collectively constituted a valid reason for the dismissal of the Appellant. The Commissioner’s conclusion in relation to the issue of dismissal is expressed in the following passage from the Decision:
“[164] I am satisfied that the applicant’s actions in relation to Issues 1, 3 and 4 amount to misconduct and, collectively, a valid reason for his dismissal. I do not agree that the relevant breaches need to be substantial or wilful for them to be valid reasons for dismissal, neither do they need to result from actions taken for personal gain. The applicant’s conduct in relation to the three issues, 1, 3 and 4 was not minor or unconscious.”
[7] The Commissioner then went on to consider the other factors under s. 387 and in relation to s.387 and determined that there was no other factor which rendered the dismissal harsh, unjust or unreasonable as follows:
“[165]I now turn to what might be termed the “procedural fairness” factors in section 387, paragraphs (b), (c) and (d).
[166]I am satisfied that the applicant was notified of the reasons for his dismissal. I consider that he was also provided with an opportunity to respond. I accept that this opportunity was not optimum in that there was a considerable delay between the relevant actions and the invitation to respond and the applicant did not have all documents before him at the time. Nevertheless I am satisfied that he was given the relevant opportunity and, with assistance from his legal representative, availed himself of it.
[167]There was no refusal, whether unreasonable or otherwise, to allow the applicant to have a support person present during the “directed interview” with the PRS or at the ACLEI hearing.
[168]The dismissal did not relate to unsatisfactory performance however I note that there was no suggestion that the applicant had received any prior warnings.
[169] The respondent is a large employer with dedicated human resource management specialists. I am satisfied that these factors were reflected in the procedures which were followed in effecting the dismissal.
[170] There are several matters which I consider are of relevance under paragraph (h). The first is the fact that the applicant was employed by the AFP for more than 11 years. The second is the very lengthy process of the investigation. I note that a large part of this appears to be due to ACLEI and not the respondent, nevertheless, the applicant was “in limbo” for some considerable period of time.
[171] The third matter of relevance is the applicant’s suspension. As noted earlier, the applicant was suspended with pay from 10 February 2010 to 26 October 2012 from which time his suspension was without pay through to the time of his dismissal. I note that Regulation 5 of the Australian Federal Police Regulations 1979 provides an express power to suspend without pay.
[172] I also note that the applicant’s salary during the period of his paid suspension did not include two allowances he had previously received. Whilst I understand that the consequent reduction in income would have had a negative effect on the applicant, the composite allowance, which accounted for most of the reduction, was paid for the inconvenience of working a particular operational pattern. The applicant was not working and consequently was not inconvenienced.
[173] In all of the circumstances of the case and having taken account of each of the factors in section 387 and my findings therein I have determined, on balance, that the dismissal of the applicant was not harsh, unjust or unreasonable. It follows from this determination that the dismissal was not unfair. The application for relief is dismissed.
[174] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act.
Grounds of Appeal
[8] The grounds of appeal advanced in the Applicant’s Notice of Appeal are as follows:
- The learned Commissioner erred by finding that the actions of the Appellant constituted a valid reason to dismiss the Appellant;
2. The learned Commissioner erred by failing to determine and have regard to the fact that the Appellant had not consciously breached the Respondent’s policies and guidelines in relation to issue 1, 3 and 4;
3. The learned Commissioner erred in finding that the Appellant had been provided with procedural fairness in relation to the findings of misconduct in relation to issue 1;
4. The learned Commissioner failed to provide the Appellant procedural fairness by finding that the claimed misconduct in relation to issue 1, which was known by the Respondent and not relied upon by the Respondent in dismissing the Appellant, constituted a valid reason for dismissal;
5. The learned Commissioner erred by determining that the absence of a prohibition on the use of the Respondent’s internal mail and diplomatic bag for personal use constituted a valid reason for dismissal;
6. The learned Commissioner erred by finding and taking into consideration, that the Appellant should have been aware that there was a policy in relation to the provision of references;
7. The learned Commissioner erred by failing to determine and take into account the “charter” of the department within which the Appellant was working in her determined of issue 1; and
8. The learned Commissioner erred, by failing to determine whether the termination was harsh and or unreasonable by reference to the Appellant’s commendations and history of good performance.
[9] The Appellant also filed written submissions and made brief oral submissions at the hearing. With respect to the issue of public interest the Appellant submitted that the appeal raises questions of importance and general application, namely the approach to be taken by the Commission in the identification and characterisation of conduct for the purposes of identifying a valid reason for dismissal. In the Appellant’s submission, in the matter below the Respondent confirmed that it was relying on particular conduct as constituting misconduct, however, the Commissioner identified conduct not relied upon by the Respondent as founding a valid reason. The Appellant submitted that he was not able to reply to this further conduct and was denied procedural fairness. Further, the Appellant submitted that the Commissioner applied different parts of the AFP code of conduct to that of the Respondent and in doing so, the Commissioner fell into error. The Appellant submitted that this constituted an error of law and because the Appellant was not put on notice that the alternative conduct and parts of the code were being relied upon by the Commissioner, the decision manifested injustice.
[10] The Appellant also submitted that the appeal raises important considerations about the application of the principles governing the determination of harshness etc in cases of misconduct. In particular those set out by the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post 5, including but not limited to those involving toleration condemnation and the Appellant’s lack of disciplinary record.
[11] At the hearing, the Respondent submitted that the Commissioner’s approach to the task of determining if there was valid reason for dismissal was orthodox and coherent. The Commissioner was not limited to the reasons given by the Respondent when it dismissed the Appellant in forming her conclusions. The Respondent submitted that even if the Commissioner concluded that the nature of the misconduct by the Appellant fell more appropriately within a different provision of the code of conduct, this does not take away from the fact that the Appellant’s behaviour was found to constitute misconduct on 3 of the 7 issues which is what cumulatively gave rise to a valid basis for dismissal.
[12] Moreover, insofar as the Appellant submitted that the Commissioner decided the matter in a way that denied him an opportunity to deal with the alternate conduct and parts of the code relied on, the Respondent submitted that consideration should be given to the way the hearing was run at first instance. The Respondent submitted that there was very little factual dispute as to the conduct the subject of consideration and the matter turned on whether the behaviour could be characterised as misconduct or not. The Respondent submitted the case below was framed generally as being about integrity, lack of insight and a failure to distinguish between the personal and the professional in the way that the Appellant was conducting himself in his employment. In the Respondent’s submission, the Commissioner correctly considered the issues which cumulatively constituted valid grounds for dismissal and no appealable error of public interest ground has been enlivened.
Permission to Appeal
[13] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 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.”
[14] 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 as ‘a stringent one’ 6. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’
[15] The test for determining the public interest has been described as follows: 7
“[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.”
[16] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 8 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:9
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[17] We note that the Appellant contends that he was denied procedural fairness on the basis that the Commissioner relied on alternate conduct and parts of the Code to ultimately arrive at the conclusion that there was a valid reason for the dismissal. A member of the Commission may use evidence in proceedings for a purpose other than the purpose for which it was adduced. The Commissioner did not come up with an entirely new valid reason as was the case in Butler v City of Wanneroo 10 and as such, this matter is distinguished from that case. Having regard to the limited factual dispute at first instance, we do not find that the Appellant was denied procedural fairness.
[18] We have considered the circumstances of this matter and the grounds of appeal advanced by the Appellant. In our view, the Appellant has not demonstrated any appellable error in the Decision or any basis on which it might be concluded that it is in the public interest to grant permission to appeal. All relevant circumstances and matters were considered, none were given undue weight and findings regarding the seven issues alleged to be misconduct by the Respondent were properly made.
[19] As we have mentioned, s.400(1) of the Act provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
Conclusion
[20] For the above reasons the application for permission to appeal is dismissed.
VICE PRESIDENT
Appearances:
D O’Sullivan of counsel for the Appellant.
S Callan of counsel for the Respondent.
Hearing details:
July 14,
Sydney
2015.
1 Mr Elias Farah v Australian Federal Police[2015] FWC 2667
2 PR563211
3 See [38] of the Decision for a list of these 7 issues.
4 Decision at [38].
5 (2013) FWCFB 6191 at [42] and referred to by the Appellant in outline of final submissions at AB 850-851.
6 (2011) 192 FCR 78 at paragraph 43.
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
8 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
9 Ibid.
10 Butler v City of Wanneroo [2015] FWCFB 2324.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR570596>