Mr Robert Elliott v Transdev WA Pty Ltd
[2019] FWCFB 2740
•23 APRIL 2019
| 2019] FWCFB 2740 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Robert Elliott
v
Transdev WA Pty Ltd
(C2019/1298)
VICE PRESIDENT HATCHER | SYDNEY, 23 APRIL 2019 |
Appeal against decision of Deputy President Binet ([2019] FWC 812) at Perth on 8 February 2019 in matter U2018/9361
Introduction
[1] Mr Robert Elliott has lodged an appeal, for which permission is required, against a decision issued by Deputy President Binet on 8 February 2019 (Decision), 1 in which she concluded that Mr Elliott’s dismissal by Transdev WA Pty Ltd (Transdev) was not unfair, and dismissed his application for an unfair dismissal remedy.
[2] Mr Elliott was employed by Transdev as a bus driver from 21 May 2012 until his dismissal on 29 August 2018. He was dismissed following a road rage incident that occurred on 16 August 2018 during which he used inappropriate hand gestures and obscene language while driving a Transdev bus with passengers on board. Mr Elliott had previously received several warnings about his performance and conduct. At the time of the road rage incident Mr Elliott was on a final written warning that had been issued to him on 10 April 2018 for having driven through a red light and collided with another vehicle.
[3] The Deputy President concluded that Transdev had a valid reason for dismissing Mr Elliott connected to the road rage incident and his prior conduct and performance, and that he was notified of that reason and provided with an opportunity to respond to it. She concluded that in all the circumstances, his dismissal was not harsh, unjust or unreasonable, and therefore not unfair.
[4] An appeal under s 604 of the Fair Work Act 2009 (FW 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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[5] This is an appeal to which s 400 of the FW Act applies. Section 400(1) states that the Commission“must not” grant permission to appeal unless it considers that it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a significant error of fact. In Coal & Allied Mining Services Pty Ltd v Lawler and others the Federal Court characterised the test under s 400 as “stringent”. 3
[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 Considerations that may attract the public interest include where the matter raises issues of importance and general application, where there is a diversity of decisions at first instance, where the decision manifests an injustice or the result is counterintuitive, or where the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.5
[7] 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. However, the fact that a member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 6
[8] 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. 7 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration of appeal grounds
[9] Mr Elliott’s application for permission to appeal was heard before us on 1 April 2019.He advanced four grounds of appeal.
[10] First, he submitted that the Deputy President erred in finding that there was a valid reason for his dismissal. He contended that the Deputy President’s finding was not compatible with the evidence of the company’s decision-maker, Mr Lynn, who said that the reasons identified in the termination letter did not amount to misconduct warranting dismissal. However the transcript of proceedings before the Deputy President does not record any such evidence. Rather, consistent with the termination letter, Mr Lynn said that the dismissal occurred because of an accumulation of factors. 8
[11] Mr Elliott also contended that his dismissal was not for a valid reason because the company relied in part on the incident that gave rise to the final warning, when there was no sound basis for it to do so. It was also submitted that, during the hearing before the Deputy President, Mr Lynn confirmed that the “red light incident” was a significant factor in the decision to dismiss him, and that Mr Elliott had not realised this at the time the road rage incident was being investigated. This cannot be accepted since the final warning letter given to Mr Elliott had stated that any further incidents of unsatisfactory work performance could lead to his dismissal. We do not see any substance in the contention that Transdev’s reliance on the final written warning was unsound.
[12] The second and third grounds of appeal contended that the Deputy President erred in finding that Mr Elliott was notified of the reason for dismissal, in so far as the “red light incident” formed part of that reason, and erred in concluding that he was afforded an opportunity to respond. Further, he said that a “show cause” letter dated 27 August 2019 did not refer to the red light incident as a reason for his possible termination. These propositions have little merit given that the show cause letter clearly refers to the final written warning of 10 April 2018, which related to the red light incident. The termination letter also refers both to this incident and the final written warning.
[13] Mr Elliott says that, although the “show cause” letter stated that the final written warning was attached to it, this was in fact not the case, and that the Deputy President was wrong to conclude otherwise at paragraph 64 of the Decision. We consider this to be a matter of little significance given that Mr Elliott does not dispute that he received the final written warning in April 2018 nor does he advance any explanation as to why any failure by the company to attach a copy of it to the show cause letter would have made any difference.
[14] We note that the “red light incident” was investigated prior to the issuing of the final written warning. It is not clear to us that Mr Elliott had anything more to say about the red light incident, even if he had been given another opportunity to address this matter. It was not suggested that he had not engaged in the conduct for which the final warning letter was issued. This is not a case where the employer dismissed an employee in reliance on a previous warning for alleged misconduct that had not been substantiated. We do not consider the second or third grounds of appeal disclose an arguable case of error.
[15] Mr Elliott’s fourth ground of appeal submits that the Deputy President erred in concluding that he may pose a health and safety risk if his employment with Transdev were to continue. This ground seeks to impugn paragraph [88] of the Decision, where the Deputy President noted Mr Elliott’s medical problems in recent years and stated that, given his past “incapacity to self-assess his fitness for work there is a danger that Mr Elliott may pose a risk to the health and safety of himself and/or others.” Mr Elliott says that there was no evidence before the Commission to support such a finding, and that this was not part of Transdev’s case, nor was it put to him. He claims that he was denied natural justice.
[16] In his written response to the “show cause” letter, Mr Elliott revealed to the company that he was suffering serious health problems, and stated that these contributed to his conduct during the road rage incident. He also stated that he had forgotten his tablets that day and had begun to experience discomfort while driving. While we would not necessarily extrapolate from this incident a general “incapacity” of Mr Elliott to assess his own fitness for work, it appears to us that there is a foundation in the evidence for the Deputy President’s statement of concern that he “may” pose a health and safety risk to himself and others. In this connection, running a red light and engaging in road rage while driving a bus are self-evidently not without safety implications.
[17] We do not consider Mr Elliott’s contention to raise an error of fact that could be described as significant for the purpose of s 400(2). The above passage in paragraph [88] of the Decision is not foundational to the Deputy President’s reasoning or conclusions and arises in response to matters raised by Mr Elliott as mitigating factors. We do not apprehend an arguable case that he was denied natural justice and in any event it does not appear to us that the Deputy President’s statement about Mr Elliott posing a possible safety risk affected the result.
Conclusion
[18] We do not consider that Mr Elliott has raised an arguable contention of appealable error. Insofar as he contends that the Deputy President made errors of fact, none of the alleged errors relate to any issue of significance in this matter, as required by s 400(2).
[19] The Deputy President dealt with Mr Elliott’s unfair dismissal application in an orthodox way and in accordance with the requirements of s 387 of the FW Act. Her conclusions on the matters she was required by s 387 to consider were in our view reasonably open and unsurprising, as was her conclusion concerning the fairness of the dismissal. Further, this matter turned on its own facts and does not raise any issue of novelty, importance or general application, or manifest an injustice.
[20] We do not consider that it is in the public interest to grant permission to appeal. Section 400(1) of the FW Act requires that in such circumstances the Commission not grant permission to appeal.
[21] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
P. Mullally on behalf of Mr Robert Elliott
M. Bower on behalf of Transdev WA Pty Limited
Hearing details:
2019.
Melbourne (with video link to Perth):
1 April.
Printed by authority of the Commonwealth Government Printer
<PR707271>
1 [2019] FWC 812
2 Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177at [43]
4 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44] -[46]
5 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27]
6 Ibid at [26]-[27]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
8 Transcript of proceedings, 3 December 2018, PN306
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