Mr Paul Warner Dobson v Qantas Airways Limited

[2013] FWCFB 10037

[2013] FWCFB 10037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Mr Paul Warner Dobson
v
Qantas Airways Limited
(C2013/6564)

VICE PRESIDENT HATCHER
COMMISSIONER MCKENNA
COMMISSIONER BULL

SYDNEY, 23 DECEMBER 2013

Appeal against decision [2010] FWA 6431 of Commissioner Cargill at Sydney on 26 August 2010 in matter number U2010/7498.

Background

[1] Mr Paul Dobson was previously employed by Qantas Airways Limited (Qantas). That employment came to an end on 21 January 2010 when he was dismissed for serious misconduct arising out of a physical altercation with a fellow employee. He made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) on 31 March 2010 (an earlier application in respect of the same dismissal having been discontinued). That application was lodged out of time. The Commission (constituted by Commissioner Cargill) granted Mr Dobson an extension of time under s.394(3) of the Act on 1 April 2010. 1

[2] Mr Dobson’s application was the subject of a hearing before the Commissioner which extended over four days in May and June 2010 and was then completed by way of the parties lodging written submissions. The Commissioner issued her decision in the matter on 26 August 2010 (Decision) 2. In the Decision, the Commissioner determined that there was a valid reason for Mr Dobson’s dismissal in that he had punched a fellow employee without provocation, as alleged by Qantas, that his dismissal was not harsh, unjust or unreasonable, and that his application should be dismissed.

[3] Under rule 12.3 of the Fair Work Australia Rules 2010 and, from 6 December 2013, rule 56(2) of the Fair Work Commission Rules 2013, any appeal against a decision or order of a single member of the Commission must be instituted by a notice of appeal that is lodged within 21 calendar days of the date of the decision or order being appealed against, or within such further time as the Commission may allow upon application by the appellant.

[4] On 28 October 2013, Mr Dobson lodged a notice of appeal against the Decision, over three years after the 21 day period provided for under the rules had expired. Accordingly, unless he is granted an extension of time to lodge his appeal notice, his appeal cannot proceed. Mr Dobson has applied for such an extension of time.

[5] The matters usually regarded as relevant in considering whether to grant an extension of time to appeal were summarised in the Full Bench decision in Tokoda v Westpac Banking Corporation 3 as follows:

“[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 12.3(b):

● whether there is a satisfactory reason for the delay;

● the length of the delay;

● the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

● any prejudice to the respondent if time were extended.

[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.”

Length of and reasons for the delay

[6] The length of the delay here is self-evidently substantial. Mr Dobson advanced four reasons for this delay in lodging his appeal:

(1) At the time of the proceedings before the Commissioner, he was not legally represented, and therefore did not have the benefit of any legal advice concerning any appeal rights which he might have. He first received legal advice about the possibility of an appeal in August 2013, when (on Mr Dobson’s description) his case was reviewed by the “NSW Law Commission’s lawyer”, who advised him that the Commissioner’s interpretation of the law was “appalling” and that Mr Dobson’s submission before the Commissioner concerning s.316 of the Crimes Act 1900 (NSW) was correct.

(2) The Decision caused Mr Dobson to suffer “post traumatic stress”, from which he continues to suffer.

(3) Mr Dobson did not become aware until about June 2013 that the Decision was serving as a legal precedent.

(4) Mr Dobson became aware in about September 2013 that his case had been mentioned in a parliamentary committee investigating workplace bullying, with the implication that Mr Dobson had been a workplace bully. This was, Mr Dobson submitted, an inversion of the truth since he had been “on the receiving end of racist bullying in the workplace”.

[7] Mr Dobson tendered a bundle of material (including a written submission) to support these contentions, which was marked Exhibit 1 in the proceedings.

[8] We do not consider that any of the matters identified by Mr Dobson constitute a satisfactory reason for the delay. We are prepared to accept that he did not receive any legal advice with respect to his appeal rights until August 2013. However, that merely begs the question: why did he not take steps to seek and obtain such advice at a time in reasonable proximity to the date of the Decision? Nothing in Mr Dobson’s submissions answered that question. Mr Dobson did not contend that financial indigence prevented him from obtaining any such advice. Further, Mr Dobson stated in his submission that while employed by Qantas he had been “a workplace delegate for the Australian Services Union from 2003”, and so presumably had been a member of that union, but he provided no explanation as to why he had not obtained advice and support from that union.

[9] In the absence of any medical evidence in support of his contention we do not accept that Mr Dobson was prevented from lodging his appeal at an earlier time due to “post traumatic stress”. Indeed, Mr Dobson presented no evidence that at any relevant time he suffered from a diagnosable psychiatric condition. In support of his contention, Mr Dobson referred us to attachment 10 of Exhibit 1, which was a statement by him to the following effect:

“Statement by Dr. Brett Broster concerning post traumatic stress I have suffered as a result of the crime I was accused of and that Commission Cargill concurred with Dr. Brett is a psychiatrist with 20? Years experience and just happened to be my flatmate for several years until 2009.

In 2010 Dr Brett provided a statement to FWA which Commissioner Cargill farcically pooh-poohed because it the statement was issued in his professional capacity. I am sure any reasonable person would believe that a psychiatrist’s opinion of their flatmate and friend would be more accurate than a patient sitting on a couch for an hour! We have been friends for 10 years and also been on international holidays together.”

[10] However that statement is understood, it does not say anything of probative value about Mr Dobson’s state of mental health since the Decision was issued. Mr Dobson has not on his own admission ever sought medical treatment for his claimed “post traumatic stress”. He provided no description of its onset or its symptoms that gives any substance to the contention that it prevented him from lodging his notice of appeal for over three years. Further, having regard to Mr Dobson’s contention that he continues to suffer from the claimed “post traumatic stress”, no explanation was provided as to how he was able to prepare and lodge his notice of appeal in October 2013 but not at any earlier time.

[11] A failure to be aware at an earlier time that the Decision was serving as a “legal precedent” could not possibly constitute a reason for the delay. Irrespective of whether the Decision was serving as a legal precedent - that is, providing guidance on questions of law which might arise in other cases - that had nothing to do with Mr Dobson’s personal interests in respect of the Decision. In any event, we are not satisfied that there is anything in the Decision which is of any significant precedental value. For reasons which we set out later, the Commissioner decided the matter on entirely conventional principles.

[12] As for Mr Dobson having been “mentioned in a parliamentary committee investigating workplace bullying”, the only support provided for this proposition was an extract of a submission made by the Australian Federation of Employers and Industries dated 29 June 2012 to the House of Representatives Standing Committee on Education and Employment’s Inquiry into Workplace Bullying. 4 The extract consists of page 12 of that submission, in which a footnote cites the Decision together with over thirty other decisions of this Commission in support of the proposition that “If an employee resigns as a result of perceived bullying, or is dismissed in circumstances where there are allegations of bullying they may bring unfair dismissal proceedings against the employer”. We do not consider this constitutes any explanation at all for the delay in the lodgement of Mr Dobson’s appeal.

Grounds of appeal and prospects of success

[13] Mr Dobson’s prospects of success in his appeal, if time were extended, are minimal. His notice of appeal contained a number of grounds, but he emphasised five main propositions in his submissions as to why, if an extension of time were to be granted, permission to appeal in the public interest under s.400(1) and s.604 of the Act should be granted and his appeal upheld:

(1) The alleged conduct which caused Mr Dobson to be dismissed and which was found to constitute a valid reason for his dismissal was criminal in nature. As such, the correct venue for such an allegation to be determined was in a criminal court and on the basis of evidence admissible in such a court.

(2) The Commissioner erred by granting Qantas permission to be represented by lawyers in the proceedings under s.596 of the Act, with the result that the trial was “tipped in Qantas’s favour”.

(3) Because the conduct that Qantas alleged Mr Dobson had engaged in constituted a serious indictable offence, Qantas had an obligation under s.316 of the Crimes Act to report this information to the appropriate law enforcement authority. The Commissioner erred in finding to the contrary in paragraph [122] of the Decision.

(4) The alleged conduct occurred outside of Qantas premises and after working hours, and therefore involved Qantas extending its employment policies into “employees’ private lives”.

(5) According to information provided to Mr Dobson from the Commissioner’s Frequent Flyer account, the Commissioner was during 2010 a “Platinum frequent flyer member (OneWorld Emerald)” and continues to be so. The holding of this frequent flyer status constituted a serious conflict of interest which the Commissioner was required to disclose. Had the Commissioner done so, Mr Dobson would have requested that his case be heard by another member of the Commission.

[14] It is not necessary for the purpose of the determination of Mr Dobson’s extension of time application to deal with the above submissions to finality, even though Mr Dobson seems in his submissions to have put his full argument in respect of them. It is sufficient if we express a preliminary view about them on the basis of the submissions and other material before us (dealing with them in the same order as set out above).

First submission

[15] Section 387(a) of the Act requires the Commission, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable to take into account “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)”. Where an applicant for an unfair dismissal remedy has been dismissed because of conduct which might amount to the commission of a criminal offence (such as assault, theft, fraud etc.), the effect of s.387(a) is to require the Commission to consider whether the alleged conduct actually occurred and whether, if it did, that provided a “sound, defensible or well founded” basis for the dismissal. 5 In discharging the statutory duty under s.387(a), the Commission is not bound by the rules of evidence6, and will decide the issue on the balance of probabilities. This is what the Commissioner did in finding that Mr Dobson had made a “hard punch which caused pain” upon another employee, that there were no extenuating factors such as provocation or self defence, and that Qantas therefore had a valid reason to dismiss Mr Dobson.7 There was no error, jurisdictional or otherwise, in this approach. Indeed, the Commissioner would have fallen into error had she not determined whether the alleged conduct had occurred. Although only a relevant court would have had jurisdiction to convict Mr Dobson of a criminal offence and impose a criminal penalty upon him in relation to the alleged conduct, that did not operate to deny the Commissioner’s statutory duty under s.387(a) to determine whether that same conduct actually occurred in order to determine whether there was a valid reason for Mr Dobson’s dismissal.

Second submission

[16] The Commissioner made a separate and prior decision to grant Qantas permission to be represented by lawyers. 8 In that decision, the Commissioner stated:

“[5] Extensive material has been filed by the parties in preparation for the arbitration. A number of orders requiring persons to attend and give evidence have been issued at the request of the applicant.

[6] It is clear that there is, or is likely to be, a contest between the parties on a range of key factual issues which indicates that detailed cross-examination of witnesses may be required. Further, the filed material suggests that a number of legal questions will need to be determined.

[7] In the circumstances I am satisfied that the matter is sufficiently complex that the respondent’s representation by a lawyer will enable the matter to be dealt with more efficiently.

[8] The respondent is given permission to be represented by Blake Dawson.”

[17] The determination of an application by a party under s.596(1) to be represented by lawyers requires, firstly, the making of an evaluative assessment as to whether any of the matters identified in s.596(2) exist and, secondly, the exercise of a discretion. We consider that it was reasonably open in this case for the Commissioner to grant permission on the basis of the matter’s factual complexity, even though we might not have made the same decision ourselves.

Third submission

[18] Section 316(1) of the Crimes Act provides:

“(1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.”

[19] In our view it does not matter whether under s.316(1) Qantas had an obligation to report Mr Dobson’s alleged conduct to the police. That had nothing to do with whether the conduct occurred or not in the first place. As earlier stated, the Commissioner’s duty was to determine for herself whether that alleged conduct actually occurred, and her conclusions in that respect are not vitiated by any issue arising under s.316(1).

Fourth submission

[20] It is well established that conduct which occurs outside of the workplace and working hours may in some circumstances constitute a valid reason for dismissal. Shortly stated, “out of hours” conduct that, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee, or damages the employer's interests, or is incompatible with the employee's duty as an employee, such that it indicates a rejection or repudiation of the employment contract by the employee, may constitute a valid reason for dismissal. 9 Here the conduct involved two fellow employees of Qantas, occurred in the location where employees parked their cars, and happened shortly after the employees finished their work and were walking to their cars. In that context, the Commissioner’s finding that there was a “sufficient temporal and physical connection between the incident and the employment relationship”10 would appear (at the least) to have been reasonably open. The fact that Qantas did not own the carpark does not render erroneous that finding.

Fifth submission

[21] The factual premise of Mr Dobson’s “conflict of interest” submission was not established beyond the level of mere assertion. There is no evidence before us to permit any conclusion to be made about what the Commissioner’s frequent flyer status with Qantas is or has been, what benefits might attach to it, or the circumstances in which any such status was obtained. There is therefore no basis to conclude that the Commissioner had any conflict of interest that she was required to declare or that there was any proper basis upon which she might have been disqualified from hearing Mr Dobson’s case.

Other matters

[22] Beyond these matters, Mr Dobson made various submissions concerning the findings of fact made by the Commissioner. The Commissioner of course had the benefit of hearing all the evidence unfold first hand. Nothing Mr Dobson has put to us indicated that he would have any reasonable prospects of demonstrating any serious error of fact on the part of the Commissioner as required by s.400(2) of the Act.

Prejudice to the respondent

[23] Resisting any appeal will occasion inconvenience and expense to the respondent. That would not, without more, ordinarily be characterised as “prejudice” to the respondent. However, when as here, years have passed without any appeal being lodged, we consider that a successful respondent is entitled to proceed on the basis that the litigation has been finalised and that no further action will be required in respect of the matter. In that circumstance, we consider that the inconvenience and expense to Qantas which would necessarily be the consequence of the grant to Mr Dobson of an extension of time would constitute unwarranted prejudice to Qantas.

Conclusion

[24] Taking into account the above matters, we do not consider that the interests of justice favour an extension of the time for Mr Dobson to lodge his appeal. As his appeal notice is out of time and an extension of time has not been granted his appeal application must be dismissed.

VICE PRESIDENT

Appearances:

P. W. Dobson with D. McDonald for the Appellant

E. Haggerty for the Respondent

Hearing details:

2013.

Sydney:

19 December.

 1  PR995678

 2  [2010] FWA 6431

 3  [2012] FWAFB 3995

 4   Exhibit 1 Attachment 11

 5   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373; McLauchlan v Australia Meat Holdings Pty Ltd, Print Q1625, 5 June 1998; Rode v Burwood Mitsubishi Print R4471, 11 May 1999 at [19].

 6   Section 591 of the Fair Work Act 2009

 7   Decision at [124]-[128]

 8  [2010] FWA 3532

 9   Rose v Telstra Corporation Limited Print Q9292; [1998] AIRC 1592

 10   Decision at [121]

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