Mr Ramesh Bhela v Busways Group Pty Ltd
[2023] FWCFB 159
•18 SEPTEMBER 2023
| [2023] FWCFB 159 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Ramesh Bhela
v
Busways Group Pty Ltd
(C2023/4669)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER LEE | MELBOURNE, 18 SEPTEMBER 2023 |
Appeal against decision [2023] FWC 1500] of Deputy President Cross at Sydney on 19 July 2023 in matter number U2023/1615 – permission to appeal refused.
Mr Ramesh Bhela has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for which permission to appeal is required against a Decision[1] of Deputy President Cross issued on 19 July 2023. The Decision dealt with an application made by Mr Bhela against Busways Group Pty Ltd pursuant to s 394 of the Act for an unfair dismissal remedy.
Mr Bhela was dismissed from his employment on 8 February 2023 for failing to hold and maintain a Working With Children Check (WWCC).[2] In the Decision, the Deputy President concluded that the dismissal was harsh and therefore unfair. The Deputy President found that there was a valid reason for dismissal and there were no failures in procedural fairness afforded to Mr Bhela. However, the Deputy President determined that it would have been reasonable in the circumstances for the respondent to have allowed Mr Bhela a period of six months from loss of certification to regain his WWCC before dismissing him. The respondent’s failure to grant Mr Bhela that additional time led the Deputy President to conclude that the dismissal was harsh and so unfair. As to remedy, the Deputy President determined that reinstatement was inappropriate as Mr Bhela still did not possess a WWCC. Having regard to s 390(3)(b) the Deputy President determined that an order for compensation was not appropriate in all the circumstances of the case.
Mr Bhela’s application was listed for permission to appeal only. For reasons that follow, permission to appeal is refused.
Background
The respondent provides bus services in Western Sydney.
Mr Bhela commenced employment with the respondent on 3 April 2012 as a full-time bus driver. On 13 May 2013, Mr Bhela signed an employment agreement that included a requirement to hold a working with children clearance. Specifically, the employment agreement stated the following:
“Working with Children clearance.
The Company will require you to provide evidence that you hold the above licenses/certificates.
You must notify the Company immediately in the event that you no longer hold, or are no longer eligible to hold, any of the above licenses/certificates.”
Also on 13 May 2013, Mr Bhela accepted and signed the respondent’s driver accreditation policy. The relevant parts of that policy were set out in the Decision at [8] as follows:
“A Working with Children Check is a pre-requisite for anyone in child-related work. It involves a national criminal history check and review of findings of workplace misconduct. Drivers must have a current Working with Children certification to be able to drive a bus for Busways.
It is an offence to engage an employee/driver in any child-related employment without a Working with Children certification.
When Busways receives notification that a WWC number has been barred and the employee has been identified, the Operations Manager will be notified immediately. If the driver is rostered to work, or currently working, they must be taken off the road immediately and suspended until such time as their WWC certification is current.
Employees/Drivers will be given 10 weeks to get their WWC certification changed to current - failure to do so in this time frame may lead to termination of employment.
An Occurrence Report is to be raised stating the action taken and include a copy of the “Current” status report once the WWC certification has been reinstated.
Busways take the safety of its passengers very seriously, therefore failure by depot administration staff to follow the above procedure will result in disciplinary action…”[3]
On 6 October 2022 the respondent received a notification from the Office of the Children’s Guardian that Mr Bhela’s WWCC had been barred. The barring of the WWCC was a result of an allegation of domestic violence made against Mr Bhela. At the time of the Decision the allegation of domestic violence remained unproven and did not relate to Mr Bhela’s conduct as an employee.
On 6 October 2022 Mr Bhela attended a medical appointment in relation to what he claimed was a work-related injury. Mr Bhela commenced a period of personal leave as a result of the injury from 6 October 2022. The claimed injury was shortly thereafter the subject of a workers compensation claim filed by Mr Bhela. The workers compensation claim was rejected by the respondent’s insurer on 25 October 2022. While this state of affairs remain unchanged at the time of the first instance hearing, Mr Bhela continued to dispute the rejection of the claim stating, “it doesn’t mean this not happened at work and is still I cannot work anywhere else.”[4]
Having been advised that Mr Bhela’s WWCC had been barred, the respondent sent an email attaching a letter to Mr Bhela on 6 October 2022 informing him he had been suspended from duties. The email makes clear that the period of suspension would be unpaid, and that Mr Bhela was to advise the respondent of any intention to use accrued annual leave or rostered days off for the suspension period. The letter further stated the following:[5]
“Before you can return to normal duties you are required to submit a current WWC certification. You will be required to submit this before 15 December 2022. Failure to submit the WWC certification before this date may lead to termination of your employment. During this period you may utilise any annual or RDO leave you have accrued, once you have exhausted this leave you will be deemed absent and the suspension will be unpaid.”
Where an employee’s WWCC has been barred, the respondent’s driver accreditation policy provides a period of 10 weeks for employees to regain a valid WWCC. In the case of Mr Bhela, that 10-week period expired on 15 December 2022. At its election, the respondent granted Mr Bhela a further period of four weeks to obtain a valid WWCC. There then followed a series of written exchanges between Mr Bhela and/or his representative, the Transport Workers’ Union (TWU) and the respondent which is set out in detail from [16] to [32] of the Decision.
In summary the exchanges addressed matters including the following:
· On 19 December 2022, Mr Bhela was invited to attend a show cause meeting to be held on 20 December 2022, but Mr Bhela advised he could not attend. The show cause meeting was rescheduled to 22 December 2022.
· On 22 December 2022, Mr Bhela advised the respondent that he was unwell, and his doctor had advised him not to attend any meeting that could cause further stress. Mr Bhela also advised that his workers compensation claim was “still under investigation” and an independent medical examination had been arranged for 13 January 2023.
· The show cause meeting was deferred until the next day, 23 December 2022. However later on 22 December 2022, apparently after a discussion with the TWU representative, the respondent advised Mr Bhela that it was providing him with three options. First, Mr Bhela could attend the meeting on 23 December 2022; second, Mr Bhela could submit a written response to the show cause letter; or third, Mr Bhela’s TWU representative could attend the meeting and advocate on behalf of Mr Bhela in Mr Bhela’s absence.
· Mr Bhela replied to that email, again on the same day, advising that due to his mental health he was unable to make a statement or attend the meeting.
· On 23 December 2023, Mr Bhela’s TWU representative sent the respondent an email including correspondence he had been provided by Mr Bhela in which Mr Bhela indicated that he would like to use his accrued annual leave and long service leave which he says are “more than enough for 6 months” until he is able to regain his WWCC or his “works Compo case gets accepted.”[6]
· On 17 January 2023, Mr Bhela provided a medical certificate certifying him unfit for work due to a shoulder injury, from 6 January 2023 to 6 March 2023. The certificate also indicated that Mr Bhela was unable to attend any meetings due to stress and anxiety.
· On 20 January 2023, the respondent emailed Mr Bhela and his TWU representative and advised that holding a WWCC was critical to Mr Bhela’s role; that the 10-week period for the issue to be resolved had elapsed; the business was unable to grant the requested 6-month period of absence either through the use of accrued leave entitlements or unpaid leave; and sought urgent advice from Mr Bhela “pertaining to the likelihood of the resumption of the WWCC.”[7]
· On 25 January 2023, Mr Bhela emailed the respondent a work capacity certificate and screenshots of leave approvals granted by the respondent for the periods 13 February 2023 to 31 March 2023 and 3 April 2023 to 7 April 2023. The 25 January 2023 email also relevantly advised in respect of the WWCC that Mr Bhela “was hoping for an outcome but the opposing lawyer asked for an extension and with the court system being so backlogged currently this will not happen until 1 March 2023.”[8] Mr Bhela expressed confidence that he would regain his WWCC at that time, based on the advice of his lawyer. Mr Bhela’s email then stated the following:[9]
“I would ask you to consider approving and paying me leave until my approved leave ends. I will update my employer with the outcome of the hearing on 1 March 2023. In the unlikely event the variation to my conditions are not approved I will understand what processes need to happen by Busways moving forward, but I would like to be given the opportunity to be treated fairly until proven otherwise…”
· The respondent replied on 6 February 2023 and advised that it was ready to conduct an outcomes meeting and proposed the meeting occur on 8 February 2023 in person or by Microsoft Teams.
· On 7 February 2023, Mr Bhela replied by email, indicating that he would not be able to attend the meeting as “I am in India nowadays; I am sick; Very poor internet here in my village.”[10]
· On 8 February 2023, the respondent sent Mr Bhela an email in which it advised that as Mr Bhela was unable to attend the outcomes meeting that the outcome would be communicated to him by email. The email proceeded to advise Mr Bhela that as he did not hold a valid WWCC and the failure to hold a WWCC meant that Mr Bhela was unable to perform his role, his employment was terminated with immediate effect.[11]
Decision under appeal
After setting out the respective contentions and various preliminary matters,[12] the Deputy President turned to the factors under s 387 of the Act. In relation to s 387(a), the Deputy President found it was an inherent requirement of Mr Bhela’s position that he hold a WWCC. Mr Bhela’s inability to carry out his duties for an extended period of time because of the loss of his WWCC was a valid reason for dismissal.
In relation to s 387(b) and (c), the Deputy President found that Mr Bhela was notified on numerous occasions of the reason for his dismissal and given an opportunity to respond. In respect of s 387(d), the Deputy President concluded that Mr Bhela was given the opportunity, and did have, a support person present at relevant times. The Deputy President regarded s 387(e) as not applicable and concluded that the matters in s 387(f) and (g) did not bear upon the procedures adopted by the respondent.
In relation to s 387(h), the Deputy President considered a range of matters raised by Mr Bhela that he regarded as relevant, including that: Mr Bhela should have been granted further time to regain his WWCC particularly given Mr Bhela was on pre-approved leave until early April 2023; that Mr Bhela should have been afforded greater flexibility as had been allegedly granted to other employees who were medically unfit or unable to drive a bus; and an allegation made by Mr Bhela that he was targeted for dismissal as he was an active health and safety representative. After taking into account these additional matters, the Deputy President concluded it would have been reasonable in the circumstances for the respondent to have allowed Mr Bhela a period of six months from the loss of certification to regain his WWCC before terminating his employment. Had this occurred, Mr Bhela’s employment would have been ongoing until 6 April 2023.
After weighing up all the circumstances, the Deputy President determined that while there was a valid reason for the dismissal and there were no procedural fairness failures in effecting the dismissal, the dismissal was harsh. This is because it would have been reasonable in the circumstances for the respondent to have allowed Mr Bhela a period of six months from the loss of his WWCC before effecting the dismissal. This resulted in the dismissal being harsh and therefore unfair.
Grounds of appeal and public interest
In his Form F7 Notice of Appeal, Mr Bhela stated the following as to his grounds of appeal:
“From my point of view it was an unfair dismissal by Busways, by diverting the whole case considering other aspects on priority.”[13]
Mr Bhela’s written submissions relevantly provided the following:
1. “Deputy President Cross” completely ignored the FACT that I was injured at work place before the ban on my WWCC. As per my understanding, If injury happens at work place, the law says, Employer must look after his employee till return to normal duites. So Being injured at workplace it was Company’s duty to take care of my injury, by providing me medical facilities and treating me according to doctor’s recommendations until I get fully recovered and returned to normal duties. But, company simply diverted the entire case based on my WWCC, which is as per my understanding, not required for recovery at workplace during injury. They didn’t even wait for my recovery from injury happened at workplace. Company should have followed a systematic order according to which first I got injured at workplace and after that my WWCC was barred by authority. So first company should have dealt with my injury instead of finding the reasons to terminate me from the company just because I was an active Union Delegate and HSR at workplace and kept on raising serious safety issues for the safety of fellow drivers, passengers and other road users. This is totally a case of unfair dismissal.
2. “Deputy President Cross “didn’t even consider another fact that as per the suspension letter of the Respondent, applicant had to submit the WWCC before returning to normal duties. But, the fact is that applicant didn't returned to normal duties at workplace and got terminated by company before the recovery of the injury happened at workplace.
3. Another fact ignored by “Deputy President Cross” that Company’s 10 weeks policy for maintaining WWCC, company never ever had faced any case which is similar to applicant’s case and circumstances.
4. As per Busways, my workers compensation claim has been declined by insurance company. But the fact is that workers Compensation case proceedings are still on with Personal Injury commission and next hearing is on 13th September 2023.
Mr Bhela did not supplement these submissions orally at the permission to appeal hearing.
With respect to the public interest, the Notice of Appeal provides as follows:
“I was a bus driver with excellent driving history, but company just terminated me, instead of keeping my suspension continue till my personal legal matter get sorted out. They knew very well that without working with children check and being injured at work place, I can’t work anywhere else at the moment. Still they terminated me and forced me to go to centrelink for my survival. Which is totally against the public interest. So I believe that it will be in the public interest to grant the permission for appeal by Commission.”[14]
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.[15] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC 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.”
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[16] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[17] A Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin 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.”
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 appealable error.[18] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[19]
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.[20] However, it is necessary to engage with the appeal 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.[21]
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:[22]
“"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 Commissioner acted on a wrong principle, took into account irrelevant matters, mistook facts,[23] or is manifestly wrong.[24] It is not enough that a different member or an appellant body might have reached a different conclusion.
Consideration
We are not satisfied that it would be in the public interest to grant permission to appeal. We set out the basis for this conclusion in the analysis that follows, together with our brief observations regarding the ground of appeal and the submissions made in support.
Firstly, Mr Bhela contends that the Deputy President ignored the fact that he was injured at the workplace before the ban on his WWCC. The Deputy President records in his summary of Mr Bhela’s submissions at [37] of the Decision that Mr Bhela was on workers compensation for a shoulder injury he allegedly sustained at work.[25] However, Mr Bhela’s evidence in the proceedings at first instance was that his workers compensation claim had not been accepted by the insurer and that he was still in dispute about that matter at the time of the first instance hearing.[26] This is consistent with Mr Bhela’s submissions before this Full Bench, in which Mr Bhela confirms in the fourth paragraph that his workers compensation claim has been declined and he continues to dispute the claim.
Having regard to the above, it does not appear that Mr Bhela’s contention that the Deputy President ignored his workplace injury can be sustained. While the Deputy President’s summary states that Mr Bhela was on workers compensation following the injury, it is apparent that the Deputy President had a full appreciation of Mr Bhela’s evidence as to the status of his workers compensation claim, as [9] of the Decision demonstrates. It is not alleged by Mr Bhela that there is any relevant connection between the erroneous reference to his workers compensation status in [37] of the Decision and the Deputy President’s reasoning. To the extent that [37] of the Decision contains an error, it is not significant as required by s 400(2) of the Act and nor does it represent the Deputy President’s evidentiary considerations or his factual findings.
In circumstances where Mr Bhela’s workers compensation claim had been rejected, the obligations that Mr Bhela contends were owed to him by the respondent “to take care of” his injury did not arise for consideration in the Decision. In any event, Mr Bhela’s dismissal was related to his loss of a valid WWCC. It was not connected to Mr Bhela’s alleged workplace injury or Mr Bhela’s inability to perform work for that reason. It follows that the matters raised by paragraph one of Mr Bhela’s submissions do not disclose an arguable contention of appealable error.
Secondly, Mr Bhela contends that the Deputy President did not consider the timing of his dismissal, which occurred before he had recovered from his injury. However, as stated in the preceding paragraph, Mr Bhela’s workers compensation claim had been rejected and the alleged injury was not relied upon as a reason for his dismissal. No arguable case of appealable error arises in circumstances where the Deputy President did not expressly deal with a matter that was not directly relevant to the issues to be determined in the Decision.
Thirdly, Mr Bhela submits that the Deputy President ignored the fact that the respondent had never before dealt with a situation similar to Mr Bhela’s when implementing the 10-week policy for regaining a WWCC. It is not apparent that that there was any evidence at first instance as to the unique nature of Mr Bhela’s case. In any event, it is clear that the Deputy President did take into account the particular circumstances faced by Mr Bhela. Having done so, the Deputy President concluded that the respondent should have afforded Mr Bhela with a period of 6-months before effecting the dismissal and determined that the dismissal was harsh and therefore unfair. No arguable case of appealable error arises from paragraph three of Mr Bhela’s submissions.
Having considered the contentions set out in Mr Bhela’s outline of submissions, there is no basis to conclude that these issues demonstrate an arguable case of appealable error. Further the contention raised by Mr Bhela’s single ground of appeal that the Deputy President diverted “the whole case considering other aspects on priority” is broad and unspecified and does not direct our attention to any specific matter. Nor do we consider there in an arguable basis to conclude that any relevant evidence or submission has not been “prioritised,” has been overlooked or is unsupported in the Decision.
Finally, while Mr Bhela did not expressly challenge the Deputy President’s conclusions as to remedy, we note that Mr Bhela could not undertake his role as a bus driver without a WWCC and had not regained his WWCC at the time of the hearing before the Deputy President. This informed the Deputy President’s finding that reinstatement was inappropriate and there has been no challenge to that conclusion by Mr Bhela. The Deputy President’s determination that compensation was inappropriate in all the circumstances of the case clearly turned on his findings that the circumstances would not have been different had the respondent deferred the dismissal for a 6-month period. It was not in contest at first instance that Mr Bhela had not regained his WWCC. Nor would Mr Bhela have earned any remuneration in the relevant period. We do not discern any arguable case of appealable error in the factual foundation upon which the Deputy President reached this conclusion and nor has Mr Bhela contended otherwise.
Conclusion and disposition
We are not persuaded that it would be in the public interest to grant permission to appeal.
We do not consider that a reasonably arguable case has been advanced that the Decision was attended by appealable error. Nor are we satisfied, for the purposes of s 400 of the Act, that:
(a)there is a diversity of decisions at first instance so that guidance from an appellate body is required;
(b)the appeal raises issues of importance and/or general application;
(c)the decision manifests an injustice, or the result is counter intuitive; or
(d)the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
R. Bhela, on his own behalf.
B. Field, on behalf of the respondent
Hearing details:
2023.
Melbourne (by video using Microsoft Teams)
6 September
[1] [2023] FWC 1500
[2] Ibid at [1]
[3] Ibid at [8]
[4] Ibid at [9]
[5] Ibid at [12]
[6] Ibid at [23]
[7] Ibid
[8] Ibid at [28]
[9] Ibid
[10] Ibid at [30]
[11] Ibid at [31]
[13] Form F7 – Notice of appeal at question 2.1
[14] Ibid at 3.1
[15] This is so because on appeal, the Commission has the 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
[16] (2011) 192 FCR 78 at [43]
[17] O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 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] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]-[46]
[18] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[19] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089; 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28]
[20] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[21] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]- [29]
[22] [2000] HCA 47; 203 CLR 194 at [19]
[23] And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a “significant error of fact”: s 400(2) of the Act
[24] House v The King (1936) 55 CLR 499 at 505
[25] [2023] FWC 1500 at [37]
[26] PN210
Printed by authority of the Commonwealth Government Printer
<PR766024>
0
11
0